Punjab-Haryana High Court
H.C. Gera vs Central Administrative Tribunal on 1 April, 2013
Author: Rakesh Kumar Jain
Bench: A.K. Sikri, Rakesh Kumar Jain
CWP NO.20122 of 2011 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
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CWP No.20122 of 2011 (O&M)
Date of Decision: 01.04.2013
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H.C. Gera
. . . .Petitioner
Versus
Central Administrative Tribunal, Chandigarh and others
. . . . Respondents
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CORAM: HON'BLE MR.JUSTICE A.K. SIKRI, CHIEF JUSTICE
HON'BLE MR.JUSTICE RAKESH KUMAR JAIN
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Present: Mr.Anand Chhibbar, Sr. Advocate, with
Ms.Harpriya Khaneka, Advocate,
for the petitioner.
Mr.Sanjay Kaushal, Sr. Standing Counsel, with
Mr.Aman Sharma, Advocate,
for UT, Chandigarh - respondents No.2 to 4.
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RAKESH KUMAR JAIN, J.
The petitioner has filed this petition for the issuance of a writ in the nature of certiorari for quashing the order dated 20.5.2010 by which he has been reverted from the post of Biologist-cum-Anti Malaria Officer (for short 'BCAMO') to the post of Entomologist-cum-Parasitologist (for short 'ECP'), order dated 8.12.2010 of the Central Administrative Tribunal, Chandigarh (for short 'the Tribunal') whereby his Original Application challenging the order dated 20.5.2010 has been dismissed and for issuance of a writ of mandamus to reinstate CWP NO.20122 of 2011 -2- him in the post of BCAMO and be paid all pensionary benefits with interest from the date of superannuation.
In short, the petitioner, possessing the qualification of M.Sc (Honors) in Zoology, was appointed as Assistant Entomologist in 1997. The said post was redesignated as ECP in 1982. He was further promoted as BCAMO for six months on ad hoc basis on the instructions of the Government of India for filling up the post of Malaria Officer by way of promotion in the year 1984. This ad hoc appointment was extended till 10.5.1985 and in 1986 petitioner was reverted notionally with retrospective effect and again promoted on ad hoc basis on 12.5.1985 by order of the same day. However, there was further no extension granted to the petitioner but he continued to work on the said post till 20.5.2010, when he was reverted as ECP on the ground that he had manipulated his continuance on the promoted post.
The petitioner was revered from Group 'B' post to Group 'C' before 11 days of his superannuation which was challenged by him by way of OA before the Tribunal and had continued on the promoted post on account of interim order and superannuated on 31.5.2010.
It is pertinent to mention that since there was difference of opinion amongst the members of the Tribunal, therefore, it was placed before the Full Bench, who had ruled that ad hoc promotion of the petitioner as BCAMO was contrary CWP NO.20122 of 2011 -3- to the Rules. He was held entitled to retiral benefits on the last pay to be fixed on his substantive post of ECP at the stage he would have reached in the normal circumstances, as per law and rules, had he not been promoted irregularly as BCAMO, which is a gazette Group 'B' post.
Counsel for the petitioner has submitted that in order to implement the National Malaria Eradication Program successfully, the Ministry of Health and Family Welfare (Department of Health), Government of India issued instructions on 19.3.1982 to health Secretaries (All States/UTs) in respect of appointment of Biologists/Non-Medical personnel as District Malaria Officers. The nomenclature of the post of Assistant Entomologist was changed to that of ECP w.e.f. 1.1.1978 vide order dated 28.9.1982 issued by the Finance Secretary, Chandigarh Administration on behalf of the Health Department. On 23.4.1984, the petitioner was promoted on ad hoc basis, for a period of six months till it is filled on regular basis whichever is earlier, to the post of BCAMO. Although the ad hoc promotion of the petitioner was terminated on 7.10.1986 w.e.f. 10.5.1985 but on the same day i.e. 7.10.1986 another order was obtained reinstating him to the post of BCAMO w.e.f. 12.5.1985 to continue till such time when the Recruitment Rules are amended and the post is filled on regular basis. It is also not in dispute that the post of ECP is a Group 'C' post whereas the post of BCAMO is Gazetted Class-II Group 'B' post. CWP NO.20122 of 2011 -4- The petitioner made various representations for regularization of his service after promotion on the post of BCAMO and continued to work. Just 11 days prior to his superannuation, the impugned order for reversion from the post of BCAMO to ECP was passed by the respondents.
It is further submitted by counsel for the petitioner that the qualifications for the post of BCAMO are provided in the Chandigarh Health Department Services (Class II) Recruitment Rules 1974 (for short 'the 1974 Rules') which are relaxable at the discretion of UPSC. It is further submitted that since the petitioner had worked for 25 years on the said post, therefore, order of reversion should not have been passed much less 11 days prior to his attaining superannuation.
In this regard, he has relied upon decision of the Supreme Court in the case of "M.A. Hameed Vs. State of Andra Pardesh" (2001) 9 SCC 261. He has further argued that his appointment on ad hoc basis was challenged by one K.R. Chirwatkar, ECP by filing a suit for declaration and mandatory injunction which has also been dismissed.
On the contrary, counsel for the respondents has submitted that order of reversion has been passed as it has been found that petitioner had manipulated to continue with the ad hoc promotion by concealing material and true facts at different steps, in connivance with the officials of the Health Department of U.T., Chandigarh, the petitioner is not entitled to CWP NO.20122 of 2011 -5- hold the post of Group 'B' as he does not possess essential qualification as provided in the 1974 Rules, the subject matter of the civil suit and the writ petition is altogether different as in that suit his appointment was challenged by his co-employee whereas in the present writ petition he has challenged the reversion and lastly the decision of the Supreme Court in the case of M.A. Hameed (Supra) is not applicable.
We have heard both the learned counsel for the parties and perused the record.
There is no dispute that the petitioner has been working on the post of BCAMO on ad hoc basis for a long time and had been reverted 11 days before the date of his superannuation by virtue of the impugned order but it is also not in dispute that he does not possess essential qualification meant for the post of BCAMO provided in Appendix 'B' of the 1974 Rules, which read as under:
"(i) A recognized medical
qualification included in the
First and Second Schedule of
Part II of the Third Schedule
(other than Licensed
qualifications) to the Indian
Medical Council Act, 1956.
Holders of educational
qualifications included in Part II CWP NO.20122 of 2011 -6- of the Third Schedule should also fulfill the conditions stipulated in Section 13(3) of the Indian Medical Councils Act, 1956.
(ii) Training in Malariology or
Filariology.
(iii) 2 years' experience in Malaria
and Filaria research and / or
control eradication of
Malaria/Filaria.
(Qualifications relaxable at
Commission's discretion in case
candidates otherwise well qualified) It is also provided in the essential qualification that it can be relaxed at the discretion of the Commission in the case of candidates who are otherwise well qualified but in the case of the petitioner the said qualifications were never relaxed as nothing has been brought on record in this regard.
The O.A. filed by the petitioner has been dismissed by the Tribunal with the following observations: -
"12. Admittedly, applicant was given ad hoc promotion to the post of Biologist-cum-Anti Malaria CWP NO.20122 of 2011 -7- Officer way back in 1985 and was allowed to continued for almost over two decades. Since he did not have the basic qualification required for the post as per Recruitment Rules, his continuation on the post cannot be legalized, even if he held the post for 25 years. Nor was he recruited directly as required by the Recruitment Rules. Further, his appointment/continuation did not have the sanction of the U.P.S.C as his ad hoc promotion was rejected by the UPSC. Even then various authorities in the respondent-Department did not act on the advice of the UPSC. Nor the respondents ever tried to finalize the amendment of the R.Rs., to make the appointment of the applicant legal and regular. The post was never advertised, nor the Rules were amended and no efforts whatsoever appear to have been made to fill up the post CWP NO.20122 of 2011 -8- as per R.Rs. on regular basis.
Therefore, manipulation and collusion at different levels in the respondent-department to allow the applicant to continue for about 25 years in a post unauthorisedly and against the Recruitment Rules, is writ large. Further, the plea of the applicant that he has continued to hold the post for about 25 years and he may be allowed the retiral benefits on the basis of the scale of the post held by him till the date of his superannuation, if accepted, it will amount to legalizing the collusion and manipulation which is the main reason for his long continuation on a post for which he was neither qualified, nor was appointed as per Recruitment Rules. The Court cannot issue directions to the authorities concerned to act in contravention of Rules, as it would amount to compelling the authorities to CWP NO.20122 of 2011 -9- violate law, as has been held by the Apex Court in a recent decision in the case of State of West Bengal Vs. Subhash Kumar Chatterjee & Others (Civil Appeal No.5538 of 2008), rendered on August 17, 2010. The following observations made by the Apex Court are pertinent to be noticed hereinbelow:
"The State Government is under obligation to follow the statutory rules and give only such pay scales as are prescribed under the statutory provisions. Neither the Government can act contrary to the rules, nor the Court can direct the Government to act contrary to rules. No mandamus lies for issuing directions to a Government to refrain from enforcing a provision of law. No Court can issue mandamus directing the authorities to act in contravention of the rules as it would amount to compelling the authorities to violate CWP NO.20122 of 2011 - 10 - law. Such directions may result in destruction of rule of law."
13. In another case, namely State of Punjab versus Jagdip Singh (AIR 1964 SC Page 521), the Hon'ble Supreme Court has held as follows:
"In our opinion where a Government servant has no right to a post or to a particular status, though an authority under the Government acting beyond its competence had purported to give that person a status which it was not entitled to give he will not in law be deemed to have been validly appointed to the post or given the particular status."
14. The ad hoc promotion of the applicant as BAMO was dehors the Rules and violative of Articles 14 and 16 of the Constitution of India and is held to be wholly irregular and illegal."
Insofar as the judgment of the Apex Court in the case of M.A. Hameed (Supra), which has been relied upon by CWP NO.20122 of 2011 - 11 - the petitioner, is concerned, the same is not applicable to the facts and circumstances of the present case because in that case the incumbent was appointed as Local Division Auditor (Junior Auditor) on 1.12.1961, regularized in the said post w.e.f. 22.10.1969, and temporarily promoted as Upper Division auditor (Senior Auditor) on 11.5.1970 and was regularized in the said post on 1.7.1971. He was further promoted to the post of District Inspector of Local Funds (Accounts) on 23.8.1971 and continued to work on the said post for more than 10 years when he was finally reverted on 8.1.1981 to the post of Senior Auditor. The argument of the State was that he was holding the post of District Inspector of Local Funds (Accounts) on a temporary basis and as such he had no right to hold the post. In this background it was held by the Supreme Court that the reversion from the post, which he held for more than a decade, is wholly unjustified. In this case, there was no dispute about the essential qualification required to hold the promotion post.
Whereas in the present case there are essential qualifications prescribed in the 1974 Rules which the petitioner admittedly do not possess and in the absence of essential qualifications, he cannot be allowed to work on the said post. Thus, the judgment in the case of M.A. Hameed (Supra) is distinguishable on its own fact and does not advance the case of the petitioner any further.
CWP NO.20122 of 2011 - 12 -
For all the aforesaid reasons recorded by us, we do not find any error in the order of the Tribunal whereby the order of reversion passed against the petitioner has been upheld. Hence, the present writ petition is hereby dismissed.
(A.K. SIKRI) (RAKESH KUMAR JAIN) CHIEF JUSTICE JUDGE APRIL 01, 2013 Vivek