Central Administrative Tribunal - Delhi
Ms. Sujata Rawat D/O Late Shri Netra ... vs Govt. Of India, Through Its Secretary, ... on 1 November, 2006
ORDER Shanker Raju, Member (J)
1. By virtue of this OA, applicant, who is working as Production Assistant in Doordarshan, has assailed an order passed by the respondents on 7.12.2005, whereby on cancellation of her appointment as Production Assistant she has been reverted to the post of Lower Division Clerk (LDC).
2.A brief factual matrix transpires that father of applicant died in harness on 4.2.1990 and applicant, who was graduating at that time, was offered a post of LDC in the pay scale of 950-1500 on 27.7.1990, which was a Group 'C' post, on the assurance that she will be offered the post of Production Assistant on completion of graduation. Accordingly, on completion of graduation she applied for the post of Production Assistant and on acceptance of the conditions stipulated in memo dated 27.12.1993 on 25.1.1994 applicant was appointed as Production Assistant in Group 'C' in the pay scale of Rs. 1400-2600 w.e.f. 27.12.1993. She had been working on the aforesaid post since then. The Director, Central Production issued an order on 9.10.2000 as to not to treat the present case as a precedent and on audit objection as to the irregular appointment of applicant when she apprehended an adverse action on the part of the respondents led to filing of OA-2037/2004, which on the assurance of respondents to take up due process of law was rendered infructuous on 1.2.2005.
3. Thereafter a show cause notice was issued after the Department of Personnel & Training (DOP&T) has rejected post facto approval to the appointment of applicant, which when responded to on 9.6.2005, culminated into an order passed, which is impugned herein.
4. learned Counsel of applicant stated that as per the doctrine of acquiescence after about 12 years without any fault, misrepresentation or fraud committed by applicant, disturbing her appointment at this belated stage is bad in law. Reliance has been placed on a decision of the Apex Court in The Nayagarh Co-operative Central Bank Ltd. and Anr. v. Narayan Rath and another .
5. learned Counsel would contend that applicant has been appointed afresh as Production Assistant and now reversion after she had altered her position and would get benefit of promotion etc. is not only against the doctrine of legitimate expectation but without following due process of law, as she had acquired the confirmed status and her name had figured in the seniority list of Production Assistant.
6. learned Counsel would also rely upon the decision of the Full Bench of the Tribunal in R. Jambukeswaran and Ors. v. Union of India and Ors. 2002-03 ATFBJ 200, to contend that in the matter of appointment, when a person is appointed, necessarily with the passage of time acquires certain rights and not taking any adverse action within a reasonable time would tantamount to acquiescence. Now, treating the appointment as erroneous and quashing it would be against the law.
7. On the other hand, learned Counsel of respondents vehemently opposed the contentions and stated that applicant was only senior secondary and was appointed as LDC and as audit had found her appointment as erroneous, the matter for post facto approval when referred to DOP & T as per Clause 10 of the DOP & T OM of 1998 on compassionate appointments request for change of post of compassionate appointment is not entertainable and one has to advance in his cadre for future progression. learned Counsel in this backdrop stated that DoP & T clearly ruled that appointment on compassionate basis in the higher grade, in the first instance, is not tenable.
8. learned Counsel further stated that the cadre of LDC and Production Assistant are two distinct cadres and as appointment to the post of Production Assistant is technically related to her previous appointment, her request for Production Assistant not against any advertisement, merely on acquiring the requisite qualification, once applicant accepted the appointment as LDC, would not be allowed to gain two benefits at a time.
9. We have carefully considered the rival contentions of the parties and perused the material on record.
10. The constitutional principle in judicial system is prevalence of rule of law. However, sometimes equity, which cannot be claimed as a matter of right, has to be applied in a particular case to prevent miscarriage of justice on settled principles of law. The Apex Court in State of W.B. and Ors. v. Niranjan Singha (2001) 2 SCC 326, on the principle of legitimate expectation, observed as under:
4. We may notice that the distinction sough to be made by the High Court that this is not a case involving grant of a fresh agency but extension of the existing one does not make much sense. an extension of an agreement or renewal is granted on the expiry of the period of the existing agreement. Either the extension or the renewal of the existing agreement may be on the same terms or on different terms. If it is a case of extension of the existing agreement on the same terms and conditions and such consideration gives rise to a question of legitimate expectation being a part of the concerned agreement, economic consideration of getting higher bid for the same period would be a relevant consideration. If the Governmental authorities had found that it would be feasible to have the agency, as in the present case, on fresh terms by enhancing the amount payable to the Government, it would be a relevant factor and in such a case it cannot be said that the legitimate expectation of the respondent had been affected because the public interest would out-weigh the extension of the period of the agreement. the doctrine of "legitimate expectation" is only an aspect of Article 14 of the Constitution in dealing with the citizens in a non-arbitrary manner and thus, by itself, does not give rise to an enforceable right but in testing the action taken by the Government authority whether arbitrary or otherwise it would be relevant. The decision in Food Corporation of India v. Kamdhenu Cattle Feed Industries (supra) does not lay down any principle which detracts from what we have stated now. In a case where the agency is granted for collection of toll or taxes, as in the present case, it can "be easily discerned that the claim of the -respondent for extension of the period of the agency would not come in the way of the Government if it is economically more beneficial to have a fresh agreement by enhancing the consideration payable to the Government. In such an event, it cannot be said that the action of the Government inviting fresh bids is arbitrary. Moreover, the respondent can also participate in the tender process and get his bid considered. Hence, we do not think that the view taken by the High Court can be justified.
11. If one has regard to the above, the present is a case where applicant, who was appointed on compassionate grounds as LDC in Group 'C' non-gazetted, when represented to respondents for a higher post of Production Assistant on acquiring the necessary educational qualification of graduation, which she was undergoing, an assurance when materialized at the highest level led to appointment of applicant w.e.f. 27.12.1993 as Production Assistant in Group 'C' post. Since then for the last 12 years she had been continuing on the aforesaid post, having been confirmed and is awaiting upgradation as future progression. She has legitimately accepted her appointment which has no iota of compassionate appointment on being qualified for the post to be in accordance with rules as issued by the officials of respondents that her appointment would entail consequential benefits. Accordingly, now on a show cause notice issued in 2005, stating the appointment as irregular and reverting her to the lower post of LDC, is neither fair nor reasonable.
12. The Apex Court in Tandon Brothers v. State of W.B. and Ors. , insofar as equity is concerned, observed as under:
33. While none of the grounds spoken of in the just preceding paragraph cannot be brushed aside but by reason of our observation as herein before we are not inclined to deal with the issue of malice and motive in detail, suffice however to record that accepted methodology of governmental working being fairness and the same is lacking in its entirety in the matter under consideration.
34. Shortly put the situation seems to be the following:
The word 'supersession' had a definite connotation in English language and has also its due jurisprudential affect. The Governor of the State issues a notification, obviously upon consideration of all the relevant materials, that notification stands superseded by another Governor of the State without however, ascribing any reason whatsoever - as noticed earlier, formation of opinion ought to be with reasons and not de hors the same !! What was the reason for this change - Apparently there is no answer, the state of affairs existing in the year 1962-64 did not find any change in itself but the Government notification stands superseded - it is on this score that Mr. Ranjit Kumar severely criticised the governmental action as totally unfair, mala fide and devoid of any reason. His comments as regards motivation towards more money may not strictly be unjustified since time has now come for the payment of compensation. Assuming the proceedings were pending, why it was kept pending for such a long period of time? There seems to be no reason whatsoever. Government action must be based on utmost good faith, belief and ought to be supported with reason on the basis of the state of law - if the action is otherwise or run counter to the same the action cannot but be ascribed to be mala fide and it would be a plain exercise of judicial power to countenance such action and set the same aside for the purpose of equity, good conscience and justice. Justice of the situation demands action clothed with bona fide reason and necessities of the situation in accordance with the law. But if the same runs counter, law Courts would not be in a position to countenance the same.
13. Having regard to the above, the decision of the Government on administrative side should be based on good faith and supported with reasons. No malafide is to be imputed.
14. If one has regard to the above, applicant who had no role to play in her appointment except on her request the appointment when made applicant was eligible in all respects as per the recruitment rules for the post of Production Assistant. Applicant has neither misrepresented nor committed any fraud for getting appointment, which has been continued on her sheer performance on a confirmed status, which cannot be done away with on a show cause notice, as a confirmed employee cannot be reverted but by way of penalty after duly following the process of law and the procedure of holding disciplinary proceedings. Applicant on equitable consideration should have been continued as Production Assistant and the reasoning assigned by the DoP & T as to her appointment under compassionate appointment on higher post and change of higher grade except with usual future progression cannot be countenanced, as this aspect of acquiescence by respondents, the legitimate expectation as well as equity have not been considered at all. The Apex Court in Nayagarh's case (supra) in a case where Secretary of cooperative society was terminated after working for 13 years the doctrine of acquiescence has been brought into operation, as appointment having been acquiesced and for all practical purposes on acceptance of appointment, like in the present case, when the appointment of applicant as Production Assistant on 27.12.1993 having been accepted and culminated into confirmation on assignment of seniority in the grade, respondents at this belated stage without any reason except the advice of DoP & T and on audit objection, cannot resort to such action.
15. Rejection of post-facto approval by DoP & T is de hors the doctrine of equitable consideration.
16. Moreover, a Full Bench of this Tribunal in Jambukeswaran's case (supra), in a case where appointment made after unreasonable time being observed as erroneous and to be done away with, the following observations have been made:
25. There is another way of looking at the same. The instructions further do not prescribe any time-limit within which such a power can be exercised. When a person is appointed, necessarily with the passage of time, he gets certain rights. If no action is taken within a reasonable time, it would tantamount to acquiescence. It cannot be that at any point of time, the authorities can enquire and start challenging the said action.
26. We know froth the decisions of the Supreme Court in the case of Shri Krishnan v. The Kurukhsetra University, Kurukshetra that when there is ample opportunity to act and it is not attracted, then it tantamount to acquiescence to the infirmities, if any. The Supreme Court held:
7 Equally it was the duty of the Head of the Department of Law before submitting the form to the university to see that the form complied with all the requirements of law. If neither the Head of the Department nor the university authorities took care to scrutinize the admission form, then the question of the appellant committing a fraud did not arise. It is well settled that where a person on whom fraud is committed is in a position to discover the truth by due diligence, fraud is not proved. It was neither a case of suggestio falsi, or suppresio veri. The appellant never wrote to the university authorities that he had attended the pre scribed number of lectures. There was ample time and opportunity for the university authorities to have found out the defect. In these circumstances, therefore, if the university authorities acquiesced in the infirmities which the admission form contained and allowed the appellant to appear in Part I examination in April 1972, then by force of the university statute the university had no power to withdraw the candidature of the appellant. A somewhat similar situation arose in Premji Bhai Ganesh Bhai Kshtriya v. Vice Chancellor Ravishankar University, Raipur a Division Bench of the High Court of Madhya Pradesh observed as follows:
From the provision of Ordinance Nos. 19 and 48 it is clear that the scrutiny as to the requisite attendance of the candidates is required to be made before the admission cards are issued. Once the admission cards are issued permitting the candidates to take their examination, there is no provision in Ordinance No. 19 or Ordinance No. 48 which would enable the Vice-Chancellor to withdraw the permission. The discretion having been clearly exercised in favour of the petitioner by permitting him to appear at the examination, it was not open to the Vice-Chancellor to with- thaw that permission subsequently and to withhold his result.
We find ourselves in complete agreement with the reasons given by the Madhya Pradesh High Court and the view of law taken by the learned Judges.
Similar was the decision in the case of the Nayagarh Co-operative Central Bank Ltd. and Anr. v. Narayan Rath and Ors. . The Supreme Court held that after a lapse of several years, it was not permissible to terminate the appointment on the ground that the approval of the Registrar had not been taken. The doctrine of acquiescence was put into service. The Supreme Court held:
4. The writ petition filed by respondent 1 could succeed, in our opinion, on the narrow ground that he had been permitted to function for over thirteen years as secretary of the Bank and that his appointment as Secretary was decided upon in a meeting over which the Registrar of Co-operative Societies had himself presided. The writ petition in substance is directed not against any order passed by the Co-operative Bank but against the order passed by the Registrar disapproving the appointment of respondent i as secretary of the Bank. It was not open to the Registrar, in our opinion, to set aside the respondent l appointment as a secretary after having acquiesced in it and after having for all practical purpose, accepted the appointment as valid. It is undesirable that appointments should be invalidated in this manner after a lapse of several years.
27. From these principles, it is clear that the instructions which give unfettered powers to the higher authority, therefore, cannot be sustained.
17. Having regard to the above, as the decisions are binding on us, we follow the same and hold applicability mutatis mutandis on all fours to the present case.
18. We also find that appointment of applicant as Production Assistant was not in continuance of her compassionate appointment but there is nothing in the order to indicate as an extension of compassionate appointment in the higher grade, the doctrine of estoppel and waiver would have no application as in Krishna Bahadur v. Purna Theatre and Ors. 2005 (1) SLJ 209, the Apex Court observed as under:
9. The principle of waiver although is akin to the principle of estoppel; the differ-ence between the two, however, is that whereas estoppel is not a cause of action; it is a rule of evidence; waiver is contractual and may constitute a cause of action; it is an agreement between the parties and a party fully knowing of its rights has agreed not to assert a right for a consideration.
10. A right can be waived by the party for whose benefit certain requirements or conditions had been provided for by a statute subject to the condition that no public in-terest is involved therein. Whenever waiver is pleaded it is for the party pleading the same to show that an agreement waiving the right in consideration of some compromise came into being. Statutory right, however, may also be waived by his conduct.
19. In the light of the above, we cannot advert to the reasoning given by respondents to revert applicant. Accordingly, OA is allowed. Impugned order is set aside. The status quo maintained on 16.12.2005 is made absolute. No costs.