TaxTMI 
TaxTMI 
2019 (4) TMI 1951
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....41 of 2015, petitioner assailed letter bearing No. 20/16/2009-EO(SM)II, dated 4th March, 2010 (Annexure - F) of the Secretariat of the Appointments Committee of the Cabinet ("ACC" for the sake of convenience); appointment letter bearing No. 3/17/2007-T&R, dated 22nd March, 2010 of the Director of Ministry of Power, New Delhi (Annexure - A) and Advertisement dated 18th February, 2015 [Web-hosted in CPRI website on 21st February 2015], bearing No. 3/33/2014-T & R of Central Power Research Institute, Bengaluru ("CPRI" for the sake of convenience) (Annexure - P) by seeking a declaration that he is entitled to continue in the post of Director General, CPRI till the date of his superannuation i.e., 31st May, 2019. Petitioner also assailed order bearing No. 3/17/2007-T & R, dated 20th March, 2015, issued by respondent No. 1 (Annexure-AA) by which he was relieved from service. In Writ Petition No. 50774 of 2016, petitioner called in question appointment order dated 09th August, 2016 of the ACC (Annexure 'CI') which was issued to respondent No. 5, as Director General of CPRI. 4. The facts in a nutshell are that CPRI had been established by Government of India with the support ....
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....said post on the same day. 7. According to the appellant, on 30th December, 2014, a representation (Annexure 'G') was submitted by him to rectify the mistake in the appointment order seeking deletion of the word "tenure" and to permit him to retire on attaining the age of superannuation as per the norms of direct recruitment. Appellant made another representation as per Annexure - H dated 11th January, 2015. Another reminder was sent by the appellant on 13th February, 2015 (Annexure 'S') to the Ministry of Power; Establishment Officer; Cabinet Secretary; Principal Secretary to Hon'ble Prime Minister seeking the discrepancy to be rectified in the appointment letter dated 22nd March, 2010. According to the appellant, there was no response to the aforesaid representations, but on 18th February, 2015, an advertisement was issued inviting applications for the post of Direct General, CPRI. According to the appellant neither in the advertisement dated 18th May, 2009 on the basis of which he was appointed nor in the advertisement dated 18th February, 2015 was the expression "tenure" found. But, it was added in the appointment letter issued to the appellant herein. ....
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.... by direct recruitment was a tenure post or was for a period of five years only. Such being the position, on selection of the appellant to the said post as per the Minutes of the Meeting of Search-Cum-Selection Committee (SCSC) held on 29th July 2009 (Annexure 'D'), a communication dated 12th November 2009 (Annexure 'E') was addressed by the Joint Secretary, Ministry of Power, Government of India, to the Establishment Officer and Additional Secretary, DoP & T, New Delhi, to the effect that the approval of the Appointments Committee of the Cabinet (ACC) may be obtained for the appointment of the appellant as Director General, CPRI, "on direct recruitment basis from the date he assumes charge up to 31st May 2019, the date of his retirement on superannuation, or until further orders, whichever event occurs earlier." But, when the Under Secretary of the Secretariat of the ACC, Ministry of Personnel, Public Grievances & Pensions, DoP & T sent a communication on 04th March 2010 (Annexure 'F') to the Secretary, Ministry of Power, it was to the effect that the appellant herein had been appointed as Director General, CPRI, "for an initial tenure of five years or unti....
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....e granted to him by declaring that his appointment is until he retires from service i.e., on 31st May 2019 on attaining the age of superannuation. 12. In this regard, appellant placed reliance on various judgments of the Hon'ble Supreme Court and also several documents which he has appended to the memorandum of writ petition and he submitted that gross injustice has been meted out to him as his fundamental rights under Articles 14, 16 & 21 of the Constitution have been violated. Appellant also took us through the order of the learned Single Judge and contended that the writ petition could not have been dismissed on the ground of delay and laches and consequently, the second writ petition also being dismissed as not surviving for consideration. 13. Per contra, Sri C. Shashikantha, learned Assistant Solicitor General (ASG) appearing for Union of India and other authorities supported the order of the learned Single Judge and contended that the appellant was appointed as per letter dated 22nd March 2010. That the letter of appointment clearly indicated that he was appointed on direct recruitment basis from the date on which he assumed charge of the post for an initial tenure ....
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....d that any amount of monetary relief to the appellant would not be a substitution for reinstatement. He submitted that his fundamental rights have been violated and his reputation has suffered a severe dent and therefore, reinstatement is the only way in which justice could be meted to him. 18. Having heard the appellant-in-person, learned ASG and learned counsel for respondent No. 5, the following points would arise for our consideration: I. Whether the appellant could have been appointed for an initial tenure of five years or until further orders, having regard to the fact that his appointment was on the basis of direct recruitment till he attained the age of superannuation? II. Whether the judgment of the learned Single Judge calls for any interference? III. What order? 19. The detailed narration of facts and contentions would not call for reiteration except highlighting the fact that pursuant to the advertisement issued for the appointment of a Director General, CPRI, by the Ministry of Power, appellant applied for the said post. The same could be filled either by direct recruitment or on deputation basis. As per the Minutes of the Meeting of th....
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....s Court. 21. As already noted, CPRI was initially established by the Government of India and thereafter in the year 1960, it was re-organised as an autonomous Institution in the year 1977 and registered under Karnataka Societies Registration Act, 1960, it is governed by Memorandum of Association, Rules and Regulations, Bye-laws, Working Rule No. 1 and Rule No. 2. 22. As per the Memorandum of Association, Rules and Regulations (Annexure 'R7' to the statement of objections filed by Union of India in Writ Petition No. 9941 of 2015), Hon'ble Union Minister for Energy, Government of India is the President of the Society. That as per Clause 45, appointments to the post of Joint Director or equivalent and above is made by the President of CPRI, but appointment to the post of Director General and the next lower level of CPRI has to be made with the approval of the Government of India. There are Bye-laws of the CPRI which are not relevant for the purpose of this case. 23. As per the Central Power Research Institute (Pay, Recruitment and Promotion) Rules, 1989 (Working Rule No. 1) [hereinafter referred to as 'Working Rule No. 1'], the post of Director General is ....
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.... the Central/State Govts./Electricity Boards/Universities/Public Sector Undertakings/Statutory/Semi-Govt. or Autonomous Organisations: (a)(i) holding analogous posts on regular basis or (ii) with three years minimum service in the Pay Band of Rs. 37,400-67,000/- plus Grade Pay of Rs. 10,000 or equivalent; and (b) Possessing the educational qualifications and experience prescribed for direct recruitment as above. The period of deputation shall be 3 years extended upto 5 years with the approval of a 3 Member Committee consisting of the President, (CPRI), Vice President, (CPRI) and one Member of the Governing Council of CPRI to be nominated by President, CPRI Governing Council. (Period of deputation in another ex-cadre post held immediately preceding this appointment in the same or some other organisation/Deptt., of the Central Govt. shall not ordinarily exceed 3 years)" In the advertisement, the terms and conditions of selection of a candidate for appointment by Direct Recruitment as Director General are as under: "Powers of the Director General: XXX The terms and conditions of the candidate selected for appointment (d....
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.... till the post is filled up on regular basis or until further orders, whichever is the earliest. 2. The post of Director General, CPRI carries the pay scale in the Pay band of Rs. 67,000-(annual increment @ 3%) - 79,000. The post of DG, CPRI fell vacant on 25.4.2008 due to retirement of Shri A.K. Tripathy, DG, CPRI, on attaining the age of superannuation. 3. As per the directions of ACC vide DOPT's letter No. 20/5/2008-EO(SM.II) dated 10.07.2008 directing, inter-alia, to amend the Recruitment Rules (RRs) for the post of DG, CPRI, notify the rules and to undertake action for regular recruitment to the post expeditiously on the basis of rules so amended. Accordingly, recruitment rules for the post of DG, CPRI have been amended with the concurrence of the DOPT (RR Division) vide DOPT's OM No. AB/14017/65/2008-Estt. (RR) dated 17.03.2009 and with the approval of Governing Council of CPRI. CPRI has also notified the RRs on 03.04.2009. Copy of the amended RRs for the post of DG, CPRI was also sent to DOPT for information of ACC vide this Ministry's OM No. 3/12/2008-T&R dated 13.04.2009 (copy enclosed). 4. As per the existing recruitment rules for th....
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..... Murugesan, Chief Manager, TCE Consulting Engg. Ltd., Bangalore (from 2002-03 to 2006-07 when working in CPRI) and Dr. R.S. Shivakumara Aradhya, Additional Director, CPRI (from 2004-05 to 2008-09) and the requisite prescribed proforma, duly filled in, requiring approval of ACC is also enclosed. In accordance with DOP & T OM. No. 27/2/2009-EO (SM. II) dated 16.07.2009, the consent of both the above officers to join as DG, CPRI, in case they are selected, has also been obtained. Copy of the same are enclosed. 10. The Hon'ble Minister of Power has approved the name of Shri N. Murugesan, Chief Manager, TCE Consulting Engg. Ltd., Bangalore who is at Sl. No. (i) in the panel of two candidates recommended by the Committee for appointment of DG, CPRI. 11. A copy of the vigilance clearance received from CVC is enclosed. A copy of the clearance of intelligence Bureau in respect of Shri N. Murugesan, Chief Manager, TCE Consulting Engg. Ltd., Bangalore is also enclosed. 12. I shall be grateful if you would kindly convey the approval of ACC to the appointment of Shri N. Murugesan, Chief Manager, TCE Consulting Engg. Ltd., Bangalore as Director General, Central Po....
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.... Director General, Central Power Research Institute (CPRI), Bangalore - reg. Sir, I am directed to say that the Competent Authority has approved your appointment as Director General (DG), Central Power Research Institute (CPRI), Bangalore on direct recruitment basis from the date of your assuming the charge of the post for an initial tenure of five years or until further orders. You would be eligible for reappointment for a further term upto May 31, 2019 i.e., the date of your superannuation. 2. In view of the above, you are requested to join the new assignment as Director General, Central Power Research Institute, Bangalore immediately. 3. The orders regarding the terms and conditions regulating the above appointment will be issued separately. Yours faithfully, Sd/- (Bina Prasad) Director Tel: 23752496 Copy forwarded to: 1. Director General (I/c), Central Power Research Institute, Bangalore [Shri V. Ramakrishna, Member (Power System), Central Electricity Authority, R.K. Puram, New Delhi] with the request that the charge assumption report in respect of Shri N. Murugesan as DG, CPRI ma....
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....r to the Additional Secretary, DoP & T (Annexure 'E') and the ACC which was "on direct recruitment basis from the date he assumes charge up to 31st May 2019, the date of his retirement on superannuation, or until further orders, whichever event occurs earlier". In other words, when the appointment was to be on direct recruitment basis until the date of retirement on attaining the age of superannuation or until further orders, could it have been converted as an appointment for an initial tenure of five years or until further orders? 29. Bearing in mind the aforesaid points, we have perused the original File submitted by the learned ASG appearing for the Union of India for our perusal. (a) On perusal of the same, we find that the proposal of the Ministry of Power for appointment of the appellant as Director General, CPRI on direct recruitment basis before the Hon'ble Minister of the State (PP), prior to the same being submitted to the ACC. On approval by the then Hon'ble Minister of the State (PP), DoP & T, Office of the Establishment Officer through its Secretary, ACC put up the proposal of the Hon'ble Minister for Power before the ACC regarding the a....
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....annuation) or until further orders, whichever is earlier. (underlining by us) On further perusal, it is noted that the then Hon'ble Prime Minster approved the appointment of the Director General, CPRI, "for an initial tenure of five years or until further orders" and he "would be eligible for reappointment for a further term upto 31st May, 2019 i.e., date of his superannuation." (b) The Under Secretary submitted a note, on perusal of which, it becomes clear that an opinion was sought from the Establishment Division on the appropriateness of the appointment of appellant made on "tenure basis" when neither rules and regulations nor vacancy advertisement issued for the post had any provision for appointment on tenure basis. It is also noted that CPRI being an autonomous organisation under the Ministry of Power, the guidelines, instructions on personnel matters which are applicable to Central Government Civil Employees and Posts are not suo moto applicable to autonomous bodies, PSUs, Trusts or Banks. It is further noted that as regards the direct recruits, there is no provision which stipulates any tenure for appointment made on Direct Recruitment basis a....
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....st of Director General, CPRI. He assumed office on 28th March 2015. 30. On 23rd April 2015, this Court passed an interim order directing that the appointment to the post of Director General, CPRI, would be subject to the decision in the writ petition. 31. Two aspects of the matter emerge from the aforesaid discussion. The first aspect concerns the tenor of appointment order issued to the appellant vis-à-vis the term of appointment. The second aspect is the nature of relief that could be granted to the appellant, in case he succeeds in the matter. 32. With regard to the first aspect of the matter, it is not in dispute that the appointment of the appellant was by direct recruitment. Working Rule No. 1 speaks of appointment by Direct Recruitment; the advertisement issued calling for applications to fill up the post of the Director General, CPRI, was also by Direct Recruitment. On selection of the appellant, Additional Secretary, Ministry of Power, issued a communication to the Joint Secretary, DoP & T, to issue the appointment letter to the appellant on Direct Recruitment basis from the date he assumes charge up to 31st May 2019, the date of his retirement on superannu....
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....or General, CPRI. Such a departure contrary to Working Rule No. 1 and advertisement cannot be countenanced. In other words, as stated in communication at Annexure 'E' by the SCSC, the appointment of the appellant on direct recruitment basis had to be from the date he assumed charge up to 31st May 2019, the date of his retirement on superannuation or until further orders whichever event occurred earlier. In fact, on perusal of Annexure 'X' communication dated 23rd February 2015 issued by the Director of the ACC to the Joint Secretary, Ministry of Power, it is noted that the recruitment rules for the post of Director General, CPRI, prevailing at the time of appointment of the appellant did not have any provision for appointment on tenure basis. 34. The idea behind what has been stated in Column No. 21 in paragraph 21 of the Cabinet Note appears to be from Annexure 'DD', which is an Office Memorandum wherein it states that appointments specified in the Annexure to the First Schedule to the Government of India (Transactions of Business) Rules, 1961, made after obtaining the approval of the ACC are normally for a specified period or in the alternative until....
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....t calling for applications. Therefore, paragraph No. 21 in the note put up before the ACC is illegal as it makes a clear departure in the nature of appointment of the appellant. In the instant case, the appointing authority is the ACC. The recommendation of the SCSC was forwarded to the ACC. No reason whatsoever was recorded for differing from the recommendation of the SCSC which was also approved by the Ministry of Power. Giving a colour of a tenure appointment to the post of Director General, CPRI on the basis of paragraph No. 21 and appointing the appellant in such a manner is illegal as it is contrary to Working Rule No. 1. Such, a recommendation could not have been made to the ACC in the Cabinet Note by the concerned Officers. Thus, the recommendation to the ACC did not follow the Recruitment Rules as well as the terms and conditions stipulated for direct recruitment of Director General, CPRI as given in the advertisement at Annexure 'B'. The ACC, in fact, totally modified the terms and conditions of appointment of the appellant which was detrimental to the appellant as it was contrary to the Rules and Regulations and advertisement. Hence, the appointment order convert....
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.... of Director General, CPRI pursuant to which the appellant had applied, it is declared that the relieving order dated 20th March 2015 is also not in accordance with law. In the circumstances, it is also declared that the issuance of the advertisement calling for applications from eligible candidates to fill up the post of Director General, CPRI dated 18th February 2015 is also illegal. In the circumstances, the appointment of respondent No. 5 as Director General, CPRI by order dated 09th August 2016 Annexure 'CI' is also illegal. 38. In this context, reference could be made to the following decisions of the Hon'ble Supreme Court: (a) In A.K. Doshi (Dr.) Vs. Union of India, (2001) 4 SCC 43, it was observed that after a Selection Committee completes the exercise and recommends one or more names for appointment, the recommendation along with the materials considered by the Selection Committee should be placed before the Appointments Committee without any further addition or alteration. If in any exceptional case, the Appointments Committee feels that certain material which was not available to be considered by the Selection Committee has come into existence in ....
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....tained in Articles 14 and 16 of the Constitution. In the said case, the Hon'ble Supreme Court on perusal of the advertisement found that there was no power of relaxation and found fault with the High Court in directing that condition with regard to submission of identity card either along with application form or before appearing for preliminary examination could be relaxed in the case of respondent No. 1 therein, which was impermissible in view of the mandate of Articles 14 and 16 of the Constitution of India. (e) In Hemani Malhotra v. High Court of Delhi, [(2008) 7 SCC 11], the question for consideration was whether introduction of requirement of minimum marks for interview, after the entire selection process was completed, would amount to changing the rules of the game after the game was played. The Hon'ble Supreme Court noted that no doubt, rules prescribing minimum marks for both written examination and viva-voce, could be made but if minimum marks were not prescribed for viva-voce before commencement of selection process, the authority concerned, could not either during or after the selection process add an additional required qualification that the ....
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....who were eligible on the date of application may find themselves eliminated at the final stage for no fault of theirs. The date to attain the minimum or maximum age must, therefore, be specific and determinate as on a particular date for candidates to apply and for recruiting agency to scrutinise applications. According to the Hon'ble Apex Court, it would be, therefore, unreasonable to construe the word 'selection' only as the factum of preparation of the select list, but encompasses many stages commencing from inviting applications by an advertisement or in any other mode. 39. The aforesaid judgments have laid down the law in the context of recruitment to posts which are squarely applicable in the instant case, whereby direct recruitment was being made for the post of Director General, CPRI. 40. The fact that in the instant case, Working Rule No. 1 did not contemplate a tenure appointment and that the post of Director General, CPRI was not a tenure post, though by way of a direct recruitment could be better appreciated by contrasting the case of the appellant with the following cases: (a) In Dr. L.P. Agarwal Vs. Union of India, MANU/SC/0359/1992 : (1992)....
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....and referred to the reasoning in the case of Dr. L.P. Agarwal. (c) In J.S. Yadav Vs. State of Uttar Pradesh and Another, MANU/SC/0435/2011 : (2011) 6 SCC 570, considering the case of the appellant therein under the provisions of Protection of Human Rights Act, 1993, it was held that an employee appointed for a fixed period under a statute is entitled to continue till expiry of tenure and in such cases there can be no occasion to pass order of superannuation since tenure comes to an end automatically by efflux of time. 41. Therefore, having regard to the aforesaid dicta, the appointment of the appellant as Director General, CPRI, on a tenure basis is illegal, arbitrary and in violation of Articles 14 & 16 of the Constitution of India. Further, as opined by the Hon'ble Supreme Court in the case of appointment to a post on tenure basis, the notion of retirement on attaining the age of superannuation does not apply. 42. The second aspect of the matter is, whether, relief could at all be given to the appellant as according to the learned Single Judge, the writ petition filed by the appellant challenging his appointment for an initial tenure of five years only is hit b....
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....if their rights had emerged by the delay on the part of the petitioners. (3) The satisfactory way of explaining delay in making an application under Article 226 is for the petitioner to show that he had been seeking relief elsewhere in a manner provided by law. If he runs after a remedy not provided in the Statute or the statutory rules, it is not desirable for the High Court to condone the delay. It is immaterial what the petitioner chooses to believe in regard to the remedy. (4) No hard and fast rule, can be laid down in this regard. Every case shall have to be decided on its own facts. (5) That representations would not be adequate explanation to take care of the delay." b) Similarly, in the case of The Municipal Council, Ahmednagar & Anr. Vs. Shah Hyder Beig & others, [ (2002) 2 SCC 48], it has been opined thus:- "The real test for sound exercise of discretion by the High Court in this regard is not the physical running of time as such but the test is whether by reason of delay, there is such negligence on the part of the petitioner so as to infer that he has given up his claim or where the petitioner has moved the Writ Court, the rights of the third parties h....
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....ed the writ petitions before this Court by being aggrieved by the issuance of the advertisement calling for recruitment to the post of Director General, CPRI, on 18th February 2015, which was the catalyst for filing the first writ petition. In fact, when the appellant filed his first writ petition, he was very much in service. He was relieved from service during the pendency of the first writ petition. This is not a case where after his termination, he instituted the writ petitions by way of an after-thought or after a long slumber, neither is the matter speculative in nature. Further, there was no delay in filing the second writ petition. Both the writ petitions were connected and heard together as the issues raised in them were intertwined. This aspect has been lost sight of by the learned Single Judge. As there was no delay or laches in filing the second writ petition, in order to consider the same, the issues arising in the first writ petition had to be also considered. But, both the writ petitions were not considered on merits and instead, learned Single Judge dismissed the first writ petition filed by the appellant herein on the ground of delay and laches and the second writ ....
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.... citizen are at stake. The point is as to whether, a person who is appointed to a particular office contrary to Articles 14 and 16 of the Constitution must be shown the door by Courts of Justice when he pleads arbitrariness and violation of his fundamental rights. In our view, the case of the appellant could not have been dismissed by the learned Single Judge by applying the aforesaid principles. Accordingly, point No. 2 is answered. 52. In the circumstances, it is held that the appointment of the appellant on a tenure basis for an initial period of five years is declared as illegal, arbitrary and in violation of Articles 14 and 16 of the Constitution. That the appellant having been appointed by direct recruitment was required to be appointed from the date he assumed charge of the post up to 31st May 2019, the date of retirement on superannuation or until further orders, whichever was earlier. The termination of the appellant on completion of five years was also illegal although the same may have been in accordance with the appointment order issued to him. But, since the appointment on a tenure of five years is declared to be illegal, the termination is also bad in law. 53. B....
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....dgment opined that "there would be really no point in re-inducting an employee if he has but a month or two to go before retiring. Re-induction of such a person is not likely to be of any use to the administration and may indeed be detrimental to the public interest. So other ways of compensating must be found i.e., to compensate monetarily. In industrial law, back and future wages are awarded". That a similar principle could be adopted in the case of Government employees also, as the Government, public corporations and local authorities must be accepted to act as model employers. (c) Recently in Punjab and Sind Bank and Another Vs. Daljinder Singh, (2015) 16 SCC 293, the Hon'ble Supreme Court, while affirming a wrongful dismissal of an employee of the Bank from service, further opined in the facts and circumstances of the case, it was not a fit case for directing reinstatement. Rather awarding a lump-sum compensation of an amount by the appellant Bank therein for his wrongful dismissal was thought of as to meet the ends of justice. In the said case, having regard to the cadre in which the employee belonged to, a sum of Rupees Five Lakhs was awarded to be paid within t....
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.... Classification 1 2 3 Director 1 1 General Whether benefit of Whether Scale of Pay Selection added years of service Age limit Post or admissible for direct Non- under Rule 30 recruits selection of the CCS post (Pension Rules) 1972 4 Rs.37,400- 5 6 7 Not Not Not 67,000 plus Grade pay of Applicable Applicable exceeding 55 years Rs.12,000 Document 2 Educational and other qualifications required for direct recruits 8 Essential: Whether age & educational Qualifications prescribed for direct recruits will apply in the case of promotees Period of Probation, if any 9 10 Not Desirable Nil However, in Masters Degree in Science (Physics/Chemistry/Material Science) or Bachelors Degree from a recognized University / Institute or equivalent with at least 15 years of experience in any of the following fields: Design and/or Construction and/or Operation and Maintenance of generating stations. Design and/or Construction and/or Operation and Maintenance of transmission and/or supply of el....