Karnataka High Court
The Director General Of Quality vs Shri T Lokesh on 7 August, 2018
Bench: A.S.Bopanna, Mohammad Nawaz
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WP No.33769/2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF AUGUST 2018
PRESENT:
THE HON'BLE MR. JUSTICE A.S. BOPANNA
AND
THE HON'BLE MR. JUSTICE MOHAMMAD NAWAZ
WRIT PETITION NO.33769/2016 [S-CAT]
BETWEEN:
1. The Director General of Quality Assurance,
DQA (R&S) Wing,
New-Delhi.
2. The Director,
Directorate of Quality Assurance (Radars & Systems),
DGQA Complex, Manovikas Nagar Post,
Secunderabad - 500 009.
3. The Controller,
Ministry of Defence,
Director General of Quality Assurance,
Controllerate of Quality Assurance (Heavy Vehicles),
Avadi, Chennai - 600 054.
4. The Union of India,
Represented by its Secretary,
Ministry of Defence,
Department of Defence Production & Supplies,
Nirman Bhavan, South Block,
New Delhi - 110 011. ... PETITIONERS
[By Sri. H. Jayakara Shetty, CGC]
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WP No.33769/2016
AND:
Shri T. Lokesh,
S/o M. Tandava Murthy,
Aged about 46 years,
Ex-Senior Scientific Officer-1,
O/o The Director General of Quality Assurance,
DQA (R&S) Wing Ministry of Defence,
Department of Defence,
Nirman Bhavan, South Block,
New Delhi - 110 011,
No.7, 'Kalpana', L.No.10th Street,
Seppings Road Cross,
Bengaluru - 560 001. ... RESPONDENT
[By Sri. N. Amaresh, Advocate]
***
This Writ Petition is filed under Articles 226 & 227 of the
Constitution of India, praying to quash the Order dated
08/01/2016 passed in O.A. No.268/2012 by the CentraL
Administrative Tribunal, Bengaluru Bench.
This Writ Petition coming on for Hearing on I.A., this day
A.S. Bopanna J., made the following:
ORDER
The petitioners are before this Court, assailing the Order dated 08.01.2016 passed by the Central Administrative Tribunal ['CAT' for short] in O.A. No.268/2012.
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2. The respondent herein was before the CAT., assailing the letter dated 27.03.2012 [Annexure-"A15"] and in that light, the respondent was seeking benefit of the service rendered by him with the petitioners herein to be counted along with the service which he is rendering in Hindustan Aeronautics Limited ['HAL' for short], a Central Public Sector Undertaking, wherein he has been subsequently appointed.
3. The CAT on taking note of the rival contentions, through the Order impugned dated 08.01.2016 has allowed the application and the benefit of such service rendered with the petitioners herein has been granted by holding the resignation submitted by the respondent herein as technical in the present facts of the case.
4. The respondent, who was working in the Director General of Quality Assurance ['DGQA' for short] had applied to the HAL to be appointed as a Senior Manager. Since such application was to be forwarded through proper channel, the application was forwarded through the DGQA. The same was initially accepted and no 4 WP No.33769/2016 objection certificate was issued in favour of the respondent herein. Accordingly, the respondent herein had submitted his application to the HAL on 28.03.2007. However, on being selected by the HAL., the DGQA did not permit him to join the service in as much as they had relied on the Communication dated 16.05.2008 [Annexure-"A4"], where under keeping in view the acute shortage of manpower, a decision had been taken by the DGQA not to forward the applications for outside employment for a period of one year. It is in that light, since the petitioners herein not having accepted the request of the respondent, the respondent had submitted his resignation dated 21.10.2008 [Annexure-"A5"] and on acceptance of the same, has joined the service of the HAL. In that background, since the petitioners herein have declined to count the service rendered in the DGQA for the purpose of granting the continuity of service to the respondent or for the benefit of pension, the respondent being aggrieved was before the CAT.
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5. The contention on behalf of the petitioners is that since the DGQA had taken a decision not to forward the application to outside employment, the respondent cannot take benefit of the initial acceptance and grant of no objection and as on the date of joining the service with the HAL., there was a bar for accepting the employment outside. Hence the respondent herein cannot claim benefit of continuity of the service. It is in that regard contended that when the respondent herein had submitted his resignation and he has been relieved after accepting his resignation, the provision as contained under Rule 26(1) of the CCS [Pension] Rules would come into operation and the benefit will not be available to such employment. It is in that light contended that when the respondent herein was not entitled to take up employment outside, in the circumstances there was a shortage of manpower in DGQA., the benefit cannot be granted. In that regard, it is emphasized that when the reason assigned in the resignation is for the personal and domestic requirements, the benefit cannot be presently granted.
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6. On the other hand, learned counsel for the respondent in his attempt to sustain the Order passed by the CAT would contend that the ban/bar as enforced by the DGQA cannot be made applicable to the service of the respondent herein. It is contended that in the Communication dated 16.05.2008 [Annexure-"A4"] the ban that has been imposed is prospective and in fact in the said communication itself, it is clarified that the applications already forwarded prior to the date of receipt of the said communication need not be recalled. In that light, it is contended that when the case of the respondent herein was prior to the same and the application had been forwarded much earlier and no objection certificate had also been issued on 27.06.2007, the bar as sought to be imposed on the respondent would not be justified. It is further contended that as rightly noticed by the CAT., though the Rule 26(1) of the CCS [Pension] Rules provided that the benefit would not been available in the case of resignation, in the instant case, the resignation cannot be considered as one being voluntary, but, was forced one in the circumstance in as much as if the respondent had not 7 WP No.33769/2016 resigned, he would not have been in a position to take up the employment with the HAL., wherein he has succeeded in the selection process. He therefore contends that the consideration has been made by the CAT after having taken note of all those circumstances which is justified and the same does not call for interference.
7. In the background of rival contentions, in addition to referring to the relevant materials on record, we have also taken note of the Order dated 08.01.2016 passed by the CAT. A perusal of the same would indicate that the factual aspects as involved in the present case has been referred to in detail. It is in that light, the Pension Rules are referred and thereafter considered the purport of the resignation in the background of these facts as involved. In order to appreciate the nature of the consideration made, we would presently refer only to the relevant documents with reference to the basis on which the consideration has been made. It is noticed that at the outset, the application of the respondent for the post of Senior Manager at HAL., was initially made through Annexure-"A1" dated 8 WP No.33769/2016 29.08.2005. The subsequent application was on 27.03.2007 as at Annexure-"A2". It is for the purpose of forwarding the said application, a no objection certificate was required from the DGQA. Having taken note of the application dated 27.03.2007, no objection certificate has been issued on 27.06.2007 [Annexure-"A3"]. In that view, the application as submitted by the respondent through proper channel has reached the HAL., pursuant to which, in the selection process, the respondent has taken part and the employment was secured in HAL.
8. Since the respondent was required to join the HAL as the selection letter has been issued to him on 16.10.2008 and in that circumstance, when the petitioner had sought to revoke the no objection certificate granted in favour of the respondent, the resignation letter dated 21.10.2008 [Annexure-"A5"] was submitted. The resignation as tendered was accepted and the respondent was relieved of his duties through Communication dated 05.01.2009 [Annexure-"A6"]. In the said sequence, if the manner in which the application was forwarded and the 9 WP No.33769/2016 background of the decision taken by the DGQA is taken note, the relevant Communication dated 16.05.2008 [Annexure-"A4"] would indicate that the DGQA no-doubt had taken a decision that due to acute manpower shortage not to forward the application from the DGQA employees, including officers, for outside employment including posts on deputation. The said communication clarifies that the said order would take effect from the date of issue viz., 16.05.2008. It is further clarified therein that the applications already forwarded prior to the date of receipt of the said Communication dated 16.05.2008 need not be recalled.
9. If that be the position, since the application of the petitioner to the HAL is dated 27.06.2007 and it had been forwarded on the said date and the no objection certificate had also been issued to the respondent, the Communication dated 16.05.2008 cannot be considered as an impediment for the petitioners to issue no objection certificate and relieve the respondent in that regard. It is in that background, despite the said position, since the 10 WP No.33769/2016 respondent was not being granted the benefit, he was forced to tender his resignation in a circumstance where he had received the selection letter which was issued by the HAL on 16.10.2008 and the respondent was required to join the said employment. In that circumstance, the resignation dated 21.10.2008 has been submitted and the respondent has taken up the employment in HAL. Though in the resignation letter the respondent has stated that the resignation is due to compelling personal and domestic requirements, the sequence as noticed whereunder the respondent had secured the employment based on the application being forwarded through proper channel and a no objection certificate being issued earlier, the resignation cannot be strictly reconsidered as a voluntary act of the respondent to sever the relationship with the DGQA for the reasons as stated therein. It is evident that the same was for the purpose of taking up the employment and the respondent was constrained to do so.
10. Though in a normal circumstance, such resignation would have been taken for the purpose for 11 WP No.33769/2016 which its was made, keeping in view the nature of the consideration as made by the petitioners, more particularly, in view of the Communication dated 16.05.2008 [Annexure-
"A4"] due to which the permission has been declined for the employment outside DGQA and in that circumstance, the respondent was forced to tender his resignation, the consideration as made by the CAT in the present facts would be justified. Hence, having taken into consideration all these aspects of the matter, we see no reason to take a different view from what has been taken by the CAT.
Since the CAT while disposing of the application had granted 3 [three] months time to comply with the direction and presently we have upheld the Order of the CAT., the petitioners are granted 2 [two] months time from this day to comply with the directions.
In that view, the Order dated 08.01.2016 passed in O.A. No.268/2012 does not call for interference. The petition therefore, being devoid of merits stands disposed of.12
WP No.33769/2016
In the circumstances, I.A. No.1/2018 does not survive for consideration and the same is accordingly disposed of.
Sd/-
JUDGE Sd/-
JUDGE CT-NR Ksm*