Central Administrative Tribunal - Ernakulam
Anup Krishnan.A vs Union Of India Represented By Secretary ... on 5 September, 2013
Central Administrative Tribunal
Ernakulam Bench
OA No.950/2012
OA No.949/12
OA No.964/12 &
OA No.990/12
Thursday, this the 5th day of September, 2013.
CORAM
Hon'ble Dr.K.B.S.Rajan, Member (Judicial)
Hon'ble Mr.K.George Joseph, Member (Administrative)
OA No.950/12
1. Anup Krishnan.A
S/o Ananthan P.K.
'Peechanatt House'
Chengamanad Post
Aluva, Kerala-683 578.
2. Ajit Vincent
S/o Vincent Thomas
Vengachuvatill
16-West Cliff Gardens, YMR, Kowdiar Post
Trivandrum-695 003.
3. Anulal S.S.
S/o R.Surendran
'Kalabhavan'
Chekkittakuzhi, Panachamoodu Post
Trivandrum-695 505.
4. Aneesh Kumar K.B.
S/o Bhaskaran .N
'Chaithram'
East Kallada (Post)
Kollam, Kerala-691 502.
5. Ms.S.Jaya
W/o Suresh R
'Jayalayam'
Odanavattom, Kottarakara
Kerala-691 512.
6. Arun Nath K.S.
S/o Dr.K.K.Sathyanathan
'Sreeshylam'
Mulanthuruthy, Ernakulam.
7. Ms S.Sibi
W/o Mohsin Ahmed Basheer
Kadir Manzil
T.C.41/2452, Manacaud
Trivandrum-695 009.
8. Byju N.B.
S/o N.E.Balakrishnan
Neendoorthalakal
Cheenkal City
Vannappuram P.O.
Thodupuzha, Kerala-685 582.
9. Jiju K.
S/o Narayanan V.K.
Kuttipalakkal House
Pannicode P.O.
Mukkam, Kerala-673 602.
10. Ms.Bhavya Y.V.
W/o Satheesh Kumar S.
'Sreevalsam'
Convent Road, Neyyattinkara P.o.
Trivandrum-695 585.
11. Ms.Razila K.R.
W/o Naseer M.A
Darulsalam, Puthuvalputhen Veedu
Chanthavila, Sainik School P.O.
Trivandrum-695 585
12. Brijesh P.
S/o Radhakrishnan P.
Puthumana House
Saradhamandira
Kolathara p.O.
Calicut-673 655.
13. Girish K.
S/o R.V.Krishnan
TC 23/795, Vyasa-178
Valliachalai Street
Trivandrum-695 036.
14. Aravind C.R.
S/o Ravi C.K.
'Vysakham', Thripperumthura P.O.
Chennithala
Mavelikkara-690 105.
15. James Varghese
S/o M.C.Varghese
TC-6/236(1) NRRA-D16
Netaji Road
Vattiyoorakavu P.O.
Trivandrum-695 013.
16. Haneesh Sankar T.P.
S/o A.Hari Narayanan
Cheeramvelil (H)
VJRA C-04, Jawahar Lane
Vellayambalam
Trivandrum-695 033.
17. Dhanesh P.R.
S/o V.Raghavan
"Kripa"
TC 04/1184-3, Kowdiar P.O.
Trivandrum-695 003. Applicants
(By Advocate:Mr.S.Ramesh Babu)
Versus
1. Union of India represented by Secretary to Govt of India
Ministry of Communications & Information Technology
New Delhi.
2. Centre for Development of Advanced Computing (CDAC)
represented by its Registrar
Univesity of Pune Campus
Ganeshkhind
Pune-411 007.
3. Executive Director
Centre for Development of Advanced Computing (CDAC)
Vellayambalam,
Thiruvananthapuram-695 033. Respondents
(By Advocate: Mr.Sunil Jacob Jose, SCGSC)
OA No.949/12
1. Joseph Mathew
S/o Mathewkutty Joseph
Elambasseril House
Unichira Thaikavu Road
Changampuzha Nagar P.O.
Kochi-682 033.
2. Prem Krishnan.N
S/o S.Narayanan Nair
Reshmy, TC 29/1321
Palkulangara Post
Thiruvananthapuram-695 024.
3. Senthil Kumar K.B.,
S/o Balakrishnan.N.
"Thoppil", CRA-G29
Charachira, Kowdiar (PO)
Thiruvananthapuram-695 003.
4. Amal.S.
S/o P.Sasidharan Nair
Upanishath
Vettiyara P.O.
Navaikulam
Thiruvananthapuram-695 603.
5. Divya S.Vidyadharan
D/o R.Vidhyadharan
Kizhakkevila, Chempazhanthy P.O.
Thiruvananthapuram-695 587.
6. Nimmy Pathrose
W/o Ranjit George Abraham
MRA-12, Mannadi Lane
Ambalamukku, Peroorkada P.O.
Thiruvananthapuram-695 005.
7. Gayathri.S.
W/o Lal Mohan.V.
Sreesantham, House No.7
River Gardens, Neeramankara
Thiruvananthapuram-695 040. Applicants
(By Advocate: Mr.S.Ramesh Babu)
Versus
1. Union of India represented by Secretary to Govt of India
Ministry of Communications & Information Technology
New Delhi.
2. Centre for Development of Advanced Computing (CDAC)
represented by its Registrar
Univesity of Pune Campus
Ganeshkhind
Pune-411 007.
3. Executive Director
Centre for Development of Advanced Computing (CDAC)
Vellayambalam,
Thiruvananthapuram-695 033. Respondents
(By Advocate: Mr.Sunil Jacob Jose, SCGSC)
OA No.964/12
1. Suraja P.K.
W/o Anesh E.T.
Ethukkara House, Perumpilavu P.O.
Thrissur-680 519.
Working as Staff Scientist in CDAC, Trivandrum.
2. Roopa Panicker
W/o Manoj Nair
Thushara, Jeevan Nagar, Pattom P.O.
Trivandrum, Kerala 695 004
Working as Staff Scientist in CDAC, Trivandrum.
3. Sreeja S.C.
W/o Ayswer A.S.
Ayswerya, AN 57, Adarsh Nagar
Pattom P.O., TVPM-695 004.
Working as Staff Scientist in CDAC, Trivandrum.
4. Meera Mary Isaac
W/o Thushanth Thomas
Chirayil Parambil, AN 38, Adarsh Nagar
Pattom P.O., Trivandrum-695 004.
Working as Staff Scientist in CDAC, Trivandrum.
5. Sapna Ravindran
D/o D.Ravindran
Saroja, Chellamangalam, Powdikonam P.O.
Thiruvananthapuram-695 587.
Working as Staff Scientist in CDAC, Trivandrum.
6. Dhanya V.S.
W/o Peyush Thulasidharan
TC 9/2044, deepthi, Madathuvilakam Lane
Sasthamangalam, Trivandrum-695 010.
Working as Staff Scientist in CDAC,
Trivandrum. Applicants
(By Advocate: Mr.S.Ramesh Babu)
Versus
1. Union of India represented by Secretary to Govt of India
Ministry of Communications & Information Technology
New Delhi.
2. Centre for Development of Advanced Computing (CDAC)
represented by its Registrar
Univesity of Pune Campus
Ganeshkhind
Pune-411 007.
3. Executive Director
Centre for Development of Advanced Computing (CDAC)
Vellayambalam,
Thiruvananthapuram-695 033. Respondents
(By Advocate: Mr.Sunil Jacob Jose, SCGSC)
OA No.990/12
1. Ajeesh.A.
S/o V.Abdul Azeez
Palliyude Padinjattathil
Pallimuri, Kollam, Sooranadu PO.
Kerala - 683 578
Working as Engineer in CDAC, Trivandrum.
2. Aneesh B.S.
S/o G.Bhaskaran
Akshaya, Dileep Road
Mudavoorpara, Balaramapuram P.O.
Trivandrum-695 501.
Working as Engineer in CDAC, Trivandrum.
3. Gopakumar.G.
S/o P.Gopinathan Nair
Vaisakh, N:7, TC 55/1964
Narippil Lane, Pappanamcode Post
Trivandrum-695 018.
Working as Engineer in CDAC, Trivandrum.
4. Nimtha Manohar
W/o Vivek Mohanan
B-16, Jyothirgamaya, Sreeramgam Lane
Sasthamangalam P.O.,
Trivandrum-695 010
Working as Engineer in CDAC, Trivandrum.
5. Sobhana Devi.P.
W/o K.Sundara Moorthy
TC 6/2202, VSS Nivas
Ithadi Lane, Prashanth Nagar
Trivandrum-695 031.
Working as Engineer in CDAC, Trivandrum.
6. Ravindran S.
S/o T.T.Sathianathan
P-69, First Floor, Pullikonam Lane 2 Main
Sasthamangalam, Trivandrum-695 010
Working as Engineer in CDAC, Trivandrum.
7. Thara S.Pillai
W/o Gireesh Kumar M.
Shri Vihar, Aramada P.O.
Trivandrum-695 032.
Working as Engineer in CDAC, Trivandrum.
8. Tintu Joseph
D/o V.P.Joseph
Vaikathukaran Veedu
T.C. 18/700, C.K.Lane, T.K.D.road
Muttada P.O., Trivandrum-695 025.
Working as Engineer in CDAC, Trivandrum.
9. Tom Nitty Cyril
S/o Cyril E.T.
'NEST', T.C.10/1828/1 Kavalloor Lane
Vattiyoorkavu, Trivandrum-695 013.
Working as Engineer in CDAC, Trivandrum. Applicants
(By Advocate: Mr.Sukumar Nainan Ommen)
Versus
1. Union of India represented by Secretary to Govt of India
Ministry of Communications & Information Technology
New Delhi.
2. Centre for Development of Advanced Computing (CDAC)
represented by its Registrar
Univesity of Pune Campus
Ganeshkhind
Pune-411 007.
3. Executive Director
Centre for Development of Advanced Computing (CDAC)
Vellayambalam,
Thiruvananthapuram-695 033. Respondents
(By Advocate: Mr.Sunil Jacob Jose, SCGSC)
These applications having been heard on 28th August, 2013, the
Tribunal on 05.09.2013 delivered the following order:-
O R D E R
Hon'ble Dr.K.B.S.Rajan, Member (J) As the issue involved in the above O.As is one and the same, these O.As are considered in this common order.
2. The issue involved in this case is that when the respondents had
(a) in the offer of appointment spelt out that the renewal of contract after the initial five years of contract, would be subject to assessment of the performance vide para 1(f) of Annexure A-1 order dated 10th December, 2007 and
(b) that in so far as such the span of renewal is concerned, vide para 18.1.2 of Annexure A-8, the same is for a period of five years at a time until attaining the age of superannuation of 60 years.
3. Vide impugned Annexure A-12, the period of renewal has been restricted to three years and less which is against the terms of offer and also the rules governing the services of the applicant.
4. In addition, the grievance of the applicants is that they are entitled to be considered for appointment on regular basis after six years vide clause 18.1.5.2 of Annexure A-8.
5. Thus, while challenging the legal validity of Annexure A-12, the applicants have prayed for the following reliefs:
a) Call for records leading to Office memorandum 13/12 (ref: C-
DAC: Corp-HRD: 2012) dated 28.09.2012; read with Office Memorandum 16/12 (ref: C-DAC: Corp-HRD: 2012) dated 30.09.2012; read with Office Memorandum 18/12 (Ref:C-DAC:
Corp-HRD:2012) dated 09.10.2012 annexed herein as Annexure-12; and quash and set asdie Annexure 12 as being arbitrary, illegal and violative of Articles 14, 16, 19 and 21 of the Constitution.
b) Direct the second and third respondents to make the applicants permanent in accordance with Rule 18.1..5.2 of the Bye laws of the Society.
Brief facts:
6. The applicants were appointed in December, 2007 in Centre for Development for Advanced Computing (CDAC) as Staff Scientist (re-
designated as Engineer in 2012) by a selection process including written test and interview. The tenure of appointment is contained in the offer of appointment which reads as under:-
"The appointment is for a period of five years. Renewal of the term of apointment will be based on the assessment of your performance and also the requirement of the Centre at the appropriate time".
After a review of their performance, they were promoted in 2011 as Senior Staff Scientist (re-designated as Senior Engineer in 2012) under the Flexible complementing Scheme. It is stated that the respondents acknowledged their suitability by conferring them 'best performance awards' and allowed them to continue in their post through acceptance of the annual performace reports. The applicants are aggrieved by the Office Memorandum dated September 28, 2012 (Annexure A-12 series) whereby it has been proposd to carry out a review of their performance on Grade Based Contract. The applicants apprehend that the proposed review at this juncture is meant to terminate their services ignoring the past performance of five years. The applicants therefore seek to quash Annexure A12 being arbitrary, illegal and violative of Articles 14, 16, 19 and 21 of the Constitution.
7. Respondents have contested the O.A. According to them, the applicants were appointed on contractual terms for a period of five years from the date of their joining CDAC. Their contractual appointment was valid till 2012. Annexure A12 does not affect or alter the appointment in CDAC in any way. The OA has been filed on apprehension only. It has been further contended that Annexure A12 is an instrument to facilitate the applicants' continuity of employment through renewal of contract. The applicants cannot, as a matter of right, claim continuity as there are no such commitments in their offer of letters, directly or indirectly. The offer of letters contained a provision for renewal of term of appointments based on the performance assessment and as per the need of the institution. The respondents have denied the allegation of the applicants that there was a condition not to leave the CDAC once joined. Rather the offer of appointment gave full right and freedom to the applicants to give three months notice period before taking a decision to leave the institution. The OA is borne out of apprehension and imagination and is liable to be dismissed.
8. In their rejoinder, the applicants have contended that this Tribunal had instructed the respondents not to act in detriment to the interests of the applicants, whereas, on the conclusion of interview, the respondents have applied the provisions of Order at Annexure A-12, by renewing the contract only by six months in some cases and 2 to 3 years in certain others.
9. Senior Counsel for the applicants argued that the action on the part of the respondents is -
(a) against the terms of offer of appointment vide Annexure A-2
(b) against the stipulated rules and regulations vide Annexure A-8
(c) violates the provisions of Art. 14 of the Constitution;
(d) frustrates the legitimate expectation.
10. In addition, the senior counsel submitted that the respondents have appointed certain other individuals in the said post of Scientists whereas, such a recruitment is permissible only in the higher grades as per the provisions of Annexure A-8. This aggravates the situation in that in the event of the applicants' regular appointment at a later date, they would stand rank junior to the illegally appointed direct recruits.
11. The Senior counsel also contended that the applicants have not been inducted on Grade Based Contract whereas, the respondents at various places used this appellation in respect of the applicants.
12. The senior counsel relied upon the following decisions in support of his claim:-
(a) (1994) 1 SCC 150 - Anzar Ahmad Vs. State of Bihar & Others.
(b) (1981) 4 SCC 158 - Sahkari Ganna Vikas Samiti Ltd Vs. Mahabir Sugar Mills (P) Ltd.
(c) Judgment dated 05.03.2013 of CAT, Bombay Bench in OA No.597/12.
(d) (2002) 6 SCC 552, (1977)3 SCC 506.
13. Senior Standing counsel for the Government succinctly submitted that there is no cause of any grievance at all in this case since there is no threat of termination. Performance appraisal is uniform with reference to all those who had been inducted on contract basis. The initial notification calling for application reflects the term 'Grade Based Contract' and it was in response to the same that the applicants have applied. The tenure of renewal has been restricted to six months or two or three years but all those would be subjected to further appraisal and on being found suitable, their terms of contract would be renewed further. In so far as regular appointment is concerned, the senior Central Government Standing Counsel asserted that the Rules do not give any vested right for the same and it is at the discretion of the respondents.
14. Arguments were heard and documents perused. The notification having reflected that the appointment is one of contract basis and the same is for different grades as contained in the advertisement, vide Annexure R- 1, the term 'grade based contract' cannot be faulted with. For, the respondents have classified the contract one as the aforesaid Grade Based Contract and the other as Project based contract as is evident from clause 18.1.2 and 18.1.8 of Annexure A-8. Thus, use of the term Grade Based Contract is perfectly in tune with the advertisement as well as the stipulated Rules.
15. Clause 18.1.2 of Annexure A-8, read with clause 1(f) of Annexure A-2 would mean that where there is a renewal, the same shall not be less than for a period of five years at a time and such a renewal is permissible till one attains the age of superannuation. In the instant case, there is nothing wrong in subjecting the applicants to performance appraisal test or interview but what is to be seen is whether the authorities are vested with the powers to truncate the period of renewal. The stipulated rules at Annexure A-8 do not permit so. Thus, once an individual is found not unfit, his tenure should be extended at the pace of five years at a time. From this point of view, the respondents have gone wrong in first of all putting a ceiling of only three years even for the best candidate and reducing the same to two years six months for others who have been adjudged below 'extraordinary'. Thus, Annexure A-12 is liable to be struck down in so far as it reduced the renewal period below five years. Consequently, orders issued in pursuance of the said Annexure A-12 and the interview conducted, vide Annexure A-16 etc., are all illegal and are to be quashed in so far s they stipulated the period of renewal for less than 5 years.
16. As regards the claim of regular appointment in terms of Clause 18.1.5.2, the said terms are of discretionary character and the applicants have not acquired any right to insist that they should be appointed on regular basis under the said clause. However, if the appointment on regular basis by way of direct recruitment takes place for the said post, the same would not be in accordance with the stipulated rules, since direct recruitment could be resorted to only in respect of higher posts as contained in clause 18.1.3.
17. In view of the above, these OAs are partly allowed. It is declared that the truncation of the renewal period as contained in Annexure A-12 is illegal and consequently, Annexure A-12 is quashed to that extent. Consequential orders of renewal are also to be deemed quashed in so far as they stipulate the span of renewal for a period below five years. It is also declared that those whose term has been extended in pursuance of the performance appraisal, would have a full tenure of five years from the date of expiry of the initial period of five years' contract, vide Annexure A-2 offer. It is also declared that the respondents in their own discretion consider the case of the applicants for regularization.
18. Under the above circumstances, there shall be no orders as to costs.
(K.George Joseph) (Dr.K.B.S.Rajan) Member (A) Member (J) aa.