Central Administrative Tribunal - Delhi
Sanjay Bhaty vs Union Of India on 10 January, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI O.A.3907/2012 This the 10th day of January, 2014 Honble Dr. K.B.Suresh, Member (J) HonbleShriP.K.Basu, Member (A) Sanjay Bhaty Mrignayani House, C-33 Gopalpuri, Gandhidham Gujarat 370 240. . Applicant (By Advocate: ShriS.C.Sagar) Versus
1. Union of India Through its Secretary Ministry of Shipping New Delhi.
2. Mr. M.A.Bhaskarachar Deputy Chairman Kandla Port Trust Gandhidham Gujarat . Respondents.
(By Advocate: ShriM.R.Junedi for ShriS.M.Arif for R-1 ShriV.S.R.Krishna, counsel for private respondents) Order (ORAL) By Honble Dr. K.B.Suresh, The issue which has come up before us relates to period 1992-93 when the applicant was appointed in the New Mangalore Port Trust to a managerial post for which the required essential qualification was (i) Membership of the Institute of the Chartered Accountants of India (C.A.) Membership of the Institute of Cost and Works Accountants of India (ICWA) with not less than 5 years experience in a managerial position in a Finance Department of a Major Port Trust/ Govt. or Semi Govt. Department/ Public Sector Undertaking/ Autonomous Body.
2. page 15 of the OA, the qualifications possessed by respondent no.2 are depicted, which are as follows :-
(i) B.Com (2) MBA from the Institute of Business Administration and Management, New Delhi.
(3) ICWA from the Institute of Cost and Works Accountant of India, Calcutta in 1990.
Therefore educational qualifications are sufficient.
3. Then he goes to state that the applicant has only five years and two months experience in Karnataka Forest Development Corporation Ltd. (A Govt. of Karnataka Undertaking) as head of Accounts and Finance Department in managerial position as Accounts Superintendent. Thereafter, the party respondent was working in Sri Ram Distilleries Pvt. Ltd., Tumkur apparently in a similar post for about 7 months before the application.
4. The applicant and the party respondent at one point of time were working in the Kandla Port Trust as Deputy Chairman. The applicant was working as Class-I cadre, TP&PRO of the said post.
5. ShriV.S.R.Krishna representing the party respondent challenging the locus of the applicant would say that in service jurisprudence, public interest litigation is not possible. He would say that if such things are allowed, the integrity of the system itself may come into question. To entertain a petition of the type the applicant has filed before the Tribunal, a separate notification is required from the government. In answer to this, the learned counsel for the applicant would contend that adjudicatory body must be active to entertain a petition of the nature. He would say that in order to blow whistle of the wrong done by the respondents, the applicant represented to various authorities including Prime Minister of India, CVC, CBI and other organizations of the Government. No effective relief could be obtained from them. He would further submit that to have better and active approach in the matter of interpretation of the fundamental rights, several guidelines have been issued by the government as also the Honble Supreme Court. The guidelines regarding functioning of CBI is such a step taken by the government. He would say that by denying equal opportunity to the applicant in the matter of selection, respondents have played fraud on him and the people of India.
5(a) Since the respondents have questioned the vires of the application we have examined this matter and found that the Hon'ble Apex Court has held in HARILAL VS.SAHODAR reported in AIR 2010 SC 3515 that except in the case of Writ Petition of co-warranto PILs are not maintainable in service matter. This is basically a public interest litigation as even if the party respondent is thrown out of his current employment and position the applicant will not get the post nor is he desirous of obtaining it. But in the case of the co-warranto PIL the Hon'ble Apex Court held a view that it is of utmost importance to anybody to see that only appropriate persons occupy the appropriate position under public employment. In fact in STATE OF MAHARASHTRA VS. PRABHU reported in 1994 (2) SCC 481 and ANDHRA PRADESH STATE FINANCIAL CORPORATION VS.GAR-RE ROLLING MILLS AND ANOTHER reported in AIR 1994 SC 2151 the Hon'ble Apex Court had held that court must do justice by promotion of good faith and prevent law from crafty invasion. Court must maintain social balance by interfering for the sake of justice and refuse to interfere where it is against the social interest and public good. But it is also pertinent to note that in LAKSHMAN VS, UNION OF INDIA reported in AIR 1997 SC 1125 the Hon'ble Apex Court held that 4 years delay in filing Writ Petition without proper explanation was held to be non justifiable and that Writ Petition was dismissed summarily. But then on the question of nature of delay the Hon'ble Apex Court held in KASHINATH VS THE SPEAKER reported in 1993 (2) SCC 703 that the general judicial trend is that the doors of the Court could be opened by way of Writ Petition within a reasonable time and the delay if any must be satisfactorily explained. It applies more in the case of gross injustice or in the case of gross non application of mind in rejecting the petition on the grounds of delay. But then the question of proper opportunity being available to the party respondent as a result of the delay must also be considered.In UTTAR PRADESH ROAD TRANSPORT CORPORATION VS. STATE OF UTTAR PRADESH reported in AIR 2005 SC 446 the Hon'ble Apex Court held that there is a distinction between issue estoppel and res-judicata. Since the eligibility of the party respondent was considered with reference to material available at that point of time, the question thus arise would be to what extent it can be questioned after a delay of 21 years. This long delay would have eroded from the process of memory and from records considerable material which may have significant bearing if an issue has to be raised against the party respondent but then as pointed out by common law judgment in FIBROSA VS.AIRBAIRN (1942) All England Reports page 122 in any civilized system of law it is bound to provide remedies in case of what has been called unjust enrichment or unjust benefit that is to prevent the man from retaining some benefits derived from another which is against conscience that he should get. Therefore going by the scope of this judgments if the party respondent had usurped a position which should not normally belong ho him then of course for good conscience, it will be a fraud and will be defeated. Therefore we have to hold that the OA is within the jurisdictional province of the Tribunal and even after 21 years of delay it is proper for the Tribunal, in greater public interest to examine this matter.
5(b) To quote from the great Jurist Professor Robson IN HIS JUSTICE AND ADMINISTRATIVE LAW, GREEN WOOD PRESS (1951) page 413 In all civilized society the judges must, in fact possess certain conceptions of what is socially desirable or at least acceptable and his decisions, when occasion arise, must be guided by even conceptions in the sense judges are and must be biased It is a simple fact that a man who had no standard of moral values which approximate to the acceptance of the day who had no belief on which is harmful to the society and what is beneficial , on no bias in favour of truthful as against lying, honesty as against deceit, Constitutional Government is more desirable than anarchy would not be tolerable as the judge of any civilized country. Therefore it exposes the principles of justiciability. It must be without any doubt be based on the concept of truth and in such a consensus the Courts must assume a penetrative look in to the issues whenever a situation warrants it to be. In fact in PRATAP SINGH VS STATE OF PUNJAB reported AIR 1964 SC 72 the Hon'ble Apex Court intervened in a matter when it found that a Government servant was made to face charges and put under suspension and this power was used to wreak vengeance of a superior authority on the grounds of legal malice and malafides and this process was shot down by the Hon'ble Apex Court. But then as explained by the Hon'ble Apex Court in STATE OF GUJARAT VS SURYAKANT SUNITHA SHAW oncemalafide is found even collaterally the whole exercise would be colourable exercise of power but at the same time malafide must be conclusively fraud and can not be readily inferred. Therefore the contention of the applicant is that the concerned authorities have repeatedly conferred benefits on the party respondent mis using their power of discretion in fact the Hon'ble High Court of Madras in MOHAMBARAM VS. JAYAVELU reported in AIR 1970 MADRAS 63 had said that there is no such thing as absolute or untravelled discretion, the nursery of despotic power, in democracy based on the Rule of law. Therefore we find that OA will lie on the question of jurisdiction and power as well as judicial responsibility and inspite of delay even allegation when made to the effect of public service beingdemoralised and denigrated by alleged usurpation of the party respondent then it is the duty of any adjudicatory body to ignore the delay and take up the matter for consideration on merits.
6. In the light of judgments cited by the applicants counsel, we are of the opinion that the applicant has a right to seek remedy in the Tribunal if the appointment has been secured by fraud or unfair means.
7. On the other hand, learned counsel for the respondents submits that as 21 years time has already elapsed, the issue involved has lost its mode of genesis by the efflux of time. This has resulted in diminishment of opportunities of defence for the officer and thereby caused prejudice to him. Repeated allegation, he says had vitiated life and livelihood for him.
8. At page 146 of the OA, the applicant has appended the communication issued by the Karnataka Forest Development Corporation Limited dated 02.02.2011 indicating therein that the appointment of ShriM.A.Bhaskarachar for the cadre of Accounts Superintendent was done by the Managing Director KFDC Ltd., Bangalore. On the next page, in reply to question No.2, the official hierarchy of ShriBhaskarachar has been mentioned as Accounts Superintendent, Head of Accounts Section, Sullia Rubber Division, Sullia. In answer to question no.25, it is stated that he is a permanent employee as Accounts Superintendent in Group C. The case of the applicant is that, being a member of group C service, ShriBhaskarachar could not be considered eligible for the post. In Sullia, what this group C entrails is unknown. But it is noted that this man was the head of Accounts Section. None can be a head of a Section unless he is supervising a group of people. It is submitted that this is what is known as Managerial position.
9. We tried to find out meaning of the word `Manager from Oxford dictionary. It was found that `Manager is a person, who is in charge of a certain group of tasks, or a certain section of a company.In the RTI information obtained by the applicant, the Karnataka Forest Development Corporation mentioned that the before his appointment on the post in question, ShriBhaskarachar was holding the post of Accounts Superintendent at Sullia Rubber Division, Sullia and was its head of Accounts. Therefore, without any doubt, being a Head of the Accounts Division as also going by the normal legal and financial understanding, he had been holding a managerial position. It is not the mere nomenclature but actual function that determines a man's position.
10. The applicant raised the contention that UOI failed to understand that group C post holders could not be considered for the post of Manager or Head of Department and yet the department not only interviewed him but found him fit also for appointment. It is claimed that even though there were sufficient candidates who are more qualified than the party respondent, he was chosen and this indicates malafide on the part of the respondents.
11. The Hon'ble Apex Court in RAJENDRA PRATAP SINGH YADAV VS. STATE OF UTTAR PRADESH reported in AIR 2011 SC 2737 had held that the sanctity of final seniority list must be maintained unless there are other compelling reasons to do so nor to do substantial justice . It also held that it is the right of a person to be considered for a post to which he is eligible and non consideration as such would be denegration of his fundamental right. Therefore the party respondent contends that he is found eligible by the selection committee 21 years ago as they had reasonably found him to be fit to be considered and on consideration found him to be eligible for selection. It is thus part of his fundamental right as he is found eligible to be considered and selected. He would lament that for ulterior reasons and hostility the applicant had taken umbrage at him in several fields right from Prime Minister's office to the Central Vigilance Commission, CBI and all other available methodologies were used to tarnish and denegrate him and this has created a great prejudice to him and great loss in esteem and reputation.. He would rely on the Hon'ble Apex Court judgment in UNION OF INDIA VS. HEMARAJ SINGH CHAUHAN reported in AIR 10 SC 1682 wherein the Hon'ble Apex Court held that right of an eligible employee to be considered for promotion is virtually a part of fundamental right of an employee. But applicant would question this judgment's applicability on the ground that he at best only eligible to be considered. But then when a man is, even on admission, in a supervisory position and head of accounts will be holding a managerial post. There is no merit in saying that he will not be holding a managerial post because it is mentioned that he is a Type-C employee as it is not clear what exactly is this classification meant to be.
12. In fact the Hon'ble Apex Court had considered a similar matter in STATE OF UTTARANCHAL VS BALWANT SINGH CHAUFAL AND OTHERS reported in AIR 2010 SC 2550. Hon'ble Apex Court after considering 116 judgments from all over the world examined the issue of co-warranto to be issued in the realm of service jurisprudence. It searched out the origin of public interest litigation and held in paragraph-55 a reporting from Henry PremBruocham published in NIMAM reports in April 1956 as under:
It was the boast of Augustus that he found Rome of bricks and left it of marble but how much nobler will the sovereign's boast when he shall have it, so that he found law dear and left it cheap, , found it a sealed book and left it a living letter, found it patrimony of the rich and left it inheritance of the poor. In short this is the sum total of judicial responsibility. The Hon'ble Apex Court explained the access of public litigation in service jurisprudence and in paragraph 145 held that in XINWA AND OTHERS VS. VOLKSWAGEN OF SOUTH AFRICA (PTY) LIMITED reported in 2003 (4) SA 390 (CC) page-8 (Form circumstance must give way to substance) While upholding the right of the applicant to gather the challenge against the usurpation of a public post by the ineligible person it must be held that truth must not be victimised in such a case. To quote from HOLCOW BOOKS PRIVATE LIMITED VS. PREM CHAND MISRA reported in AIR 2008 SC 913 Public interest litigation is a weapon which has to be used with great care and circumspection and judiciary must be extremely careful to see within the beautiful veil of public interest, ugly private interest must be lurking
13. In this case the appointment of a person was challenged by the petitioner but apparently had not raised in to the level of total annihilation as apparently the applicant herein had done. We have already found that the premise relied upon the applicant are incorrect as even on the admission of the applicant himself the party respondent possess the necessary qualifications. He had raised a view there were others more qualified than party respondent but in a co-warranto case the applicant is what is to be considered and a non combative and comparative value assessment between who is contesting is not relevant but only the eligibility of the concerned person to appropriate the position for himself. Needless to say the complete analysis of such selection has to have a nexus in time and after 21 years doctrine of sit back will operate against even those who had been in the select list. Therefore by reliance of the guidelines laid down by the Hon'ble Apex Court in the decision, we are disposing of this matter. We have found that the forum of this Court and other authorities had been relentlessly misused against the party respondent and it is the responsibility of adjudicatory bodies to uphold finer principles in governance even by penalising the infractions.
14. Having considered the arguments advanced on both sides, we hold as follows :
(i) The party respondent had essential qualification of ICWA from the Institute of Cost and Works Accountant of India as also five years and nine months managerial experience, therefore, there cannot be any doubt that the party respondent was qualified to be appointed in 1992-93; and
(ii) The question of limitation will be applicable only when ultimate justice is to be modified in compliance with the technical objection.
(iii) We accept the applicants contention that such a case as this is maintainable in law.
15. In view of above discussion, we hold that the case filed by the applicant is a frivolous litigation and thus we dismiss the same imposing A cost of rupees one lakh on the applicant to be paid to the party respondent within a period of two months next or in default by compulsive forlorn of arrears of land revenue. O.A. Dismissed thus with cost of rupees one lakh.
(P.K. BASU) (Dr. K.B.SURESH) MEMBER (A) MEMBER (J) uma