Jharkhand High Court
Ajay Kumar Singh vs Union Of India on 23 April, 2019
Equivalent citations: 2019 (3) AJR 221
Author: Aniruddha Bose
Bench: Chief Justice, Ratnaker Bhengra
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No. 742 of 2018
with
I.A. No. 2018 of 2019
with
I.A. No. 3103 of 2019
-------
Ajay Kumar Singh, aged about 58 years, son of Late Kuleshwar Singh, residing at CMD Bungalaw, Opposite Karmik Nagar, P.O ISM Dhanbad, P.S. Saraidhela, District Dhanbad (Jharkhand).
... Appellant
Versus
1.Union of India, through Department of Personnel & Training, North Block, Central Secretariat, P.O. & P.S. North Block, District New Delhi, PIN 110001 (New Delhi).
2.Secretary, Department of Personnel & Training, North Block, Central Secretariat, P.O. & P.S. North Block, District New Delhi, PIN 110001 (New Delhi).
3.Ministry of Coal, Government of India, through its Secretary, having its office at Shastri Bhawan, Central Secretariat, P.O. & P.S. North Block, District New Delhi, PIN 110001 (New Delhi).
4.Public Enterprises Selection Board, through its Secretary, having its office at Block No.14 (5 th Floor), CGO Complex, Lodhi Road, P.O. & P.S. Lodhi Road, District New Delhi, PIN 110 003 (New Delhi).
5.Coal India Limited, through its Chairman-cum-Managing Director, having its office at Coal Bhawan, Plot No.AF-III Action Area-1A, New Town, Rajarhat, P.O. & P.S. Rajarhat, District Kolkata (West Bengal).
6.General Manager (Personnel), Coal India Limited, having its office at Coal Bhawan, Plot No. AF-III Action Area-1A, New Town, Rajarhat, P.O. & P.S. Rajarhat, District Kolkata (West Bengal).
7.Shri Gopal Singh S/o not known to the appellant, working for gain as Chairman-cum-Managing Director, Central Coalfields Limited, Darbhanga House, P.O Ranchi, P.S. Kotwali Town & District Ranchi (Jharkhand).
.... ... ... Respondents
-----
CORAM : HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE RATNAKER BHENGRA
-----
For the Appellant : Mr. Binod Kanth, Sr. Advocate
Mr. Ajit Kumar, Sr. Advocate
Mr. Indrajit Sinha, Advocate
For the Res Nos. 1,2,3 & 4 : Mr. Rajiv Sinha, ASGI
Mr. Niraj Kumar, A.C to ASGI
Ms. Shreesha Sinha, A.C to ASGI
For the Res Nos. 5, 6 & 7 : Mr. Anoop Kumar Mehta, Advocate
Mr. Amit Kumar Sinha, Advocate
2
-------
C.A.V on 16.04.2019 Delivered on 23.04.2019
Aniruddha Bose, CJ.
The appellant, in the writ petition out of which this appeal arises, had mainly prayed for quashing two communications dated 16th October, 2018 by which his confirmation in the post of Chairman-cum-Managing Director, Bharat Coking Coal Limited (BCCL) has in substance been declined. The first one was issued by the Director, Department of Ministry of Coal, Government of India, relieving the appellant from the said post with simultaneous repatriation to his lien post, being that of General Manager, Eastern Coalfields Limited. The second communication was of the same nature, issued by the General Manager (Personnel), Coal India Limited. The appellant had initially joined the service of Coal India Limited (CIL) as Junior Executive (Trainee) in the year 1983. He was thereafter transferred to Eastern Coalfields Limited (ECL), a wholly owned subsidiary of CIL and promoted to the post of General Manager there. He had given his joining on the said post on 1 st March, 2009.
2. While serving as General Manager, Salanpur Area of ECL the appellant had responded to an advertisement published for filling up the post of Director (Technical) in ECL. He was selected for the said post and was appointed in that capacity on 15 th September, 2016. So far as the post of Chairman-cum-Managing Director, BCCL is concerned, the Public Enterprises Selection Board (PESB) had published an advertisement inviting applications for appointment to the said post. A notice was also issued by the CIL through its Personnel Department inviting applications from eligible 3 executives in respect of the said Board Level post. The appellant fulfilled the eligibility criteria thereof and upon going through the selection process was declared successful. We find from a chronological table disclosed in the counter-affidavit given before the learned First Court that PESB had recommended him for the said post on 14th June, 2017 and the Central Vigilance Commission (CVC) had given its clearance for the same on 7 th August 2017. The proposal was sent to the DoPT for approval by the Appointments Committee of Cabinet (ACC) which also gave its approval. The appellant was appointed to the said post by an order/communication dated 25th September, 2017 which was sent to the CMD, CIL, by the Director, Ministry of Coal, Government of India marking a copy thereof to the appellant. The detailed terms and conditions of the appointment of the appellant was, however, communicated to him by a letter dated 8th February, 2018. The appointment letter of the appellant addressed to the CMD, CIL issued by the Director, Ministry of Coal, Government of India on 25th September, 2017 reads:-
"To The Chairman-cum-Managing Director, Coal India Limited, Coal Bhawan, Premise No. 04 MAR, Plot No. AF-III, Action Area 1-A, New Town Rajarhar, Kolkata-700156 Subject: Appointment of Shri Ajay Kumar Singh, Director (Technical), Eastern Coalfields Ltd. (ECL) as Chairman and Managing Director, Bharat Coking Coal Ltd. (BCCL) in Schedule 'B' of the CPSE, in the scale of pay of Rs. 75,000-90,000/-.
Sir, In pursuance of Articles of Association of Bharat Coking Coal Limited (BCCL), I am directed to convey the approval of the President 4 to the appointment of Shri Ajay Kumar Singh, Director (Technical), Eastern Coalfields Ltd. (ECL) as Chairman and Managing Director, Bharat Coking Coal Ltd. (BCCL) in Schedule 'B' of the CPSE, in the scale of pay of Rs. 75,000-90,000/- from the date of his assumption of charge of the post and till the date of his superannuation i.e. 31.03.2020, or until further orders, whichever is earlier.
2.His appointment to the said post will be effective from the date on which Shri A. K. Singh takes over charge of the said post. However, his appointment as Chairman and Managing Director, Bharat Coking Coal Limited (BCCL) for the said period is made on contract basis and the Government will have the option to terminate his services with three months' notice or with three months' pay in lieu thereof.
3.As stipulated in DPE's O.M No. 18(21)/98-GM-GL-73, dated 20 th October, 2005, if Shri A.K. Singh does not join the post he shall be debarred for a period of two years from the date of offer of appointment, from being considered for Board level posts in any PSE. The debarment would be applicable to all PSE's other than the one to which the candidate belongs.
4.Detailed terms and conditions of appointment of Shri A. K. Singh as Chairman and Managing Director, Bharat Coking Coal Limited (BCCL) will be issued in due course of time after receipt of his Last Pay Certificate (LPC). "
The appellant assumed charge of the said post on 25 th September 2017 itself with effect from the afternoon thereof.
3. The conditions of his appointment was communicated to the Chairman, CIL by one Sanjib Bhattacharya, Under Secretary, Ministry of Coal, Government of India by a letter dated 8 th February, 2018. The copy of the said letter was also marked to the appellant. The extract from the said communication containing conditions which are relevant for adjudication of this appeal are reproduced below:-
"1.1 Period: His appointment will be for a period with effect from 25.09.2017 (afternoon) and upto 31.03.2020 i.e. the date of his superannuation or until further orders, whichever event occurs earlier and in accordance with the provisions of the Companies Act, 5 1956 as amended. The appointment may, however, be terminated even during this period by either side on 3 months notice or on payment of three months salary in lieu thereof. 1.2 After the expiry of the first year the performance of Shri Ajay Kumar Singh will be reviewed to enable the Government to take a view regarding continuance or otherwise for the balance period of tenure."
4. It was also stipulated in Clause (2) of the said letter that in respect of any other item, concerning the appellant which was not covered therein would be governed by the relevant Rules/instructions of the CPSE/Government.
5. It has been pleaded by the appellant in the memorandum of appeal that to the best of his understanding, he was remarked as excellent by the Secretary, Ministry of Coal for his performance which remark was made in the month of April, 2018. It has also been pleaded by him that his score on Special Performance Report in the capacity of Chairman-cum-Managing Director, BCCL was more than 37.5 and there was no complaint as regards his performance in his first year's service in that post.
6. The appellant was served with a memorandum of charges dated 26th September, 2018, issued by the Ministry of Coal, Government of India in relation to allegations of certain misconduct relating to the period when he was posted as General Manager, Mining, Salanpur Area, ECL. This surfaced from CVC's communication dated 23rd July, 2018 addressed to the ministry with advise that clearance in respect of the appellant could not be considered at that stage. The vigilance profile bearing the date 18 th September, 2018 records five complaints against the appellant in respect of four of which no progress appears to have had been made 6 at that point of time. In respect of one complaint alleging irregularities in relation to contract with a private firm in the year 2014, when the appellant was in ECL, the CVC had advised on 31 st August, 2018 issue of major penalty against the appellant. Copies of these documents form part of annexures to the counter-affidavit of the Union of India forming part of learned First Court's records.
7. The appellant thereafter received the aforesaid two letters dated 16th October, 2018. The additional charge to the said post was given to one Gopal Singh, Chairman-cum-Managing Director, CCL (being respondent no. 7 in the writ petition) with immediate effect by a communication issued on 18 th October, 2018. During pendency of this appeal proceeding, steps have been initiated by the authorities for filling up the said post through competitive selection process.
8. As we have indicated earlier in this judgment, the appellant had approached the learned First Court with prayers primarily for quashing the aforesaid two letters dated 16 th October, 2018 and his restoration in the said post. The learned First Court dismissed the writ petition on the following reasoning:-
"14. After bestowing my anxious consideration to the pleadings available on record and on close scrutiny of the materials available on record, I am of the considered view that the petitioner has failed to pursuade this Court to get reliefs, as sought for, for the following facts, reasons and judicial pronouncements:
(i).The petitioner initially joined the services of Coal India Limited on 11.08.1983 and by passage of time, his services was transferred to Eastern Coalfields Limited where he was given regular promotion to the post of General Manager on 01.03.2009. It would be pertinent to note here that it was the substantive post on which the petitioner was working. However, while working as such, an advertisement 7 was published for appointment on the post of Director (Technical) in Eastern Coalfields Ltd, for which, the petitioner was selected on 15.09.2016, as evident from Annexure 2. From plain reading of appointment letter dated 15.09.2016, it appears that the appointment of the petitioner was purely on contract basis and the services of the petitioner could have been terminated with three months' notice or with three months' pay in lieu thereof. In general condition, the tenure of his appointment is from the date of assumption of charge on the said post till date date of his superannuation i.e. 31.03.2020 or until further order.
(ii).The petitioner after assuming the charge of Director (Technical) applied for and was selected on the post of Chairman-cum- Managing Director, BCCL, on 25.09.2017, for which detailed terms and conditions was communicated vide letter dated 08.02.2018. The relevant portion of appointment letter and 'detailed terms and conditions of appointment' is quoted herein below:
"Relevant portion of appointment letter dated 25.09.2017:
"In pursuance of Articles of Association of Bharat Coking Coal Limited (BCCL), I am directed to convey the approval of the President to the appointment of Shri Ajay Kumar Singh, Director (Technical), Eastern Coalfields Ltd. (ECL) as Chairman and Managing Director, Bharat Coking Coal Ltd. (BCCL) in Schedule 'B' of the CPSE, in the scale of pay of Rs. 75,000-90,000/- from the date of his assumption of charge of the post and till the date of his superannuation i.e. 31.03.2020, or until further orders, whichever is earlier.
2.His appointment to the said post will be effective from the date on which Shri A. K. Singh takes over charge of the said post. However, his appointment as Chairman and Managing Director, Bharat Coking Coal Limited (BCCL) for the said period is made on contract basis and the Government will have the option to terminate his services with three months' notice or with three months' pay in lie thereof.
3.xxx xxxx xxx
4.Detailed terms and conditions of appointment of Shri A. K. Singh as Chairman and Managing Director, Bharat Coking Coal 8 Limited (BCCL) will be issued in due course of time after receipt of his Last Pay Certificate (LPC).
(Emphasis Supplied) Relevant portion of terms and conditions dated 8 th February, 2018 1.1.Period: His appointment will be for a period with effect from 25.09.2017 (afternoon) and upto 31.03.2020 i.e. the date of his superannuation or until further orders, whichever event occurs earlier and in accordance with the provisions of the Companies Act, 1956 as amended. The appointment may, however, be terminated even during this period by either side on 3 months notice or on payment of three months salary in lieu thereof.
1.2After the expiry of the first year the performance of Shri Ajay Kumar Singh will be reviewed to enable the Government to take a view regarding continuance or otherwise for the balance period of tenure."
(iii).So far confirmation of the petitioner on the post in question is concerned, as per the pleadings available on record, it is governed by Circular dated 13th May, 2011, wherein it has been mentioned that the Public Enterprises Selection Board (PESB) has been entrusted with the responsibility of making recommendations for Board level appointments in Central Public Sector Enterprises and has issued guidelines in this regard from time to time in addition to the guidelines issued by the Appointments Committee of the Cabinet and the Department of Public Enterprises. For proper adjudication of the matter, the relevant confirmation clause is quoted herein below:
"Confirmation of Board level appointees:
Now Ministries are required to send proposals to PESB only in cases of non-confirmation on performance grounds i.e. in cases where the score on the SPR is less than 37.5 A CMD/ MD/Functional Director would be deemed to be confirmed unless the Ministry/Department sends a proposal to the PESB, to the contrary, within 30 days after the expiry of one year.
Within this stipulated period of one year and thirty days, the officer would be deemed to have been confirmed and the Ministry 9 shall issue necessary order for confirmation, if the Ministry fails to send a proposal to the contrary, to the PSEB.
The PSEB shall hold a Joint Appraisal on receipt of the proposal for non-confirmation, after which the proposal shall be sent to the Ministry for placing before the ACC for orders. Therefore, Ministry must ensure that proposals reach with complete documents to avoid delay.
If the Ministry/Department is not inclined to confirm the appointee for reasons other than performance such as vigilance issues etc., then such proposal shall be submitted to the ACC directly at least 30 days in advance of the expiry of the scheduled tenure of the incumbent.
The EO shall monitor all cases of confirmation every month and send a report for information of the ACC. Ministry is requested to send a monthly report in this regard to PESB for information."
On conjoint reading of Clause 1.2 of the terms and conditions appointment of the petitioner as communicated vide letter dated 8 th February, 2018, wherein it has specifically been mentioned that performance of the incumbent shall be reviewed after expiry of one year to enable the Government to take a view regarding continuance. Meaning thereby decision of continuance/confirmation has to be taken after one year. Further in confirmation clause of circular dated 31.03.2011, it has been mentioned that if the Ministry/Department is not inclined to confirm the appointee for reasons other than performance such as vigilance issues etc., then such proposal shall be submitted to the ACC directly at least 30 days in advance of the expiry of the scheduled tenure of the incumbent. The discussions made herein above clearly establish the fact that scheduled period for taking decision upon the continuance/confirmation has to be taken within 13 months. In the case at hand, the petitioner joined on the post of CMD, BCCL on 25.09.2017. thereafter, memo of charge was served upon him 26.09.2018 by the Ministry, pursuant to the recommendation made by Central Vigilance Commission vide Office Memorandum dated 31.08.2018 advising to impose major penalty upon the petitioner. Consequent thereupon, on 28.09.2018 after cropping the issue of vigilance, the Government sent the proposal for non-confirmation 10 directly to the ACC for approval, which resulted in passing of impugned orders dated 16.10.2018 i.e. within the stipulated period/scheduled tenure of 13 months. Therefore, there is no question of deemed confirmation as there was neither any procedural irregularity nor it lacks jurisdiction.
(iv).Hence, the moot question that falls for consideration is whether in the facts and circumstances of case, the impugned order is punitive/stigmatic so as to warrant interference by this Court on these count, in the teeth of extant guidelines, as mentioned in preceding paragraphs.
(v).For non-confirmation of the post in question, mainly two grounds are attributable: (a).Performance (b).other than performance such as vigilance issue etc. In the case at hand, his performance has not been questioned rather after cropping up of the vigilance issue, his confirmation has been denied within the stipulated period. Admittedly, the petitioner was working on the post of CMD, BCCL on contract basis which as per the terms and conditions, as stipulated in the extant guidelines, can be terminated for the grounds, as mentioned above.
(vi).From plain reading of the impugned order, it appears that it is termination simplicator of contract and not stigmatic one as the contract between the parties rescinded only after cropping up of vigilance issue. The authority did not delve into the merit of vigilance issue; rather they simply after cropping up of vigilance ended the contract within the stipulated period. It is therefore, a termination simpliciter and not removal from service on the ground of indiscipline or misconduct so as to entail regular departmental procedure or in such circumstance, the question of observance of principles of natural justice would not arise and the benefit of cardinal principles of natural justice cannot be stretched too long. The underlying principle will apply proprio vigore to the present case, resultantly there was no necessity to afford opportunity to the respondents before issuance of impugned orders.
(vii).View of this Court gets fortified by the decision rendered in the case of Rajesh Kumar Srivastava Vs. State of Jharkhand & Ors as reported in (2011) 4 SCC 447, wherein the Hon'ble Apex Court at paragraph 10 held as under:
11
"10.The aforesaid decision to release him from service was taken by the respondents considering his overall performance, conduct and suitability for the job. While taking a decision in this regard neither is any notice required to be given to the appellant nor is he required to be given any opportunity of hearing. Strictly speaking, it is not a case of removal as sought to be made out by the appellant, but was a case of simple discharge from service. It is, therefore, only a termination simplicitor and not removal from service on the grounds of indiscipline or misconduct. While adjudging his performance, conduct and overall suitability, his performance record as also the report from the higher authorities were called for and they were looked into before any decision was taken as to whether the officer concerned should be continued in service or not."
(viii).So far repatriation of the petitioner on the post of General Manager, Eastern Coalfields Limited is concerned, it would be pertinent to note here that it was the substantive post on which the petitioner was working and the post of Director (ECL) was not his substantive post rather appointment on post of Director (ECL) was also on contract basis which stood automatically terminated after joining of the petitioner on the post of CMD, BCCL and serving for more than one year. So far submission of the petitioner that alleged repatriation the persons subordinate/junior to the petitioner are now holding the higher posts is concerned, at this juncture, it would be pertinent to note here that the petitioner on his own volition joined the post of Director (Technical) and CMD, BCCL and furthermore, nothing has been brought on record to show that persons working on substantive posts has been made senior to him. hence, this Court does not find any illegality in repatriation of the petitioner on the post of General Manager, Eastern Coalfields Limited. ECL.
(ix).The Hon'ble Apex Court has elaborately dealt with the issue aforesaid i.e the matter of lien in the case of State of M.P. Vs. Sandhya Tomar as reported in (2013) 11 SCC 357, the relevant paragraph 10 is quoted herein below:
10."Lien" connotes the civil right of a government servant to hold the post "to which he is appointed substantively". The necessary corollory to the aforesaid right is that such appointment must be 12 in accordance with law. A person can be said to have acquired lien as regards a particular post only when his appointment has been confirmed, and when he was been made permanent to the said post. "the word 'lien' is a generic term and, standing alone, it includes lien acquired by way of contract, or by operation of law."
Whether a person has lien, depends upon wheter he has been appointed in accordance with law, in substantive capacity and whether he has been made permanent or has been confirmed to the said post."
(x).So far the judgments referred by learned counsel for the petitioner is concerned, the same is not applicable in the facts and circumstances of the case and for the reasons cited above."
9. Mr. Binod Kanth, learned senior Advocate appearing for the appellant has urged us to set aside the judgment under appeal and restore the service of the appellant in the capacity of Chairman- cum-Managing Director of BCCL to enable him to serve out the rest of the stipulated tenure. His broad submission is that non- confirmation of his service was contrary to the Guidelines issued by the Department of Personnel & Training (Office of the Establishment Officer) (ACC Section). According to him, the appellant ought to have been treated as deemed confirmed. The Guideline he has referred to is an office memorandum bearing No. 24 (15) EO/2011-ACC dated 18 th March, 2014 and carries the caption "Guidelines on fresh appointment/confirmation/ extension of Board level appointees in Central Public Sector Undertakings - monitoring of all cases - regarding". This Office Memorandum has been marked Annexure 1 to the memorandum of appeal. This memorandum in substance requires compliance of the instructions issued by the PESB dated 13th May, 2011, a copy of which has been annexed at page 71 of the Memorandum of Appeal. 13 Clause (2) of the said Guideline under the heading 'Confirmation' stipulates:-
"PESB has been monitoring the Board structure of PSEs and writes to Administrative Ministries on the completion of the first year of tenure of a Board level executive requesting for a proposal of confirmation. This proposal includes a Special Performance Report (SPR) in prescribed format devised by PESB, up to date ACRs and a report on the performance of the executive vis a vis MOU targets.
The SPR of Director level executives is initiated by the CMD/MD/Chairman of the PSE and countersigned by the Secretary of the Ministry indicating his agreement/disagreement with the elevation of the CMD/MD and is sent to PESB. For CMD/MD/Chairman, the SPR is written by the Secretary of the Administrative Ministry and sent to PESB along with the documents after completion of 1st year.
Executives who score less than 37.5 marks on the SPR are called for a joint appraisal meeting with the Board in presence of the Secretary of the Administrative Ministry. In case the recommendation of non-confirmation is approved by the Competent Authority, the executive vacates the post."
10. A subsequent communication originating from Department of Personnel & Training, Government of India bearing D.O. No. 24/43 (EO)/2013-ACC dated 29th August, 2017 contains an updated Guideline on Confirmation Procedure for Board Level posts. An extract therefrom has been annexed at page-261 of the Memorandum of Appeal. This document enumerates the procedure in twelve points. These are:-
"1.Cases of Board level functionary for confirmation/non- confirmation are considered to enable him to continue for the balance period of his tenure or otherwise.
2.The PESB has circulated formats for Special Performance Report (SPR) and guidelines. The assessment in the SPR is required to be recorded by the Secretary of the administrative Ministry in respect 14 of the Chief Executive and by the Chief Executive duly countersigned by the Secretary of the administrative Department in respect of the Functional Directors.
3.The minimum acceptable score in the SPR is 37.5 out of 50 with no single attribute having a score less than 3.
4.The Ministries are required to send proposals to PESB only in cases of non-confirmation on performance grounds where the score on SPR is less than 37.5.
5.A CMD/MD/Functional Director would be deemed to be confirmed unless the Ministry/Department sends a proposal to the PESB, to the contrary, within 30 days after the expiry of one year.
6.Within this stipulated period of one year and thirty days, the officer would be deemed to have been confirmed and the Ministry shall issue necessary order for confirmation, if the Ministry fails to send a proposal to the contrary, to the PESB.
7.Executives who score less than 37.5 marks on the SPR are called for a joint appraisal meeting with the Board in the presence of the Secretary of the Administrative Ministry to consider confirmation or otherwise of the functionary.
8.The PESB shall hold a Joint Appraisal on receipt of the proposal, within one month, after which the proposal shall be sent to the Ministry for placing before the ACC for orders.
9.If the Ministry/Department is not inclined to confirm the appointee for reasons other than performance such as vigilance issues etc., such proposal shall be submitted to the ACC directly at least 30 days in advance of the expiry of the scheduled tenure of the incumbent.
10.In case the recommendation of non-confirmation is approved by the Competent Authority, the executive vacates the post.
11.Since grant of second term is a fresh contract, confirmation is again required to be considered after the expiry of the first year of the second term, provided the duration of the second term is more than three years.
12.Para 5 of the guidelines dated 31.03.2011 specify that in case of Schedule 'C' and 'D' CPSEs, the Minister-in-charge would be the Competent Authority for taking a final decision regarding confirmation of tenure."15
11. Apart from these Guidelines or Instructions, and a Guideline issued by ACC on 31st March, 2011, neither the appellant nor the respondents have referred to any other document carrying instruction on confirmation or non-confirmation of a Board Level appointee. Hence, we shall confine our scrutiny of the respondents' action on the basis of these Guidelines only so far as his non- confirmation in the subject-post is concerned.
12. The post in question is of Board level and the provision for confirmation relating to Board level appointment is also contained in the aforesaid Memorandum dated 13 th May, 2011. This memorandum has been issued by the PESB and the same also highlights the procedures and timelines issued by the ACC dated 31st March, 2011. In the memorandum dated 13 th May, 2011 itself, under reference to ACC's Guideline, the following clause has been specified:-
"2.Confirmation of Board level appointees Now Ministries are required to send proposals to PESB only in cases of non-confirmation on performance grounds i.e. in cases where the score on the SPR is less than 37.5. A CMD/ MD/Functional Director would be deemed to be confirmed unless the Ministry/Department sends a proposal to the PESB, to the contrary, within 30 days after the expiry of one year.
Within this stipulated period of one year and thirty days, the officer would be deemed to have been confirmed and the Ministry shall issue necessary order for confirmation, if the Ministry fails to send a proposal to the contrary, to the PSEB.
The PSEB shall hold a Joint Appraisal on receipt of the proposal for non-confirmation, after which the proposal shall be sent to the Ministry for placing before the ACC for orders. Therefore, Ministry must ensure that proposals reach with complete documents to avoid delay. If the Ministry/Department is not inclined to confirm the appointee for reasons other than performance such as vigilance issues etc., then 16 such proposal shall be submitted to the ACC directly at least 30 days in advance of the expiry of the scheduled tenure of the incumbent. The EO shall monitor all cases of confirmation every month and send a report for information of the ACC. Ministry is requested to send a monthly report in this regard to PESB for information ."
13. Further ground for assailing the action of the respondents is breach of principles of natural justice. Argument of Mr. Kanth on this point is that for non-confirmation on account of reasons other than performance under the aforesaid Guidelines contemplates holding of joint appraisal. In the event the authorities choose not to confirm an official for reasons other than the performance, then the Guideline or procedure stipulated neither mentions nor expressly excludes the requirement of giving opportunity of hearing to the incumbent. Referring to the decision of the Hon'ble Supreme Court in the case of Manohar Vs. State of Maharashtra & Another [(2012) 13 SCC 14), he has argued that opportunity of hearing is necessary in such a situation. His further submission on this count is that the reasons disclosed for not confirming his tenure is alleged misconduct and hence it was non-confirmation with stigma, for which principles of natural justice ought to have been complied with. The authorities relied on for this proposition are the decisions of the Hon'ble Supreme Court in the cases of Parshotam Lal Dhingra Vs. Union of India [AIR 1958 SC 36] and State Bank of India & Ors Vs. Palak Modi & Anr. [(2013) 3 SCC 607]. It is also his submission that since the post of CMD, BCCL is a post of fixed tenure, appointment to that post ought to have begun with his joining and ended with completion of tenure unless there was justifiable reasons for not retaining the entire tenure. The decisions 17 cited on this point are the cases of P. Venugopal Vs. Union of India [(2008) 5 SCC 1] and T.P. Senkumar, IPS Vs. Union of India & Ors [(2017) 6 SCC 801]. He has also referred to the decision of the Hon'ble Supreme Court in the case of Elizabeth Jacob Vs. District Collector, Idukki & Ors. [(2008) 15 SCC 166] in support of the appellant's stand that the materials based on which confirmation has been denied to the appellant were merely allegations and doubts or surmises could not be the proof of fact. The case of Kumari Shrilekha Vidyarthi & Ors Vs. State of U.P. & Ors. [(1991) 1 SCC 212] was relied upon to contend that the requirement of the State to act reasonably extends to the contractual field also.
14. It is Mr. Kanth's further submission that when the appellant joined the subject post, he was serving as Director (Technical) of ECL and hence he could not have been repatriated to the post of General Manager, a level lower than the latter on the reasoning that it was on the former post he had lien. Two decisions of the Hon'ble Supreme Court have been relied upon by him in support of the submission that when a lien holder is appointed to a substantive post he acquires lien against the latter post and the lien against his previous post stands extinguished. These decisions are Ramlal Khurana (Dead) by Legal Representatives Vs. State of Punjab & Ors [(1989) 4 SCC 99] and Dr. S.K. Kacker Vs. All India Institute of Medical Sciences & Ors [(1996) 10 SCC 734].
15. Mr. Sinha, learned Assistant Solicitor General of India appearing for the Union of India has defended the two orders contained in the aforesaid letters of 16 th October, 2018, quashing of 18 which have been asked for by the appellant. He has drawn our attention to the appointment letter of the appellant which was approved by the ACC. His stand is that the appellant could be terminated by an order passed earlier to completion of his initial tenure of thirteen months and the nature of employment being contractual, the same ought not to be judicially reviewed by the Writ Court. He has also argued that the "deemed confirmation plea"
could be taken only on completion of thirteen months if the ministry did not send any proposal to the contrary. He also disputed the appellant's contention that the impugned orders were stigmatic. He has also argued that the post of Director (Technical) was an ex-
cadre post and on his joining as CMD, BCCL, the appellant's right over the said post was not retained. In such circumstances, he was repatriated to the post over which he had lien.
16. We reject straightway the respondents' plea that the nature of employment of the appellant being contractual, his service could be terminated at any point of time before end of his tenure. The decision of the Hon'ble Supreme Court in the case of Shrilekha Vidyarthi Vs. State of U.P. [(1991) 1 SCC 212] has concluded this controversy and now duty of the State to act reasonably in almost all spheres of its activities is a well established legal principle. So far as the present appeal is concerned it is more so because the authorities themselves have laid down the procedures for confirmation in Board-Level posts through various memoranda, to which we have already referred. Having laid down the process, the respondents ought to follow it. That is the principle of Taylor Vs. Taylor (1875) LR 1 Ch D 426, followed in Nazir Ahmed Vs. King 19 Emperor (AIR 1936 PC). The same dicta has been relied upon subsequently in various authorities and we do not consider it necessary to multiply the precedents on this principle.
17. We shall now examine if the appellant could be said to have been "deemed confirmed". In paragraph 14 (iv) of the judgment, the learned First Court has referred to certain Guideline. We have quoted this paragraph earlier in this judgment and also reproduced the relevant clause from that Guideline. But prior to analyzing this Guideline, we shall test as to how the appointment letter treated the appellant's service tenure. The letter of appointment lays down the tenure to commence from the date of assumption of charge till the date of his superannuation, i.e. 31 st March, 2020, or until further order, whichever is earlier. There is option for termination of service with three months' notice, but that issue is not relevant in this appeal. Clause 1.2 of the condition of appointment (quoted in paragraph 3 of this judgment) stipulates that after the expiry of first year, the appellant's performance will be reviewed and on that basis the Government will decide whether his service would be continued or not. This clause bears strong resemblance to probation period and and we shall treat that period to be probation period only. The employer possesses wide discretion in determining as to whether to permit an incumbent to run full tenure of service or not during such probation period.
18. The ACC's instruction or memorandum contained in the clause entitled "Confirmation of Board level appointees" provides for deemed confirmation if upon completion of one year's service, no proposal to the contrary is sent by the Ministry/Department within 20 30 days after the expiry of one year. This clause, which we have quoted in paragraph 12 of this judgment contemplates two types of situations in which confirmation of a Board-Level employee could be declined. One is his performance in the post, for which the confirmation clause entitled "Confirmation of Board Level appointees" lays down the norms in the first three sub-paragraphs. The second situation contemplates "reasons other than performance such as vigilance issues etc;". The Guideline stipulates that in such cases proposal for not confirming the service is required to be submitted to the ACC at least 30 days in advance of expiry of scheduled tenure of the incumbent. The confirmation procedure referred to in the communication dated 29th August, 2017 also corresponds to that memorandum in its key features. The procedure for obtaining approval for non-confirmation varies in respect of performance related ground and "for reasons other than performance such as vigilance issues etc;". Now the question arises for adjudication is whether the scheduled tenure would be computed as one year or thirteen months.
19. So far as the appellant is concerned, the proposal was sent to DoPT for the approval of ACC for non-confirmation of his tenure on 28th September, 2018 and ACC gave its approval to such proposal on 15th October, 2018, both the dates being beyond one year of his initial appointment but within thirteen months thereof. If we analyse Clauses 5 and 6 of the aforesaid "Confirmation Procedure", as also Clause 2 of the aforesaid instruction of ACC, carrying the heading "Confirmation of Board level appointees" (appearing at page 54 of the writ petition), we find that the Ministry/Department 21 has 30 days to send its proposal for non-confirmation after expiry of one year. First two sub-paragraphs of the latter deal with deemed confirmation and the third sub-paragraph thereof lays down the procedure for performance related non-confirmation. The dateline is thirteen months thereof. We do not find that in fourth sub- paragraph thereof, dealing with issues other than performance like vigilance, a different interpretation is to be given to the expression "scheduled tenure", shortening the time-length by a month or 30 days within which proposal for non-confirmation has to be submitted to the ACC directly. In our opinion, Clause 1.2 of the communication dated 8th February, 2018 laying down the terms and conditions of the appellant's appointment covers both the situations, and the proposals in both the cases would have to be sent within 30 days after the expiry of one year. We hold so because in our view, appraisal of the appellant would have to be undertaken after completion of one year. The expression "performance" employed in the memorandum dated 8 th February, 2018 covers vigilance issues also by implication. The deemed confirmation clause in the "Confirmation Procedure" as well as the ACC's instruction would become operational only if no proposal for non-confirmation is sent within thirteen months. The applicable Guidelines do not contemplate shortening of this time by a month if proposal for non-confirmation is sent on grounds or reasons other than performance, like vigilance issues etc;. In the case of the appellant, this time-length was followed and hence he cannot claim to have been confirmed under the deeming provision. We accept submission of Mr. Kanth that there is difference in procedure for 22 non-confirmation on performance basis and other issues, but we find in the case of the appellant the applicable procedure has been duly complied with.
20. It was also argued on behalf of the appellant that his service tenure was ended with a stigma as the reason for not approving his tenure was vigilance issue. On this point, authorities relied upon were the cases of Parshotam Lal Dhingra (supra), Manohar (supra) and Palak Modi (supra). The case of Manohar (Supra) is an authority for the proposition that if action of an authority bears consequence of serious nature, principles of natural justice would have to be complied with even if the Rules do not provide for such compliance. But this judgment does not deal with the case of non- confirmation during period of probation, in respect of which law has evolved with the case of Parshotam Lal Dhingra (supra). It has been held in this judgment (Manohar) that if termination of service is sought to be founded on misconduct, negligence, inefficiency or other disqualification, then it would be punishment and the requirements of Article 311 of the Constitution would have to be followed. In the case of Palak Modi (supra), it has been held:-
"36.There is a marked distinction between the concepts of satisfactory completion of probation and successful passing of the training/test held during or at the end of the period of probation, which are sine qua non for confirmation of a probationer and the Bank's right to punish a probationer for any defined misconduct, misbehaviour or misdemeanour. In a given case, the competent authority may, while deciding the issue of suitability of the probationer to be confirmed, ignore the act(s) of misconduct and terminate his service without casting any aspersion or stigma which may adversely affect his future prospects but, if the misconduct/misdemeanour constitutes the basis of the final decision taken by the competent authority to dispense with the service of the 23 probationer albeit by a non-stigmatic order, the Court can lift the veil and declare that in the garb of termination simpliciter, the employer has punished the employee for an act of misconduct. "
21. The two orders impugned in the writ petition, both dated 16 th October 2018, do not reflect the issue of memorandum of charges as reason for not confirming his service. The orders under challenge cannot be termed as punitive so far the appellant's service in the subject-post is concerned. There was no enquiry or finding of guilt against the appellant when he occupied the subject post. There is no imputation to that effect either. It is well within the power or authority of an employer not to confirm service of an incumbent in probation period because of past allegations of misconduct. An employer also may choose not to highlight that fact and simply find him not suitable for the job, so as not to block or constrict his future employment opportunities. Such action on the part of the employer would not be treated as punitive and not require following the "audi alteram partem" principle. We do not find any flaw in the process adopted by the respondents in not confirming the appellant's service in the subject-post for the full tenure. The scope of power and discretion of the employer is very wide at the stage the decision to approve his non-confirmation was taken. In the case of Palak Modi (supra), there was allegations of use of unfair means in a test held by the Bank for evaluating performance of the incumbent before his confirmation after undergoing period of probation. For this reason, his service was not confirmed. The Bank had treated such act to be misconduct and the decision to dispense with his service was in reality on the ground that he had used 24 unfair means in the test. It was in that factual context the Hon'ble Supreme Court held that prior opportunity of hearing was to be given. In the appellant's case memorandum of charges was issued in relation to his employment in the past in a different organisation, though associated with BCCL, and not in relation to any allegation of misconduct in the subject post. Even if we go behind the reasons for his non-confirmation, we do not find the same to be punitive. It is no doubt in relation to certain allegations, but the decision of the authorities cannot be held to be penal measure. Here, the employer has chosen not to approve his confirmation for the post because of allegations of misconduct in his past employment. This reason appears from paragraph 31 of the counter-affidavit filed by the Union of India before the learned First Court. The ratio of the judgment in the case of Palak Modi (Supra) thus does not apply in this case. We also cannot dig deep to find out as to whether sufficient materials were there or not before the authorities in taking the decision under challenge. The ratio of Elizabeth Jacob (supra) would not be applicable in this case. Such kind of deep scrutiny in the absence of any form of surface hint of the act of the employer being penal measure, to find out the real cause behind the employer's conduct would not be warranted in exercise of our jurisdiction under Article 226 of the Constitution of India.
22. The cases of P. Venugopal (supra) and T.P. Senkumar (supra) were cited on behalf of the appellant to contend that fixed tenure posts could not be aborted midway. But in the subject-case, the appointment terms itself contemplated review before confirmation. It is also permissible course in service jurisprudence 25 to engage someone in probation in whatever terminology such engagement is couched and confirm his or her service on completion of a trial period depending upon the employee's suitability. The fixed tenure in the case of the appellant had not commenced, on the strength of which he could claim immunity from mid-tenure termination. The appellant was in substance on probation at the material point of time. None of the two incumbents in the said two cases was on probation. Thus, the cases of P. Venugopal (supra) and T.P. Senkumar (supra) are distinguishable in their factual context.
23. The last point urged on behalf of the appellant is on legality of his repatriation as a General Manager, ECL while when he was selected as CMD, BCCL, he was serving as Director (Technical), ECL. Citing the cases of Ramlal Khurana (supra) and Dr. S.K. Kacker (supra), Mr. Kanth has argued that such a course is impermissible. But ratio of neither of these two authorities assist the appellant. In Ramlal Khurana (supra), it has been held that when a person with lien against a post is appointed to another post, then he acquires lien against the latter post. In the appellant's case, the post of Director (Technical) was an ex-cadre post and the post of CMD, BCCL was also an independent post for which there was competitive selection process. It has been pleaded in paragraph 11 of the Memorandum of Appeal that in terms of the Guideline dated 31st March, 2011 and the letter dated 13th May, 2011, appointment of a Board level employee shall be deemed to be confirmed unless a negative proposal is sent within 30 days on completion of one year. We have referred to these provisions earlier in this judgment. The 26 said conditions appear to be applicable in the post of Director (Technical) as well, as we find from pleadings in that paragraph. The appellant had not completed thirteen months in that post to gain the advantage of deemed confirmation. Neither was there any formal order of confirmation. The minimum thirteen months' service was necessary for obtaining permanent status in both the posts. In the case of Ramlal Khurana (Supra) only, it has been held, referring to the provisions of Rule 13.4 of the Punjab Civil Services Rules that lien in a previous post is lost when a civil servant is substantively appointed to another post. So far the appellant's case is concerned, both the posts of Director (Technical) and CMD, BCCL were ex-cadre posts and the appellant had joined these posts through a competitive selection process. In the case of Dr. S.K. Kacker (supra), referring to clause (d) of FR14A, it was held by the Hon'ble Supreme Court that on appointment to a permanent post outside the cadre on which an employee is borne, his lien on the previous permanent post stands terminated on his acquiring lien in a permanent post. The appellant did not complete thirteen months in the post of Director (Technical), which would have conferred permanency to his tenure in that post. He had assumed charge to the latter post on 15th September, 2016 and before completion of the period of thirteen months, joined the post of CMD (BCCL). He was not confirmed in that post also. Thus, in neither of these two posts, his appointment was permanent for generating independent lien.
24. For these reasons, the appeal fails. The judgment of the learned First Court is sustained. No order as to costs. 27
25. Consequently, I.A. No. 2018 of 2019 and I.A. No. 3103 of 2019 also stand dismissed.
(Aniruddha Bose, CJ) (Ratnaker Bhengra, J.) Alankar/-