Bombay High Court
Ravindra Damodar Durugkar vs The Union Of India & 3 Others on 22 December, 2016
Author: B. R. Gavai
Bench: B. R. Gavai
1 wp4598.03.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO.4598/2003
Shri Ravindra s/o Damodar Durugkar,
aged about 46 years, Occ. Service,
r/o 211/3, Sonilane, Sitabuldi,
Nagpur 440 012. .....PETITIONER
...V E R S U S...
1. The Union of India through the
Secretary, in the Department of Culture,
New Delhi.
2. The Chairman, South Central Zone
Cultural Centre, Rajbhavan, Mumbai.
3. The Director, South Central Zone
Cultural Centre, 56/2, Civil Lines, Nagpur.
4. South Central Zone Cultural Centre,
56/2, Civil Lines, Nagpur, a society
duly registered under the Societies
Registration Act. ...RESPONDENTS
-----------------------------------------------------------------------------------------------
Mr. S. B. Bhandarkar, Advocate for petitioner.
Mrs. A. Joshi, Advocate for respondent No.1, 3 and 4.
Mr. N. Rao, A.G.P. for respondent No.2.
-----------------------------------------------------------------------------------------------
CORAM:- B. R. GAVAI & V. M. DESHPAND E, JJ.
DATED :- DECEMBER 22, 2016
ORAL JUDGMEN T
(Per : B. R. Gavai, J.)
1 The petitioner had initially approached this Court, being
aggrieved by the order passed by respondent No.3 dated 17.03.2003 vide which remuneration payable to the petitioner was reduced to ::: Uploaded on - 23/12/2016 ::: Downloaded on - 24/12/2016 01:09:31 ::: 2 wp4598.03.odt Rs.7170/- per month and vide which the petitioner was directed to show cause as to why this interim order be not made final. However, it appears that during the pendency of the petition, there was confusion amongst the various respondents as to which authority is competent to take a final decision in the matter, as would be evident from the record of the present case. It would be appropriate to refer to the order of this Court dated 22.12.2004 wherein the Division Bench of this Court has expressed an anguish as to how the Central Government was not in a position to decide which is the competent authority to decide the issue. The said order reads thus:
"Shri Dastane, learned Counsel for the petitioner, states that this Court passed order dated 18.10.2004 on Civil Application No.3893/2004 moved by the petitioner and directed Central Government to decide the issue of the petitioner referred to it by the respondent nos. 3 and 4 vide communication dated 12.7.2004 as early as possible and in any case not beyond the period of eight weeks from the date of receipt of the order after following principles of natural justice. It is submitted that Central Government did not comply with the directions issued by this Court and on the other hand, communication dated 10.11.2004 issued by the Central Government to respondent no.3 reveals that stand of the Central Government is that it does not have jurisdiction to decide the issue and respondent no.3 is the Authority to decide the issue. The above referred letter is placed on record by the learned Counsel for the ::: Uploaded on - 23/12/2016 ::: Downloaded on - 24/12/2016 01:09:31 :::
3 wp4598.03.odt petitioner. It is, therefore, submitted that appropriate directions may be given to respondents in this regard.
Mrs. Joshi, learned Counsel for the respondent no.1, states that Central Government has not finally concluded that it has no authority to decide the issue. It is submitted that some time may be granted to the Central Government to reconsider whether Central Government has power and jurisdiction to decide the issue referred to it by the above referred communication by the respondent no.3 and if Central Government has jurisdiction, then the Central Government would take a decision as per direction of this Court.
Shri Mokadam, learned counsel for respondent nos. 3 and 4, states that respondent nos. 3 and 4 do not have jurisdiction to decide the issue in question and, therefore, issue is referred to the Central Government vide communication dated 12.7.2004.
It is really unfortunate that the respondents are not in a position to inform this Court which is the competent Authority to decide the issue in question. This Court vide order dated 18.10.2004 directed the respondent no.1 to decide the issue referred to it by the respondent nos. 3 and 4 vide communication dated 12.7.2004 within eight weeks. However, till this date, no decision has been taken by the Central Government even in regard to whether it has jurisdiction to decide the issue or not. We deprecate this conduct of the respondent no.1. in fact, respondent no.1 ought to have decided by now whether it has jurisdiction to decide the issue in question. However, because of inaction on the part of the respondent no.1, the matter is being listed again and again ::: Uploaded on - 23/12/2016 ::: Downloaded on - 24/12/2016 01:09:31 ::: 4 wp4598.03.odt before this Court and valuable time of this Court is wasted. Be that as it may, we now direct the Central Government to decide whether it has jurisdiction to decide the issue referred by the respondent nos. 3 and 4 vide communication dated 12.7.2004 within a period of three weeks from the date of receipt of this order and if it decides that if has jurisdiction to consider the issue, then we direct the Central Government to take a decision on its own merits according to law in regard to issue in question within six weeks thereafter. If the Central Government decides that it has no jurisdiction to consider the issue, then we direct the Central Government to refer the issue to the appropriate Authority with a direction to appropriate Authority to decide the same within four weeks from the date of receipt of such reference..."
Be that as it may. The final order is passed on 05.04.2005 by the Secretary to the Hon'ble Governor of Maharashtra whereby he has confirmed the order passed by the respondent No.3.
2. Mr. Bhandarkar, learned counsel for the petitioner submits that as per the Memorandum of Association of the respondent No.3, the powers with regard to the appointment, etc. are vested with the Executive Board. It is further submitted that it is only the Governing Body, which can set aside the decision taken by the Executive Board. It is submitted that the appointment of the petitioner has not been regularized by the Executive Board and the ::: Uploaded on - 23/12/2016 ::: Downloaded on - 24/12/2016 01:09:31 ::: 5 wp4598.03.odt Governing Body. The Hon'ble Governor of Maharashtra, in his individual capacity as Chairman of the South Central Zone Cultural Centre (hereinafter referred to as the "Centre") could not have revoked the order passed by the Executive Board and the Governing Body. He submits that in any case, the order is also not passed by the Hon'ble Governor in his capacity as Chairman. It is signed by the Secretary to the Hon'ble Governor. He submits that the order nowhere shows that there has been an application of mind by Hon'ble Governor in his capacity as Chairman of the said Centre.
The learned counsel, therefore, submits that the impugned order is not at all sustainable in law.
3. The learned counsel further submits that the facts in the present case are identical with the facts in Writ Petition No. 3245/2005 decided by Division Bench of this Court (Coram: Smt. Vasanti A. Naik and Ku. Indira Jain, JJ.) on 22.09.2016. It is submitted that perusal of the said judgment would reveal that the respondents attempted to make the Recruitment Rules, 2003 retrospectively applicable to the employees who were regularized in the year 1998. It is submitted that the learned Judges of the Division Bench have clearly held that the rules governing the service ::: Uploaded on - 23/12/2016 ::: Downloaded on - 24/12/2016 01:09:31 ::: 6 wp4598.03.odt conditions cannot be made retrospectively applicable and in similar circumstances has set aside the action taken by the respondent No.3 and restored the petitioners therein to the position as per the resolution of the Executive Board.
4. Per contra, Mrs. Joshi, learned counsel for the respondent Nos.1, 3 and 4, vehemently opposed the petition. She submits that the facts in the present case are totally different than the facts in Writ Petition No.3245/2005. She submitted that in the present case, the petitioner was not at all entitled to be appointed since he did not possess the necessary eligibility. It is submitted that the petitioner was granted an erroneous pay fixation and, therefore, the respondent No.3 has rightly passed an interim order, which has been confirmed by the respondent No.2.
Facts in brief:
5. The petitioner was initially appointed as Program Assistant with the Centre in the year 1986 on contract basis and continued to work as such till 1995. In the year 1995, the petitioner was continued on contract basis but in the capacity of an Assistant Director. The said Centre is established to preserve and promote projection of dissemination of arts, especially tribal and folk art of ::: Uploaded on - 23/12/2016 ::: Downloaded on - 24/12/2016 01:09:31 ::: 7 wp4598.03.odt people residing in the States of Andhra Pradesh, Karnataka, Madhya Pradesh and Maharashtra. The said Centre is established under the Memorandum of Association. The Memorandum of Association provides for various authorities of the said Centre i.e. the Governing Body and the Executive Board. The Governing Body consists of the Chairman, Minister for Culture, Government of India, Minister for Culture of the States for which the Centre is established, the Secretary of the Department of Culture and various other office bearers, mainly being officers of the State Government. A perusal of the Memorandum would reveal that the repository of the powers of the Centre vests in the Governing Body including the making of bye-
laws for creation or abolition of posts and the procedure for appointment of the technical, administrative and ministerial staff.
6. Whereas, it appears that the executive powers of the said Centre vests with the Executive Board subject to the general rules and directions of the Governing Body. It will be relevant to refer to Sub Clauses (iii) and (iv) of Clause 7 of the said Memorandum.
"iii) to make bye-laws relating to services under the society, and governing the payments of travelling allowances and daily allowances to be Members of the Society for undertaking any journeys in connection with the work relating to society and in all matter connected thereon;::: Uploaded on - 23/12/2016 ::: Downloaded on - 24/12/2016 01:09:31 :::
8 wp4598.03.odt
iv) to create the institute & abolish posts as may be necessary and to make appointments in accordance with the Rules and Regulations of the Society. All action concerning the appointment & dismissal of the Director including disciplinary proceedings shall be taken by the Executive Board. However, the Director shall have the right to appeal to the Chairman of the Governing Body."
It can thus be seen that the powers with regard to the appointment and dismissal of the employees would be with the Executive Board subject to the general rule and directions of the Governing Body.
7. It appears that while the petitioner was in the employment of the said Centre on contract basis, various posts were advertised by the said Centre vide advertisement dated 17.06.1995.
The post with which we are concerned is the post of the Assistant Director. The qualification prescribed for the said posts are thus:
"QUALIFICATIONS:
1. Master Degree I Performing/Visual Arts of a recognized University.
2. Minimum five years experience of Planning/ Projecting/Organizing National or State Level Cultural Programmes such as Festivals, Workshops, Seminars or Exhibitions in the field of Music/Dance/Theatre/Visual Arts/Fold Arts.::: Uploaded on - 23/12/2016 ::: Downloaded on - 24/12/2016 01:09:31 :::
9 wp4598.03.odt
3. Adequate knowledge of Culture, Classical and Folk arts in Madhya Pradesh, Maharashtra, Andhra Pradesh and Karnataka.
AGE LIMIT 18 to 35 Years as on 1.1.1996. Relaxable in case of employed or departmental candidates. The post (excepting the deputationists) shall carry fixed monthly remuneration of Rs.7,170/-."
It can be seen that though the said advertisements provided the age limit to be between 18 to 35 years as on 01.01.1996, it was relaxable in case of the employees or departmental candidates. Pursuant to the said advertisement, the petitioner has applied and was selected. It appears that the proposal of the candidates who have applied for the various posts and who were selected by the Selection Committee were placed before the Executive Board and the Governing Body. It further appears that the Executive Board and the Governing Body decided to regularize the services of the staff and officers of the Centre w.e.f. 01.12.1998. An order under the signature of the respondent No.3 to that effect came to be issued on 23.11.1998. The name of the petitioner could be found in the said list at serial No. 2. From the said date, the petitioner was getting regular emoluments as per the said order dated 23.11.1998.
::: Uploaded on - 23/12/2016 ::: Downloaded on - 24/12/2016 01:09:31 :::10 wp4598.03.odt
8. However, it appears that with the change of the incumbent in the office of the respondent No.3, an order came to be passed on 17.03.2003, thereby reducing the pay payable to the petitioner. The said order is styled as "Interim Order" and states that there are various irregularities noticed in the audit objections and, therefore, it was necessary to pass the interim order. The order states that the pay fixation of the petitioner was also erroneous.
9. Being aggrieved thereby, the petitioner immediately approached this Court. Perusal of the order passed by this Court would reveal that it was submitted before this Court that the order was interim in nature and the final order was yet to be passed.
Perusal of the order dated 18.10.2004 passed by this Court would reveal that a statement was made by learned counsel appearing on behalf of the respondent Nos.3 and 4 that the Hon'ble Governor of Maharashtra, who is the Chairman of the respondent No.3, has informed that the petitioner's case is required to be referred to the Government of India and that the Government of India was the competent authority.
The Court, therefore, vide the said order, expressed that it will be appropriate if the final order is passed by the authority ::: Uploaded on - 23/12/2016 ::: Downloaded on - 24/12/2016 01:09:32 ::: 11 wp4598.03.odt competent to pass such an order. The Court, therefore, directed the Central Government to decide the issue of the petitioner as early as possible and in any case within a period of eight weeks from the said date.
10. Again when the matter was listed before this Court on 22.12.2004, the learned counsel appearing for the respondent No.1 stated that the Central Government has no authority to decide the issue. The learned counsel appearing for the respondent No.1 sought time so as to enable the Central Government to reconsider whether the Central Government has power and jurisdiction to decide the issue referred to it by the respondent No.3 or not. Per contra, it was sought be argued on behalf of the respondent Nos. 3 and 4 that they did not have jurisdiction to decide the issue. The Court, therefore, observed that it was really unfortunate that the respondents were not in a position to inform the Court as to which was the competent authority to decide the issue in question. The Court again directed the Central Government to decide as to whether it has jurisdiction to decide the issue or not. It appears that further the Court observed that if the Central Government decides that it has no jurisdiction to consider the issue then the Central Government should refer the issue to the appropriate authority with a direction to the competent ::: Uploaded on - 23/12/2016 ::: Downloaded on - 24/12/2016 01:09:32 ::: 12 wp4598.03.odt authority to decide the same within a period of four weeks from the date of the receipt of such reference.
11. It appears that subsequently the Central Government decided that it had no jurisdiction and, therefore, referred the matter to the respondent No.2, which office was then occupied by the Hon'ble Governor of Maharashtra. It further appears that on 05.04.2005, the Secretary of the Hon'ble Governor has passed the order confirming the interim order dated 17.03.2003. The perusal of the order would reveal that there is only a reference in the order that the Chairman of the SCZCC is convinced that all the alleged irregularities/illegalities as regards the service matter of the petitioner as mentioned in the memorandum stands proved against him. Perusal of the said order would reveal that what has mainly weighed with the Secretary to the respondent No.2 is that the petitioner was over age at the time of his appointment since he was more than 38 years old.
12. We are of the considered view that the petition deserves to be allowed on several grounds, one of them being that the issue is covered by the judgment of the Division Bench of this Court in Writ Petition No.3245/2005. The Division Bench has categorically held ::: Uploaded on - 23/12/2016 ::: Downloaded on - 24/12/2016 01:09:32 ::: 13 wp4598.03.odt that the Recruitment Rules of 2003 cannot be made applicable to the regularization which was made in the year 1998. In that view of the matter, the petition can be allowed on the short ground of the present case being covered by the judgment of the Coordinate Bench of this Court in Writ Petition No. 3740/2005.
However, since Mrs. Joshi, learned counsel for the respondents, strenuously contends that the facts in the present case are different, it would be appropriate to also consider the other issues involved in the present petition.
13. As already discussed hereinabove, perusal of the memorandum would reveal that the entire repository of the powers of the said Centre vests in the Governing Body. The executive powers vest with the Executive Board subject to General Rules and Directions by the Governing Body. Perusal of the Memorandum of Association would further reveal that insofar as appointments, etc. are concerned, the powers vest with the Executive Board. As already discussed hereinabove, regularization of the petitioner was done as per the resolution passed by the Executive Board as well as the Governing Body. Not only that but the subsequent correspondence by the subsequent incumbents in the office of the respondent No.3 would itself show that regularization of the petitioner was done in ::: Uploaded on - 23/12/2016 ::: Downloaded on - 24/12/2016 01:09:32 ::: 14 wp4598.03.odt legal and valid manner. It appears that during the pendency of the present petition, there has been a correspondence between the Central Government and the office of the Director of Audit on one hand and the respondent No.3 on the other hand. A perusal of the communication dated 04.02.2005 by the Deputy Secretary to the Government of India to the Director of Centre, would make the issue clear. The said letter reads thus:
"I am directed to refer to our letter of even number dated 9th December, 2004 on the above subject and to state that the direction issued by the Hon'ble High Court, Nagpur Bench has been considered by the Ministry.
It is seen from perusal of the facts of the case that Shri R. D. Durugkar and other employees of the Centre had been regularized with the approval of the Executive Board and Governing Body, which is competent to take action in this regard as per existing rule and regulation. Therefore, the matter may be placed before the Governing Body which is the appropriate authority for reconsideration and the decision may be communicated to Hon'ble High Court. The Central Government Counsel may also be informed accordingly. The time limit allowed by Hon'ble High Court may please be adhered to while making the submission."
It could thus be seen that the Central Government itself has opined that the present petitioner as well as the other employees of the Centre had been regularized with the approval of the ::: Uploaded on - 23/12/2016 ::: Downloaded on - 24/12/2016 01:09:32 ::: 15 wp4598.03.odt Executive Board and the Governing Body, which was competent to take a decision in that regard as per the existing rules and regulations. Respondent No.3 had, thereafter, directed to place the matter for reconsideration before the Governing Body which was the appropriate authority. However, it appears that the matter was not sent for reconsideration before the Governing Body but was placed before the respondent No.2 in his individual capacity. As already discussed hereinabove, the order was not passed by the Hon'ble Governor but by his Secretary. By now, it is settled law that in quasi judicial matters, the orders have to be passed by an authority which is empowered to do so. When the matters are required to be decided by the Hon'ble Governor in his capacity as Chairman of the Centre, it is the Hon'ble Governor alone who had jurisdiction to pass an order and not his Secretary.
14. We are of the considered view that the submission of Mrs. Joshi, learned counsel for the respondents, that the Hon'ble Governor was delegated the powers of Governing Body in his capacity as Chairman of the Centre and, therefore, the order passed by him is valid is also without substance. It will be appropriate to refer to sub clause (1) of clause (14) of the said Memorandum, which reads thus:
::: Uploaded on - 23/12/2016 ::: Downloaded on - 24/12/2016 01:09:32 :::16 wp4598.03.odt "14.1) The Governing Body, may by resolution delegate to its chairman such of its powers for the conduct of business as it may deem fit, subject to the conditions that the action taken by the Chairman under the powers so delegated shall be ratified and confirmed at the next meeting of the Governing Body."
It could thus be seen that though the Governing Body is entitled to delegate its powers to the Chairman, the decision taken by the Chairman under the powers so delegated are required to be ratified and confirmed at the next meeting of the Governing Body.
Nothing is placed on record to show that the action taken by the Hon'ble Governor in his capacity as Chairman of the respondent No.3 is ratified by the Governing Body.
15. In that view of the matter, we are of the considered view that the decision taken by the Executive Board and the Governing Body could not have been reversed by the Hon'ble Governor in his capacity as respondent No.2, unless the same is ratified by the Governing Body. The decision taken by the Hon'ble Governor in his capacity as respondent No.2 would not be valid in law.
16. The only ground on which the Secretary to the Hon'ble Governor found fault is that the petitioner was overage on the date of his appointment. However, perusal of the advertisement itself would ::: Uploaded on - 23/12/2016 ::: Downloaded on - 24/12/2016 01:09:32 ::: 17 wp4598.03.odt reveal that the upper age limit of 35 years is relaxable in case of the candidates who are employed or departmental candidates Undisputedly, the petitioner was in service with the Centre at the relevant time. As such, the petitioner was entitled for relaxation of the condition of upper age.
17. It is further to be noted that taking cue from the earlier experience, the Governing Body as well as the Executive Board, vide resolution dated 14.12.2006, which is approved in the meeting dated 04.02.2008 have themselves modified the relevant rules in the Recruitment Rules, which provided for upper age limit. It will be appropriate to refer to the amended Rules.
"(4) The upper age limit will be relax-able in case of all the existing departmental employees and there will be no age limit for existing departmental employees for their regularization of services."
It could thus be seen that now the Rules specifically provide that the upper age limit is relaxable in case of all the existing departmental employees and there will be no age limit for existing departmental employees for their regularization in service. No doubt that the said rules cannot be made retrospectively applicable.
However, the said rule explicitly depicts the intention of the ::: Uploaded on - 23/12/2016 ::: Downloaded on - 24/12/2016 01:09:32 ::: 18 wp4598.03.odt Governing Body as well as the Executive Board that there should be no upper limit in case of the existing employees. Be that as it may, at the cost of repetition, the advertisement itself provides for relaxation of the upper age limit in case of the departmental and employed candidates.
18. Another ground on which a fault is found by the Secretary to the Hon'ble Governor is with regard to the audit objection in the matter of regularization of the petitioner. However, the said ground also, in our view, is without substance. The respondent No.3 in his communication, as late as on 08.04.2010 has clarified the position. It will be appropriate to refer to the said communication, which reads thus:
"With reference to the above representation received by this office and subsequent representation addressed to Hon'ble Chairman, S.C.Z.C.C., Nagpur with a request to review and regularize the services of Assistant Director Shri Ravindra D. Durugkar, I am submitting certain facts, which can not be ignored hence following facts are submitted for kind perusal and sympathetic consideration:
He is working in this Centre since inception and was regularized along with all other employees in the year 1998 I persuasion to the decision of the Executive Board and Governing Body and continuously was in service till 2003.::: Uploaded on - 23/12/2016 ::: Downloaded on - 24/12/2016 01:09:32 :::
19 wp4598.03.odt The audit objection and the age factor considered for conversation of his services on contract was used with discrimination as out of eight employees covered under this objection six were regularized in service and three other employees were given the relaxation in age. The salary being paid to the Assistant Director as on date is less as compared to other Programme Officers and clerical staff, which is very ridiculous and discriminated to him and the annual increment of Rs.450/- (Rs. Four hundred and fifty only) is fixed hypothetically.
Ironically the audit objections raised earlier by the Principal director of Audit (Central), Mumbai has been closed (dropped) after review vide their letter no.OAD/C/CH/IV/ SCZCC/nag/603 dated 07.01.2008 and his representation was placed before the Executive Board and Governing Body in its meeting dated 04.02.2008 but no decision was taken and it was resolved that since he has approached the Hon. High Court of Nagpur Bench, Nagpur, we may await for the decision.
The Assistant Director has made an appeal to continue his regularization status from the year 1998 as has been done for other employees and there is no audit objection, which was the main cause for conversion of his services from regular to contract. He has also shown his willingness to withdraw the case provided he is given justice.
Looking into the long pending litigation and the decision of the Executive Board and Governing Body in the year 2006 the order no.GSA/SCZCC/2005/A-5/578 dated 05.04.2005 made applicable with effect from 17.03.2003 may ::: Uploaded on - 23/12/2016 ::: Downloaded on - 24/12/2016 01:09:32 ::: 20 wp4598.03.odt please be reviewed and earlier status since regularization of his services in the year 1998 may please be considered for him."
It could thus be seen that respondent No.3 itself, in 2010 has found that the action, which was taken in the year 2003 and confirmed by the Secretary to the Hon'ble Governor on 05.04.2005 was not on the basis of correct factual position.
19. It could be seen that all the audit objections were dropped. Not only this but the representation of the petitioner was also placed for consideration before the Executive Board and Governing Body. However, since the matter was sub judice before the Court, the same was not considered.
20. It appears that only on account of some personal views of the incumbent in the office of the respondent No.3 in the year 2003, the action has been taken by him contrary to the resolution of the Executive Board and the Governing Body which has given rise to the present unwarranted litigation. We further find that had the respondents correctly understood the position as to which is the appropriate authority to take a decision in the matter, the matter could have been resolved at an earlier point of time, rather than keeping the it lingering for years together.
::: Uploaded on - 23/12/2016 ::: Downloaded on - 24/12/2016 01:09:32 :::21 wp4598.03.odt
21. In the totality of circumstances, we find that neither the respondent No. 3 nor the respondent No.2 i.e. the Hon'ble Governor in the capacity of respondent No.2, had jurisdiction to annul the earlier decision of the Governing Body and the Executive Board. This is apart from the fact that the order dated 05.04.2005 is not signed by the Hon'ble Governor but it is signed by his Secretary.
22. In the result, we have no hesitation to hold that the present petition deserves to be allowed. Rule is, therefore, made absolute in terms of prayer clauses (i) and (i-a). Needless to state that all the emoluments till the date on which the petitioner was in service, shall be paid to him within a period of three months from today.
(V. M. Deshpande, J.) (B. R. Gavai, J.)
kahale
::: Uploaded on - 23/12/2016 ::: Downloaded on - 24/12/2016 01:09:32 :::