Central Administrative Tribunal - Delhi
R.K. Chauhan vs India Tourism Development Corporation ... on 1 July, 2013
Central Administrative Tribunal Principal Bench OA No. 2433/2012 Reserved on: 30.04.2013 Pronounced on: 01.07.2013 Honble Mr. Justice Syed Rafat Alam, Chairman Honble Dr. Birendra Kumar Sinha, Member(A) R.K. Chauhan s/o late Sh. Dadhibal Chouhan, Occ. Service [Dy. GM (Engg.-Civil) in Engg. Division of ITDC] R/o Flat No. S-2, Plot No. 374, Sector 4, Vaishali, Ghaziabad, U.P. 201 012. Applicant (By Advocate: Shri Robin Majumdar) Versus India Tourism Development Corporation Ltd. Through its Chairman, Scope Complex, Core-8, 7, Lodhi Road, New Delhi 110 003. Respondent (By Advocate: Sh. Ujjwal K. Jha) O R D E R By Dr. Birendra Kumar Sinha, Member (A):
The instant Original Application filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 is directed against the Office Order dated 11.07.2012 whereby his officiating appointment against the post of Dy. General Manager (Civil) granted vide order dated 16.10.2009 has been withdrawn. The applicant has, therefore, prayed for the following main relief(s):-
Set aside and/or quash the impugned Office Order No.PER/2445 dated 11.07.2012 (Annexure A-1) thereby restoring the officiating appointment of the applicant against the post of Dy. General Manager (Engg.-Civil);
Permanently restrain the respondent authority who seeks to implement the impugned order (Annexure A-1) that was passed without affording any opportunity to the applicant and without any reason assigned and by violating the principles of natural justices to victimizing the applicant and also that the same being violative of DOPT Office Memorandum No.11012/9/86-Estt.(A) dated 24.12.1986 issued by the DOPT, Government of India;
Direct the respondent not to give effect to the said hastily issued Office Order dated 11.07.2012 and restore the applicants position in the office.
2. The facts of the case, in brief, are that on recommendation of the DPC, the applicant was promoted as Senior Manager (Engg.-Civil) in regular scale, vide order dated 01.09.2006. It is the case of the applicant that after three years thereto, he, being the senior-most Sr. Manager (Engg.-Civil), was eligible for promotion as Deputy General Manager (Engg.-Civil) w.e.f. 01.09.2009 on regular basis. However, instead of granting regular promotion, the applicant was given officiating charge of the post of Deputy General Manager (Engg.-Civil) in the pay scale of Rs.15600-39100 + Grade Pay of Rs.7600 (CDA)/Rs.29100-54500 (IDA), vide Office order dated 16.10.2009 with immediate effect. On 24.05.2010, the applicant was issued with charge-sheet under Rule 23(B), 24.3, 24.4 and 26 of ITDC CDA Rules for major penalty action for having committed serious irregularities pertaining to development work at Barsana, Distt. Mathura (UP). It is alleged that since the development work had not been executed by the respondent authority in Barsana, there was no loss suffered by the respondent and the fund had been transferred to the Government of Uttar Pradesh. This implies that the chargesheet has been issued to the applicant in collusive manner with malafide intention as the applicant had disqualified an Agency namely M/s. Jagdish Singh in a technical bid in the larger interest of the organization. However, in spite of the pending charge sheet, the applicant was assigned the higher responsibility of the post of General Manager vide Office Order dated 18.06.2010 consequent upon retirement of the then General Manager (Engg.-Civil) on 30.06.2010, who was looking after the works relating to Commonwealth Games. By the very same order, he was also delegated the powers of General Manager (Engg.-Civil) as DOP in the dual capacity of Sr. Manager as well as Dy. General Manager (Eng..-Civil). It is the case of the applicant that withdrawal of the benefit of officiating status as Deputy General Manager (Engg.-Civil) from the applicant has been taken by the Management of the respondent in the backdrop of Circular dated 21.04.2011 on a false premise since there are no guidelines to support the alleged action of the respondent. On 15.11.2011, the departmental proceeding was initiated and the applicant submitted his written submissions denying the charges pertaining to the works of Barsana (UP). However, the inquiry officer submitted his report on 16.12.2011 against which the applicant submitted his comments on 21.02.2012 with a request to review the findings of the inquiry officer but the same yielded no result. The applicant has further averred that he has gathered information that he was considered for promotion to the post of Sr. Manager (Engg.-Civil) by the DPC held in the years 2010 and 2011 but due to pending enquiry he was not promoted but the recommendations of the DPC qua the applicant were kept in a sealed cover. It is contended on behalf of the applicant that the respondents are deliberately not taking any decision on his appeal just to defeat him from getting promoted to the higher post for which the recommendation of the DPC are kept in a sealed cover. The harassment to the applicant by the respondents did not stop here because to demoralize and frustrate the legitimate expectation of the applicant, the respondent authority has once again issued yet another chargesheet vide Memo dated 08.06.2012 for major penalty action in respect of the work of Renovation of 186 guest rooms at 4th, 5th and 7th floor along with corridor and renovation of entrance of lobby including corridor around Convention Hall, Shopping Archade and Circulation and Parch area etc. of Ashok Hotel, New Delhi. The applicant submitted his response to the aforesaid Memo on 05.07.2012 asking for documents so as to enable him to give his proper reply while denying the charges leveled against him. However, the applicant was issued with an Office Order on 11.07.2012 withdrawing the officiating appointment against the post of Dy. General Manager (Civil) with immediate effect consequently lowering his basic pay without affording any opportunity of hearing to the applicant, which act of the respondents is arbitrary, malafide and against the principles of natural justice. In support of his claim, the applicant has heavily relied upon the judgment of the Honble High Court of Delhi in the case of BSNL & Others versus Moda Nand Thakur [WP(C) No.6235/2010 decided on 16.12.2010].
3. The respondents have filed their counter affidavit denying the claim of the applicant reciting therein that the applicant was not promoted to any higher post. However, he was assigned different jobs from time to time as per requirement. The respondents have also denied that the applicant was having any dual charge rather he was only the Sr. Manager. The learned counsel for the respondents has submitted that the officiating charge is given only in administrative exigencies which is subject to withdrawal and it does not confer any vested right in the employee to continue to hold this position indefinitely even on the ground of principle of natural justice. The learned counsel for the respondents further submitted that the policy of giving officiating post to the officers has now been done away with, but those who were given the officiating charge prior to 30.03.2011 have been left to continue provided no chargesheet is contemplated against them. Moreover, as per the policy, the applicant cannot be allowed to continue to officiate as he was issued with fresh chargesheet after 30.03.2011. However, the applicant has not challenged the disciplinary matter in this OA as his main thrust is against the withdrawal of offer of officiation which is based on the disciplinary proceeding.
4. Having heard the learned counsel for the parties and perused their pleadings as also the documentary evidence submitted by them, we find the following facts in issue emerging:-
Whether the officiation gives rise to rights in the post in the same manner or akin to regular promotion covered by Article 311(2) of the Constitution?
Whether in the instant case it was an officiating promotion or officiating appointment?
What relief, if any, can be granted to the applicant?
5. Insofar as the first issue is concerned, it is primarily a matter of law. At the very outset, it is to be noted that officiating promotion takes place when it is not possible for to fill up the vacancy on a regular basis for a host of reasons by giving a charge to another in line of hierarchy. The very term with the nomenclature officiating is to be distinguished from regular promotion in the sense that it does not have an abiding nature. This kind of promotion could either be ad hoc or officiating or filled by local arrangement or temporary as the nomenclature may go. A regular promotion, on the other hand, is made by following the due process prescribed against a regular vacancy on permanent basis. In such cases it does not have any temporary nature attached to and any reversion from the same can only be following under the procedure on disciplinary proceeding prescribed. There, of course, may be a certain circumstances where the provisions of due process are still may not get attracted which we will discuss in this order.
6. We have gone through the decision of the Honble High Court of Delhi in the case of BSNL & Others versus Moda Nand Thakur [WP(C) No.6235/2010 decided on 16.12.2010] wherein the respondent was appointed as Junior Engineer in the Post and Telegraph Department, which later on re-designated as Junior Telecom Officer. The respondent earned regular promotion to the post of Sub Divisional Engineer in 1991, and with the formation of BSNL, respondent opted and became the employee of BSNL. In 1994, the respondent was promoted to the next higher post of STS on local officiating basis for 180 days and with a break of 1 or 2 days repeat orders granting promotion to the respondent on local officiating basis were issued till 22.06.2006. In the meanwhile, 398 officers were promoted as STS on ad hoc basis along with the respondent and this was with reference to the All India Seniority. In the meantime, within 2 months thereafter i.e. on 24.07.2006 a chargesheet was issued alleging some technical defective procedures followed in effecting recommendations for regularization of muster role employees and the chargesheet was followed by reversion of the respondent to the post of SDE. We find that this case is distinguishable on the ground that the ad hoc promotion of the respondent was with reference to the All India Seniority whereas in the instant case the policy of granting officiating appointment has been done away with. Hence, the decision of the Honble High Court, relied upon by the applicant, does not support his case.
7. In case of Union of India etc. Versus K.R. Tahilliani & Anr. [AIR 1980 (SC) 953] involving identical and similar issue as involved in the instant case, the Honble Supreme Court held that a Government servant ordinarily holds service at the pleasure of the State. However, in our country, this pleasure is canalized by rules. It has categorically been held that the government servant has no right to hold on to a post on officiating. The relevant part of the judgment reads as under:-
5. An officiating hand has no right to the post and is perhaps a fleeting bird, who may have to go back to the substantive post from which he has been promoted on an officiating basis. What is more to the point, a person who has been appointed de novo may begin his service on an officiating basis or on a temporary basis and it is obvious that he has no right to the post and cannot be strictly said to be in that service or post as a member of that service. In short, an officiating Government servant does not really belong to Class I or Class II service until he acquires a right thereon. Even viewed closely and meticulously, the structure of the clause, namely, "if he is in Class I or Class II service or post" emphasises the nature of the service or post vis-a-vis the Government servant concerned. In another decision of the Honble Supreme Court in the case of Sreedam Chandra Ghosh versus State of Assam and Others [1996 (10) SCC 567], the same very position has been reiterated. The petitioner in that case was an Assistant Graduate Teacher discharging additional duties as Headmaster. He was replaced by another person in a chain of transfer and he reverted to his duties. The learned counsel for the applicant had similarly argued that this action of the Government amounted to reversion which could not be done without taking recourse to the disciplinary proceeding. Honble Supreme Court has held that the officiation of the petitioner was only a stop gap arrangement and had bestowed no right upon him to hold it on a permanent basis which had to be earned under due process prescribed. The Honble Supreme Court further found that since the petitioner was officiating and regular incumbent has to assume the office and then the petitioner was bound to handover the charge to new regular incumbent, hence it is neither demotion nor a punishment.
8. In the case of The Divisional Personnel Officer, Southern Railway Mysore v. S. Raghavendrachar (AIR 1966 (SC 1529), the Honble Supreme Court has held that when a person officiating on a post is reverted for unsatisfactory work, his reversion could not be treated as reduction in rank as the Government always has a right to consider the suitability of the post to which he had been appointed to officiate and is not under obligation to hold an enquiry about such suitability. The same view has been reiterated in case of Punjab State Electricity Board and Anr. Vs. Baldev Singh (1998) 5 SCC 450) wherein the Honble Supreme Court has held that the respondent had not acquired any legal right to the post of Assistant Lineman to which he had been promoted on ad hoc basis.
4. Having heard the learned counsel for the parties and examining the materials on record we have no hesitation to hold that in the facts and circumstances of the case the question of giving an opportunity of hearing to the plaintiff before passing the order dated 8-1-1981 does not arise. Since the plaintiff's appointment/ promotion to the post of Assistant Lineman was purely on ad hoc basis and the higher authorities directed to discontinue such ad hoc appointment, the competent authority passed the impugned order posting the plaintiff against his substantive post of Charge I Mate. The plaintiff had not acquired any right to the post of Assistant Lineman and further the impugned order dated 8-1-1981 cannot be held to be penal in nature.
5. In that view of the matter, the question of giving an opportunity of hearing does not arise. The lower appellate court as well as the High Court committed serious error in interfering with the judgment of the trial court. In the case of State of Rajasthan and Another Vs. Roop Chand Shah and Ors. (1994) 27 ATC 579), Honble Supreme Court reiterated the position as has been detailed in the case The Divisional Personnel Officer, Southern Railway Mysore v. S. Raghavendrachar (supra). A similar position had been taken by a Division Bench of this Tribunal in the case of Ompal Singh versus Delhi Transport Corporation [OA No. 2845/2011 decided on 16.02.2012] wherein the applicant, who was promoted to the post of Assistant Traffic Inspector, was placed under suspension and was reverted to the substantive post of Conductor on the ground that a disciplinary proceeding was being contemplated against him. He challenged his reversion on similar grounds what have been taken in the instant case. However, the Division Bench of this Tribunal turned down the plea on the ground that officiating promotion did not confer any rights upon the concerned employee. In the case of Ravi Kumar Pandit versus ITDC Lted & Others [OA No.1265/2011 decided on 10.08.2011], this Tribunal referred to the OM dated 24.12.1986 which provides as under:-
(ii) where the appointment was required to be made on ad hoc basis purely for administrative reasons (other than against a short term vacancy or a leave vacancy) and the Government servant has held the appointment for more than one year, if any disciplinary proceeding is initiated against the Government servant, he need not be reverted to the post held by him only on the ground that disciplinary proceeding has been initiated against him. However, the Division Bench of this Tribunal did not accept the plea of the applicant, and disallowed the Original Application.
9. In view of the above decisions, there is no difficulty in holding that officiating appointment does not confer any rights upon the applicant to hold on to the post against which he is officiating and can be reverted at any time without even affording opportunity in this behalf.
10. Now, we take up Issue No.2 i.e. whether it is officiating promotion or officiating appointment. Drawing a distinction within, it may only be an academic exercise in view of the findings in respect of Issue No.1.
11. The applicant was issued with a chargesheet on 24.05.2010 for major penalty action for having committed serious irregularities pertaining to development work at Barsana, Distt. Mathura (UP) wherein an enquiry was held and enquiry report was submitted on 16.12.2011 against which the applicant submitted his comments on 21.02.2012. The applicant was again issued with a chargesheet vide Memo dated 08.06.2012 for major penalty action in respect of the work of Renovation of 186 guest rooms at 4th, 5th and 7th floor along with corridor and renovation of entrance of lobby including corridor around Convention Hall, Shopping Archade and Circulation and Parch area etc. of Ashok Hotel, New Delhi. Since the enquiry was contemplated against the applicant and even not challenged the same by the applicant in the instant case, as per the policy decision of the respondents as also the settled position of law on this point, we do not find any rights arising from the officiating charge given to the applicant to hold on to it permanently. We are also of the opinion that the act of doing away with the policy of officiating appointment being the prerogative of the respondent-authority does not appear to be unwarranted. We, therefore, hold that the respondents were within their right, as per rules on the subject, to withdraw the benefit of officiation from the applicant.
12. In totality of facts and circumstances of the case, we are of the considered opinion that the instant Original Application has no merit and deserves to be dismissed. We order accordingly. However, there shall be no order as to costs.
(Dr. Birendra Kumar Sinha) (Syed Rafat Alam)
Member (A) Chairman
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