Home Case Index All Cases Indian Laws Indian Laws + HC Indian Laws - 2019 (4) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2019 (4) TMI 1951 - HC - Indian LawsTenor appointment - appointment of the appellant as Director General, CPRI - tenor of appointment order issued to the appellant vis- -vis the term of appointment - when the appointment was to be on direct recruitment basis until the date of retirement on attaining the age of superannuation or until further orders, could it have been converted as an appointment for an initial tenure of five years or until further orders? HELD THAT - The appointment of the appellant as Director General, CPRI, on a tenure basis is illegal, arbitrary and in violation of Articles 14 16 of the Constitution of India. Further, as opined by the Hon'ble Supreme Court in A.K. Doshi (Dr.) Vs. Union of India 2001 (3) TMI 900 - SUPREME COURT in the case of appointment to a post on tenure basis, the notion of retirement on attaining the age of superannuation does not apply. Whether, relief could at all be given to the appellant as according to the learned Single Judge, the writ petition filed by the appellant challenging his appointment for an initial tenure of five years only is hit by the principles of delay and laches? - HELD THAT - There has been inter-departmental communications on the representations made by the appellant. However, the same could not be taken to its logical conclusion on account of the advertisement dated 18th February 2015 issued by the respondent calling for applications for the post of Director General, CPRI, lead to the appellant filing the writ petitions. On account of the filing of the writ petitions before this Court, no further steps were taken on the representations made by the appellant before the respective authorities - The doctrine of delay and laches is a salutary doctrine and it has been applied in innumerable cases by the Hon'ble Supreme Court. In this context, a plethora of decisions of the Hon'ble Supreme Court are available on the issue regarding delay and as to how a Court of equity exercising jurisdiction under Article 226 of the Constitution would have to approach the issue. When the appellant filed his first writ petition, he was very much in service. He was relieved from service during the pendency of the first writ petition. This is not a case where after his termination, he instituted the writ petitions by way of an after-thought or after a long slumber, neither is the matter speculative in nature. Further, there was no delay in filing the second writ petition. Both the writ petitions were connected and heard together as the issues raised in them were intertwined. This aspect has been lost sight of by the learned Single Judge. As there was no delay or laches in filing the second writ petition, in order to consider the same, the issues arising in the first writ petition had to be also considered. But, both the writ petitions were not considered on merits and instead, learned Single Judge dismissed the first writ petition filed by the appellant herein on the ground of delay and laches and the second writ petition was rejected as not surviving for consideration. The first writ petition could not have been dismissed by the learned Single Judge on the ground of delay and laches, particularly when it was entertained in the early part of 2015 and was disposed off only in March 2018 and there was no delay in filing the second writ petition - it is held that the appointment of the appellant on a tenure basis for an initial period of five years is declared as illegal, arbitrary and in violation of Articles 14 and 16 of the Constitution. That the appellant having been appointed by direct recruitment was required to be appointed from the date he assumed charge of the post up to 31st May 2019, the date of retirement on superannuation or until further orders, whichever was earlier. The termination of the appellant on completion of five years was also illegal although the same may have been in accordance with the appointment order issued to him. But, since the appointment on a tenure of five years is declared to be illegal, the termination is also bad in law. The appellant shall be entitled to be paid 50% (fifty per cent) of his salary plus proportionate Dearness Allowance with effect from 21st March 2015 till 31st May 2019 by taking into consideration the pay revisions and increments, as applicable - Further, the appellant shall be entitled to the pensionary benefits under New Pension Scheme as applicable to the appellant if he had been continued in service to the extent of employer's contribution. Appeal allowed.
Issues Involved:
1. Legality of the appellant's appointment as Director General of CPRI for an initial tenure of five years. 2. Validity of the learned Single Judge's decision to dismiss the writ petitions on the grounds of delay and laches. 3. Determination of appropriate relief for the appellant. Issue-wise Detailed Analysis: I. Legality of the appellant's appointment as Director General of CPRI for an initial tenure of five years: The appellant challenged his appointment letter dated 22nd March 2010, which stated his appointment was for an initial tenure of five years or until further orders. The appellant contended that his appointment should be until his superannuation on 31st May 2019, as per the advertisement and recruitment rules. The court noted that the appointment order was contrary to the recommendation made by the Ministry of Power to the Additional Secretary, DoP & T, and the ACC, which stated the appointment should be on direct recruitment basis until the date of retirement on superannuation or until further orders. The court declared that the communication dated 4th March 2010 and the appointment letter dated 22nd March 2010 were illegal as they were contrary to the Working Rule No. 1 and the advertisement calling for applications. The court held that the appellant's appointment should have been until his superannuation on 31st May 2019 or until further orders, whichever event occurred earlier. II. Validity of the learned Single Judge's decision to dismiss the writ petitions on the grounds of delay and laches: The learned Single Judge dismissed the writ petitions on the grounds of delay and laches, stating that the appellant had accepted the appointment order without any demur and had only challenged it towards the end of his tenure. However, the court found that the appellant had made several representations seeking rectification of his appointment order before the tenure of five years came to an end. The court noted that there were inter-departmental communications regarding the appellant's representations, but no concrete steps were taken to rectify the appointment order. The court held that the learned Single Judge was not right in dismissing the writ petitions on the grounds of delay and laches, as the appellant was neither dormant nor silent about his tenure of appointment and had filed the writ petitions in a timely manner. III. Determination of appropriate relief for the appellant: The court declared that the appellant's appointment on a tenure basis for an initial period of five years was illegal, arbitrary, and in violation of Articles 14 and 16 of the Constitution. The court held that the appellant should be deemed to be in service from the date he assumed charge up to 31st May 2019, on which date he would retire on attaining the age of superannuation. The court reinstated the appellant to the post of Director General, CPRI, but only symbolically, considering the significant fact that the appellant would have retired on 31st May 2019. The court directed that the appellant be paid 50% of his salary plus proportionate Dearness Allowance from 21st March 2015 till 31st May 2019, and be entitled to pensionary benefits under the New Pension Scheme, gratuity, and any other terminal benefits. The respondents were directed to issue the necessary Relieving Order dated 31st May 2019 to enable the appellant to receive all monetary retiral and pensionary benefits.
|