TMI Blog2019 (4) TMI 1951X X X X Extracts X X X X X X X X Extracts X X X X ..... nciples 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erson For Respondents: Shashikantha C., ASG and S.R. Dodawad, Advocate JUDGMENT B.V. Nagarathna, J. 1. These intra-court appeals are preferred by the petitioner in Writ Petition No. 9941 of 2015 and Writ Petition No. 50774 of 2016, being aggrieved by order dated 14th March, 2018 by which the writ petitions were dismissed. The first writ petition was dismissed inter alia, on the ground of delay and laches and consequently the second writ petition was rejected as not surviving for consideration. 2. We have heard the petitioner who has appeared in-person, Sri C. Shashikantha, learned Assistant Solicitor General in both the appeals and Sri S.R. Dodawad, learned counsel for respondent No. 5 in Writ Appeal Nos. 1555-1556 of 2018 and perused the material on record as well as the original file. FACTUAL MATRIX: 3. In Writ Petition No. 9941 of 2015, petitioner assailed letter bearing No. 20/16/2009-EO(SM)II, dated 4th March, 2010 (Annexure - F) of the Secretariat of the Appointments Committee of the Cabinet ( ACC for the sake of convenience); appointment letter bearing No. 3/17/2007-T R, dated 22nd March, 2010 of the Director of Ministry of Power, New Delhi (Anne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recruitment as per the order of merit (Annexure - D). The Ministry of Power submitted a proposal requesting approval of the ACC to appoint the appellant herein as the Director General on direct recruitment basis till his superannuation i.e., 31st May, 2019 vide Annexure - E dated 12th November, 2009. However, Annexure - F being letter dated 04th March, 2010 was addressed by the Secretariat of ACC, DoP T to the Ministry of Power approving the appointment of the appellant for an initial tenure of five years or till further orders. It was also stated that the appellant would be eligible for reappointment for further term upto 31st May, 2019 i.e., the date of his superannuation (Annexure 'F'). Accordingly, the offer of appointment was made to the appellant herein as per Annexure 'A' dated 22nd March, 2010. The appellant assumed charge of the said post on the same day. 7. According to the appellant, on 30th December, 2014, a representation (Annexure 'G') was submitted by him to rectify the mistake in the appointment order seeking deletion of the word tenure and to permit him to retire on attaining the age of superannuation as per the norms of direct recrui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... head office at Bengaluru. That the said post could be filled either by deputation or by direct recruitment. The advertisement (Annexure 'B') was issued for the purpose of selection of the candidate for appointment by direct recruitment. According to the same, the appointment to the post of Director General of CPRI was to be regulated by the provisions contained in Memorandum of Association, Rules and Regulations of the CPRI and other relevant Rules and instructions applicable to CPRI. That in the case of candidate selected by direct recruitment, a performance review on completion of one year of service after appointment was to be undertaken by a three member committee and the outcome was to be communicated to the candidate appointed which was binding on him. That the said advertisement did not prescribe that the appointment of the Director General by direct recruitment was a tenure post or was for a period of five years only. Such being the position, on selection of the appellant to the said post as per the Minutes of the Meeting of Search-Cum-Selection Committee (SCSC) held on 29th July 2009 (Annexure 'D'), a communication dated 12th November 2009 (Annexure 'E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t by the appellant and the same was permitted. That as per the interim order granted by this Court, the appointment of respondent No. 5 as Director General, CPRI, was subject to the result of the writ petition. 11. Appellant further contended that the learned Single Judge was not right in dismissing the writ petitions on the ground of delay and laches without considering the merits of his case as the appellant had made as many as fourteen representations with regard to the nature of his appointment which was in substance by direct recruitment till his superannuation, but in fact had been converted into a tenure post but none of his representations had been answered by respondent No. 2 or by the authorities concerned. He submitted that having regard to the settled position of law as per the various judgments of the Hon'ble Supreme Court, relief may be granted to him by declaring that his appointment is until he retires from service i.e., on 31st May 2019 on attaining the age of superannuation. 12. In this regard, appellant placed reliance on various judgments of the Hon'ble Supreme Court and also several documents which he has appended to the memorandum of writ petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rit in these appeals and the same may be dismissed in limine as there is no violation of Articles 14, 16 or 21 of the Constitution in the instant case. 16. Learned counsel for respondent No. 5 Sri S.R. Dodawad also adopted the submissions of learned ASG. He further contended that the appellant cannot challenge the appointment of respondent No. 5 as he was not an applicant pursuant to advertisement dated 18th February 2015. He also submitted that both the writ appeals may be dismissed by affirming the order of the learned Single Judge. 17. By way of reply, appellant reiterated his contentions and submitted that if the appellant is successful in convincing this Court that his appointment for initial period of five years or until further orders is in violation of Articles 14 and 16 of the Constitution, then, this Court may order for his reinstatement and that any amount of monetary relief to the appellant would not be a substitution for reinstatement. He submitted that his fundamental rights have been violated and his reputation has suffered a severe dent and therefore, reinstatement is the only way in which justice could be meted to him. 18. Having heard the appellant-in-per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ws and rated appellant's performance at 9 on a 10 point scale. On nearing completion of five years, a second advertisement was issued on 18th February 2015 as per Annexure 'P', which is in pari materia with the advertisement issued earlier as per Annexure 'B' dated 18th May 2009. The appellant filed Writ Petition No. 9941 of 2015 seeking the aforementioned prayers. 20. During the pendency of the aforesaid writ petition, appellant was relieved from the post of Director General, CPRI, with effect from 21st March 2015 (AN) vide Communication dated 20th March 2015 (Annexure 'AA') issued by the Deputy Secretary (T R), Ministry of Power. Respondent No. 5 was appointed but his appointment was until further orders, subject to the final order of this Court in the writ petitions as per the interim order granted by this Court. 21. As already noted, CPRI was initially established by the Government of India and thereafter in the year 1960, it was re-organised as an autonomous Institution in the year 1977 and registered under Karnataka Societies Registration Act, 1960, it is governed by Memorandum of Association, Rules and Regulations, Bye-laws, Working Rule No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CPRI is 60 years although the governing council could grant extensions with prior approval of the Government of India. 24. The Central Research Power Institute (Service Conditions) Rules, 1989 (Working Rule No. 2) [hereinafter referred to as the 'Working Rule No. 2'] applies to those persons who are appointed to the service of the Society on regular basis whose pay is debitable to the funds of the Society. 25. In terms of Working Rule No. 1, Ministry of Power issued advertisement No. 3/17/2007-T R dated 18th May 2009 inviting applications for the post of Director General, CPRI. As already noted, the post could be filled by direct recruitment or on deputation basis. In the advertisement, the eligibility criteria for appointment of a candidate on deputation basis reads as under: For deputation: Officers under the Central/State Govts./Electricity Boards/Universities/Public Sector Undertakings/Statutory/Semi-Govt. or Autonomous Organisations: (a)(i) holding analogous posts on regular basis or (ii) with three years minimum service in the Pay Band of ₹ 37,400-67,000/- plus Grade Pay of ₹ 10,000 or equivalent; and (b) Possessing the edu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing to the appellant, the appointment is till the age of retirement on attaining the age of superannuation and it is not a tenure post. 27. The relevant documents having a bearing on the appointment of the appellant are extracted as under: (a) Annexure 'E' is the copy of communication dated 12th November 2009 issued by the Joint Secretary, Ministry of Power to the Establishment Officer and Additional Secretary, DoP T. The same reads as under: Dear Sir, Please refer to DOPT's correspondence number 20/5/2008-EO(SM.II) dated 29.07.2009 conveying the approval of Appointments Committee of the Cabinet (ACC) for extension of additional charge of the post of Director General, Central Power Research Institute (CPRI) to Shri P.K. Kognolkar, w.e.f. 1.7.2009 to 31.12.2009 or till the post is filled up on regular basis or until further orders, whichever is the earliest. 2. The post of Director General, CPRI carries the pay scale in the Pay band of ₹ 67,000-(annual increment @ 3%) - 79,000. The post of DG, CPRI fell vacant on 25.4.2008 due to retirement of Shri A.K. Tripathy, DG, CPRI, on attaining the age of superannuation. 3. As per the directions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interview/interaction. After personal interaction with each candidate and review of Service Record and ACRs, the Search-cum-Selection Committee unanimously recommended the following persons in that order for appointment to the post of Director General, CPRI in the Pay band of ₹ 67,000-(annual increment @ 3%) - 79,000:- (i) Shri N. Murugesan, Chief Manager, TCE Consulting Engg. Ltd., Bangalore. (ii) Dr. R.S. Shivakumara Aradhya, Additional Director, CPRI. 8. A copy each of the minutes of the first and second meeting of the Search-cum-Selection Committee is enclosed. 9. A complete folder containing the Recruitment Rules of CPRI, copy of the advertisement and ACR Gradings as well as CR Dossiers of Shri N. Murugesan, Chief Manager, TCE Consulting Engg. Ltd., Bangalore (from 2002-03 to 2006-07 when working in CPRI) and Dr. R.S. Shivakumara Aradhya, Additional Director, CPRI (from 2004-05 to 2008-09) and the requisite prescribed proforma, duly filled in, requiring approval of ACC is also enclosed. In accordance with DOP T OM. No. 27/2/2009-EO (SM. II) dated 16.07.2009, the consent of both the above officers to join as DG, CPRI, in case they are selected, has also been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by us) (c) On the basis of the above, Annexure 'A'/offer letter was issued to the appellant on 22nd March 2010. The same is extracted as under: No. 3/17/2007-T R Government of India Ministry of Power Shram Shakti Bhavan, New Delhi Dated the 22nd March, 2010. To Shri N. Murugesan, Chief Manager, TCE Consulting Engineers Ltd., Sheriff Centre, 73/1, St. Marks Road, Bangalore - 560 001. Subject: Appointment to the post of Director General, Central Power Research Institute (CPRI), Bangalore - reg. Sir, I am directed to say that the Competent Authority has approved your appointment as Director General (DG), Central Power Research Institute (CPRI), Bangalore on direct recruitment basis from the date of your assuming the charge of the post for an initial tenure of five years or until further orders. You would be eligible for reappointment for a further term upto May 31, 2019 i.e., the date of your superannuation. 2. In view of the above, you are requested to join the new assignment as Director General, Central Power Research Institute, Bangalore immediately. 3. The orders regarding the terms and conditions regulating the abov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for an initial tenure of five years or until further orders . In other words, could the appointment have been in the nature of a tenure appointment? At the outset, it is observed that the appointment order (Annexure 'A') issued to the appellant is contrary to the recommendation made by the Ministry of Power to the Additional Secretary, DoP T (Annexure 'E') and the ACC which was on direct recruitment basis from the date he assumes charge up to 31st May 2019, the date of his retirement on superannuation, or until further orders, whichever event occurs earlier . In other words, 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? 29. Bearing in mind the aforesaid points, we have perused the original File submitted by the learned ASG appearing for the Union of India for our perusal. (a) On perusal of the same, we find that the proposal of the Ministry of Power for appointment of the appellant as Director General, CPRI on direct recruitment basis before the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... N. Murugesan, Chief Manager, TCE Consulting Engg. Ltd., Bangalore, as Director General, Central Power Research Institute (CPRI), Bangalore on direct recruitment basis from the date he assumes charge of the post upto 31.05.2019 file., the date of his retirement on superannuation) or until further orders, whichever is earlier. (underlining by us) On further perusal, it is noted that the then Hon'ble Prime Minster approved the appointment of the Director General, CPRI, for an initial tenure of five years or until further orders and he would be eligible for reappointment for a further term upto 31st May, 2019 i.e., date of his superannuation. (b) The Under Secretary submitted a note, on perusal of which, it becomes clear that an opinion was sought from the Establishment Division on the appropriateness of the appointment of appellant made on tenure basis when neither rules and regulations nor vacancy advertisement issued for the post had any provision for appointment on tenure basis. It is also noted that CPRI being an autonomous organisation under the Ministry of Power, the guidelines, instructions on personnel matters which are applicable to Central Government ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from 23rd March 2015 till the appointment of a regular incumbent or until further orders whichever was earlier. Accordingly, on 27th March 2015 Sri Sudhakar R. Bhat, Principal Secretary, SRPC was entrusted additional charge of the post of Director General, CPRI. He assumed office on 28th March 2015. 30. On 23rd April 2015, this Court passed an interim order directing that the appointment to the post of Director General, CPRI, would be subject to the decision in the writ petition. 31. Two aspects of the matter emerge from the aforesaid discussion. The first aspect concerns the tenor of appointment order issued to the appellant vis- -vis the term of appointment. The second aspect is the nature of relief that could be granted to the appellant, in case he succeeds in the matter. 32. With regard to the first aspect of the matter, it is not in dispute that the appointment of the appellant was by direct recruitment. Working Rule No. 1 speaks of appointment by Direct Recruitment; the advertisement issued calling for applications to fill up the post of the Director General, CPRI, was also by Direct Recruitment. On selection of the appellant, Additional Secretary, Ministry of Power, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Minister had approved. In other words, the ACC was mislead by the concerned officers who had prepared the Cabinet Note, as a result of which, there was a total departure in the period of appointment of the appellant as Director General, CPRI. Such a departure contrary to Working Rule No. 1 and advertisement cannot be countenanced. In other words, as stated in communication at Annexure 'E' by the SCSC, the appointment of the appellant on direct recruitment basis had to be from the date he assumed charge up to 31st May 2019, the date of his retirement on superannuation or until further orders whichever event occurred earlier. In fact, on perusal of Annexure 'X' communication dated 23rd February 2015 issued by the Director of the ACC to the Joint Secretary, Ministry of Power, it is noted that the recruitment rules for the post of Director General, CPRI, prevailing at the time of appointment of the appellant did not have any provision for appointment on tenure basis. 34. The idea behind what has been stated in Column No. 21 in paragraph 21 of the Cabinet Note appears to be from Annexure 'DD', which is an Office Memorandum wherein it states that appointmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Establishment Officer suggested to the ACC to fix an initial five year tenure which was not only contrary to the SCSC's recommendation of direct recruitment till retirement, but also Working Rule No. 1 and the advertisement calling for applications. Therefore, paragraph No. 21 in the note put up before the ACC is illegal as it makes a clear departure in the nature of appointment of the appellant. In the instant case, the appointing authority is the ACC. The recommendation of the SCSC was forwarded to the ACC. No reason whatsoever was recorded for differing from the recommendation of the SCSC which was also approved by the Ministry of Power. Giving a colour of a tenure appointment to the post of Director General, CPRI on the basis of paragraph No. 21 and appointing the appellant in such a manner is illegal as it is contrary to Working Rule No. 1. Such, a recommendation could not have been made to the ACC in the Cabinet Note by the concerned Officers. Thus, the recommendation to the ACC did not follow the Recruitment Rules as well as the terms and conditions stipulated for direct recruitment of Director General, CPRI as given in the advertisement at Annexure 'B'. The ACC, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the order of appointment. That may be so. Since we have declared that the order of appointment was contrary to Working Rule No. 1 and the Rules and Regulations and the advertisement issued calling for applications to the post of Director General, CPRI pursuant to which the appellant had applied, it is declared that the relieving order dated 20th March 2015 is also not in accordance with law. In the circumstances, it is also declared that the issuance of the advertisement calling for applications from eligible candidates to fill up the post of Director General, CPRI dated 18th February 2015 is also illegal. In the circumstances, the appointment of respondent No. 5 as Director General, CPRI by order dated 09th August 2016 Annexure 'CI' is also illegal. 38. In this context, reference could be made to the following decisions of the Hon'ble Supreme Court: (a) In A.K. Doshi (Dr.) Vs. Union of India, (2001) 4 SCC 43, it was observed that after a Selection Committee completes the exercise and recommends one or more names for appointment, the recommendation along with the materials considered by the Selection Committee should be placed before the Appointments Committee wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the advertisement unless such a power is specifically reserved in the Rules and/or advertisement. Relaxation of any condition in advertisement without due publicity would be contrary to the mandate contained in Articles 14 and 16 of the Constitution. In the said case, the Hon'ble Supreme Court on perusal of the advertisement found that there was no power of relaxation and found fault with the High Court in directing that condition with regard to submission of identity card either along with application form or before appearing for preliminary examination could be relaxed in the case of respondent No. 1 therein, which was impermissible in view of the mandate of Articles 14 and 16 of the Constitution of India. (e) In Hemani Malhotra v. High Court of Delhi, [(2008) 7 SCC 11], the question for consideration was whether introduction of requirement of minimum marks for interview, after the entire selection process was completed, would amount to changing the rules of the game after the game was played. The Hon'ble Supreme Court noted that no doubt, rules prescribing minimum marks for both written examination and viva-voce, could be made but if minimum marks were not prescri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... could not be allowed to depend upon any fluctuating or uncertain date. If the final stage of selection was delayed and more often it happens for various reasons, the candidates who were eligible on the date of application may find themselves eliminated at the final stage for no fault of theirs. The date to attain the minimum or maximum age must, therefore, be specific and determinate as on a particular date for candidates to apply and for recruiting agency to scrutinise applications. According to the Hon'ble Apex Court, it would be, therefore, unreasonable to construe the word 'selection' only as the factum of preparation of the select list, but encompasses many stages commencing from inviting applications by an advertisement or in any other mode. 39. The aforesaid judgments have laid down the law in the context of recruitment to posts which are squarely applicable in the instant case, whereby direct recruitment was being made for the post of Director General, CPRI. 40. The fact that in the instant case, Working Rule No. 1 did not contemplate a tenure appointment and that the post of Director General, CPRI was not a tenure post, though by way of a direct recruitm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered the case of the Director of AIIMS, New Delhi, having been duly appointed for a period of five years, had been removed prior to the completion of the said period and referred to the reasoning in the case of Dr. L.P. Agarwal. (c) In J.S. Yadav Vs. State of Uttar Pradesh and Another, MANU/SC/0435/2011 : (2011) 6 SCC 570, considering the case of the appellant therein under the provisions of Protection of Human Rights Act, 1993, it was held that an employee appointed for a fixed period under a statute is entitled to continue till expiry of tenure and in such cases there can be no occasion to pass order of superannuation since tenure comes to an end automatically by efflux of time. 41. Therefore, having regard to the aforesaid dicta, 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 the case of appointment to a post on tenure basis, the notion of retirement on attaining the age of superannuation does not apply. 42. The second aspect of the matter is, whether, relief could at all be given to the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filing the petition should not be disturbed, unless there is a reasonable explanation for the delay, because court should not harm innocent parties if their rights had emerged by the delay on the part of the petitioners. (3) The satisfactory way of explaining delay in making an application under Article 226 is for the petitioner to show that he had been seeking relief elsewhere in a manner provided by law. If he runs after a remedy not provided in the Statute or the statutory rules, it is not desirable for the High Court to condone the delay. It is immaterial what the petitioner chooses to believe in regard to the remedy. (4) No hard and fast rule, can be laid down in this regard. Every case shall have to be decided on its own facts. (5) That representations would not be adequate explanation to take care of the delay. b) Similarly, in the case of The Municipal Council, Ahmednagar Anr. Vs. Shah Hyder Beig others, [ (2002) 2 SCC 48], it has been opined thus:- The real test for sound exercise of discretion by the High Court in this regard is not the physical running of time as such but the test is whether by reason of delay, there is such negligence on the part of the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en for rectifying the appointment order and before any decision could be taken and communicated to the appellant, he had filed the writ petitions before this Court by being aggrieved by the issuance of the advertisement calling for recruitment to the post of Director General, CPRI, on 18th February 2015, which was the catalyst for filing the first writ petition. In fact, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 51. At the outset, it must be emphasized that the aforesaid principles cannot play any role when fundamental rights of a citizen are at stake. The point is as to whether, a person who is appointed to a particular office contrary to Articles 14 and 16 of the Constitution must be shown the door by Courts of Justice when he pleads arbitrariness and violation of his fundamental rights. In our view, the case of the appellant could not have been dismissed by the learned Single Judge by applying the aforesaid principles. Accordingly, point No. 2 is answered. 52. In the circumstances, 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. (b) In Prabhakar Rao and others, etc. Vs. State of A.P. and others, etc., AIR 1986 SC 210, the majority judgment opined that there would be really no point in re-inducting an employee if he has but a month or two to go before retiring. Re-induction of such a person is not likely to be of any use to the administration and may indeed be detrimental to the public interest. So other ways of compensating must be found i.e., to compensate monetarily. In industrial law, back and future wages are awarded . That a similar principle could be adopted in the case of Government employees also, as the Government, public corporations and local authorities must be accepted to act as model employers. (c) Recently in Punjab and Sind Bank and Another Vs. Daljinder Singh, (2015) 16 SCC 293, the Hon'ble Supreme Court, while affirming a wrongful dismissal of an employee of the Bank from service, further opined in the facts and circumstances of the case, it was not a fit case for directing reinstatement. Rather awarding a lump-sum compensation of an amount by the appellant Bank therein for his wrongful dismissal was thought of as to meet the ends of justice. In the said case, having regard ..... X X X X Extracts X X X X X X X X Extracts X X X X
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