Central Administrative Tribunal - Delhi
- vs - on 25 September, 2008
Central Administrative Tribunal
Principal Bench
OA No.1279/2008
MA No.1038/2008
with
OA No.1281/2008
MA No.1190/2008
New Delhi this the 25th day of September 2008.
Honble Mr. Shanker Raju, Member (J)
Honble Dr. (Mrs.) Veena Chhotray, Member (A)
OA No.1279/2008
Sangeeta Khatri,
W/o Shri Sunil Kumar Khatri,
Aged about 46 years,
R/o C-4B, Flat No.74,
Janakpuri, New Delhi-58.
(By Advocate Shri A.K. Behera)
-Versus-
Union of India through:
1. The Secretary,
Ministry of Environment & Forests,
National River Conservation Directorate,
Paryavaran Bhawan,
CGO Complex, Lodi Road,
New Delhi-110 003.
2. Director (Admn.),
Ministry of Environment & Forests,
National River Conservation Directorate,
Paryavaran Bhawan,
CGO Complex, Lodi Road,
New Delhi-110 003. -Respondents
(By Advocate Shri Amit Anand)
OA No.1281/2008
Santosh Lata,
W/o Shri Kishori Lal,
Aged about 40 years,
R/o L-104, Aruna Apartment,
Parparganj,
Delhi-110092. -Applicant
(By Advocate Shri A.K. Behera)
-Versus-
Union of India through:
1. The Secretary,
Ministry of Environment & Forests,
National River Conservation Directorate,
Paryavaran Bhawan,
CGO Complex, Lodi Road,
New Delhi-110 003.
2. Director (Admn.),
Ministry of Environment & Forests,
National River Conservation Directorate,
Paryavaran Bhawan,
CGO Complex, Lodi Road,
New Delhi-110 003. -Respondents
(By Advocate Shri Amit Anand)
O R D E R
Mr. Shanker Raju, Honble Member (J):
It is trite that a public employment and appointment thereof not in terms of relevant rules shall not confer any right on the appointee, as ruled by the Apex Court in a Constitution Bench decision in Secretary, State of Karnataka & others v. Umadevi (3) and others, 2006 (4) SCC 1. Though Article 14 of the Constitution of India pronounces a positive concept but a wrong decision cannot confer upon an identically situated an indefeasible right to claim perpetuation of an illegality, as ruled by the Apex Court in Bihar Public Service Commission & others v. Kamini and others, 2007 (5) SCALE 753.
2. With the above backdrop, as these OAs involve common facts with an identical question of law, are being disposed of by this common order.
3. Applicants who have been sponsored by Employment Exchange for appointment as Stenographers on daily wages/casual basis in the Ministry of Environment & Forests, have been appointed on casual basis after duly selected on holding a selection and typing test on 2.3.1988 and 22.3.1988 respectively. Applicants also applied for appointment on ad hoc basis and after holding of a test have been appointed as such and continued for almost 17 years. Earlier, applicants sought regularization as Stenographer Grade D to treat the past service as continuity in OA-2073/94, which when dismissed, led to CWP No.7605/1999. An order passed on 26.4.2005 did not accede to directing creation of ex-cadre post but in the light of the long service of applicants for the last 17 years they are allowed on age relaxation to appear in the examination and further consideration for appointment on filling up of the vacancies by the respondents. Applicants who have failed in the examination, from the departmental file it transpires that a proposal was moved to re-designate the two posts of LDC into Computer-cum-Typist in the same pay scale to consider the claims of applicants for appointment on the posts. During the meticulous discussion it was found that the posts of LDC in the designated category of deemed abolition on re-designation of these posts would not have disturbed reservation roster and on administrative requirements a proposal has been sent to internal finance division (IFD). However, the IFD on certain clarifications did not approve the proposal. However, the said proposal was again presented before the Secretary, Ministry of Environment and Forests for re-designation of posts of LDC as Computer-cum-Typist and adjustment of applicants on a sympathetic view of the matter. This was on the ground that the vacancies, which are unfilled in the pay scale of Rs.3050-4590 applicants, could be appointed against those posts as personal to them, without treating this as a precedent. Such a proposal when presented before the Secretary, got approved and as a result thereof both the applicants have been appointed as Computer-cum-Typist, a Group C post vide memorandum dated 17.3.2008, laying down service conditions, wherein clause (iv) reserves a right to the respondents to terminate the services of applicants at any time on a months notice or by making payment of a sum equivalent to the pay and allowances in lieu thereof. By an office order dated 20.3.2008 applicants have been appointed on the post of Computer-cum-Typist w.e.f. 17.3.2008 with probation of two years. However, when a proposal to cancel appointments and terminate the services of applicants was apprehended by the applicants led to filing of these two OAs, where status quo was maintained, which is continuing till date. It is pertinent to note that on 7.3.2008 an order passed by the Ministry of Environment and Forests created two temporary posts of Computer-cum-Typist upto 28.2.2009 and as a result thereof on matching saving two posts of LDC have been decreased from 7 to 5. This has the approval of Secretary, Ministry of Environment and Forests vide order dated 28.2.2008.
4. The respondents, as transpired from the note, on an objection put-forth by the Pay and Accounts Office as to locus standi of the applicants and the methodology of their appointments when approval of IFD was not obtained, Legal Adviser was consulted. However, the salary of the applicants was directed to be released, yet the legality of appointments was dealt with separately and as it is found that the applicants were appointed de hors the rules and without a valid creation of posts, Secretary, Ministry of Environment and Forests on regret abut a wrong decision taken on erroneous presentation of the facts by cancelling the appointments issued order dated 16.6.2008, whereby on cancelling the order of appointments, applicants services have been terminated as per the conditions of service with entitlement of a sum equivalent to pay and allowances for a month, gives rise to the present OAs.
5. Learned counsel of applicants Shri A.K. Behera contended that appointment can be cancelled by an independent decision of the appointing authority, i.e., Secretary and as the decision is taken on the basis of certain observations made by the IFD, the termination is not valid in law. While relying upon the decision of the Apex Court in D.T.C. Mazdoor Congress v. D.T.C., 1991 Supp. 1 SCC 600 it is stated that a provision in the conditions of service to terminate it by a notice or pay and allowances in lieu thereof is unconstitutional, excluding observance of principles of natural justice. Learned counsel has also relied upon a decision of the Apex Court in Prabhudayal Birari v. M.P. Rajya Nagrik Aapurti Nigam Ltd., 2000 (7) SCC 502 to contend that when termination order has not simultaneously paid the pay and allowances in lieu of one months notice, termination cannot be given effect to.
6. According to the learned counsel there has been an invidious discrimination insofar as S/Shri Rajiv Goswami and Ram Kant have been given regular appointments as Computer-cum-Typists on 24.2.2008 and are still continuing in service. It is in this regard stated that once a methodology is adopted to re-designate the posts of LDC into the posts of Computer-cum-Typist and has been approved of by the Department, non-following the same in the cases of applicants is not based on any intelligible differentia and amounts to hostile discrimination. Learned counsel would contend that before dispensing with the services of the applicants no show cause notice or reasonable opportunity has been afforded to them.
7. On the other hand, Shri Amit Anand, learned counsel of respondents vehemently opposed the contentions and by referring to the decision of the High Court it is stated that the decision in R.K. Chaturvedi v. Union of India, OA No.1610/1994, decided on 1.2.1995, where a direction was given to absorb the employees creating ex-cadre posts was not approved of, applicants attempt to seek continuance on ex-cadre posts cannot be countenanced. Learned counsel stated that as cadre of LDC cadre was observed by the DoP&T as dying cadre, and on year to year basis the posts are being abolished, the continuance of applicants on the posts of Computer-cum-Typist cannot be sustained. It is stated that any appointment made on sympathetic and humanitarian grounds would not vest any right to hold it or to continue in service on that basis.
8. While referring to the Ministry of Environment and Forests Computer-cum-Typist Recruitment Rules 2001, it is stated that the mode is either by way of direct recruitment, failing which by transfer or transfer on deputation basis and on the basis of the last two categories applicants not being holders of equivalent posts are not eligible and for direct recruitment once the methodology under the instructions have not been followed, the appointments of applicants when they are age barred, cannot be in consonance with the Rules. Learned counsel relies upon catena of cases, including the decision of the Apex Court in Ram Chandra Tripathi v. Uttar Pradesh Public Services Tribunal IV, JT 1994 (2) SC 84 and Union of India v. A. Nagamalleshwar Rao, JT 1997 (9) SC 164 to contend that an ineligible person has no indefeasible right to hold posts and while dispensing with the services of the applicants the principles of natural justice are not to be followed, as the initial appointments were de hors the rules. Learned counsel states that no methodology of direct recruitment was followed while appointing the applicants and relies upon the decision of the Apex Court in Notified Area Council v. B.C. Bhoi, 2001 (10) SCC 636 to contend that when irregular appointment made without following the process of selection, consideration on direction of the Court to sanction posts to regularize their services is bad in law.
9. Learned counsel would also rely upon a decision of the Apex Court in Kishorilal Charmakar v. District Education Officer, 1998 (9) SCC 395 to contend that a mistaken appointment can be cancelled.
10. Learned counsel would lastly contend that applicants being ineligible, there was no power with the Secretary to legalize their appointments as they have accepted the offer of appointments, which included clause (iv), non-challenge to it is hit by the doctrine of waiver and acquiescence. As regards invidious discrimination, it is contended that the appointments have been made in those cases on a direction issued by the Tribunal in OA-1610/1994, decided on 1.2.1995, where a direction has been issued to treat the post as ex-cadre and after affording an opportunity of examination to consider them for regular appointment. As such it is stated that there is no similarity between those cases and the cases of applicants and hence there is no violation of Article 14 of the Constitution of India.
11. On careful consideration of the rival contentions of the parties and on perusal of the departmental record, in the matter of creation of posts under the Government a clean and clear methodology has been laid down as per G.I.F.M. OM dated 9.9.2003 if a post is vacant whether it could be filled or revived on being vacant in a year the post elapses and would be revived as per G.I.F.M. OM dated 3.5.1993.
12. As per OM dated 10.3.1998 insofar as selection grade non-functional posts are concerned, the procedure for creation is concurrence of IFA.
13. No doubt, which is no more res integra, earlier when by virtue of having continued with notional breaks as Stenographer Grade D on casual basis applicants when approached the Tribunal an order passed in 1999 dismissed the OA. However, in CWP (supra) directions to give age relaxation and consideration on qualifying the test when issued, applicants having failed in the examination cannot claim their regular appointment as Stenographers. However, their applicants were processed by a well laid down methodology as Computer-cum-Typists in Group C by re-designating the two posts of LDC, which were not subject matter of abolition, yet the fact that the IFD approval has not been taken, yet in the same methodology pursuant to directions of the Tribunal (supra) in case of S/Shri Rajiv Goswami, Ram Kant and Mahender Singh when posts of LDC have been re-designated as Computer-cum-Typist non-dispensation of their services on the ground that the posts of LDC, which was a dying cadre from year to year basis posts are being abolished when not adhered to and the same methodology, as in case of appointment as adopted in the cases of applicants was also existing, taking a different view of the matter is without any reasonable basis, more particularly when appointments of these persons have not been stated to be either illegal or de hors the rules and processed in the same manner in which the appointments of applicants have been processed, meeting out a differential treatment to applicants would certainly smack of invidious discrimination, which is not approved of in the wake of principle of equality enshrined under Article 14 of the Constitution of India. However, the concept of negative equality would apply only when the appointments of these persons have been observed to be illegal by the respondents. Be that as it may, a justification put-forth by the respondents that the aforesaid decision was taken on the direction of the Tribunal, we find that the direction of the Tribunal in case of Ramakant Chaturvedi was only to consider the post occupied on ex-cadre. A well conscious decision to isolate these posts of LDC as ex-cadre Computer-cum-Typist is a decision which has neither been a mistaken one nor taken inadvertently holds the field. In such an event the applicants case would also be mutatis mutandis covered by the aforesaid methodology. It is trite law that while an administrative authority acts its policy decision is interfereable as to its decision-making process in case of applicants and others. We find no intelligible differentia and reasonable nexus with the object sought to be achieved to justify a different treatment meted out to them.
14. Another aspect of the matter is violation of principles of natural justice. The Apex Court in Union of India and another v. Narendra Singh, 2008 (1) SCC (L&S) 547, observed as under:
32. It is true that the mistake was of the Department and the respondent was promoted though he was not eligible and qualified. But, we cannot countenance the submission of the respondent that the mistake cannot be corrected. Mistakes are mistakes and they can always be corrected by following due process of law. In Indian Council of Agricultural Research & Anr. v. T.K. Suryanarayan & Ors., (1997) 6 SCC 766, it was held that if erroneous promotion is given by wrongly interpreting the rules, the employer cannot be prevented from applying the rules rightly and in correcting the mistake. It may cause hardship to the employees but a court of law cannot ignore Statutory Rules.
33. As observed by us, Statutory Rules provide for passing of Departmental Examination and the Authorities were right in not relaxing the said condition and no fault can be found with the Authorities in insisting for the requirement of law. In the circumstances, the action of the Authorities of correcting the mistake cannot be faulted.
34. True it is that before such an action is taken and a person is actually reverted, he must be given an opportunity to show cause why the proposed action should not be taken. He may be able to satisfy the Authorities that there was no such mistake. But even otherwise, principles of natural justice and fair play require giving of such opportunity to him. But as observed earlier, in the instance case, in accordance with Rule 31-A of the Fundamental Rules, notice was issued to the respondent-employee, explanation was sought and thereafter the order was passed. The said order, in our considered view, was just, proper and in consonance with law and it ought not to have been set aside by the Tribunal or by the High Court. To that extent, therefore, the orders impugned in this appeal deserve to be set aside.
15. In Rajender v. State of Maharashtra, 2008 (2) AJW 445, while dealing with the issue of abrupt cancellation of appointment without giving reasons it has been held that cancellation of appointments without hearing the concerned is violative of principles of natural justice.
16. The Apex Court in Sahara India Lucknow v. CIT, 2008 (3) AJW 847 ruled that infraction of any personal right and non-pecuniary damage by an administrative order requires following of due process of law, including principles of natural justice.
17. In the instant case applicants who have beem appointed after due permission by the Secretary and in the wake of the fact that similarly circumstanced on the same methodology on being appointed have been continued and no termination has been resorted to in their cases, if given an opportunity would have established their claim before the authorities. Non-accord of reasonable opportunity has not only caused prejudice to applicants but also ensued civil consequences are without following due process of law and, cannot be countenanced.
18. In Nagendra Chandra v. State of Jharkhand, 2008 (11) SCC (L&S) 348, a three-Judge bench while dealing with the issue of irregular and illegal appointment though held the appointment de hors the rules and nullity in law, but a direction to consider the incumbent against the future vacancies with relaxation of age has been issued.
19. Without dwelling upon the various contentions raised by the rival parties, in our considered view these aspects of the matter, including accord of reasonable opportunity and invidious discrimination meted out to the applicants vis-`-vis their counterparts, having not been followed and considered respectively, the termination of the services of applicants cannot be sustained in law.
20. Termination resorted to in these cases is also rendered illegal for want of payment of pay and allowances in lieu of one months notice period as per the decision of the Apex Court in Prabhudayal Biraris case (supra). In our considered view the Secretary, Ministry of Environment and Forests having approved the appointments of applicants, which was within his competent jurisdiction, on a mistaken decision when regretted the same, it is no more res integra that it requires a prior reasonable opportunity to the affected persons.
21. Applicants who have been appointed on a well drawn process taken by the respondents and have not attributed by way of their fraud or misrepresentation in any manner in their appointments, a legitimate expectation has arisen, which even operates in procedural and substantive matters, as ruled by the Apex Court in Jitender Kumar v. State of Haryana, 2008 (1) SCC (L&S) 428.
22. Insofar as prior decision hearing in a mistaken decision when on an opportunity of hearing to the affected employee it was possible to arrive at a different finding, principles of natural justice are to be observed, as ruled by the Apex Court in Shekhar Ghosh v. Union of India, 2007 (1) SCC (L&S) 247.
23. Leaving other contentions open, these OAs are partly allowed. The termination of services of applicants is set aside. Consequences in law to follow. Status quo as on date is made absolute. However, this would not preclude the respondents to afford a reasonable opportunity, if so advised to the applicants and after dealing with the issue as observed in the body of the order to take a well reasoned decision in accordance with law. No costs.
Let a copy of this order be placed in OA-1281/2008 as well.
(Dr. Veena Chhotray) (Shanker Raju) Member (A) Member (J) San.