Central Administrative Tribunal - Delhi
Sh. M. Rajamannar vs Union Of India Through on 20 August, 2014
Central Administrative Tribunal
Principal Bench, New Delhi.
OA-1168/2013
MA-1009/2014
MA-2884/2013
MA-2885/2013
MA-3034/2013
Reserved on : 24.07.2014.
Pronounced on :20.08.2014.
Honble Mr. G. George Parakcen, Member (J)
Honble Mr. Shekhar Agarwal, Member (A)
Sh. M. Rajamannar,
Director,
Song & Drama Division,
Ministry of Information & Broadcasting,
Soochna Bhawan,
Lodhi Road Complex,
New Delhi-110 003. . Applicant
(through Sh. Ajesh Luthra, Advocate)
Versus
1. Union of India through
The Secretary,
Ministry of Information & Broadcasting,
A Wing, Shastri Bhawan,
New Delhi-110 001.
2. Additional Director General
(Research, Reference & Training Division)
Ministry of Information & Broadcasting,
4th Floor, Soochna Bhawan,
CGO Complex, Lodhi Road,
New Delhi-110 003.
3. Sh. Anurag Srivastava,
Joint Secretary (P&A),
Ministry of Information & Broadcasting,
A Wing, Shastri Bhawan,
New Delhi-110 001.
4. Smt. Rolley Mahendra Verma,
Director (FS),
Ministry of Information & Broadcasting,
A Wing, Shastri Bhawan,
New Delhi-110 001.
5. Sh. L.R. Vishwanath,
Additional Director General
(Research, Reference & Training Division)
Ministry of Information & Broadcasting,
4th Floor, Soochna Bhawan,
CGO Complex, Lodhi Road,
New Delhi-110 003.
6. Smt. Gopa Biswas,
Assistant Director,
Song & Drama Division,
Jammu
Presently staying at
Flat No. 243, Sanskriti Apartment,
Sector-19, Dwarka,
New Delhi. . Respondents
(through Sh. S.M. Arif and Sh. A.K. Behera, Advocate)
O R D E R
Mr. Shekhar Agarwal, Member (A) The applicant of this O.A. was working as Producer in Indira Gandhi Open University (IGNOU), which is his parent organization. On 25.09.2010, the respondents issued an advertisement in employment news inviting applications for the post of Director Song and Drama Division (S&DD) under the Ministry of Information and Broadcasting. This post was to be filled by deputation. In October, 2010, the applicant applied for the same through his cadre controlling authority. In the advertisement, the deputation period was mentioned as shall not exceed five years. The applicant was called by the UPSC for an interview on 05.01.2012 along with two other candidates. After the interview, the UPSC recommended one Sh. Suresh Sharma for the said post. The Ministry offered him deputation term of two years extendable to three years. However, Sh. Sharma declined the offer of appointment. Following that refusal, the Ministry approached the UPSC to recommend the next name in the reserve panel. Accordingly, UPSC recommended the name of the applicant for the aforesaid post on 20.04.2012. However, the respondents did not issue offer of appointment to the applicant for quite some time. According to the applicant, he was, therefore, forced to approach the National Commission for Schedule Caste. The Commission after hearing the Ministry officials directed the respondents to issue appointment letter as per Recruitment Rules. Pursuant to the directions of National Commission for Schedule Caste the Ministry offered appointment to the applicant on 17.10.2012. In this appointment letter, it was stated that the appointment has been offered subject to the following terms and conditions:-
(a) You will be appointed on Short Term Contract basis to the post of Director, Song and Drama Division in pay scale of Rs.37400-67000 with Grade Pay of Rs.8700/-. Your initial pay will be fixed in this scale in accordance with the rules and orders of Government issued from time to time. You will also be allowed to draw various allowances at the rates admissible from time to time as per orders of the Government on the subject.
(b) Your appointment to the post of Director, Song and Drama Division is on Short Term Contract basis for a period of one year initially which is extendable up to 3 years.
(c) At expiry of the said period of 1 year of Short Term Contract or the extended period upto 3 years, you will be repatriated to your parent cadre viz. Indira Gandhi National Open University (IGNOU).
(d) Your work performance will be reviewed on regular basis if at any time of such review your performance is not found to be satisfactory, you will be repatriated prematurely to the parent cadre after giving an advance notice of at least one month to you and to IGNOU.
(e) Your appointment to the post is subject to recruitment rules which may be in force from time to time.
(f) Your conditions of service will be governed by the rules and orders of Government in force from time to time.
You will for the present be posted at New Delhi. However, you may be required to serve anywhere in India.
(g) If any declaration given or information furnished by you proves to be false at any point of time or if you are found to have willfully suppressed any material information, you will be liable for removal from service and such other action as Government may deem necessary. 1.1 The applicant conveyed his acceptance and joined the Ministry on 31.10.2012. On 25.03.2013 he made a representation to the Ministry in which he had stated that he had submitted a representation on 11.03.2013 through Additional Director to whom he was reportable but the same has been withheld by him (ADG). Hence, he was compelled to send a representation to the Ministry directly. Along with this communication was attached a representation addressed to the Honble Minister of State for Information and Broadcasting in which the applicant, inter alia, requested that he be given deputation term of three years extendable to five years as envisaged in the advertisement. The respondents, however, did not give reply to his representation. On 04.04.2013, he filed this O.A. before us. On 22.10.2013 the respondents passed an order in which it was stated that the applicant will stand relieved from his duties as Director (S&DD) on 30.10.2013 consequent upon expiry of his short term contract period to the post of Director (S&DD). On 24.10.2013 the applicant filed MA-2885/2013 in this O.A. in which he stated that during pendency of the O.A. the respondents have issued order dated 22.10.2013 by which the applicant was sought to be relieved from the post of Director (S&DD) w.e.f. 30.10.2013. The applicant prayed for staying operation of the order dated 22.10.2013 till the disposal of the O.A. This M.A. was considered by us on 29.10.2013 and operation of the order dated 22.10.2013 was stayed by us. Liberty was also given to the applicant to amend the O.A. Accordingly, the applicant filed amended O.A. on 08.11.2013. In the amended O.A., the applicant impleaded additional four respondents (R-3 to R-6) by name.
1.2 The contention of the applicant is that the advertisement issued by the respondents in the employment news on 25.09.2010 for filling up the post of Director (S&DD) stated that this post will be in PB-4 with Grade Pay of Rs.8700 and will be filled on deputation basis. Persons holding analogous post on regular basis or persons with five years regular service in Pay Band-3 with Grade Pay of Rs.7600 were eligible to apply for the same. The applicant was holding the post of Producer in IGNOU and was eligible to apply for the aforesaid post. The applicant was called for interview along with other candidates and one Sh. Suresh Sharma was selected. However, since Sh. Sharma declined to accept the post, the applicant was offered the same on 17.10.2012. The grievance of the applicant is that while the advertisement mentioned the period of deputation as three years and extendable upto five years, the applicant was given only one year term extendable to three years. According to the applicant, the appointment offered to him was contrary to the Recruitment Rules as well as the Advertisement issued since the Recruitment Rules provided for a deputation term not exceeding five years. The same was also advertised by the respondents while inviting the applications. Thus, the respondents were not following the statutory provisions of Government of India. According to the applicant, this was done by the Ministry because they wanted to accommodate the respondent No. 5 Sh. L.R. Vishwanath on this post. The applicant has further stated that when the previous incumbent of the post of Director (S&DD) superannuated on 31.01.2012, the Ministry had given additional charge of this post to Respondent No. 5 Sh. L.R. Vishwanath. This arrangement continued even after joining of the applicant on the said post even through Sh. Vishwanath had been promoted in the Ministry as ADG in the Grade Pay of Rs.10000. In the appointment order of the applicant dated 05.11.2012, it was mentioned that Sh. L.R. Vishwanath would be over all incharge of all administrative and financial matters and applicant was to report to him. However, Ministrys order in favour of Sh. L.R. Vishwanath was quashed by this Tribunal in OA-4003/2012 on 07.05.2013. The applicant has further stated that the respondents, particularly respondents No. 3 to 6, were interested in letting Sh. L.R. Vishwanath handle the charge of S&DD and, therefore, delayed issue of appointment order to the applicant by about seven months. Thereafter, when they were forced to issue the appointment letter of the applicant by the National Commission for Schedule Caste, they passed an order making Sh. L.R. Vishwanath overall incharge of S&DD and gave all administrative and financial powers to him. The mala fide intention of the respondents is evident from the facts narrated above.
1.3 The applicant further stated that when this Tribunal quashed the order giving administrative and financial powers to Sh. L.R. Vishwanath, he became more angry and with the help of other officials of the Ministry continued to damage the image of the applicant with the sole purpose of getting him repatriated. He even motivated one Mrs. Gopa Biswas (R-6) to achieve his aim. Consequently, Mrs. Gopa Biswas filed false sexual harassment complaint the applicant in the police station as well as the Ministry. However, an Internal Complaints Committee constituted under the Chairmanship of Joint Secretary found no merit in this complaint after enquiry.
1.4 The applicant has also stated that the respondents have not followed the DoP&T norms which provide for three months advance notice before relieving a deputationist. In the light of above facts and circumstances, the applicant has prayed as follows:-
(i) to quash/set aside the impugned order dated 22.10.2013 (Annexure A-1A supra).
To direct the Respondents to give proper offer of appointment to the Applicant for a period of three years extendable upto five years with the DoPTs instructions contained in OM dated 09.09.2010 (Annexure A-2 supra) and to modify the period of notice period for pre-mature repatriation as three months in accordance and DoPTs OM dated 17.06.2010 (Annexure A-8 supra).
to grant costs of this OA to the applicant herein, and to pass such other order or orders as may be deemed fit and proper in the interests of justice.
2. In their reply, the official respondents have disputed the averments of the applicant. According to them, the UPSC had first recommended one Sh. Suresh Sharma for the aforesaid post. However, Sh. Suresh Sharma was unable to accept the offer of appointment. Sh. Suresh Sharma was then informed of the cancellation of his offer of appointment with the approval of the competent authority. Thereafter, the name of the applicant was recommended by UPSC vide their letter dated 20.04.2012 and he was offered appointment on 17.10.2012. The applicant accepted the offer of appointment unconditionally and joined the post on 31.10.2012. In the terms and conditions of the appointment offered to the applicant vide letter dated 17.10.2012, it was clearly mentioned that the appointment shall be on short term contract basis initially for a period of one year. The order of appointment issued on 05.11.2012 after joining of the applicant also stated that the appointment of the applicant was for a period of one year or until further orders, whichever is early. Further, they have stated that as per offer of appointment, the performance of the applicant was to be reviewed on regular basis and the applicant was liable to be repatriated pre-maturely in case the same was not found to be satisfactory after giving an advance notice of at least one month.
2.1 The official respondents have denied that there was deliberate delay in issuing appointment letter to the applicant. According to them delay occurred because the testimonials of the applicant were being verified.
2.2 The official respondents have gone on to state that the applicant was offered the post of Director (S&DD) on short term contract. He accepted all the terms and conditions of the appointment unconditionally. He neither objected to any condition before accepting the offer nor sought any change in the offer. Thus, the present O.A. is barred by the provisions of Indian Contract Act, Section-5 of which reads as follows:-
Revocation of Proposals and acceptance- A proposal may be revoked at any time before the communication of its acceptance is complete as against the proposer, but not afterwards.
An acceptance may be revoked at any time before the communication of the acceptance is complete as against the acceptor, but not afterwards. 2.3 The official respondents have further denied that there is any contradiction in the Recruitment Rules, the advertisement issued for inviting applications for his post and the offer of appointment issued to the applicant. According to them, no minimum term was prescribed either in the advertisement or in the Recruitment Rules, both of which provided that the term of deputation shall not exceed five years. Thus, the one year term offered to the applicant was in accordance with the Recruitment Rules/Advertisement.
3. Respondents No.2 and 5 have filed their reply in which they have reiterated the stand taken by the official respondents and have also denied that there was any mala fide intention behind offering only one year term to the applicant.
4. Respondent No. 6 has also filed reply in which she has denied all the malicious averments made by the applicant in the O.A. According to her, the applicant was a Director whereas the respondent No. 6 was only an Assistant Director, three stages below the applicant. She has stated that she had no role to play in the matter of appointment of the applicant as Director (S&DD) nor was he involved in the applicant getting only one year term on deputation. She has further stated that she had filed FIR dated 01.05.2013 against the applicant. The Police had investigated this matter and had found sufficient material to prosecute the applicant. The Police had already filed a charge sheet against him which has been taken cognizance by the Magistrate. Further, she has stated that the FIR and charge sheet against the applicant were very relevant material while considering the grant of extension or any other benefit like modification of the terms of the offer of appointment of the applicant and there is nothing wrong if the official respondents take the same into consideration.
5. We have heard the parties and have perused the material on record. The written arguments given by Sh. Ajesh Luthra, learned counsel for the applicant and Sh. A.K. Behera, learned counsel for Respondent No.6 have also been taken on record. We have also perused File No. 1/2(25)/09-FS (Vol.I) of the Ministry in which the impugned order dated 22.10.2013 was issued. We first consider each of the grounds taken by the applicant in support of his case.
5.1 The first ground taken by him is that the Ministry is not following the statutory provisions in so far as the period of deputation given to him is concerned. According to the applicant, there are several contradictions with regard to the term of deputation. In the O.M. dated 09.09.2010 issued by the Ministry, inviting applications for the post of Director (S&DD), it was stated in para-2 of the aforesaid O.M. that the post will be filled on deputation basis and the period of deputation will normally be three years. It was further stated that the total period of deputation including an ex-cadre post held by the deputationist immediately preceding this appointment shall ordinarily not exceed five years. The advertisement issued in the employment news also stated that the period of deputation shall not exceed five years. However, in the letter dated 17.10.2012 by which offer of appointment was made to the applicant, in the terms and conditions of appointment it was mentioned that the appointment of the applicant on the post of Director (S&DD) shall be on short term contract basis for a period of one year initially, which is extendable to three years. Thereafter, the Ministry issued the order dated 05.11.2012 notifying the appointment of the applicant. In the said order, it was mentioned that the appointment of the applicant was being made for a period of one year or until further orders, whichever is earlier. On the other hand, the Recruitment Rules for the post provide that the period of deputation shall not exceed five years. Thus, the applicant argued that grant of only one year term of deputation to the applicant was neither in accordance with the advertisement issued by the respondents nor was it in accordance with the Recruitment Rules.
5.2 The respondents, on the other hand, argued that there was no contradiction in the stand taken by them as the Recruitment Rules do not prescribe any minimum term of deputation and only provide that deputation shall not exceed five years leaving it to the respondents to decide the exact period of deputation subject to the condition that such period shall not exceed five years. The respondents argued that O.M. dated 09.09.2010 by which applications were invited only stated that normally the term of deputation is three years. Thus, according to the respondents, the term of one year of deputation given to the applicant was neither in contravention of the Recruitment Rules nor was there any difference between what was promised in the O.M. dated 09.09.2010 and the advertisement issued in the employment news. On behalf of private respondent No. 6 Sh. A.K. Behera, learned counsel argued that a deputationist has no right to continue holding the post and he can always be repatriated to his parent department at any time. In this regard, he relied on the judgment of Honble Supreme Court in the case of Kunal Nanda Vs. UOI & Anr., (2000) 5 SCC 362.
5.3 We have considered the submission of the parties. In our opinion, even though the one year term given to the applicant cannot strictly be said to be in contravention of the Recruitment Rules, it appears to be going against the spirit of these Rules. Even the respondents themselves in their O.M. dated 09.09.2010 had stated that the period of deputation shall not normally be three years. No convincing reason had been advanced by the respondents for deviating from the normal practice of giving a three year deputation term to the applicant. The respondents had stated that they did so because the Recruitment Rules of the post were under review. However, it has not been clarified by them as to what changes were envisaged in the method of recruitment so as to warrant curtailment of deputation tenure of the applicant. The new Recruitment Rules notified on 14.11.2012 were also placed before us. When the matter of appointment to the applicant was issued the new Recruitment Rules would have been in the process of being notified. The official respondents would have been aware of their contents also. We failed to see any significant changes made in these Rules warranting curtailment of deputation tenure of the applicant. Further, learned counsel for the applicant argued that even as on date no internal candidate was eligible for promotion to the post of Director (S&DD). Thus, it does not stand to reason as to why the official respondents were resorting to giving a short term of one year to a deputationist and thereafter filling the post again by another deputationist.
5.4 In this regard, we have also considered the instructions of DoP&T regarding tenure of deputation. In Para-8 of Chapter-51 of Manual of Establishment and Administration, Edition 2010, it is mentioned as follows:-
8.1 The period of deputation/foreign service shall be as per the Recruitment Rules of the ex cadre post or 3 years in case no tenure regulations exist for the ex cadre post.
Para 8.2 of the same Manual empowers the Administrative Ministry/borrowing Organizations to grant extension for the 4th year to a deputationist with the approval of the Secretary of the Department.
Para 8.3 of the same Manual provides that in case it becomes absolutely necessary to extend the period of deputation for the fifth year it can be done subject to certain conditions.
Thus, the Executive Instructions of DoP&T envisage normal term of deputation of three years. In the instant case, even if the contention of the official respondents that no minimum deputation term had been prescribed in the Recruitment Rules is accepted, they should have followed the Instructions issued by DoP&T and given a three year term to the applicant. This is because the Executive Instructions issued by the Union can be considered to have been issued in exercise of powers conferred upon it by Article-73 of the Constitution and such Instructions hold the field in the areas not covered by the Rules. The same view was taken by a Co-ordinate Bench of this Tribunal in the case of Garima Singh & Ors. Vs. UOI & Ors. (OA-3278/2010) on 09.05.2011.
5.5 Sh. A.K. Behera, learned counsel for Respondent No. 6 had contended that a deputationist has no right to hold the post and can be repatriated at any time. However, in our opinion, this does not give a handle to the respondents to give a curtailed term of deputation to a deputationist. It simply implies that even if a three year term is given to the deputationist, he can be repatriated to his parent department pre-maturely at any time and cannot insist on continuing on the post as a matter of right. Thus, in our opinion, the action of the respondents in giving only one year deputation to the applicant, even though strictly speaking not against the Recruitment Rules, was unsustainable being violative of DoP&T Instructions on the subject. It was done without application of mind as even otherwise in this case, it would follow from common sense that it was not in public interest to call a rank outsider to hold a post of deputation, not give him sufficient tenure on the post and then repatriate him even before he had settled down and started discharging his duties efficiently.
5.6 The next ground taken by the applicant that short deputation tenure was given to the applicant by the respondents with the mala fide intention of letting respondent No. 5 Sh. L.R. Vishwanath to hold the charge of the post after repatriation of the applicant. The applicant has alleged mala fide on the part of private respondents No. 3 to 6. In this regard, he stated that the private respondents never wanted an outsider to hold charge of this post. Prior to the appointment of the applicant, respondent No. 5 Sh. L.R. Vishwanath was holding the charge of this post. The respondents consequently delayed appointment of the applicant for about seven months and issued the same only after they were forced to do so by a direction from the National Commission for Schedule Caste. Thereafter, they passed an order giving all administrative and financial powers to Respondent No.5 and making him overall in-charge of S&DD making the applicant to report to him. When this order was quashed by the Tribunal, the respondents got very angry and started damaging the image of the applicant with the main objective of getting him repatriated. They instigated Respondents No. 6 to file a false sexual harassment complaint against the applicant which was found to be baseless by the Internal Complaints Committee chaired by a Joint Secretary. Thus, with the sole motive that Sh. L.R. Vishwanath continues to hold the charge of this division, first the appointment of the applicant was delayed, and then a very short term of deputation was given to him and then it was ensured that the applicant is repatriated immediately on expiry of the said term.
5.7 The respondents, on the other hand, both official and private have denied that there has been any mala fide intention on their part. The official respondents stated that even to Sh. Suresh Sharma, who was first recommended for this post, two year term of deputation was offered. This was done because the Recruitment Rules for the post were under review. Further, it was mentioned in the terms and conditions of deputation that the performance of the applicant would be reviewed from time to time. The decision to repatriate him after expiry of one year term was taken based on the performance of the applicant on this post. The private respondents on their part have denied that they had any role to play either in deciding the term of deputation initially offered to the applicant or in taking decision to repatriate him after expiry of the same.
5.8 Sh. Behera, learned counsel arguing for Respondent No.6 stated that whenever a plea of mala fide is raised, the Court should not come to any conclusion until and unless allegations are substantiated beyond doubt. In this regard, he relied on the judgment of Honble Supreme Court in the case of M.V. Thimmaiah and Ors. Vs. UPSC & Ors., (2008) 2 SCC 119 in which Honble Supreme Court has stated that the allegation of mala fide is very easy to be levelled but very difficult to substantiate. Further, Sh. Behera stated that in the case of Bank of India & Ors. Vs. T. Jogaram, (2007) 7 SCC 236 the Honble Supreme Court has stated that the allegation of mala fide must be based on factual matrix and not based on conjectures and surmises.
6. We have considered the submissions of the rival parties in this regard. We had first looked at the factual matrix of the case. It is an admitted position that the appointment of the applicant was delayed by seven months. The applicants contention that this was done deliberately by the respondents to let Sh. Sh. L.R. Vishwanath continue to hold the charge of the post of Director (S&DD). On the other hand, the respondents contended that delay occurred due to time consumed in verifying testimonials of the applicant. It is also an admitted position that the respondents had passed an order giving all the administrative and financial powers to Sh. L.R. Vishwanath even after the applicant had joined the post. The applicant claimed that this was because of vested interest of the respondents whereas the respondents claim that this was done in the interest of work as the applicant was new to the job. As regards giving only one year of deputation to the applicant, the respondents claim that this was due to the fact that the Recruitment Rules for the post were under review. On the other hand, the applicant contended that the respondents were interested in getting rid of the deputationists as early as possible so as to enable Sh. L.R. Vishwanath to again hold the charge of this post.
6.1 We have seen the relevant notings of the files made available by the applicant by which he was appointed. The only reason given in the note for giving only one year term to the applicant is that the Recruitment Rules for the post were under review. The notings do not reveal that respondents No. 5 & 6 had any role to play in the same. Other than these notings no other evidence has been presented by the applicant to support his claim of mala fide intentions of the private respondents in giving only one year term to him.
6.2 We have also perused the departmental file in which the case of the applicant for giving extension beyond one year was considered. It appears that the conduct of the applicant as Director (S&DD) has weighed heavily on the minds of the respondents while deciding not to give him extension beyond one year. Several instances of flouting administrative norms have been taken note of by the respondents. Some of these are as follows:-
(i) While acting as a Director (S&DD) revoked suspension of three employees ignoring the recommendations of the Review Committee. The applicant also ordered that the period of suspension was to be treated as qualifying service for all purposes even when disciplinary proceedings against those employees on serious charges were pending.
(ii) The respondent No.6 herein, Smt. Gopa Biswas had filed a criminal case against the applicant alleging sexual harassment. The applicant indulged in intimidating the employees of S&DD who were witnesses in criminal case alleged against him by Respondent No.6.
(iii) The applicant has been issuing orders in violation of contravention of the orders of the Ministry as well as CCS(CCA) Rules.
(iv) The applicant issued a number of orders entrusting administrative and financial powers in sensitive matters to officers who were facing serious charges in vigilance or criminal proceedings.
(v) The applicant pressured the Cash and Accounts Section to clear the salaries of the officials whose suspension order he had unauthorizedly revoked.
(vi) As Director the applicant had been challenging the authority of the Ministry in several matters.
(vii) He submitted a fraudulent claim of higher duty vehicle from two different transport agencies.
(viii) He arranged for purpose of loud and sound show in Lalitpur District of UP from 8th to 14th June, 2013, which were without administrative and financial sanction of the Ministry in violation of the General Financial Rules.
6.3 Thus, based on the conduct of the applicant the respondents took decision not to grant any further extension to him and passed the order reverting him to his parent organization on completion of one year deputation term.
6.4 On the basis of the above, it would be difficult to conclude that the termination of the applicants appointment at the end of his one year tenure was a result of mala fide intentions on the part of the respondents. Moreover, we do not find that the respondents No. 5 or 6 had any role to play in the matter. The respondents No. 3 & 4, who were Ministry officials, have dealt with the file and have expressed views against the applicant. However, this does not appear to be a result of any prejudice on their part and appears to be based on the actual conduct of the applicant as Director, several instances of which have been mentioned above. We, therefore, come to the conclusion that the charge of mala fide alleged by the applicant cannot be sustained.
6.5 Both Sh. S.M. Arif, learned counsel for official respondents and Sh. A.K. Behera, learned counsel for respondent No.6 also argued that when offer of appointment was issued to the applicant on 17.10.2012, it was clearly mentioned in the terms and conditions that the period of deputation would be one year initially, which was extendable to three years. The applicant with open eyes accepted this offer unconditionally and joined the post. Moreover, he did not raise any protest for several months after his appointment and admittedly it was only on 25.03.2013 that he made a representation to the Ministry in which amongst other things he requested for giving him tenure of three years extendable upto five years. Thus, for more than five months he did not raise this issue. Since the applicant had accepted the terms of appointment without demur he is now estopped from raising this plea. Sh. Behera, learned counsel argued that according to the law laid down by the Honble Supreme Court once a person had accepted the order of appointment he is estopped from challenging the terms of offer at any later point of time. In this regard, he relied on the judgment of Honble Supreme Court in the case of P.S. Gopinathan Vs. State of Kerala and Ors., (2008) 7 SCC 70. In this case the appellant therein had been appointed as a District and Sessions Judge by the Honble High Court on 29.02.1992 in which the appointment of the appellant was treated as a temporary one. On 15.07.1992, fresh appointment orders were issued by which the appellant was made permanent. Thereafter, the Honble High Court issued a fresh posting order dated 14.01.1992 wherein the appellant was described as a temporary District and Sessions Judge, who had become permanent vide order dated 15.07.1992. The appellant raised objection on being treated as temporary and consequent loss of seniority vis-`-vis direct recruits on 28.10.1992. The Honble Supreme Court, however, rejected his appeal stating that acquiescence of the appellant in accepting the order dated 14.01.1992 being treated as temporary appointment precluded him from raising this plea subsequently.
6.6 Further, Sh. Behera, learned counsel stated that in the instant case the applicant had accepted the whole contents of offer of appointment dated 17.10.2012. In the case of C. Beepathumma and Ors. Vs. Velasari Shankaranarayana Kadambolithaya & Ors., (1964) 5 SCR 836 the Honble Supreme Court has held as follows:-
17. The doctrine of election which has been applied in this case is well-settled and may be stated in the classic words of Maitland -
"That he who accepts a benefit under a deed or will or other instrument must adopt the whole contents of that instrument, must conform to all its provisions and renounce all rights that are inconsistent with it."
(see Maitland's Lectures on Equity, Lecture 18) The same principle is stated in White and Tudor's Leading Cases in Equity Vol. 18th Edn. at p. 444 as follows :
"Election is the obligation imposed upon a party by Courts of equity to choose between two inconsistent or alternative rights or claims in cases where there is clear intention of the person from whom he derives one that he should not enjoy both......... That he who accepts a benefit under a deed or will must adopt the whole contents of the instrument. Thus in terms of above ruling of the Apex Court, the applicant cannot now challenge the terms and conditions of his deputation.
6.7 We have considered the submissions of Sh. S.M. Arif and Sh. A.K. Behera, learned counsel for the respondents. It is not denied by the applicant that he had given his acceptance to the terms and conditions offered to him by the respondents vide their letter dated 17.10.2012. It is also not denied by him that he first made a representation against his term of deputation only on 25.03.2013 (in that communication he has stated that his first representation was made on 11.03.2013 through respondent No. 5 who did not forward the same). Thus, it is obvious that the applicant accepted one year term of deputation without demur and because of his acceptance, the respondents appointed him. Thereafter, he did not raise any objection for almost five months. Under these circumstances, agreeing with the counsel for the respondents, we come to the conclusion that the applicant is estopped from raising this plea now.
6.8 Learned counsel for the applicant had also argued that contrary to the DoP&T Instructions prescribing three months advance notice before repatriation, the official respondents had prescribed only one months notice in the terms and conditions offered to the applicant. However, for the reasons mentioned above, the applicant is precluded from challenging any of the terms and conditions of his appointment. Moreover, this one month advance notice was to be used only in case of pre-mature repatriation and has no applicability in the present case wherein the deputationist has been repatriated on expiry of the term given to him.
7. On the basis of above analysis, we come to the conclusion that while the charge of mala fide against the respondents is not established, action of the respondents in giving only one year term of deputation to the applicant was unsustainable being contrary to the general DoP&T Instructions on the subject as well as his promise made out in the advertisement inviting applications for the said post. Even then since the applicant had accepted this term with open eyes and without any protest, he is precluded from raising this plea now. We, therefore, dismiss this O.A. No costs.
(Shekhar Agarwal) (G. George Paracken)
Member (A) Member (J)
/Vinita/