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TMI Blog2012 (12) TMI 742X X X X Extracts X X X X X X X X Extracts X X X X ..... constitution of Board consists of a Chairman and not less than 2 and not more than 14 other members to be appointed by Central Government. 3. Section 6 of SICA in so far as relevant to the issue is reproduced as under:- "(2) The Chairman and every other Member shall hold office for such period not exceeding five years, as may be specified by the Central Government in the order of his appointment, but shall be eligible for reappointment. Provide that no person shall hold office as the Chairman or other member after he has attained the age of sixty-five years." 4. The methodology of appointment of member in SICA and the procedure laid down is as prescribed under the guidelines issued by Cabinet Secretariat and involved transaction of Business Rules, 1961. 5. The Appointment Committee of the Cabinet (hereinafter referred to as ACC) is the approving authority. The appointment is routed through Secretary, Financial Services to the Establishment Officer of the DOPT and lastly through Cabinet Secretary to the ACC. 6. The appointment and re-appointment of a member in BIFR cannot be made without following the above procedure and also without approval of the ACC. 7. Respondent no. 4 S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t contain any provision of extension. There is only a provision of appointment, which can only be done with the approval of ACC. Besides, the assumption made for granting extension that BIFR would get abolished within six months as Company Law Bill would get passed in the Monsoon Session Parliament was also shown to be untrue as the Bill has not even been introduced in the Parliament till date. 14. By this representation, the petitioner drawn the attention to the communication dated 03.03.2011 sent by both the other members of BIFR alleging serious irregularities and improprieties including gender bias. 15. Thereafter, the Department realising that order extending the tenure of respondent no. 4 was beyond the purview of Section 6 (ii) of SICA and also taking cognizance of the contentions put forth by the petitioner in her representations, withdrew the order dated 16.09.2011 extending the tenure of respondent no. 4 as under:- "Notification No. 20(1)/2004-IF-II dated 6th September, 2011, issued by the Department, notifying the extension of tenure of Shri Nirmal Singh as Member/Acting Chairman in BIFR w.e.f 31.10.2011 to 29.04.2012 or upto the age of attaining 65 years or till the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntinued as a member/acting Chairman, BIFR was by way of re-appointment as a Member and that too on a methodology prescribed by DOPT in its Office Memorandum dated 03.07.2006 and with the approval of the ACC. 20. Further submitted that the Central Government, adopted very strange and never-heard procedure in violation of consistent practice by issuing a Notification late in the evening on 31.10.2011 whereby instead of following the statute i.e. Section 6 (2) of SICA initiating the process of re-appointment of Sh. Nirmal Singh, an illegal procedure was adopted. After retirement of Shri Nirmal Singh, respondent no. 4 on 29.10.2011, when he had become functus officio, the Central Government illegally modified retrospectively the order of appointment dated 20.10.2010 of Shri Nirmal Singh, respondent no. 4 dropping the clause prescribing the tenure of 3 years and making it up to the age of 65 years i.e. up to 09.01.2013. 21. Ld. Counsel has asserted that the Notification was issued without jurisdiction, without seeking the approval of ACC and without resorting to the procedure of the re-appointment as per the statute and it violated the provision of SICA. 22. The Secretary of BIFR, ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid proposal mentioned that the Finance Minister had approved the proposal. Vide clause 12 of the proposal the approval of ACC was sought in following words: "Approval of the appointment Committee of the Cabinet is solicited to the proposal to appoint one officer from the above panel as at para 9 above, in order of preference, as Member BIFR for 3 years or till he attains the age of 65 years, or till the abolition of BIFR or until further orders whichever events occurs earliest." 27. It is emphasized that the proposal dated 02.09.2008 soliciting approval for the appointment of the respondent no. 4 for a period of 3 years had been approved by the Finance Minister before the same was sent to the other two members of ACC i.e. the Prime Minister and the Home Minister. The other two members of ACC approved the proposal initially approved by the Finance Minister without differing with the same in any manner. This conclusion is based on the fact that no dissenting note was recorded by other two members of ACC for differing with the approval initiated by the respondent no. 1 and approved by the Finance Minister. 28. It is further submitted that in accordance with the abovementioned appr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hen the matter was examined threadbare while considering the representations of the petitioner against the illegal extension granted to the respondent no. 4 by notification dated 06.09.2011 which was later on withdrawn vide letter dated 16.09.2011. However, no objection was raised by any of the respondents at any stage; bogey of error in the original appointment order was raised only when they failed in granting extension to respondent no. 4 through any legal means. 32. She further submitted, however, late in the evening on 31.10.2011, respondent no. 1 issued the impugned Notification dated 31.10.2011 amending the earlier Notification dated 20.10.2008 by deleting the words "for a period of 3 years" from the said Notification and thus illegally extending the tenure of respondent for 14 months. This illegality was perpetuated by the respondent no. 5 by issuing an Office order dated 31.10.2011 modifying retrospectively the Officer Order dated 03.11.2008, which had recorded the assumption of charge of respondent no. 4, by deleting the words "w.e.f the forenoon 31.10.2008" from the said order. 33. Ld. Counsel for the petitioner has argued that the proposal dated 02.09.2008 for appoint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ications. It would vest the officer make the notings, who is only empowered to summarise the proposal for the convenience of ACC and has no power to misreport/alter the same with unjustified and dangerous powers. 38. It is further submitted that the appointment at such higher level which are required to be approved by ACC cannot be allowed to be tinkered with by the Officers by erroneous nothing in this manner. The Cabinet Secretariat acts as Secretariat for all the committees of the Cabinet and procedures as well as the rules of business are the same. 39. Ld. Counsel for the petitioner has given an example that if error is committed by someone in the Cabinet Secretariat in recording the proposal of Defence Ministry, which is signed by the other members of Cabinet Committee on security presuming it to be Defence Minister's proposal, what havoc can be played with security of the country! Similarly, if someone in the Secretariat records two months instead of two days for movement of relief proposed by the Ministry concerned and such noting is signed by other members of Cabinet Committee on Management of Natural Calamities and such error is adopted, its decisions can one imagine the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n this case. 44. To sum up her arguments, ld. Counsel for the petitioner has submitted that it is clear from the above facts that respondent no. 1 instead of submitting clarifications for considerations of ACC, issued the impugned Notification late in the evening of 31.10.2011, which in fact extended the tenure of respondent no. 4 by more than 14 months after he had already been relieved on completion of his stipulated tenure. By doing so, respondent no. 1 has not only arrogated to himself the authority vested in ACC but has issued an illegal order which is violative of approval granted by ACC in 2008, is in defiance of the directions of ACC asking for submission of clarification in respect of tenure stipulated in original order. It is also violative of Section 6 (2) of SICA. Therefore, the impugned Notification dated 31.10.2011 deserves to be quashed. 45. On the other hand, Mr. A.S. Chandhiok, ld. ASG appearing on behalf of respondents no. 1, 2, 3 & 5 has submitted that the following facts are not in dispute: (i) That respondent no. 4, who's appointment is under challenge, is eligible for appointment up to sixty five (65) years as per the statutory provisions i.e. Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oval order that an error had occurred in the Notification dated 20.10.2008 issued by the Under Secretary of the Ministry. Once a mistake crept in the Notification dated 20.10.2008, accordingly, the same mistake got into the record of BIFR office also which came to the knowledge of Ministry on 28.10.2011 when the ACC Secretariat itself pointed out the fact that original appointment of respondent no. 4 was till he attains the age of 65 years. On receiving the same, the error was rectified vide Notification dated 31.10.2011. 52. For the convenience, order dated 15.10.2008 is reproduced as under: "The Appointments Committee of the Cabinet (ACC) has approved the proposal for appointment of Shri Nirmal Singh IAS (TN:70) (Retd) as Member, BIFR, w.e.f the date of the assumption of the charge of the post and till he attains the age of 65 years or till abolition of BIFR or until further orders, whichever event occurs the earliest." 53. Notification dated 20.10.2008 is reproduced as under: "In exercise of the powers conferred by sub-section (2) of Section 4 read with sub-section (2) of Section 6 of the Sick Industrial Companies (Special Provisions) Act, 1985, the Central Government hereby ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rity. 4. I am desired to convey the above direction of the Competent Authority for necessary action and early clarification." 56. The same was in terms of the ACC approval communicated vide letter dated 15.10.2008 by the ACC Secretariat. 57. It is further submitted that the Notification dated 20.10.2008 is a Ministerial act and there is no bar under law that it could not rectified. The power to rectify the mistake by Ministry is implicit from the approval communicated on 15.10.2008 by the ACC Secretariat. The rectification of an error committed while implementing of ACC decision do not require a fresh approval from the ACC. The same is not the requirement under law as alleged by the petitioner. The Ministry is well within its right to correct its own errors/mistakes. 58. Ld. ASG has argued that even if it is admitted for the sake of argument though not being admitted that it is a case of amendment of orders/Notification dated 28.10.2008, the amendment is still permissible as the said amendment relates back to the original approval dated 15.10.2008. 59. The Doctrine of Relation Back is a principle that something done today will be treated as if it were done earlier. This Doctri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petition. 64. He further submitted that the approval of ACC communicated vide letter dated 15.10.2008 is not contrary to proposal sent by the Ministry of Finance on 02.09.2008. There is no difference of opinion on the proposal or the approval. As argued by ld. Counsel for the petitioner, that the proposal of Finance Ministry cannot be undone by the ACC and if ACC do not agree with the proposal then, the reasons are to be given by the Officers for difference in their opinion. In this regard, it is submitted that in the present case, as borne out from the record of ACC file which was placed before this Court during the course of hearing, there is no difference of opinion on the appointment of respondent no. 4 up to the year 65. The proposal dated 02.09.2008 by the Ministry of Finance is as under:- "The Search Committee was requested to suggest a panel of suitable officers to fill the ensuing vacancy of Shri A.K. Goswami, whose term is to expire on 30.10.2008. Accordingly, the meeting of the Search Committee was held on 11th August, 2008 under the Chairmanship of Dr. V. Krishnamurty, Chairman, NMCC. The Committee considered the names of all Secretaries to Govt. of India and Chairman ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondent no. 4 or Mr. A.K. Mohapatra was placed before the ACC. The ACC out of the two, appointed the respondent no. 4 and took conscious decision to approve the appointment of respondent no. 4 till the age of 65 years or till the dissolution of the Board or until further orders in the light of the proposal received from the Ministry of Finance. Therefore, there is no difference of opinion as alleged by the petitioner and the arguments and the judgment cited by the petitioner on the point of difference of opinion does not hold ground. 66. Ld. ASG has asserted that the Appointment Committee of Cabinet is the supreme body with regard to the appointments of senior positions in the Government. The ACC is quite different from a Committee constituted under Section 4 (1) of the CVC Act, 2003 in judgment cited. The ACC is not bound with the proposal sent from the Ministry concerned. The present case is not the one where the ACC has in any way disagreed with the proposal sent from the Ministry of Finance. In fact, on receipt of the proposal, the same has been processed by the ACC Secretariat which is as under:- "Approval of the Appointments Committee of the Cabinet is solicited to the propo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... curs the earliest. 74. For the convenience the order dated 15.10.2008 is reproduced as under: "The Appointments Committee of the Cabinet (ACC) has approved the proposal for appointment of Shri Nirmal Singh IAS (TN:70) (Retd) as Member, BIFR, w.e.f the date of the assumption of the charge of the post and till he attains the age of 65 years or till abolition of BIFR or until further orders, whichever event occurs the earliest. 75. Inadvertently, vide Notification dated 20.10.2008, the term of respondent no. 4 was mentioned for 3 years and same is reproduced as under: "In exercise of the powers conferred by sub-section (2) of Section 4 read with sub-section (2) of Section 6 of the Sick Industrial Companies (Special Provisions) Act, 1985, the Central Government hereby appoints Shri Nirmal Singh, IAS (TN:70) (Retd.) as Member, Board for Industrial and Financial Reconstruction (BIFR) for three years, with effect from the date of assumption of the charge of the post on or after 31.10.2008 or till he attains the age of 65 years or till the abolition of BIFR or until further orders, whichever event occurs the earliest." 76. Therefore, vide impugned Notification dated 31.10.2011, respon ..... X X X X Extracts X X X X X X X X Extracts X X X X
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