TMI Blog2012 (12) TMI 742X X X X Extracts X X X X X X X X Extracts X X X X ..... ffice 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. - W.P. (C) No. 8126 OF 2011 - - - Dated:- 9-10-2012 - SURESH KAIT, J. Ms. Maninder Acharya for the Petitioner. A.S. Chandhiok, Neeraj Chaudhari, Gurpreet S. Parwawda, Ravjyot Singh and Inderjeet Sidhu for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Office of Member, BIFR w.e.f forenoon of 31.10.2008. The petitioner was also appointed as Member of BIFR by the Central Government specifying the period as 3 years on 05.11.2009. 9. The case of the petitioner is that whenever a member was appointed in BIFR in the past, the Central Government as a consistent policy specified the period of tenure of member as 3 years without any exception. 10. Respondent no. 4 being the senior-most member in BIFR, the Central Government on the basis of relevant consistent practice under Section 6 (5) of SICA authorized him to act as a Chairman of BIFR w.e.f 12.07.2010 vide order dated 09.07.2010. Respondent no. 4 completed his tenure of 3 years on 13.10.2011 as specified by the Central Government. 11. The Central Government in derogation of SICA and without any jurisdiction, without seeking approval of ACC while exercising jurisdiction under Section 6 (2) of the SICA, approved the extension of tenure of respondent no. 4 as Member/Acting Chairman in BIFR w.e.f 31.10.2011 to 29.04.2012 vide Notification dated 06.09.2011 as under:- "In exercise of the powers conferred by sub-section (2) of Section 4 read with sub-section (2) of section 6 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate was falling on Sunday, respondent no. 4 stood retired by implication on 29.10.2011. From this date onwards, respondent no. 4 had on severance of his status as member of BIFR had become functus officio. As only one Bench could be constituted in BIFR by the Chairman, if one is appointed as acting Chairman as per Section 12(2) of SICA in the light of decision of this Court, the petitioner wrote to the Secretary, BIFR to immediately get in touch with the Department of Financial Services to get authorization of a member to act as Chairman, so that the Bench could discharge normal duties. The Secretary postponed the cases fixed for hearing on 31.10.2011 and 01.11.2011 and also uploaded the postponement on the BIFR Website. 17. Thereafter, the proposal to extend the tenure of respondent no. 4 as a member/Chairman for a period of 6 months w.e.f 31.10.2011 initiated by the Department of Financial Services was routed through Department of Personnel and Training and was sent to Cabinet Secretary for seeking approval of ACC. Apparently, the Cabinet Secretary did not move the proposal for approval, but conveyed the observation that ACC in 2008 approved the appointment of Sh. Nirmal Singh, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing retrospectively that the tenure of respondent no. 4 would continue till the age of 65 years and by deleting the expression forenoon of 31.10.2008 so as to make it appear that respondent no. 4 continued to function as Member since 31.10.2008. 24. Ld. Counsel has pointed out that there are history of appointment of members of BIFR and a reflection of constant stand of the Central Government. It had always specified the tenure for a Member of BIFR as 3 years and no exception has been made in the matter of periods specified by the Central Government in the order of appointment. Even the most recent appointment in BIFR establishes that Central Government has specified the tenure of 3 years for a member in the Order of appointment vide Notification dated 31.02.2011. 25. The petitioner is aggrieved by the act of the respondents because of the fact that on retirement of respondent no. 4, petitioner being the senior-most Member serving in the BIFR should have been considered for being designated as acting Chairman. By illegally continuing the services of respondent no. 4 without being re-appointed as per the SICA, the petitioner has been grately prejudiced in her right for such cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rnment hereby appoints Shri Nirmal Singh, IAS (TN:70) (Retd.), as Member, Board for Industrial and Financial Reconstruction (BIFR) for three years, w.e.f 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." 29. Ld. Counsel for the petitioner has submitted from the above noted facts and events that the respondent no. 1 consistently and religiously relied upon the notification dated 20.10.2008 by which the respondent no. 4 had been appointed for a period of 3 years. Firstly; when in proposal dated 06.08.2009 made for the appointment of the petitioner and other two members it reiterated the fact that the respondent no. 4 had been appointed for a period of 3 years secondly; when vide order dated 06.09.2011 it illegally granted the extension of 6 months to respondent n. 4 w.e.f 31.10.2011 to 29.04.2012 thirdly; again, when having failed in its earlier attempt to grant extension to the petitioner, the respondent no. 1 made proposal dated 04.10.2011 and sought the approval of ACC for extension of the tenure of respondent no. 4 w.e.f 31.10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... drawn the attention of this court that the respondents admitted to the extent that the said proposal had the approval of Finance Minister and it has not been contended that Home Minister and Prime Minister had applied their minds or made any modification to the Finance Minister's proposal. It is also not the case of the respondent that any Officer in the Secretariat of ACC had recorded any reasons for modification to the proposal approved by Finance Minister, with which Home Minister and Prime Minister might have agreed. In fact it has impliedly been admitted that an Officer in the Secretariat of ACC had committed an error in recording the proposal of Finance Minister and failed to record that approval was sought for 3 years and erroneously happened to mention that approval was sought for appointment up to the age of 65 years. 35. Accordingly, approval was granted by Home Minister and Prime Minister to the proposal made by Finance Minister and not to the erroneous noting made by an Officer in the Secretariat of ACC. The file notings were made by the Officers to note the crux of the proposal for the convenience of the members of the ACC. The crux of proposal noted by an Officer on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... members of ACC have approved, what was proposed by the Finance Minister i.e vide proposal dated 09.02.2008 (this proposal included the words "for a period of 3 Years"). 41. Ld. Counsel has relied upon law decided by Hon'ble Supreme Court in a case of Union of India v. Bhaskarendu Datta Majumdar [2010] 9 SCC 38, wherein it has held that "if ACC differs with the proposal or recommendations made by the Ministry concerned, it must give reasons for so differing to ward of any attack of arbitrariness. Those records will have to be recorded on file". In the absence of recording of reasons in the said matter, the Hon'ble Supreme Court has dismissed the appeal of Union of India. 42. The petitioner has also relied upon a case of J.S. Yadav v. State of UP [2011] 6 SCC 570, wherein it is observed that "in a tenure post, the incumbent goes out with the efflux of time". Earlier in the case of Dr. L.P. Agarwal v. Union of India [1992] 3 SCC 526, the Hon'ble Supreme Court has held that "Tenure means a term during which an office is held. It is a condition of holding the office. Once a person is appointed to a tenure post, his appointment to the said office begins when he joins and it comes to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chairman BIFR and is due to demit the office only on 09.02.2013 i.e. date he attains the age of 65 years." 46. Ld. ASG has further submitted that the relief sought by the petitioner in this writ petition is as under: (i) Declare the appointment of respondent no. 4 as illegal by setting aside the impugned order dated 31.10.2011. (ii) Declare the retrospective amendment of joining order dated 03.11.2008 by setting aside the impugned order of Under Secretary of BIFR dated 31.10.2011. (iii) Direct respondents to consider the petitioner for the post of Chairman, BIFR. 47. It is submitted that the petitioner presumes that it is a case of an amendment/fresh appointment that has been made vide Notification dated 31.10.2011 and that the said Notification is not legally sustainable as the same does not have requisite ACC approval. 48. Ld. ASG has argued that without challenging the original impugned order dated 20.10.2008, petitioner challenged to the subsequent Notification dated 31.20.2011 on its own, which shall not survive considering the fact that the Notification dated 31.10.2011 is mere rectification of mistake with respect to the appointment already made/approved vide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rders, whichever event occurs the earliest." 54. Notification dated 31.10.2011 is reproduced as under: "In partial modification of Notification of even numbers dated 20th October, 2008 and 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) w.e.f 31.10.2008 till he attains the age of 65 years (i.e. 9th January, 2013) or till the abolition of BIFR or until further orders, whichever event occurs the earliest." 55. Ld. ASG has argued that reading the order dated 15.10.2008 with Notification dated 20.10.2008 and Notification dated 31.10.2011 makes it amply clear that Notification dated 31.10.2011 was mere rectification of the error as pointed out by the ACC Secretariat itself vide letter dated 28.10.2011. Same is reproduced as under: "Please refer to Department of Financial Services communication NO. 20 (1)/2004-IFII(PI) date 04.10.2011regarding extension of tenure of Shri Nirmal Singh as Member/Chairman Board for Indu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted that in the case in hand, the aforesaid Doctrine is applicable as in much as there was no fresh appointment of respondent no. 4. Respondent no. 1 on receipt of communication dated 28.10.2011 from the ACC Secretariat vide its Notification dated 31.10.2011 has only rectified the error which occurred into the earlier Notification dated 20.10.2008. Therefore, a clarification of such nature would not in any way alter the nature of appointment and thus by application of the Doctrine of Relation Back, the appointment of respondent no. 4 is to be considered from the date of original appointment read with clarification issued vide Notification dated 31.10.2011. 61. Ld. ASG submitted that in the entire writ petition ACC's decision communicated on 15.10.2008 is not under challenged or is the subject matter of the writ petition. As such the arguments addressed by the petitioner on this point cannot be entertained. 62. The respondents in this regard as relied upon a case of Bharat Singh v. State of Haryana [1988] 4 SCC 534 wherein it is held as under: "When a point which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngh, IAS (Retd.)-(TN:70) ii. Sh. A.K. Mohapatra, IAS (Retd.)-(HP:71) A copy of the minutes of the Search Committee meeting is at Annexure V. Common proforma prescribed for submission of proposals requiring approval of the Appointments Committee of the Cabinet, duly filled in, is enclosed. Finance Minister has approved the above panel for consideration for appointment as Member in BIFR. Approval of the Appointments Committee of the Cabinet is solicited to the proposal to appoint one Officer from above panel as at Para 9 above, in order of preference, as Member, BIFR for three years or till he attains the age of 65 years or till the abolition of BIFR or until further orders, whichever event occurs earliest." COMMON PROFORMA FOR PROPOSAL REQUIRING APPROVAL OF THE APPOINTMENTS COMMITTEE OF THE CABINET. (FOR POST OUTSIDE CENTRAL STAFFING SCHEME, NON-SECRETARIAT POSTS AT DEPUTY SECRETARY/DIRECTOR LEVEL, BOARD LEVEL POSTS IN PUBLIC SECTOR UNDERTAKINGS) 1 Ministry/Department Ministry of Finance, Department for Financial Services 2 Proposal Appointment of any one in the panel of following two officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t occurs earliest." 67. It is further submitted that the effect of the Notification dated 31.10.2011 is that the tenure of appointment of respondent no. 4, which had ended by efflux of time due to the expiry of stipulated tenure of three years on 28.10.2011 has been illegally extended till the respondent no. 4 attains the age of 65 years is totally misplaced and unfound, whereas the appointment of respondent no. 4 was always made by the ACC till the age of 65 years. So, there is no question of tenure ending on 28.10.2011. The said issue also gets clarified from the fact that Office of the ACC vide its letter dated 28.10.2011 has informed the Ministry that the appointment was approved in 2008 till he attains the age of 65 years or till the abolition of BIFR or until further orders, whichever events occurs the earliest. 68. I have heard ld. Counsel for the parties. 69. The petitioner aggrieved with the impugned Notification dated 31.10.2011 vide which the term of respondent no. 4 was extended till he attains the age of 65 years or till abolition of BIFR or until further orders, whichever event occurs the earliest. 70. It is not in dispute that as per Section 6 of SICA, the Ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nies (Special Provisions) Act, 1985 and made it till respondent no. 4 attains the age of 65 years i.e. 09.01.2013 or till the abolition of BIFR or until further orders, whichever event occurs the earliest. 77. First of all, respondent has raised the objection that petitioner has not challenged the original appointment Order/Notification dated 20.10.2008 and has only sought relief declaring the appointment of respondent no. 4 as illegal by setting aside the impugned order dated 31.10.2011. 78. Though it was not in the access of the petitioner that a proposal of respondent no. 4 was sent for 3 years and the ACC had approved it till he attains the age of 65 years, but this came to her notice only when the respondents filed the counter-affidavit. The petitioner had sufficient time to amend the petition. 79. In my considered opinion, in the facts and circumstances of the case, if the petitioner has not challenged the original appointment Order/Notification dated 20.10.2008, it would not make any difference because of the fact that this Court has to see 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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