Central Administrative Tribunal - Delhi
Surender Singh vs Union Of India (Through Its Secretary) on 5 December, 2008
Central Administrative Tribunal
Principal Bench, New Delhi
O.A.No.393/2008
Friday, this the 5th day of December 2008
Honble Shri Shanker Raju, Member (J)
Honble Dr. Veena Chhotray, Member (A)
Surender Singh
Ex-Chowkidar
Directorate of Extension
H.No. D-39, Vikas Nagar
Hastal, Uttam Nagar,
New Delhi-39
..Applicant
(By Advocates: Shri Pradeep Gupta, Senior Advocate and
Ms. Laxmibai Leitanthem along with him)
Versus
1. Union of India (through its Secretary)
Ministry of Agriculture
Krishi Bhavan, New Delhi
2. Ministry of Agriculture
Directorate of Extension
(Through its Director)
Deptt. of Agriculture
Krishi Bhavan, New Delhi
..Respondents
(By Advocate: Shri S.N. Sharma)
O R D E R
Shri Shanker Raju:
It is trite law that a policy decision of the Government regarding abolition of post is non-interfereable in judicial review, except when it is actuated with mala fide or is arbitrary contrary to rules and Constitution. Such a policy decision is also non-interfereable if no bonafide is involved in the decision and is unfair contrary to the fundamental right of the government servant.
2. Disabled persons, who are now nomenclatured as specially/differently-abled persons, have a right to have reservation in Government service and also no discrimination can be made in the matter of promotion. Removal of such a person on an acquired disability in service is also against the law for which either the person is to be adjusted in the lower grade protecting the pay or a supernumerary post is created till superannuation. The aforesaid is the object of Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (for short Disability Act), as ruled by the Apex Court in Kunal Singh v. Union of India & others, 2003 SCC (L&S) 482.
3. With the above position of law, applicant, who joined military services on 7.12.1979, had worked till 7.4.1996. On account of permanent disability to the extent of 40% incurred while in service during war with the Pakistan, he was categorized under medical category EEE where left hand of the applicant was fully damaged, which was fully replaced by way of an artificial limb. As per Ex-Servicemen (Re-employment in Central Civil Services and Posts) Rules, 1979 (for short Re-employment Rules), a disabled ex-serviceman has been defined under Section 2 (b) as an ex-serviceman, who while serving in the Armed Forces of the Union, has been disabled in operations against enemy. Section 4 of the Re-employment Rules provides for reservation of vacancies in Group D, which is 20% of the vacancies in total cadre.
4. Ministry of Agriculture vide official Publication dated 23.7.2004 proposed to fill up a post of Chowkidar, which was reserved for ex-serviceman. The post was by way of direct recruitment. Applicant applied for the post and on the recommendation of the Committee he was selected vide selection order dated 31.8.2004 temporarily in Group D on the post of Chowkidar on two years probation with a stipulation that his services can be terminated by giving one months notice and also that terms and conditions would abide by the rules and regulations framed by the Central Government from time to time.
5. The performance of the applicant as Chowkidar has remained satisfactory without any complaint. The total cadre of Chowkidar consisted of ten posts in Group D, out of which, as per Re-employment Rules, two posts are earmarked as reserved for ex-serviceman, including disabled ex-serviceman in direct recruitment quota.
6. Staff Inspection Unit (SIU) on the work measurement study of Directorate of Extension forwarded its report whereby SIU under Ministry of Finance on a staff study of 2004-05 agreed for retention of eight posts and recommended two officials as surplus, including the applicant, as he was junior-most. His bio-data was sent to the DOPT for re-deployment but as he had not rendered five years regular service, he was not taken as surplus, being on probation and not being permanent. Services of the applicant were accordingly dispensed with on a months notice and in lieu of payment of salary under Rule 5 (I) of CCS (Temporary Services) Rules, 1965 on 18.8.2006. A representation preferred for reconsideration when turned down on 24.5.2007 gives rise to the present OA.
7. Learned senior counsel appearing on behalf of applicant would contend that applicant, who occupied the reserved post of disabled ex-serviceman, abolition of this post is contrary to the instructions on reservation policy of ex-serviceman, which is violative of Articles 14, 16 and 21 of the Constitution of India.
8. Learned senior counsel would also contend that one Laxmi Devi, who was appointed as Chowkidar in the Canteen after the appointment of the applicant, once retained, there is an invidious discrimination meted out to the applicant.
9. Learned senior counsel projects a situation where the total strength of Chowkidar is reduced to eight posts and since 20% quota is meant for ex-serviceman, at least one post out of eight are to be reserved for ex-serviceman and more particularly handicapped one. As such, terminating the services of the applicant on abolition of this post is stated to be mala fide and against the law, as he was the lone occupant against reserved category quota of ex-serviceman (disabled).
10. Learned senior counsel would press the Disability Act to contend that once there has been a reservation of disabled in Government service, the posts earmarked for disabled as well as ex-serviceman should not come within the purview of abolition by the SIU on the same analogy as to posts of SC/ST and in such an event, the post reserved for disabled ex-serviceman is to be carried forward. It is stated that in such an event if the erstwhile service of the applicant is deemed as a qualifying service even for pension, any disability incurred during this added period with military service, Section 47 of the Disability Act forbids any removal, including termination and a supernumerary post should have been created to adjust the applicant.
11. Learned senior counsel would further contend that once there has been no de-reservation for 20% vacancies reserved in Group D post, the same cannot be abolished without following due procedure of law.
12. Lastly, learned senior counsel contended that termination being punitive without giving a prior reasonable opportunity to show cause is not in consonance with law.
13. On the other hand, learned counsel appearing for respondents vehemently opposed the contentions and stated that as SIU study has taken place where two posts have been abolished, applicant could not be treated as surplus and being junior-most, as per the terms and conditions of the appointment, was terminated, which does not suffer from any legal infirmity.
14. It is stated that once the applicant has accepted the terms and conditions and reported for duty on 31.8.2004, he is now estopped from taking a contrary view.
15. Insofar as the case of one Laxmi Devi is concerned, it is stated by learned counsel that her appointment was on the post of Wash Boy after the death of her husband on compassionate basis in a different grade, which would not attract any discrimination, as alleged by applicant.
16. We have carefully considered the rival contentions of the parties and perused the material placed on record.
17. As per G.I., Deptt. of Per. & Trg., OM dated 12.3.1987 and 20.3.1987, the reservation to the extent of 20% in all Group D direct recruitment posts is obligatory as per Re-employment Rules, which are statutory rules. The guidelines for de-reservation has a methodology where High Level Committee recommended that vacancies reserved for ex-servicemen be kept vacant and carried forward without disturbing the ceiling of 50% for total reservation. However, as per Rule 4 (1) of Re-employment Rules, the proviso mandates that the additional vacancies so available are to be used for regularization first for appointment of disabled ex-servicemen and then to the other ex-servicemen. In such an event, right of a disabled ex-serviceman, as per the definition, is preferential in the matter of reservation.
18. As per G.I., M.F. OM dated 6.4.1994 the reserved category posts for SC/ST lying vacant for one year or more are exempted from instructions. Accordingly, in a situation where a SC candidate being disabled ex-serviceman seeks appointment and is appointed to the post, the post cannot be made subject matter of abolition even by SIU. On the aforesaid analogy, when SC/ST category is exempted from the abolition of post, we do not find any rationale, logic or any intelligible differentia with an object sought to be achieved to apply abolition of posts, which are earmarked as a reserved category for disabled ex-serviceman. While taking up of abolition of post, the SIU under Ministry of Finance should also keep in mind the reserved post and its abolition thereof, which are exempted from its purview. As per G.I., Dept. of Per. & Trg., O.M. dated 26.3.1998, all Ministries and Departments have been instructed from time to time regarding reservation of ex-servicemen in jobs under the Central Government and ensure that the reservation policy of the Government as spelt out in the instructions issued by the Department is implemented fully. In the above view of the matter, if the cadre of Chowkidar in Ministry of Agriculture consists of ten posts, admittedly the applicant was appointed under 20% reservation, as such at least two posts of reserved category for disabled are to be in place. Assuming, not admitting, that out of ten posts in the cadre, two posts are to be abolished, yet the proportionate quota for reservation for disabled ex-servicemen or an ex-serviceman comes to at least one post. Applicant being the lone occupant of the quota meant against this post, being ex-serviceman and disabled too, his termination being an incumbent of the post without adhering to the fact of his being lone occupant of the reserved post of ex-serviceman and treatment of the junior-most in the matter of appointment is not only unfair but also actuated with bad faith.
19. In the matter of abolition of post, the Apex Court in the case of State of Haryana & others v. Navneet Verma, (2008) 1 SCC (L&S) 373, on summarization, formulated the guidelines, which are reproduced hereunder:-
17. We summarize the power of government in abolishing a post and role of the court for interference:
(a) the power to create or abolish a post rests with the government;
(b) whether a particular post is necessary is a matter depending upon the exigencies of the situation and administrative necessity;
(c) creation and abolition of posts is a matter of government policy and every sovereign government has this power in the interest and necessity of internal administration;
(d) creation, continuance and abolition of posts are all decided by the government in the interest of administration and general public;
(e) the court would be the least competent in the face of scanty material to decide whether the government acted honestly in creating a post or refusing to create a post or its decision suffers from malafide, legal or factual;
(f) as long as the decision to abolish the post is taken in good faith in the absence of material, interference by the court is not warranted.
20. If one has regard to the above, if a decision to abolish the post is taken in good faith, no interference is warranted but if this abolition of post and non-consideration of the right of reserved category candidate in ex-serviceman category, more particularly a disabled, ignorance of the instructions as a fundamental right guaranteed, certainly speaks for non-application of mind by the Government and overwhelming material, which shows that the only consideration of juniority of the applicant resulted in an extermination whereas the other factors having not been considered, the said consideration cannot be a consideration apt in law and rather against the Constitution of India violating the fundamental right of the applicant and is unfair decision actuated with mala fide, though legally one.
21. As per the Disability Act, as the service rendered by an ex-serviceman on appointment to the Government service, as per Re-employment Rules, the past military service has to be counted as per G.I., M.U.D., letter dated 9.2.1987. The aims and object of the Disability Act is being a special provision and as per Section 72 is in addition to, and not in derogation of any other law for the time being in force or any rules, order or any instructions, which forbids discrimination against persons with disabilities and to protect the rights of disabled with their rehabilitation to bring them with disabilities to the social mainstream. Accordingly, as per Section 33 of the Disability Act, Central Government shall have to appoint at least against 3% vacancies to those who are disabled. Applicant admittedly who have lost one of his hands, which is certified to have 40% injury, his case is of loco-motor disability and being a war disabled, he is a disabled ex-serviceman within the definition of ex-serviceman. In such an event, Section 47 of the Disability Act forbids dispensation of service of those who acquired disability during the service and if are not found suitable even a supernumerary post is to be created to continue them till the age of superannuation where one incurs disability during the service has to be legally inferred on a welfare legislation and its interpretation thereof. In such view of the matter, once the service rendered by the applicant in Army is to be counted towards service in the Central Government, then it has to be deemed that this disability has been incurred by the applicant in service and in such an event, terminating his services on the ground of abolition of post is against provisions of Section 47 of the Disability Act and being an overriding effect, the aforesaid shall prevail not only on SIU but also over and above CCS (Temporary Services) Rules, 1965.
22. As regards the contention put forth that the termination of the applicant was made as per terms and conditions, to which he has agreed to, is a misconceived submission only to justify the reasonable grounds of their illegal action. Applicants performance till the time he was appointed was not as such to brand him an unsuccessful or unsatisfactory performer. Accordingly, being occupying the loan post reserved for disabled ex-serviceman, dispensation of service under the guise of Rule 5 (1) ibid, is certainly by way of a penal action, which attracts Article 311 of Constitution of India, as no reasonable opportunity to defend has been accorded to the applicant. The order passed, though couched in simple terms, is founded on an illegality of the Government, which is, on the face of it, against the rules. We have no hesitation to rule that the respondents have misused the discretion vested in them and had not exercised it judiciously.
23. In the result, for the foregoing reasons, OA is allowed. Impugned orders are set aside. Respondents are directed to reinstate the applicant in service as Chowkidar with immediate effect on a methodology available to them under the rules, instructions and law on the subject. He would also be entitled to the back-wages and continuity of service. No costs.
( Dr. Veena Chhotray ) ( Shanker Raju ) Member (A) Member (J) /sunil/