Karnataka High Court
Dr. K. Vasudeva Reddy vs Union Of India on 9 September, 2009
Author: Anand Byrareddy
Bench: Anand Byrareddy
IN THE HIGH COURT o1: KARNATAKA AT
QATED THIS THE 97"" DAY OF SEPTE3\./IEER 2:339 {
BEFORE;
THE HON'BLE MR. IIIS"-:I(:Ia; ANAND tBYIzIs;fI:_I3IoHI:;Y " I
WRIT PETITION No. _2oo8o o1? 2067 «IS%-eRTE§S)
BETWEEN: t % u A t
1. Dr.K.VastIde~va Rteddj/_;'V..: .
Aged4_a':b_out746 years} V .v
Son of Sri;B'a1'iV._Red.dy,""-- I
R_e_sid'i~r1g"at:.;No.412"?'[6;' ~ ,
'7'?' 'At' .. Crosé: sl' 3.?.'_" "» Maiifl V
Sector,' 7ife.1Aa1IafiE;a'Ne'*»I' Town,
B3Vr1ga1ore;5("3.Q v()()4".-..,_ * e
2. ~D_r.KouétIIbII"a Upatitayaya,
" abo{1t«3.(1_.y-eaI's,
Son _o'f._Late G.Yaj neshwara,
_ "Re'si,ditIg*-presently at No. 139,
. 2--B, Janakpuri,
New :Délhi~.1l0 058. PETITIONER
'(By Shri3;C.V.Krishna, Advocate)
I Union ofindia,
Department of AYUSH,
Ministry of Health and Famiiy Welfare,
ICRS Buiiding,
3
|\)
New Delhi--l 10 001.
Central Vigilance Commissioner,
Satarkatabhavan,
GPO Complex,
Block A, INA,
New Delhi.
The Director,
Central Council for Research in A
Ayurveda and Siddha, - _ "
No.6 l -65, Institutional Ai'e.a"
Opposite D Block,
Janakpuri, ,
New Delhi-1 I0
;V'Mr.ShIiVav _Bas%14ni,. , I ' '
I-olnt 'Secretia'1?y,l I' --
D'ep_ai1rne1it_ orgm
Minis..t_ryv.of H_ea'1tli'a,n]d Family Welfare,
'ICRS suiiaing, I
" l;\_l_ejw..,De1hi¥.ill--0--G01.
D. SIec_ret.ary,
C" --. Dep'a.rtment of Personal and Training,
Ministry of Personnel Public
Grievances and Pensions,
= _ , G01, North Block,
New De1hi--ll0 001.
I)r.N. Shrikanth,
Major,
Assistant Director,
No.6 1 ~65, Institutional Area
Opposite D Block,
%.
La.)
Janakpuri,
New Delhi-.110 058.
7. Dr.(Mrs.) Bharathi, V
Major, Assistant Directo1~(Ay}.:
Central Research institute in '
Ayurveda,
Road No.66,
Dhanwantari Bhayan,
Punjabi Bagh, _
New De1hi--1 10 026; *
8. Dr.(Mrs.}--Ra.khe(:' Meh'1'.a;,_ ,
Major, 3._Ass:;isrtar':t Director-(Ay)"' ' "
Cen€ra1'V_R.eS'e'aI.eh §.n:~__1;i"t~*..1t_e'*"i_r1"'._' '
.A-¥UYV€:d5»:*~1:;.. , ' 3
,VRoadNo,66,:"§,4' '
7Dh:1nwaa1afri ,,Bha'\far1'," --- '
PL3nj'abi
New.,De1hi--'1_1.0.02§,I'
- _ 9.ij ,1jV'r.S,_.N.i\"@ur€hy.,«'
, 3 Major-,._Assistant Director,
_ "R,egion,a3'*-Research Institute in
"Ay_L1rveg'ia,
No.'iQ/14, J agnath Chowk,
KXDK Coiiege. Road,
" .C_.?uruku1 Parisar,
Near Venkatesh Nagar,
NIT Comples,
Nandawan,
Nagpur-440 009. . RESPONDENTS
(By Shri.Y.Ha1'iprasad, Advocate for Respondent. I to 5, M/s.Lex Firm for Respondentb and 8, 5 6 Unani, Siddha and Heaith (hereinafter referred to as 'AYUSH') to postpone the interviews as the matter has been referred to the Department of Personnel And Training (he.reinafte.r referred to as 'DOPT') and to rescheduie the interviews, await_ing7.,the opinion of the concerned Department.
recolnmended to issue a fresh advertisternent foriaiir:fitioi:a_irVpo-st 0' of 7 and conduct combined selectioniiin tierrns of'A_Vphriexur'c?i-. _ Based on the letter of ti"1E:ii0iC(i):Ui1§3'§i, the respondent isstiedi :1 caiIi'ive_tter'i:tt) petitioner on 27.10.2005. it is stated thatpion i6.,ii'i20,05*--.,_a"Selection Committee chaired by res.ponVde.nt no'.4..'Vicondi1cted the interview for the post of .0 (Ayurveda) with CCRAS ignoring the DOPT's against. the consideration of past services and candidaites were issued appointment orders by the Selection " «L.» " Corrrmittee.
5. On 18.i1.2005, the fourth respondent recorded the opinion that "the advice of the DOPT was not proper and that 3 the Director (State Government) may study the wholeyjnnatter and frame issues for obtaining legal _;'advice__: and recommendation. On 06.l2.2005, themu represented for the opinion of DPOT. conve'3ted::,i_ts opinion stating that unless there"~is a specific goveifrrntentl order,' ailowing retrospective. . effect..----«-to'*-.UiPgF£1d2lfiGi3._ of Research Officer, the service renderedr._alsh§AsseiVstant_Research Officer cannot be treated -as C;i=rou;j_"V;~ .A'~.ser_vice.« Though the service renderediliinestlzie _ot7;Assi::t_ant'Research Officer should be given some al'lovvait*1t:e"..[:ii"c.onsideration when promotions are con3.lde1'ed.il"T,his'Vought'to be taken care of at the time of RleeruitmeintiiRules for the post of Assistant. Director"
. wag that the department was not averse to the Recruitrhevnt Rules of the post of Assistant Director being '*revievt/ed, if considered necessary. Thus, it was proposed by iriresjaondent no.4 for amendment of the Recruitment Rules to the H Ministry of Health and Family Welfare.
3
6. It is the submission of the petitioner _.that on 16.01.2006, the Department of AYUSH eonveyed.'aopi§o\ial., of the President of the Governing Body of the third.resgO.nfient recommendation of the Selection:v"Con1r11i.ttee. -:Th._i,s'--o1'der was ii issued with a rider that this;applies---towthose-.v--apnlieant.sdwho2 'were eligible as per the Rec1'uitinent_Rules-iforceigat the time of interview.
On 17.01 .2006, fo_L1r'i,ssued orders by the Assistant-- Di:;eetoi1'-.:(AyiLiry.eda} "in CCRAS. On 18.01.2006, the DirectoriiCCiRvAS sought,:.ie'}z1rificatit)n from 4"" respondent over of twoi"Can.d..itdates, namely, Dr. Rakhee Mehra and Dr. 'because they were not eligible as per the Reemit1"neint'0i'Rules and the same was conveyed to the A, Department oi?" AYUSH. On 15.02.2006, the Director CCRAS a reminder to the Department of AYUSH for Clarification. 'On 20.02.2006, the Ministry of Health and Family Welfare returned the original to the Department of AYUSH, seeking comments on the issue of Retrospective effect in terms of Annexure -- K.
7. The fourth respondent justified the-u"iactioinii'o~f:i't'he'ap Ministry and concurrence of Secre~tary-~was7_als_o jgrven and the 0 file was sent again to the Ministi'3r__ rm} the .app1'oval Ministry of Health and Famiil'y:i"V'rfelfare;fin:28i02i.ii2006, the proposal for retrospectiijve. iziiaspapproiied by the first respondent, the VMinistry_i'of_ Health-"'andi~:.,'l?a--rni1y welfare. On 30.03f.i2006;'A~$%.f_ith nfialaifitle .intention to accommodate Dr. Rakhee'Mehpra'd.ueeXtra'1'1eous consideration, the Department of AY approved" the amendment of Recruitment Rules wit}: retrospective effect and communicated to the CCRAS. The Ruiles were therefore amended and notified by the immediately coinciding with the Notification of iianzended Recruitment Rules, an appointment letter was issued 'Vito SN. Murthy. The respondents on 01.05.2006 after creation of vacancy appointed Dr. Rakhee Mehra as Assistant Director (Ayush).
E 10 The second petitioner had made a comppiaint-iiagainst respondent nos.2 to. 5 to the Prime Minister (tif__:Iridiaii'for' intervention. Thereafter, the third respoindevnt._ser1t of it recruitment to the second petitioner. The'Second'.pet"1tionE:r.ifiiedup a separate application beforeiiiithe seeking information I'53gc':1I'(f1iIi1g«.._zi:"I'©t1it)Spr$¢ti"J§:i,,/ii:'i?.1ft1€I1Cii;i'1fdAi1t to the Recruitment R'uEes and first respondent replied tosthe. same. The second petitioner? '' icompiaints in respect of the anoma1iest«--.tha.thighlighted by him and this was aside 'the..i*espondents. He had filed an appeal with =:hf_e '£irst_respo_ndent for not furnishing inforrriation. p the above background, the petitioner contends that ithe_respondent's action in advertising for 9 vacancies and ijsubsequently reducing the same to 3 and after interview appointing 6, of which one candidate was in respect of a future vacancy indicates that the respondents were not clear as to the i number of Vacancies that were available and / or the.nti»triber of vacancies that were required to be advertised f()r--§t_he' and selection, especially in selecting...ineligi§)le'candidates sach as Dr. S.N. Murthy and Dr. Ral{hee::._i_il\/Iehra; several legal opinions froni 'clearly' rnalafide and opposed :to_law,.«Tlieire listhenceldiscriinination in appointing these respondentsifviiltierelgiy.i/persons such as the petitioner ha've"rp:.l:§een ;2_de:;1'1ie3 "the l-:.legi_ti}nate right of being selected ii tosrfthe sentire procedure smacks of irregularities ai:d_lV"-iolation"'-of the Recruitment Rules. The very admitted circarns'tance's that there was retrospective amendment «oflltheiiliiecirtritment Rules to bring the irregularities in line with alcllear pointer to the malafide action on the part of the res-porident.
It is in this vein that the petitioner seeks an appropriate iitdirection against the respondents and to declare the selection and recruitment procedure adopted by the Selection Committee % 12 as being null and void and to withdraw the entire. 'selection process, including the selection for 21 future vaéianC'3'.'V:'a.ndi~-for such other directions that this C()l,1I't._,IlT,l.dy" be p'leia's'e:d':to"iss'ae.
9. The respondent noVs,.rl_to 5 having enteiredviiappearancec through counsel have contended'i»ithatVV the adviertiseigrient which was initially issued on up of nine posts of Assistant Director (Ayurvieidai) criteria as indicated igvas»."liii§'v»veveiriireduced to two in the C0" it was decided in the Senior Officers iiivieetinig toitivll only those posts which were vacant foriiilessipitlian one"yeai<.«The Council was permitted to fill up five V "'po'sts,"--o_ut.o'f_:w'l}ich 3 was under Unreserved General Category two under Other Backward Classes.
" The allegation that Dr. Rakhee Mehra made a "representation to the Ministry that past services rendered by her riin the post of Assistant Research Officer (Ayurveda) may be considered for the purpose of eligibility criteria for the post of 3 Director (Ayurveda) and were called for interview. TI'i§s"'was a decision taken with the concurrence of the :.._the_ approval. of the President of the Governing Body ii The allegation that at the propos~a,1 beiforeViit'Eie Selection Committee, the Coirtiniihttee \a./has rnore vacancies (2 Unreserv:edA_andiliilg of Assistant Director Committee interviewed eaiiiadiélhates'i:_a;gtai:n's't-.----the five vacancies and including Dr. Rakhee Mehra for appointrrient to vofhssistant Director (Ayurveda) out of iiieéliliiidates whosn 25 Unreserved and 8 Other Backward D *Chlassesi'candidates who actually attended the interview. The iiairie of 'Rakhee Mehra was kept in the waiting list against A the xiacancies likely to arise in the future.
12. Accordingly, as per the recommendations of the
-FiSeIection Committee, Dr. Rakhee Mehra was offered the post of Assistant Director gyurveda) on 01.05.2006 against the replacement vacancy of Dr.T.V. Menorr, Ass-istanvt. ':D_i'rector (Ayurveda) due to his retirement on Superannuati.on' effeC'ty_ from 30.04.2006.
It is admitted that the department satisfied with the view taken DOPTanciihen'ce"'s'ou§ht for 0 reconsideration of its opinio.n"'asit_:'-iti"fe_l_t that"~d-epiriving the upgraded Research Offic.eirs'i'V--oEf:'i henefits of financial Upgradationsf~u'11'der-- the:__ACP.::§cherfrei_'b.y_i_t_reating them as having entered directly 'service and at the same time not counting theiiservice re_nde,red by them prior to their upgradation andhdesyignationii"fornthe purpose of eligibility to the post of "ATssistant"Diii'ector would result in double jeopardy. agreed with stand taken by the Assistant Direc'tor3 and it acc01'ding.1y advised as referred to by the 'pe.tit.:i0r3er himself in paragraph -- 10 of the petition.
13. It is denied that there was any extr-aneous consideration given to the applicant and the applicaintliiiot only the beneficiaries of this principled dCCi.S,lO--n, i"\.?i.\:f:l'}l('I'I3 based on the representation of the lapplicarjitlregard--in'gs.cotirtting l of the service rendered .as.___ Asslistanr R.esearcvh Officers. (Ayurveda) and Research toifiextend the eligibility for the post 'ofiilA,ssista.ynt Directo-r_(Ayurveda) which has been examined at 1e'ngti*i:ilyyi.se.vte_raldeiiartments. i?..A1_4'.-- 'It isl'a:l'sollctonte_nde'dthat consequent on introduction of revised<--.s_ca.lesl of the Fifth Central Pay Commission fcjr'icertain.(_comrn0n...ca'tegories of staff as contained in Part A of i i.iScihe{;iu1e of CCS (Revised Pay) Rules 1997 as lap:plrovVed:hy'the Ministry vide letter dated 21.01.1998 and has (been. vreiceiving representations from certain Categories of it =.Vl'e»rnp'i1oyees (common categories) for adoption of revised scales "of pay as contained in Part B of First Schedule ofCCS (Revised Pay) Rules 1997. Accordingiy, having taken up the matter with 6 17 the Ministry for implementation of higher 'scales. as incorporated in Part B of the First Schedule. The letter dated 18.08.1998 advi.sed__the Coun'ci1"_'vto"::s'end"
comprehensive note detailing all the categoriies and nVnrnb.er?Vi_of posts in the Council which have""s.nffere'd ,froniVa,no'fti'alies° in the i pay scale on the basis impl-e'rn.e_n-ration ofirecorrnjnendations of the Fifth Central Pay The plea'th'at irijpletn'entaVtiotrV._of lliales affected several employees' wbo*h'a.cl'the'nc.:in'l-tiated proceedings before Courts of law and ipurpsuanti toithe 'l\;/il'inistry's approval, the same has been irnpileraetited has been up gradation of pay scale. in baclégrotindp, the allegation of the petitioner that the action to._revi$e. pay scales of the Assistant Research Officer by the AA Councilwith effect from 01 .OI.l996 was merely to benefit Dr. '--..V"Ral.<hee lvlehra is incorrect. It was a decision taken in
-"consultation with DOPT for the benefit of several other employees who suffered the disadvantage on account of their 3 18 pay-scales not having been upgraded. The formalities have been completed though belatedly and this cannot be urged as being malafide and in order to accommodate any particu1ar..cta.ndi=Vdate at the selection.
15. The candidature of the firstpetitioner coinsideredu , along with six others by the SerlectioniCotfnmitteei:7-Astiiscon 16.11.2005, the Selection Contirnitteei'apparentlyi"«:di*dV find' the petitioner suitableyfor the-posit. 'it, is notivcorrect that the resttlt?,of- the lsellecltedl"tca'n'didates were kept in abeyance as alleged pe.titi{jner:..'i'The information in this regard was snppliiepd to secolndvpetitioner as and when demanded. V _ "it-is stated that there is no infirmity or irregularity lasépllisoughtifltoll be urged by the petitioner. The retrospective A amendrnent of the Rule was not impermissible in law and the lV.V"sar.nle "having been given effect to, even according to the Vlpetitioner, the selection process cannot be faulted on the ground g 1!:
I9 that the Rules could not have been made retrospectit/'E:--l,y and any lacuna set right on account of the same.
16. it is in this vein that the counsel to urge the objections and reliance is sought toibe jn1'aced.'on4i*n't_he case of Baibir Kaur And Another-..vs. U'.rP_.'"Secc:r1_da,ry__Edu§.cat:.on';
Services Selection Board, Al1a_ha'aad--..and 2008 AIR scw 6672, in pantcuiarrssgiant'30,;twhiutrrgacts as foliows:
"30. We'-do not findinuch 'sut§s:.ta1tcVe the contention. Sect,ioi1'i.f",';.{1_,)_ th,ei"P'ri1:cipai Act, as amended by the Commission and Seiection }3oa1'dii Act, 3992 defines "year of 'V r'ecruirrne"n.t':'v toévmean a period of tweive months Eiiconiniencing from 1" day of Juiy of a calendar year. * of the Principai Act prescribes the for determination of number of vacancies "and.'directs the management to determine the number vacancies. 'exist_ing or iikeiy to fail vacant during the year of recruitment'. On a bare reading of the provision, it is manifestiy ciear that when a selection is held in a "year of recruitment" then all the existing vacancies and the vacancies iikely to fail vacant during the year of recgitinent are clubbed and notified. taken by the High Court that the Board and the Management have not committed any error in clubbing.» vacancies which were existing on the selection". . ..
By way of reply, the Counsef for 'the .1.woii.:-ldu 9 j ll reiterate with greater vehemence urge tha't_--v_.the. rtuirralberlof posts required to be filled up is"'r;o'ti.aaswered"in.t=he°statement of objections. The ulti;na:tet~decisioVnA ._l1old.that the posts were 5 in number andthat theylylinistry the number of postsris notby -any documents produced. Though in para 2__it* is c':1te'g:oricallyVstated by the respondent that the approved'-.werepuitimately 5, it is not supported by any ' ,lmatert_al~.doVcument. The fact remains that the respondent had '' vacillatedjover time as to the number of posts and the petitioner was ~~r;or:'1pleteiy in the dark as to the number of posts and it is belief that the number of posts are 9 and not 5 as Hécontended by the respondent. This aspect of the matter has not been established or demonstrated in the statement of objections by the respondent. He would also contend that the settled legal 8
ix) Pd position is that Rules of the game cannot been changed retrospectively. The admitted position that the Rec_ri1iitnnent Rules were amended with retrospective effect to ::r1ccAo1n';riiocIvatei--.p the lapses on the part of the respondent' isfia demonstrate that all was not well with th_ese1ec'tion In this regard he would seek to rel:/"tin the decision the case of K.Manjusree Vs. State':io.fp_An_dhi9a'il5iiaid'es_h -- izoosis scc 512 and Hemani Maihotra vsp.7H1_ghccc=§ur:«l.o1*b%;1_i.it .. (200s)7 scc ll tczviiisuppolrtrthe thatfleligibility criteria prescribed has toibe done 7aid"-.iarit:_e"'and that it cannot be changed mid-
stream.
ii " T v_17'. ;'}<7uI*t.i_ier the rules of recruitment could not be changed either duriilifigtiithe selection process or after its completion. The case"nitf':Dr. S.N. Murthy having been adrni.tte<:l1y made against 'Vther}'Ru1es and the same having been altered thereafter is not established by the respondent and therefore would submit that the petition ought to be allowed.
3 In the above circumstance, the staternentV.~-of the respondent that the number of posts at the time "for recruitment were five, insofar as the number of lpostsiebeing 5- as pointed out by the Counsel for ignhe respolizdentslthat._;though initially the posts were rnentioneddas 9 wliichi 'was "later corrected as 3. It is also madei4i'pl.ain..Vthat 't?ne:ini.:mbger of posts would depend on the e-xiTgeAn'e_ies_~at"thet relevant point of time, and as on the date of sei'ec»t-iota,' i;t..Qw_as five; "which was available to beivfilied the o'n_e"'which would arise in the near future was taken~i_n_to acc._oLi*:1t' byfselecting one more candidate namely I)V:'i'«:.Ral{i1eMe l;\/'le'h'ra.._..... . ..V_l'8%.'.L¥-Ie_nce, it cannot be said that the number of posts " ha*J'ing'\/ajrieidiat different points of time results in any grave injustice to the petitioner, as he was indeed called for interview ,_an"d remained part of the selection process, notwithstanding the number of posts that were be filled up. Insofar as the candidates narnely Dr. Rakhee Mehra and Dr. SN. Murthy were not 5 possessing the requisite qualification and were herrcc5.fn0_ti'be_ing eligible for being selected and which w23;si--alsoilsiibjtecti discussion int.er»departnientally be'fore_"'their'=.ca'ndida't¥ire was accepted.
As eitplained 'Resoonident, it was on account of the payA..sc2iilc. candidates not having of the their selection having of the said candidates no longer rernainedlian having been brought to light by to thle"'arn.ei'1dment of the Recruitment Rules with i *retros'peclti4veg:'effect the discrepancy, if any, has been set at iiatight, Th}i.s'il.cannot be termed as illegal or having been made by theiiespondents at the instance of or to accommodate any i' "particular candidate. Upgradation of pay scales was in respect
-Flof severa} employees inciuding Dr. Rakhee Mehra, and this % t~.J U1 cannot be termed as malafide action on the part of the respondent resulting in vitiating the selection process. Insofar as the petitioner not having been nj1ade..la'vrare'~«of his marks though appears to be an unexplained "circ=ji_1'ns'tan"ces_, the explanation put forth by the Counse:lA4i'ofr"Ehe'1 the Selection Committee haschosen'toindicate 'tlie .rIia;rks those selected candidates and thereis no indic.at_ion of the marks awarded to the petitioneriasheg was riot;-isielegcted, is an infirmity whieh,co'--uld-inthe light of the circumstance that the Selection'eCoin.mittee'._has._ll~~Chosen the candidates based on their perforniance. "
* xfiggordingly, there is no merit in the grounds raised in"--- the'. 'writ petition. Insofar, as the second petitioner is " concerned, there is no indication as to the manner in which the ihzsecond petitioner is aggrieved and in his seeking to join the first petitioner in this petition. Hence, the petition is dismissed @ without addressing the averments put forth by the second petitioner t.o support the case of first petitioner. Further, it is noticed from the above that even-ii' if:t'11ei'~. respondents have not made out" a"ease, to. _ir1ieetV'seeve'1*a1 ' contentions of the petitioner,_ the fargtithat therehas 'i¢en'antV unreasonable delay in approacihing» this Court-tvtadid he a sole ground on which the_4_"'petit_ion:_ :c"ou_}dvi"~--have been dismissed without addressing th.e_me'rits t»he"'"ease{However, given the Vehernenee with':tg,h'ich4't:.h¢"'Counsel for the petitioner sought to present th'e.._easeVthe s1trne.._i'liias been considered at some length. Sdfm fudge 31