Central Administrative Tribunal - Ernakulam
G Remesh Babu vs M/O Textiles on 31 July, 2018
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CENTRAL ADMINISTRATIVE TRIBUNAL,
ERNAKULAM BENCH
Original Application No. 180/01137/2014
&
Original Application No. 180/00745/2017
Tuesday, this the 31st day of July, 2018
CORAM:
Hon'ble Mr. E.K. Bharat Bhushan, Administrative Member
Hon'ble Mr. Ashish Kalia, Judicial Member
1. Original Application No. 180/01137/2014 -
G. Ramesh Babu, S/o. D.V. Govindarajulu,
aged 48 years, resident of 23, Subadarsan Gardens,
Veeriampalayam Road, Kalapatty, Coimbatore - 641 048,
Joint Director, National Institute of Fashion Technology,
Mangattuparamba, Dharmasala, Kannur - 670 562. ..... Applicant
(By Advocate : Mr. B. Premnath)
Versus
1. Union of India, represented by the Secretary,
Ministry of Textiles, Udyog Bhavan, New Delhi - 110 107.
2. Textile Committee, Ministry of Textiles, Government of India,
P. Balu Road, Prabhadevi Chowk, Mumbai - 400 025,
represented by its Secretary.
3. Assistant Secretary through Secretary, Textile Committee,
Ministry of Textiles, Government of India, P. Balu Road,
Prabhadevi Chowk, Mumbai - 400 025.
4. The Director General, National Institute of Fashion Technology,
NIFT Campus, New Delhi, Pin - 110 016.
5. The Registrar, National Institute of Fashion Technology,
NIFT Campus, New Delhi, Pin - 110 016. ..... Respondents
[By Advocate : Mr. N. Anilkumar, Sr. PCGC (R)]
2. Original Application No. 180/00745/2017 -
G. Ramesh Babu, S/o. D.V. Govindarajulu,
aged 51 years, resident of 23, Subadarsan Gardens,
2
Veeriampalayam Road, Kalapatty, Coimbatore - 641 048,
Joint Director (till 8-9-2017), National Institute of Fashion Technology,
Mangattuparamba, Dharmasala, Kannur - 670 562. ..... Applicant
(By Advocate : Mr. B. Premnath)
Versus
1. Union of India, represented by the Secretary,
Ministry of Textiles, Udyog Bhavan, New Delhi - 110 107.
2. Textile Committee, Ministry of Textiles, Government of India,
P. Balu Road, Prabhadevi Chowk, Mumbai - 400 025,
represented by its Secretary.
3. The Director General, National Institute of Fashion Technology,
NIFT Campus, New Delhi, Pin - 110 016.
4. The Director, National Institute of Fashion Technology,
Mangattuparamba, Dharmasala, Kannur - 670 562.
5. The Registrar, National Institute of Fashion Technology,
NIFT Campus, New Delhi, Pin - 110 016. ..... Respondents
[By Advocate : Mr. N. Anilkumar, Sr. PCGC (R)]
These applications having been heard on 24.07.2018, the Tribunal on
the 31.07.2018 delivered the following:
ORDER
Hon'ble Mr. E.K. Bharat Bhushan, Administrative Member -
OAs Nos. 180/1137/2014 and 180/745/2017 are filed by Shri G. Ramesh Babu former Quality Assurance Officer with 2 nd respondent against the inaction on the part of the 2 nd respondent to provide clearance documents in respect of the applicant and to treat his appointment as Joint Director of NIFT as under deputation and not contract.
2. As common points of facts and law are involved in the said two OAs they are being dealt with through a common order. 3 OA-180-1137-2014 -
3. The applicant had joined the 2nd respondent, Textiles Committee as an Inspector (later re-designated as Quality Assurance Officer) on 1.6.1987 and continued as such till he was relieved on 2.12.2013. The 5 th respondent had invited applications for the post of Joint Director to be filled up by direct recruitment on contract basis or on deputation as per advertisement dated 27.6.2013. For direct recruitment, the qualifications prescribed were graduate degree in any discipline from a university/institute of repute with at least 10 years experience in Academics, Personnel and General Administration and for deputation from the officers of the Central Government / State Government / UT / Autonomous Organisation / PSUs possessing the essential qualifications and holding analogous posts on regular basis in their service/department or with at least 5 years of regular service in PB-3 Rs. 15,600-39,100/- plus Grade Pay of Rs. 6,600/- with relevant experience in dealing with establishment and administrative matters. Those who apply on deputation were required to submit the applications through proper channel along with ACRs for the last 5 years accompanied by vigilance/cadre clearance. It was also mentioned that the appointments will be on standard deputation terms and conditions as issued by DOP&T from time to time. The applicant claims that he applied for the post of Joint Director, NIFT on 19.7.2013 through proper channel, submitting an advance copy of the application along with the required fees to the 5th respondent on 19.7.2013.
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4. The applicant submits that he was in the PB-3 of Rs. 15,600-39,100/- plus Grade Pay of Rs. 6,600/- since 1.9.2008. However, on the last date for applying for the post i.e. 22.07.2013 he was short of the required 5 years experience by 39 days. However, the 5 th respondent shortlisted the applicant for appearing in the written test. Meanwhile, the applicant requested the 2nd respondent to issue no objection certificate for appearing in the written test vide his representations at Annexures A2, A5, A6 and A7. As the 2nd respondent failed to grant permission as sought, the applicant, left with no other alternative, had to attend the written test on 31.8.2013. He was shortlisted for the interview and was required to bring original documents regarding qualifications and experience and in the case of deputation, NOC/cadre clearance from the parent department. Again the applicant requested the 2nd respondent to grant him NOC. The applicant claims that the 2nd respondent verbally asked him to attend the interview. He attended the interview on 12.9.2013 and the 5 th respondent asked him to give an undertaking that all documents required will be submitted and if he fails to submit these he will be considered for appointment only on contract basis. Accordingly, the applicant submitted the undertaking before the 5 th respondent.
5. The 5th respondent issued the offer letter appointing the applicant as Joint Director on contract basis in NIFT. He was required to join latest by 21.10.2013 and was required to give his consent in writing by 1.10.2013 failing which the offer will be withdrawn. The applicant claims that on 20.9.2010 he submitted a letter to the 2 nd respondent requesting him to 5 consider his case for forwarding his application for deputation along with the required clearances like ACRs, etc. to the 5 th respondent. However, on 24.9.2013 he was served with a memo by the 2nd respondent informing that as he did not fulfill the minimum eligibility criteria, neither will NOC be granted nor will his application be forwarded to the Textile Committee. Left with no other alternative the applicant tendered his resignation from the service of the 2nd respondent with effect from 1.11.2013. He requested that his resignation may be accepted with effect from 31.10.2013 and the standard notice period may be waived. As no action was taken on his request, he was compelled to submit his application for voluntary retirement from service w.e.f 13.11.2013, requesting also to waive the notice period.
6. The 2nd respondent issued a memo on 2.12.2013 relieving the applicant from the services of the Textiles Committee as Quality Assurance Officer (EP&QA) and he was relieved on the same date after adjusting the short fall of his notice period against earned leave standing to his credit. The applicant contends that no rule prohibited the forwarding of his application and issue NOC to him by the 2 nd respondent and had it been issued, he would not have been forced to resign/voluntarily retire and his appointment as Joint Director with the 5th respondent would have been on deputation instead of on contract basis.
7. By filing the OA the applicant seeks the following reliefs:
"A) Declare that Annexure A13 order is illegal and it may be set aside;6
B) Direct respondents 2 and 3 to issue the relevant clearance documents of the applicant such as Annual Confidential Reports, Vigilance Clearance Information and Cadre Clearance Certificate as required by Annexure A1 to the 5th respondent forthwith;
C) Direct the 2nd, 4th and 5th respondent to treat the appointment of the applicant as the Joint Director of the NIFT pursuant to Annexure A11 offer letter of appointment as one under deputation instead of contract not withstanding Annexure A13 order of the 2nd respondent and permit him to draw all the attendant benefits and allowances applicable to an employee on deputation;
D) Direct the 2nd, 4th and 5th respondent to treat the service of the applicant as regular, without any interruption.
E) Pass such other order as this Honourable Tribunal deems fit and proper in the facts and circumstances of case."
8. Respondents 1 to 3 have filed a reply statement contesting the claim of the applicant. They submit that the applicant having been appointed in the pay scale of Rs. 1640-60-2600-EB-5-2900/- had been granted two financial upgradations under the ACP/MACP scheme with effect from 9.8.1999 and 1.9.2008. The respondents contend that financial upgradation was a mere placement in the immediate next higher Grade Pay in the hierarchy of the recommended revised pay scales/bands and Grade Pay and do not confer designation, duties and responsibilities of the higher post. The applicant remained as Quality Assurance Officer in the pay band and Grade Pay of Rs. 9,400-34,800/- plus Rs. 4,200/- (PB-2) all along during his entire tenure of his service under the 2nd respondent.
9. This being so the applicant was not fulfilling the eligibility criteria as per the advertisement and he was not holding analogous post on regular basis in the Textiles Committee nor did he possess five years of regular 7 service in the pay band of Rs. 15,600-39,100/- plus Grade Pay of Rs. 6,600/- with relevant experience in dealing with establishment and administrative matters. Under the circumstances, the respondents did not forward the application to NIFT and the same was returned to the applicant. In short the applicant was not enjoying the required Grade Pay as per advertisement nor did he possess 5 years regular service. Further he was holding a technical post and had no experience in establishment and administrative matters. Hence, respondents vide memo dated 20.9.2013 informed him that he does not confirm to the minimum eligibility criteria and hence, NOC cannot be issued for him and his application cannot be forwarded to the Textiles Committee. Also waiving of the notice period is the prerogative of the employer and the same cannot be claimed by the applicant as a matter of right. The act of the applicant in forwarding the application directly to the NIFT is in direct violation of the instructions contained in the advertisement and suppressing of the relevant facts such as Grade Pay which he currently enjoy, amounts to false affirmation of eligibility which he did not possess.
10. Respondents Nos. 4 & 5 also contested the claim of the applicant and submitted that he had furnished the advance copy of the application stating that regular copy was being forwarded by his organization. In column No. 13 of the application he indicated that he was working as Quality Assurance Officer with Grade Pay of Rs. 6,600/- since 1.6.1987. As facts show these declarations were false. The applicant was offered the appointment to the post of Joint Director on contract basis. The date of joining furnished by the 8 applicant is also incorrect and he had joined NIFT, Kannur on the forenoon of 6.12.2013. He had accepted the terms and condition of appointment on contract basis and cannot now turn around to make a fresh claim for his appointment on deputation basis. Besides, the 5 th respondent is not a party in the dispute between the applicant and respondents 2 & 3. The respondents state that the applicant was not eligible for being considered on deputation basis and his request for change of mode of appointment is not governed under any rule.
OA-180-745-2017 -
11. The applicant contends in this OA that he had completed his probation period successfully based on the Annual Performance Appraisal Reports. The reporting authority of the applicant is the 4 th respondent. The APARs of the applicant during the period 6.12.2013 to 31.3.2014, 1.4.2014 to 31.3.2015 and 1.4.2015 to 31.3.2016 has been rated as 'Very Good', 'Average' and 'Very Good' respectively. But the applicant was not recommended for extension of his contract. The 2 nd respondent vide Annexure A13 communication informed the applicant that his term is not extended beyond 5.12.2016. Further on representation his contract was extended by six months from 5.12.2016 and by three months from 6.6.2017. Further the applicant submits that as per Annexure A18 the term of several others have been extended on contract. The applicant was relieved of his duties on 8.9.2017 vide Annexure A20. He seeks the following reliefs:
"a) Set aside Annexures A20 order;
b) Declare that the applicant is entitled to continue as Joint 9 Director of NIFT, Kannur for another 3 years from 6.9.2017 with all service benefits;
c) Direct the respondents to extend the long term contract of the applicant for a further period of three years from 6.9.2017 as Joint Director, NIFT, Kannur with all the consequential benefits including payment of arrears of salary;
d) Pass such other order as this Honourable Tribunal deems fit and proper in the facts and circumstances of case."
12. The respondents contest the claim of the applicant and submit that the performance of the applicant at NIFT during the period of his contract employment was not satisfactory. A number of deficiencies such as delays and non-adherence to time schedule were noticed in his working. This is seen in the gradings of the APARs of the years 2013-14, 2014-15 and 2015-
16. During the year 2014-15 the reporting officer recorded the following in his APAR:
"Has reasonable control over experience but interpersonal negativity has been noticed. Knowledge of rules, taking reasoned administrative decisions and better fiscal prudence will help the officer. These can be learnt but what he needs to take care about is his propensity for making accusations without proof. He has been advised on this."
The representation filed against these remarks were duly considered by the competent authority and the above remarks were confirmed. It is also contended by the respondents that the applicant had submitted incomplete/incorrect information in his application form while applying for the post of Joint Director at NIFT. The service of employees on long term contract is governed by Statutes 21 whereby the appointing authority may appoint any person on long term contract in the scales of pay as are applicable to the similar post and on terms and conditions as specified by the Board for a period not exceeding three years. The appointing authority 10 may renew the contract for further period subject to satisfactory performance and requirement of the Institute. Since the Director of the Kannur Campus did not recommend the case of the applicant beyond 5.12.2016, the DG, NIFT did not extend the tenure, being the competent authority.
13. The applicant filed rejoinder reiterating the contentions raised in the OAs. Heard Shri B. Premnath, learned counsel appearing for the applicant in both the OAs and learned Senior Panel Central Government Counsel (Retainer) appearing for the respondents in both the OAs.
14. The issue involved in this OA is well delineated. An individual in a regular employment under the respondent organization had chosen to apply for a deputation to another organization. He clearly did not fulfill the qualifications required and did not get his applications/records forwarded on account of this fact. Nevertheless he proceeded with the application and being selected, was required to provide necessary documents for being accepted on deputation. Failing to do so, he agreed to be employed in the new organization on contract. In the new organization his performance was not found satisfactory, deserving of an extended long term contract. Hence, his contract was terminated and he was relieved.
15. In the first OA the applicant contended that respondent No. 2 ought to have forwarded his application along with necessary documents but he did not possess the required qualification either in terms of the Grade Pay he 11 was enjoying nor the required length of service. Hence, the 2 nd respondent in OA No. 180/1137/2014 cannot be faulted for acting in the way he did.
16. In so far as the second OA is concerned i.e. OA No. 180/745/2017, the applicant has alleged that his termination was the result of the fact that there was a perception on the part of the respondents that he had unnecessarily inveigled NIFT and its authorities in litigation in the earlier OA and this contributed to dissatisfaction about his performance. While, his action in filing OA No. 180/1137/2014 would naturally not have ingratiated him to his newly employer as they were impleaded as respondents in that OA, it is seen from the records that his performance has been less than satisfactory and the authorities in NIFT who are respondents 3, 4 & 5 cannot be accused of having acted out of prejudice. This Tribunal can only conclude that the applicant himself is responsible for the misfortunes that have befallen him and he has none other than himself to blame for the problems that he has faced.
17. Under the circumstances after due consideration of the facts in both the OAs and pleadings made by the contesting counsel, this Tribunal concludes that the OAs are devoid of merit and liable to be dismissed. We proceed to do so. No order as to costs.
(ASHISH KALIA) (E.K. BHARAT BHUSHAN)
JUDICIAL MEMBER ADMINISTRATIVE MEMBER
"SA"
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Original Application No. 180/01137/2014
APPLICANT'S ANNEXURES
Annexure A1 - True copy of the advertisement No. 18/2013-Estt. dated
27.6.2013.
Annexure A2 - True copies of the filled up application dated 18.7.2013
sent to the 2nd respondent and to the 5th respondent and the covering letter to the application sent to the 2 nd respondent dated 18.7.2013.
Annexure A3 - True copy of the covering letter to the application sent to the 5th respondent dated 19.7.2013.
Annexure A4 - True copy of the letter No. NIFT/HOEstt.II/Rect.
JD/2013, dated 23.8.2013 issued by the 5 th respondent. Annexure A5 - True copy of the e-mail communication by the applicant to the 2nd respondent requesting for permission to appear the written test conducted by the 5th respondent dated 26.8.2013 at 1.38 PM.
Annexure A6 - True copy of the copy of the letter by speed post to the 2nd respondent dated 30.8.2013.
Annexure A7 - True copy of the e-mail dated 30.8.2013 to the 2 nd respondent.
Annexure A8 - True copy of the e-mail communication of the 5th respondent to the applicant dated 4.9.2013.
Annexure A9 - True copy of the e-mail communication from the applicant to the 2nd respondent dated 6.9.2013 and the attached e-mail communication of the 5th respondent to the applicant.
Annexure A10 - True copy of the undertaking by the applicant before the 5th respondent, dated 12.9.2013.
Annexure A11 - True copy of the offer letter of the 5 th respondent with number NIFT/HO/E-II/Rectt./GD/2013, dated 17.9.2013. Annexure A12 - True copy of the covering letter of the applicant to the 2 nd respondent dated 19.9.2013.
Annexure A13 - True copy of the memo of the 2nd respondent No. 121/385/2012/AD/IVol.V dated 20.9.2013.
13Annexure A14 - True copy of the letter by the applicant to the 5th respondent dated 27.9.2013 and the e-mail to the 5 th respondent dated 7.10.2013.
Annexure A15 - True copy of the e-mail communication of the 5th respondent to the applicant dated 14.10.2013.
Annexure A16 - True copy of the resignation letter of the applicant to the 2nd respondent dated 30.10.2013.
Annexure A17 - True copy of the e-mail communication to the 5th respondent dated 30.10.2013.
Annexure A18 - True copy of the letter of the applicant to the 2 nd respondent dated 5.11.2013.
Annexure A19 - True copy of the e-mail communication by the 5th respondent to the applicant and letter dated 8.11.2013. Annexure A20 - True copy of the letter from the applicant to the 2nd respondent dated 11.11.2013.
Annexure A21- True copy of the letter of the applicant to the 2 nd respondent dated 13.11.2013.
Annexure A22 - True copy of the e-mail of the applicant to the 5th respondent dated 14.11.2013.
Annexure A23 - True copy of the e-mail to the applicant and the order extending the time till 15.12.2013, issued by the 5 th respondent to the applicant dated 20.11.2013.
Annexure A24 - True copy of the memorandum No. 50/480/2013/AD of the 3rd respondent dated 2.12.2013.
Annexure A25 - True copy of the letter of the applicant to the 2 nd respondent dated 2.12.2013.
Annexure A26 - True copy of the last pay certificate issued by the Chief Accounts Officer of the 2nd respondent on 13.2.2014. Annexure A27 - True copy of the letter No. 50/480/2013/AD of the 3 rd respondent to the applicant dated 12.3.2014.
Annexure A28 - True copy of the letter No. 121/385/2012/AD/Vol.V of the 3rd respondent dated 24.3.2014.
Annexure A29 - True copy of the certificate with No. 50/480/2013/AD of the 3rd respondent issued to the applicant dated 14 12.3.2014.
RESPONDENTS' ANNEXURES Annexure R1(a) -True copy of the office order No. 100(11)/2001-Ad dated 26.7.2001.
Annexure R1(b) -True copy of the office order No. 100/11/62/2011-AD dated 3.1.2012.
Annexure R1(c) - True copy of the leave application dated 16.8.2013. Annexure R1(d) - True copy of the memorandum No. 121/285/2012- AD.Vol.V dated 20.9.2013.
Annexure R4(a) - True copy of the letter dated 6.12.2013 of the applicant.
Original Application No. 180/00745/2017 APPLICANT'S ANNEXURES Annexure A1 - True copy of the advertisement No. 18/2013-Estt. dated 27.6.2013.
Annexure A2 - True copy of the offer letter of the 5th respondent with number NIFT/HO/E-II/Rectt./GD/2013dated 17.09.2013. Annexure A3 - True copy of the covering letter of the applicant to the 2nd respondent dated 19.09.2013.
Annexure A4 - True copy of the Memo of the 5th respondent No. 121/ 385/2012/AD/|Vol.V dated 20.09.2013.
Annexure A5 - True copy of the show cause notice of the 4 th respondent No. 12192/28/NIFT/ KAN/Estt./ RB/2013 dated 04.03.2015.
Annexure A6 - True copies of the covering letter of the Director, NIFT No. F. No. 12197/NIFT/Kan/Estt./HO Correspondence/2013 Vol.II dated 06.09.2016 and the list of faculty members accompanying the said letter, dated 06.09.2016.
Annexure A7 - True copy of the letter of the applicant to the 4th respondent for sending the sealed cover to the 3rd respondent, dated 10.03.2016.
Annexure A8 - True copy of the request submitted to the 3 rd respondent 15 by the applicant dated 03.10.2016.
Annexure A9 - True copy of the memorandum No. NIFT/HO/Estt/ APARs/Queries/2015 of the 5th respondent dated 03.10.2016.
Annexure A10 - True copy of the speed post receipt dated 10.10.2016 and the postal cover in which Annexure A11 was sent to the applicant.
Annexure A11 - True copy of the representation to the 4th respondent by the applicant dated 13.10.2016.
Annexure A12 - True copy of the letter No. NIFT/HO/E.II/Long term extension contract/2016 dated 05.10.2016/14-10-2016 of the Asst. Director, Establishment, NIFT.
Annexure A13 - True copy of the letter No. NIFT/KNR/DIR/12552/1/JD of the 4th respondent dated 31.10.2016.
Annexure A14 - True copy of the representation submitted by the applicant to the 4th respondent dated 31.10.2016. Annexure A15 - True copy of the intimation of the 5th respondent No. NIFT/HO/E.II/Long Term Extension/2016 Part II dated 26.04.2017.
Annexure A16 - True copy of the details of faculty/staff whose contract are going to expire during July-September 2017, issued by the 4th respondent dated nil.
Annexure A17 - True copies of the particulars for vigilance clearance of the applicant and of the other persons mentioned in Annexure A18, sent by the 4th respondent dated nil. Annexure A18 - True copy of the order No. NIFT/HO/E.II/Long Term Extension/2016 Part II of the Deputy Director, Establishment, NIFT dated 25.07.2017.
Annexure A19 - True copy of the order No. NIFT/HO/E.II/Long Term Extension/2016 Part II of the 5th respondent dated 26.04.2017.
Annexure A20 - True copy of the letter F. No. 12192(28/NIFT/KAN/ Estt./RB/2013 of the 3rd respondent dated 08.09.2017. Annexure A21 - True copy of the interim order of this Hon'ble Tribunal dated 13.9.2017 in OA No. 745/2017.
16Annexure A22 - True copy of the Reporting Officer's letter in appreciation of the applicant dated 02.03.2015. Annexure A23 - True copy of the Reporting Officer's letter in appreciation of the applicant dated 09.03.2016. RESPONDENTS' ANNEXURES Annexure R1 - True copy of the OM dated 22.06.2015 issued to the applicant by the Director, NIFT Kannur.
Annexure R2 - True copy of the O.M. dated 03.10.2016 issued by the Competent Authority in reply to the representation received from the applicant.
Annexure R3 - True copy of the letter dated 17.09.2013. Annexure R4 - True copy of the Offer Letter issued to the applicant concerning the contract engagement in the post of Joint Director, NIFT, Kannur.
Annexure R5 - True copy of the reply statement filed by this respondent in OA No. 1137/2014.
Annexure R6 - True copy of the Section 28 of NIFT Act.
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