Central Administrative Tribunal - Delhi
Dr. Parthasarathi Banerjee vs The Ex-Officio President on 23 February, 2015
Central Administrative Tribunal
Principal Bench
OA NO. 723/2015
Order Reserved on: 20.02.2015
Pronounced on: 23.02.2015
Honble Mr V. Ajay Kumar, Member (J)
Honble Mr V. N. Gaur, Member (A)
Dr. Parthasarathi Banerjee
- Applicant
(By Advocate: Sh. R.Gopal)
Vs.
1. The ex-officio President,
Council of Scientific and Industrial Research
And others
- Respondents
ORDER (ON INTERIM RELIEF)
Honble Shri V.N.Gaur, Member (A) Heard the learned counsel for the applicant.
2. The applicant in this case is the Director of National Institute of Science Technology and Development Studies (NISTADS), Council of Scientific and Industrial Research (CSIR), New Delhi. He has filed this application with the following prayer:
(a) Direct the Respondents to immediately initiate the process of consideration of the extension of the term being held by him by supplying him the necessary Forms before the term comes to an end on 23 February 2015 by lapse of time; and
(b) Direct the Respondents after considering the case of the Applicant to grant the extension of the term as per law till he reaches the age of superannuation;
(c) Direct the Respondents to duly and immediately constitute Absorption Committee in terms of mandatory procedure (Annexure A7) and further direct that in terms of provisions in the said policy the tenure of the Applicant will not come to an end following terms of Appointment; and
(d) Direct the Respondents to take no coercive steps adverse to the interest of the Applicant till the process of consideration as prayed above is concluded;
(e) Direct the Respondents, in the event they after due, just and legal consideration decide not to extend the term as prayed for above, to maintain the current Grade HAG of the Applicant; and
(f) pass such order and/or further orders as deemed just and proper.
3. Applicant has also made a prayer for following interim relief:
(i) the concerned Respondents be directed not to disturb the present rank, grade, position, pension and the perquisites of the Applicant till consideration process for the extension of term due is validly and legally completed; and
(ii) restrain the concerned Respondents from disturbing or affecting the present rank, grade, position, pension and the perquisites of the Applicant till the decision of the O.A. and
(iii) pass such order and/or further orders as deemed just and proper.
4. Sh. R.Gopal, learned counsel for the applicant explaining the urgency of the matter and pressing for ex parte interim relief, stated that the applicant, an outstanding Scientist of CSIR, was appointed as Director, NISTADS by OM dated 24.02.2009 in the grade pay of Rs.12000 PB-4 for a tenure of 6 years from the date of taking over the charge of the post of Director. His 6 year tenure would be coming to an end on 24.02.2015. According to the Recruitment Rules for the post of Director of Labs of CSIR, the tenure period of the Director can be extended by any term upto 6 years or till the age of superannuation whichever is earlier. The applicant, who is going to attain the age of normal superannuation in December, 2015, was expecting that he would also be considered for extension of tenure till the date of his superannuation. He approached the respondent no.2 and 3 with a request to supply him the form in which the request for extension of tenure was to be submitted but he was not furnished with the same. Instead he received a letter from respondent no.3 stating that his request for extension as Director, NISTADS might be considered on conclusion of the pending disciplinary proceedings against him, which was the subject of two other OAs, namely, 1775/2014 and 2483/2014. The enquiry officer in the departmental proceeding had been restrained by this Tribunal from proceeding against the applicant as an interim order in OA-1775/2014. According to the learned counsel it was a settled law that a pending departmental proceeding would be no bar on consideration of the applicant for further continuation in the post of Director, NISTADS. Learned counsel further submitted that it is the established policy of CSIR for the last 60 years to either extend the age of superannuation or till the term has to expire before the age of superannuation through a process of consideration or to allow such Directors to continue to maintain the same grade, pay and perquisites. The Recruitment Rules for the post of Director in CSIR has been amended providing for constitution of an Absorption Committee for considering the absorption/extension of tenure of a Director and only when the Committee did not recommend the absorption of a Director that his tenure would expire as per the terms and conditions of the appointment. Relying on the Honble Supreme Court judgment in Babu Verghese & ors. vs. Bar Council of Kerala & ors., the learned counsel stated that the Honble Supreme Court had re-emphasized on the principle laid down in Taylor vs. Taylor, (1875) 1 Ch.D 426 that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all. In this case when the relevant rules provided for constitution of an Absorption Committee for consideration of the extension of tenure of the applicant as Director, NISTADS, the respondents ought to have constituted such a Committee and considered the candidature of the applicant notwithstanding the disciplinary proceedings launched against him. Non-consideration for the post would also amount to violation of the law that an applicant fulfilling all the conditions had a right for consideration for the post. The learned counsel, therefore, presses for ex parte interim relief in favour of the applicant to allow him to continue in the present post beyond 23.02.2015.
5. We have carefully considered the contentions raised by the learned counsel for the applicant in granting an interim order in favour of the applicant. The applicant was appointed by order dated 24.02.2009 on a tenure for a period of 6 years from the date of taking over the charge of the post of Director, NISTADS or till the age of superannuation, whichever is earlier. The terms and conditions attached to the appointment order also clearly mentioned that the appointment was for a tenure of 6 years or till superannuation whichever was earlier. It is obvious that the applicant had accepted the appointment knowing fully well that in the event of his tenure not being extended, he would be reverted to his substantive appointment. The recruitment rules, 2008 for the post of Director of Labs contains the following provision:
10.2 In deserving cases the tenure period can be extended by another term upto six years or till the age of superannuation whichever is earlier. Extension in tenure shall be considered by a Committee comprising of DG, CSIR as Chairman and four eminent Scientists/Technologists/Experts in the relevant field to be constituted by VP, CSIR. The Committees recommendations shall be accepted by the VP, CSIR. Any proposal to reject the recommendations of the Committee will require approval of the ACC.
6. A plain reading of the above provision makes it clear that it is the prerogative of the respondents to consider granting extension to an incumbent for another term upto 6 years or till the age of superannuation, whichever was earlier. If the respondents decide to move in that direction, such proposal for extension in tenure shall be considered by a Committee.. The applicant has not been able to establish that in the event the respondents decide not to extend the tenure would also do so on the recommendation and concurrence of the abovementioned Committee. The judgment of Honble Supreme Court in Babu Verghese (supra) would, therefore, not come to the rescue of the applicant as no procedure has been laid down for taking a decision for not extending the existing tenure of an incumbent.
7. Considering the preceding discussion, we do not find any prima facie case for intervention by this Tribunal by way of an ex parte interim order and the prayer for interim relief is, therefore, rejected.
8. Issue notice to the respondents returnable on 26.03.2015.
(V.N. Gaur) (V. Ajay Kumar) Member (A) Member (J) sd