Central Administrative Tribunal - Ernakulam
Mohammed Iqubal C vs The Administrator Union Territory Of ... on 10 November, 2021
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CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No.181/00224/2020
Original Application No.181/00225/2020
Wednesday, this the 10th day of November, 2021
CO RAM:
HON'BLE Mr. P. MADHAVAN, JUDICIAL MEMBER
HON'BLE Mr. K.V. EAPEN, ADMINISTRATIVE MEMBER
1. Original Application No.181/00224/2020 -
Subaidabi C.P., aged 49 years, D/o. Late Shri C.G. Cheriyakoya,
Principal (Ad-hoc), District Institute of Education and Training,
Kavaratti - 682 555, resident of Government Quarter No. D22,
Near IRBN Camp, Kavatatti - 682 555,
Mob. 9447610596. ... Applicant
(By Advocate - Mr. T.C. Govindaswamy)
versus
1. The Administrator, Union Territory of Lakshadweep,
Kavaratti - 682 555.
2. The Director of Education, Union of Lakshadweep,
Kavaratti - 682 555.
3. The Chief Executive Officer, Lakshadweep District
Panchayat (Education), Kavaratti 682 555. ... Respondents
(By Advocate Mr. S. Manu)
2. Original Application No.181/00225/2020 -
Mohammed Iqubal C., 45 years, S/o. Kunhi Koya C.,
Principal (Ad-hoc), Government Senior Secondary School for Science,
Avaratti - 682 555, Permanent Address - Cheriyappada House,
Agati Island, Union Territory of Lakshadweep - 682 553,
Mob.: 944691059. ... Applicant
(By Advocate - Mr. T.C. Govindaswamy)
versus
1. The Administrator, Union Territory of Lakshadweep,
Kavaratti - 682 555.
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2. The Director of Education, Union of Lakshadweep,
Kavaratti - 682 555.
3. The Chief Executive Officer, Lakshadweep District
Panchayat (Education), Kavaratti 682 555. ... Respondents
(By Advocate Mr. S. Manu)
These applications having been heard on 26.10.2021, the Tribunal on
10.11.2021 delivered the following :
ORDER
Per : Mr. P. MADHAVAN, JUDICIAL MEMBER -
Being identical the above OAs were heard together and are disposed of by this common order.
2. Almost identical reliefs are claimed in both the OAs. For the sake of convenience the facts of OA No. 181-225-2020 is taken up for consideration.
3. The applicant has filed OA No. 181-225-2020 seeking the following reliefs:
"i) Call for the records leading to the issuance of Annexure A1 and Annexure A2 and set aside the same.
ii) Direct the respondents to grant all consequential benefits as if Annexure A1 and A2 order has not been issued at all.
iii) Direct the respondents to deem the applicant to have been promoted on regular basis with effect from 1.4.2011 with all consequential benefits.
iv) Award costs of and incidental to this application.
v) Grant such other relief, which this Hon'ble Tribunal may deem fit and proper in the circumstances of the case."
4. The applicant in this case is working as a Principal of the Government Senior Secondary School for Science at Kavaratti, Union Territory of -3- Lakshadweep. The applicant is holding the said post w.e.f. 1.4.2011. According to him he was appointed as Principal in terms of the draft Recruitment Rules sent by the administration for approval in February, 2011. There were no other statutory Recruitment Rules in force for the appointment of Principals in this case. The applicant in this case is aggrieved by the orders issued as Annexures A1 and A2 reverting him from the post of Principal in an illegal manner to the post of Post Graduate Teacher (PGT). According to the applicant the order is arbitrary and cannot be sustained in the eye of law. The applicant was working as a Principal for the last 11 years without any break and believing that their appointment is regular and on the basis of draft Recruitment Rules already sent for approval.
5. The respondents entered appearance and filed a detailed reply statement, stating the following facts:
According to them the applicant was not selected on a regular basis as stated by him. He was appointed on ad-hoc basis as rules were not notified. Annexure A1 is issued reverting the applicant to the post of PGT as the Government of India OM at Annexure R1(c) does not permit ad-hoc appointments beyond the period of one year. According to the respondents the draft Recruitment Rules submitted to the Government of India was not approved and hence the draft Recruitment Rules mentioned in the order of appointment is not in existence and they had again framed a fresh draft Recruitment Rules for the post of Principal and forwarded the same to the Government for notification. The applicant can also very well participate in the written examination proposed in the new rules for getting the promotion and there is no merit in the contention raised by the applicant in this case. -4- The respondents have produced the OM relied upon for reverting the applicant as Annexure R1(c). They have also produced the file notings and copy of the fresh draft Recruitment Rules submitted to the Government.
6. The main contention of the counsel for the applicant is that there exists no notified Recruitment Rules for the post of Principal as the said post was created as per the order of the MHRD dated 7.7.2008 whereupon the respondents have prepared a draft Recruitment Rules and it was produced as Annexure A3. Annexure A4 is the appointment order issued by the administration promoting the applicant to the post of Principal at GSSS, Amini. On a reading of Annexure A4 it can be seen that the said promotion order was passed as per the provisions of a draft Recruitment Rules framed by the administration and sent for the approval. So it cannot be considered as a temporary appointment as claimed by the respondents. After the appointment as Principal the applicant continued in the said post for 11 years till the reversion order is issued against him. Even though the applicant was appointed on ad-hoc basis, Annexure A4 order clearly states as under:
"The promotion now ordered is purely on ad hoc basis and will not confer on them any claim for regular appointment / seniority / confirmation etc. in the grade and are liable to be reverted from the post on the vacancy is filled up on regular basis or necessity ceases whichever is earlier."
7. The counsel for the respondents mainly relies on the above paragraph where it is mentioned that applicant was appointed purely on ad-hoc basis. According to the counsel for the respondents the draft Recruitment Rules is not approved and now there is a change in the mode of selection and now as per the DoP&T order cited as Annexure R1(c), ad-hoc appointment cannot -5- be continued beyond the period of one year. But the respondents have no case that the applicant was going to be reverted since the post was filled up by regular appointees or that there is no need of Principals now in the schools.
8. We have carefully perused the pleadings and documents produced in this case. There had occurred a proposal for upgradation of the posts of Head Masters in Agatti, Amini, Kalpeni, Kiltan and Chetlat islands as Principals and the administration has proposed a new Recruitment Rule for the purpose of filling up of 5 posts of Principals newly created in the scale of pay of Rs. 15,600-39,100/- plus Grade Pay of Rs. 7,600/-. If we go through Annexure A4 it can be seen that the applicant was promoted as Principal at GSSS, Amini on the basis of a draft Recruitment Rule. This was done with the expectation that the draft Recruitment Rules would be approved by the Government. Even though it was mentioned as ad-hoc appointment, it appears that the administration has intended to promote the applicant as Principal on the basis of a Recruitment Rule. It is only because of that the respondents had put a condition that the applicant will be reverted from the post of Principal only if the vacancy is filled up on a regular basis or necessity ceases whichever is earlier. There has not occurred any regular selection thereafter. It appears that the draft Recruitment Rules forwarded by the respondents was not approved by the MHRD and long 11 years have passed and the applicant was permitted to function as Principal without any break. Now the respondents had come up with an explanation that as per DoP&T guidelines produced as Annexure R1(c) the ad-hoc appointment has to be terminated within one year or it has to be reviewed before the period of -6- one year ends. It is clear from the reply statement that respondents have failed to properly review the appointment for several years.
9. The counsel for the applicant has produced a copy of the judgment of the Hon'ble Supreme Court in Abraham Jacob & Ors. v. Union of India, dated 11.2.1998 (Civil Appeal Nos. 12388/1996 and 12387/1996). The counsel mainly argues the proposition that the appointments made on the basis of draft Recruitment Rules can be considered as an administrative decision of the Government prior to the coming up of the Recruitment Rules and hence, there is no illegality for the promotion given. So according to the applicant the respondents cannot turn around and say that the draft Recruitment Rule was not approved by the Government of India after a lapse of 11 years.
10. On a reading of the above decision cited by the applicant it can be seen that the said case arose out of the promotion given to the post of Assistant Engineer after formulation of a set of draft Recruitment Rules for promotion. The promotion was also effected in accordance with the provisions contained in the draft Recruitment Rules. The promotions were effected before the statutory rule came into existence by virtue of an administrative decision by the Government. The Hon'ble Supreme Court held as under:
"It is too well settled that the service conditions of employees, in the absence of statutory rule could be governed by administrative instructions. There was, therefore, no illegality in giving promotion to the Junior Engineers to the post of Assistant Engineer because of the aforesaid administrative decision of the Government."-7-
In this case also the draft Recruitment Rules were sent for the approval in the year 2011 with an intention to notify it and the administrative authorities has taken a decision to promote the applicant on the basis of the draft Recruitment Rules. So this is a case where an administrative decision is taken for promoting the applicant without having a statutory Recruitment Rule notified under Article 309 of the Constitution of India. Going by the above decision of the Hon'ble Supreme Court in Abraham Jacob's case (supra) it can be seen that the executive authority has power to issue orders on appointment in the absence of statutory Recruitment Rules and applicant was promoted as per Annexure A4. It is clear from the pleadings that the applicant was appointed on the basis of a draft Recruitment Rules which was sent for approval and notification. This was frustrated since the Ministry has rejected the draft after a long gap. The applicant herein was appointed as Principal in the newly constituted post of Principal. Now the respondents cannot turn around and contend that they have prepared a fresh draft Recruitment Rule and it is pending before the MHRD for approval. So even now there is no statutory Recruitment Rule governing the case of promotion to the post of Principal. This post was created in the year 2007 and even now no Recruitment Rule is in existence and it appears that the applicant who was appointed on an administrative decision of the Union Territory of Lakshadweep is going to be reverted unceremoniously saying that his ad-hoc appointment was not extended periodically. The conditions mentioned in Annexure A4 for reversion is also not satisfied. The alleged failure to obtain the extension of ad-hoc appointment is a failure occurred on the part of the respondents.
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11. In view of the above circumstances, we hold that the contentions of the respondents cannot stand before this Tribunal regarding the decision to revert the applicants to the post of PGT. It is arbitrary and violative of the provisions of Article 14 of the Constitution of India. Hence, we set aside Annexures A1 and A2 of both the OAs and direct the respondents to consider the case of the applicants for regularization treating them as they were appointed on administrative decision taken by the Union Territory of Lakshadweep. The respondents are directed to pass appropriate orders in the light of the above discussion within a period of six months from the date of receipt of a copy of this order.
12. The Original Applications are allowed as above. No order as to costs.
(Dated this the 10th day of November, 2021)
K.V.EAPEN P.MADHAVAN
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
"SA"
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List of Annexures in Original Application No.181/00224/2020
1. Annexure A1 - True copy of the order bearing F. No. 18/2/2011- Edn/Estt/309 dated 1.6.2020 issued by the second respondent.
2. Annexure A2 - True copy of the order bearing F. No. 18/2/2011- Edn/Estt/310 dated 3.6.2020 issued by the second respondent.
3. Annexure A3 - True extracted copy of first respondent's Administrator by letter bearing No. 18/30/2006-Edn/Estt dated 17.2.2011.
4. Annexure A4 - True copy of order bearing F. No. 18/2/2011- Edn/Estt(2)/955 dated 30.3.2011, issued by the second respondent.
5. Annexure A5 - True copy of the orders bearing F. No. 60/02/2005/Edn(AW) dated 21.1.2016 issued by the Secretary Education.
6. Annexure A6 - True copy of the representation dated 10.2.2020 addressed to the first respondent Administrator
7. Annexure A7 - True copy of the representation dated 10.3.2020 addressed to the first respondent.
8. Annexure A8 - True copy of the communication bearing F. No. 18/2/2011-Edn/Estt/1570 dated 23.12.2019 issued by the second respondent.
9. Annexure R1(a) - True copy of the relevant note file.
10. Annexure R1(b) - True copy of the new proposal and communication to the Ministry of Human Resource Development.
11. Annexure R1(c) - True copy of the DOPT instructions contained in OM No. 28036/1/2012-Estt(D) dated 3.4.2013.
12. Annexure R1(d) - True copy of the relevant portions of the note file by which the adhoc promotion of the applicant was approved. List of Annexures in Original Application No.181/00225/2020
1. Annexure A1 - True copy of the order bearing F. No. 18/2/2011- Edn/Estt/309 dated 1.6.2020 issued by the second respondent.
2. Annexure A2 - True copy of the order bearing F. No. 18/2/2011- Edn/Estt/310 dated 3.6.2020 issued by the second respondent.
3. Annexure A3 - True extracted copy of first respondent's Administrator by letter bearing No. 18/30/2006-Edn/Estt dated 17.2.2011.
4. Annexure A4 - True copy of order bearing F. No. 18/2/2011- Edn/Estt(2)/955 dated 30.3.2011, issued by the second respondent. -10-
5. Annexure A5 - True copy of the orders bearing F. No. 60/02/2005/Edn(AW) dated 21.1.2016 issued by the Secretary Education.
7. Annexure A6 - True copy of the representation dated 10.2.2020 addressed to the first respondent Administrator
8. Annexure A7 - True copy of the representation dated 4.4.2020 addressed to the first respondent.
8. Annexure A8 - True copy of the communication bearing F. No. 18/2/2011-Edn/Estt/1570 dated 23.12.2019 issued by the second respondent.
9. Annexure R1(a) - True copy of the relevant note file.
10. Annexure R1(b) - True copy of the new proposal and communication to the Ministry of Human Resource Development dated 30.1.2020.
11. Annexure R1(c) - True copy of the DOPT instructions contained in OM No. 28036/1/2012-Estt(D) dated 3.4.2013.
12. Annexure R1(d) - True copy of the relevant portions of the note file by which the adhoc promotion of the applicant was approved.
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