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2012 (12) TMI 742 - HC - Companies LawQuashing and setting aside of appointment of Member/Acting Chairman of BIFR - whether the impugned order dated 31.10.2011 and the approval of the ACC i.e. instead of 3 years up to age of 65 years is valid or not - Held that - Respondent No. 4 Member/Acting Chairman of BIFR was appointed as Member of BIFR vide Notification dated 20-10-2008 and following old practice it was inadvertently specified in said Notification that respondent No. 4 was appointed for a period of 3 years w.e.f. date of assumption of charge, and as per said Notification, his tenure would come to an end on 13-10-2011. Vide impugned Notification dated 31-10-2011, respondents modified earlier Notification and made it applicable till respondent No. 4 attained age of 65 years, i.e., 9-1-2013 or till abolition of BIFR or until further orders, whichever event occurs earliest - It is not in dispute that as per Section 6 of SICA, the Chairman and Member shall hold an Office not exceeding 5 years or till he or she attains the age of 65 years - no merit in the instant petition. As per Section 6 of the SICA, the member/Chairman can hold an office for a period of not exceeding 5 years or till he or she attains the age of 65 years.ACC is the competent authority, who has to take decision out of the proposal made by the concerned Ministry. In the present case, note prepared by the Secretariat of ACC and proposal sent by the Ministry were put up before the ACC. After perusing the same, the ACC approved the appointment of respondent no. 4 till he attains the age of 65 years or till abolition of BIFR or until further orders, whichever event occurs the earliest. Undisputedly, as per past practice the tenure of the members have been 3 years. However, the ACC has not done anything contrary to the Act or contrary to the proposal sent by the Ministry. The ACC simply ignored the term of 3 years and rest of the proposal has been approved as it is. The ACC is not bound to take decision, as it is, the proposal placed before it. It being the competent authority empowered to take any decision permissible in law.
Issues Involved:
1. Validity of the appointment and extension of tenure of respondent no. 4 as Member/Acting Chairman of BIFR. 2. Compliance with statutory provisions and established procedures under SICA and ACC guidelines. 3. Allegations of procedural irregularities and improprieties in the appointment process. 4. Petitioner's right to be considered for the position of Acting Chairman of BIFR. Detailed Analysis: 1. Validity of the Appointment and Extension of Tenure of Respondent No. 4: The petitioner sought the quashing of the appointment and extension of tenure of respondent no. 4 as Member/Acting Chairman of BIFR. The petitioner argued that the extension was illegal and violated the statutory provisions of the Sick Industrial Companies (Special Provisions) Act, 1985 (SICA). The original appointment of respondent no. 4 was for a period of three years, as per the notification dated 20.10.2008. However, the ACC had approved the appointment until respondent no. 4 attained the age of 65 years or until the abolition of BIFR, whichever occurred first. The court found that the ACC's approval was valid and within its authority, and the subsequent notification dated 31.10.2011, which corrected the tenure to align with the ACC's approval, was a rectification of an earlier clerical error. 2. Compliance with Statutory Provisions and Established Procedures: The petitioner contended that the extension of respondent no. 4's tenure was not in compliance with the statutory provisions of SICA, which stipulates a maximum tenure of five years or until the age of 65 years. The court noted that the ACC is the competent authority to approve appointments and extensions, and it had approved respondent no. 4's tenure until he reached the age of 65 years. The court found that the ACC's decision was within the legal framework of SICA and that the procedural irregularities alleged by the petitioner were not substantiated. 3. Allegations of Procedural Irregularities and Improprieties: The petitioner alleged serious irregularities and improprieties, including gender bias, in the appointment process. The court examined the procedural history and noted that the ACC had approved the appointment and extension of respondent no. 4 in accordance with the statutory provisions and established procedures. The court did not find any evidence of mala fide intentions or procedural improprieties in the ACC's decision-making process. 4. Petitioner's Right to be Considered for the Position of Acting Chairman: The petitioner argued that she, being the senior-most member of BIFR, should have been considered for the position of Acting Chairman upon the retirement of respondent no. 4. The court acknowledged the petitioner's grievance but emphasized that the ACC's approval of respondent no. 4's tenure until the age of 65 years was valid and within its authority. The court found no legal basis to interfere with the ACC's decision or to mandate the consideration of the petitioner for the position of Acting Chairman. Conclusion: The court dismissed the petition, finding no merit in the arguments presented by the petitioner. The court upheld the validity of the ACC's approval of respondent no. 4's tenure until he attained the age of 65 years and concluded that the procedural irregularities alleged by the petitioner were not substantiated. The court emphasized the importance of adhering to statutory provisions and established procedures in the appointment process and expected the concerned Ministry and ACC Secretariat to exercise greater care in the future.
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