Thursday, September 15, 2016

Bom OA NO. 597 of 2012. on 05-03-2013

Bom OA NO.  597 of 2012. on  05-03-2013
Dated this  Tuesday,   the  5  th       day of  March,    2013.
CORAM  :  Hon'ble Smt. Leena Mehendale, Member (A).
   Hon'ble Smt. Chameli Majumdar, Member (J). Veena Tyagi, Joint Director (KBCS), Knowledge Based Computing Systems, Centre for Development of Advanced Computing, Rain Tree Marg, Sector 7, CBD, Belapur, Navi Mumbai – 400 614. R/at : A-1402, Tulsi Gagan Society, Sector 21 Kharghar, Navi Mumbai 410 210. ... Applicant. (By Advocate Shri R. R. Shetty)
VERSUS 1. Union of India through the Secretary, Department of Electronics & Information Technology (Deit Y), Ministry of Communications & Information Technology (Govt. of India), Electronics Niketan, 6, C.G.O. Complex, Lodhi Road, New Delhi 110 003. 2. Director General, Centre for Development of Advanced Computing, Pune University Campus, Ganesh Khind, Pune 411 007. 3. The Executive Director, Centre for Development of Advance Computing, Gulmohar Cross Road No. 9, Juhu, Mumbai 400 049.        ...        Respondents. (By Advocate Shri V.S. Masurkar along with Smt. H. P. Shah).
2 O.A. No. 597/2012
O R D E R Per  :  Smt. Chameli Majumdar, Member (J).
The applicant presently working as Joint Director, Knowledge Based Computing System  at Centres for development of Advanced Computing System, has filed this O.A., challenging her contractual appointment vide letter of appointment dated 05.11.2007 on the ground of discrimination and arbitrariness. 2. Briefly stated, the facts of the case is that the applicant, a M.Tech in Computer Science from IIT, Roorkee in 2006, worked in various organizations under Ministry of Communication and Information Technology after completion of her B.Tech from IIT Kharagpur in the year 1992. Presently, the applicant is the Technical Group Head of CDAC, Kharghar. 2.1  Pursuant to an advertisement issued by the Centre for Development and Advanced Computing, Mumbai, [in short 'CDAC'] in May 2007, the applicant applied for the post of Sr. Research Scientist.  It appears from the advertisement, which is annexure A-5 to this O.A., that there was only one post of Sr. Research Scientist in the pay scale of Rs. 14300-400-18300.  The
3 O.A. No. 597/2012 applicant, who was already working in Centre for Development of Telematics [in short CDOT], New Delhi, applied in response to this advertisement. 2.2 The CDAC is an autonomous Scientific Society headed by the Chairman, who is the Union Minister of Communication and Information Technology.  The Society is controlled by the Governing Council headed by the Union Minister. Below the Governing Council there is a Coordination Committee headed by the Secretary, Department of Electronics and Information Technology, which is above the Board headed by the Director General of CDAC.  One of the CDAC Centre is in Mumbai having three offices under it, of which the Head Office is in Juhu, Mumbai and there is another officer at Kharghar, Navi Mumbai.  2.3 The applicant was appointed vide letter of appointment dated 05.11.2007 after qualifying in the interview.  She joined at Kharghar. 2.4    The contention of the applicant is that she came to know about the fact of two different nature of appointment in the post of Sr. Research Scientist when the benefits of pay under the recommendations of Sixth Pay Commission was given from two dates.  The applicant was told that
4 O.A. No. 597/2012 there were two different types of post in CDAC, Mumbai, one being a regular post and another on contract basis.  The applicant received the benefits of Sixth Pay Commission under protest. However, the applicant contended that she was still of the view that the employees who were working on regular basis in NCST (C-DAC Mumbai formerly known as NCST before merging with C-DAC) were the only regular employees in CDAC Mumbai and all the recruitments after the merger are made on Grade Based Contract. The applicant stated on oath that she was under the impression that all the appointments made in CDAC are only on Grade Based Contract as was the norm so known to her during her appointment in  C-DOT where she joined in 1996 as Research Engineer and was promoted to the next grade as Team Leader until she quit C-DOT to join CDAC in February, 2008. 2.5 The applicant became Technical Group Head vide standard operation procedure manual dated10.08.2011 and started regularly participating in administrative affairs by virtue of being a Member of the Management of Advisory Committee of CDAC, Mumbai.  There she obtained information and there she learned that one Dr. C.P. Johnson, who was employed at Pune was
5 O.A. No. 597/2012 transferred at his own request to Mumbai and joined as Jt. Director (Education and Training) at CDAC, Kharghar Centre in November, 2011.  She further learned that Dr. C. P. Johnson was appointed in the post of Joint Director/Senior Research Scientist and the appointment was not a Grade Based Contract but regular and against one post advertised on 25.04.2008.  Only thereafter the applicant sought the manpower detail of CDAC, Mumbai, vide her e.mail. After obtaining the information she realized that there was only one post of Joint Director/Senior Research Scientist on regular basis in the scale of Rs. 14300-18300. The applicant further came to know that Smt. Padmaja N. Joshi was appointed against the single post as advertised in May 2007 on regular basis, who participated in the same selection process with the applicant.  The applicant was shocked to know that under the same selection process although the post was mentioned one, the applicant was appointed on Grade Based Contract post, which was not even sanctioned.  Although it was shown from the advertisement that there was only one post in 2007, suddenly a new advertisement for recruitment was issued against two posts on 25.04.2008.  The applicant was under
6 O.A. No. 597/2012 the bona fide belief that appointments are only on contract basis until she became a technical head in Kharghar Office and got to know about the shocking state of affairs in the Organization and the hostile discrimination meted out to her.  As such, there was no question for her to apply again pursuant to the subsequent advertisement dated 25.04.2008.  The applicant further contended that she  was also blissfully  unaware of the fact till November, 2011 that one Shri Subramaniam, was appointed on regular basis as Senior Research Scientist pursuant to the advertisement dated 25.04.2008. So in November 2011 only the applicant realized that three persons were working on regular basis in the posts of Sr. Research Scientists while she was appointed on a Grade Based Contract for a period of five years.  2.6 The applicant made several representations to different authorities dated 03.01.2012 and 15.10.2012.   The representations of the applicant were unactioned.  She made an application under Right to Information Act for copy of the selection proceedings on 03.01.2012 wherefrom it became evident that the advertisement of May 2007 against which the applicant applied was for only
7 O.A. No. 597/2012 one regular post but a panel of three candidates was made.  The first empanelled candidate was given regular appointment and the applicant being in the second position, was offered Grade Based Contractual appointment.  The applicant was informed vide letter dated 29.09.2012 on e.mail that they were still looking into her grievances and would consider it by the end of October 2012. 2.7 The applicant, became aggrieved by the act of discrimination and non transparency in the action of the authorities regarding her appointment vis-a-vis the appointment of Smt. Padmaja N. Joshi, appointed in regular post pursuant to the selection process of 2007 and Shri N. Subramaniam, who was appointed in regular post after the applicant in 2008 as well as Dr. C. P. Johnson appointed in regular post in  2011 against the second vacancy advertised in 2008, that too four years after the applicant was appointed.  The applicant has challenged the action of the authorities in issuing the appointment letter dated 05.11.2007 which says that the applicant was appointed as Sr. Research Scientist on contract basis initially for a period of five years and extendable further period based on performance and requirement of C
8 O.A. No. 597/2012 DAC. The applicant has challenged her contractual Grade Based appointment vide her letter dated 05.11.2007 in this O.A. of 2012 since such illegal, arbitrary and discriminatory action did not come to the knowledge of the applicant until she became a Technical Group Head at Kharghar in 2011. The applicant is also aggrieved by the letter dated 19.10.2012 calling her for review of her performance on 29/30.10.2012.  The applicant apprehended that the intention of the authorities was to convert her appointment against project under the pretext of performance review.  The grievance of the applicant is that the respondents resorted to gross arbitrariness and hostile discrimination in appointing the applicant on contract in spite of having regular posts advertised within five months from the date of her appointment in C-DAC. 3. The respondents have filed their reply. The contentions of the respondents are, inter alia, as follows : 3.1 The present application is barred by limitation as per the provisions of Administrative Tribunals Act, 1985, as amended upto 1987.  The applicant herself is well educated and hence enough to know the pros and
9 O.A. No. 597/2012 cons implications of acceptance of offer letter, mentioning the entire terms and conditions of the Contract.  The respondents contend that the advertisement was published for the post of Senior Research Scientist (pre-revised Grade 14300-400-18300).  A Committee was formed to select the candidates and interview was conducted.  Ms. Padmaja Joshi was suitable candidate for the said post hence Committee recommended the said candidate on regular post. Committee also found that the applicant and one Ms. Geetha Andrew be given appointments in grade for the projects.  Hence Committee recommended both the candidates for grade base appointment. It does not need any approval as per the “clause no. 18.1.8 of Bye Laws of CDAC Appointment on Project Based Contract. 3.2 It is further contended by the respondents that as per the recruitment procedure of C-DAC followed at the time of the recruitment of applicant, the tenure of appointment of employee on contract basis was extendable based on their performance during a review and the continuing requirement of C-DAC, which was also clearly mentioned in the appointment letter of applicant. Applicant was issued instruction to appear for
10 O.A. No. 597/2012 the review on 29.10.2012 but she did not appear for a review.  In these circumstances, the grievance of the applicant is not maintainable in law and hence the Original Application is liable to be dismissed in limine.  The respondents also contend that in 2007 C-DAC Mumbai had only one regular vacant post for Senior Research Scientist (pre-revised grade 14300-400-18300) available which was advertised. 3.3 The respondents contend that although the advertisement was for one post, the interview committee found two other candidates suitable for contractual position.   The applicant was free to get clarifications in writing from C-DAC before accepting the offer, if she had any doubts about the terms and conditions of appointment. Applicant may be considered for promotion from the pre-revised scale of Rs. 14,300-18300 to Rs. 16,400-20000 whenever promotions are processed at C-DAC. 3.4 In C-DAC, Mumbai, some posts are filled up as regular appointment based on vacancy and some are offered on contract basis against project requirements.  As there were contract posts available in the same grade as that offered to Ms. Padmaja Joshi at C-DAC, Mumbai and the
11 O.A. No. 597/2012 performance in the interview of other two candidates, viz. Applicant and Ms. Geetha Andrew, was found meeting the requirements of CDAC, the Committee recommended offering them appointment on contract basis in the grade.  Applicant accepted the offer of appointment on 5 year contract basis in the grade and joined C-DAC, Mumbai on 14.02.2008.  However, the other candidate, viz. Ms. Geetha Andrew, who was also offered the same contract appointment as the applicant did not accept the offer.   The C-DAC, Mumbai had requirement of recruiting scientific staff at the level of Senior Research Scientist in the year 2008.  Since no regular vacant posts were available in the grade 14300-400-18300, two vacant regular posts at the level of Principal Research Scientist (pre-revised grade 16400-45020000) were down-graded to the level of Senior Research Scientist (pre-revised scale of Rs. 14300-400-18300). 4. We have heard Shri R. R. Shetty, Learned Counsel for the applicant and Shri V. S. Masurkar, Learned Counsel along with Smt. H. P. Shah, Learned Counsel for the respondents. 5. From a perusal of the advertisement dated 16.05.2007 it appears that C-DAC advertised only
12 O.A. No. 597/2012 one post of Sr. Research Scientist and for appointment in the said post only, the applications were invited from eligible candidates. The applicant as well as the respondents have annexed the minutes of the Selection Committee meeting held on 29.10.2007. In the said minutes it was clearly mentioned that the number of post was only one and appointment in the post of Sr. Research Scientist will be a regular appointment.  However, the Committee made a panel in order of merit of three candidates. In the chart containing these three names it was mentioned that Smt. Padmaja Joshi was selected for regular post and the applicant, being in the second position, was appointed on five year contract basis.  It is submitted that the candidate at the third position in the panel did not continue service in CDAC. 6. It is well settled that the appointment to any post under the State or its Instrumentality can only be made after making proper advertisement inviting applications from eligible candidates and holding a selection by a body of experts or a specially constituted committee, whose members are fair and impartial, through a written examination or interview or some other
13 O.A. No. 597/2012 rational criteria for judging the inter se merit of the candidate who applied in response to the advertisement. Hon'ble Supreme Court in the case of K. Shekar Vs. Indiramma [2002 (3) SCC 586] while observing the importance of publicity and transparency in public employment through advertisement rejected the argument that since the appointment was to a post lower than the post advertised, it was not necessary to advertise for the lower post since the advertisement had been issued for the higher post.  Following is the observation of the Hon'ble Supreme Court : “If this argument was accepted, it would amount to violation of Articles 14 and 16. The absence of an advertisement necessarily deprived persons who could have applied for the post, of the opportunity of applying for the post.  The clause in the advertisement which enabled the Selection Committee to recommend the candidate for a lower post if the candidate was not found suitable to fill the post applied for, did not give NIMHANS the power to appoint the recommended candidate against an unadvertised post.” 7. The Hon'ble Supreme Court in the case of N. T. Bevin Katti Vs. Karnataka Public Service Commission [AIR 1990 SC 1233]  observed that candidates who apply pursuant to the advertisement and undergo a written or viva-voce test acquire a vested right for being considered for selection in accordance with the terms and conditions contained in the
14 O.A. No. 597/2012 advertisement, unless the advertisement itself indicates a contrary intention.  Therefore, it was not open to the Selection Committee to offer any such terms which were not indicated in the advertisement.  However, the applicant reasonably believed that the terms of appointment in CDAC must be contractual inasmuch as she got the appointment against a singular post which was advertised in 2007.  8. The Hon'ble Supreme Court further held in the case of State of U.P. Vs. Rajkumar Sharma [2006 (3) SCC 330] that filling up of vacancies over and above the number of vacancies advertised would be violative of Article 14 and 16 of the Constitution. However, filling up vacancies in excess of vacancies advertised will not be invalidated if the State takes a decision in an emergent situation or under exceptional circumstances though normally fresh recruitment process should be undertaken for the vacancies not advertised. The respondents have taken a plea in the written statement that two regular posts of Principal Research Scientists were down graded in 2008 itself after admitting that there was requirement of Scientific Staff in 2008.  It is evident that two posts were advertised within a span of less
15 O.A. No. 597/2012 than five months from the date of the issuance of the letter of appointment to the applicant.  From the minutes of the meeting of the Selection Committee of 2007 Selection dated 29.10.2007 it appears that a panel of 3 candidates was prepared.  It was not open to the Selection Committee or the authorities to offer appointment of one regular post to the first empanelled candidate and contractual appointment to the empanelled candidate who figured in the second position, being the applicant.  The panel could be made only for the regular post inasmuch as the panels are made in view of contingencies of not accepting appointment by the first empanelled candidate or sometimes due to some exigencies to fill  up the anticipated vacancies which were available at the time of issuing the advertisement but not advertised for whatever reasons.  In sum and substance, preparing a panel of selected candidates with two different terms of appointment not indicated in the advertisement and without bringing to the knowledge of the selectees offering them employment on contract basis is wholly arbitrary, unfair, discriminatory and violative of Articles 14 and 16 of the Constitution.  The authorities ought not to have
16 O.A. No. 597/2012 offered appointment of two different kinds, being one regular and the other contractual, to two empanelled candidates under the same selection process pursuant to the same advertisement without any corrigendum or notification for the knowledge of the empanelled candidates. Such action is arbitrary and violative of Articles 14 and 16 of the Constitution. 9. The applicant reasonably believed and legitimately expected that she was the only candidate who was appointed since the advertisement mentioned only one post.  There was no occasion for her to doubt the nature of employment inasmuch as she believed that the nature of employment in CDAC is contractual and not regular.  Such reasonable belief also prevented her to apply for the advertisement in 2008 since the language of these two advertisement are identical, without any mention of regular or contractual appointment.   Had it been known to the applicant that pursuant to the selection in October 2007 one Mrs. Padma Joshi was appointment on regular basis, she might not have accepted the contractual appointment and alternatively she could have appeared in the selection process pursuant to the advertisement
17 O.A. No. 597/2012
in April, 2008. 10. From the perusal of the two appointment letters, being one regular issued to Mrs. Padma Joshi and the other being contractual, issued to the applicant, it appears that the other terms and conditions are same.  However, since Mrs. Padmaja Joshi topped the merit position, her appointment cannot be and has not been challenged or questioned by the applicant in the instant O.A.  Her contention is that the advertisement was not transparent about the appointment of dual characters to the empanelled candidate in the same selection process and as such she was ignorant about the regular appointment of Smt. Padmaja Joshi at the time of accepting her appointment. 11. The respondents' contention is that there is no illegality or infirmity in the appointment letter and the applicant with her open eyes accepted the appointment.  Therefore, after five years only she turned around and filed this O.A. Her action suffers from principle of estoppel and acquiescence.  The plea of the respondents that the applicant did not challenge her appointment letter vide order dated 2007 instantly nor did she ask for interpretation, is of no avail.  The
18 O.A. No. 597/2012 immediate grievance of the applicant is unfair and arbitrary action of the respondents in appointing  Shri K. P. Johnson in 2011 against a regular post pursuant to the advertisement in 2008  as well as appointment of Shri Subramaniam in regular post pursuant to the same advertisement of 2008.  There is substance in the contention of the applicant that she was completely in darkness with regard to the existence of regular posts in the organization and appointment of one Mrs. Padmaja Joshi in regular post along with her when the advertisement was for only one post.  The Hon'ble Supreme Court in the case of K. Shekar  (supra)  held that to get rid of the 'weed' so to speak, one had to eliminate the 'root'. Starting with the root, the applicant's appointment on contract basis was not in terms of the advertisement pursuant to which she applied for one post. It was not mentioned in the advertisement as to whether the said post was a contractual post or a regular post but the number of post was mentioned as one. 12. The learned counsel for the applicant has taken us through the Memorandum of Association for CDAC.  Para 18.1 deals with the terms of
19 O.A. No. 597/2012 appointment.  Para 18.1.2 and 18.1.3 are set out herein below : “18.1.2   All the employees except as covered in para 18.1.3 below, hereafter shall be recruited in the Society for the probation period as specified in the Recruitment Rules and on clearing this shall be employed on contract for the duration of 5 years.  The contract shall be renewable based on satisfactory performance review for further periods of five years at a time, till attaining the age of superannuation, i.e., 60 years. 18.1.3     The Society may, in the interest of Organization and on specific merits of the candidates, also recruit staff employees against regular vacancies.  Such appointments shall, however, be made only in the pay scale of Rs. 14300-400-18300 and above.” It is very pertinent to note in this connection that the pay scale for Sr. Research Scientists being Rs. 14300-400-18300 as was mentioned in the advertisement dated 16.05.2007 matches the regular post as delineated in para 18.1.2 of the bye-laws for C-DAC. 13.  From a perusal of the affidavit in written statement of the respondents it appears that the respondents now diverted their plea that the applicant was appointed as per clause no. 18.1.8 of the bye-laws of the C-DAC appointment on project based contract.  Para 18.1.8 is set out herein below : “18.1.8   Appointment on Project-Based Contract :    (a)    The Competent Authority shall be
20 O.A. No. 597/2012 competent to engage a person on contract in pay scale other than regular posts, upto the scale of posts, which do not require approval/clearance of ACC. (b) The Competent Authority shall be competent to engage a person on contract for projects for the duration of such projects, which have been approved by DIT or any other sponsoring organization.  Persons appointed on such contract basis will be paid consolidated emoluments.  The emoluments and terms of appointment shall be settled in advance between the Society and the incumbent. All other things being equal, preference may be given to these employees at the time of filling up of regular posts subject to merit and meeting the provisions of Recruitment Rules of C-DAC.” 14. The applicant has annexed one appointment letter dated 05.10.2007 in her rejoinder, being annexure A-28.  The said appointment letter made it very clear that offer of appointment was against a Project vacancy, which is conspicuously absent in the letter of appointment of the applicant. It is apparent from the aforesaid paragraphs regarding appointment on Project Based Contract that the competent authority can engage a person on contract in pay scale other than regular posts.  Paragraph (b) says persons appointed on such contract basis will be paid consolidated amount.  The terms and conditions as mentioned in the appointment letter of the applicant and the pay scale, which is similar to the regular post, under no circumstances come
21 O.A. No. 597/2012 under the Project Based Contract appointment. 15.  In the written statement the respondents have not dealt with the pleadings paragraph-wise as made out in the O.A., save and except bald denial in one paragraph.  There is not a single specific and contentious denial of the averments as made out in the O.A.  The respondents have failed to show any document to prove that the applicant was made aware that although she was appointed against the advertisement which said about one vacancy, three persons were appointed and one of them was a regular appointee. 16. We are, however, not inclined to disturb the appointment of Mr. Subramaniam, who was duly appointed pursuant to the advertisement in 2008 and not made a party in this O.A.   Mr. K.P. Johnson is also not a party before us. So we are not inclined to adjudicate upon the irregularity or illegality, if any, in respect of his appointment. From the records and the pleadings it is clearly revealed that the authorities treated the applicant in a very shabby, unfair and discriminatory manner, violating her fundamental rights as envisaged in Articles 14 and 16 of the Constitution in issuing the letter of appointment to the applicant in November, 2007
22 O.A. No. 597/2012 on contract basis and appointing Smt. Padmaja Joshi in regular post pursuant to the same selection process held in October, 2007 and same advertisement, that too for filling up only one post vide advertisement dated 16.05.2007.  The respondents failed to justify the contractual appointment of the applicant,  even if the contention of the respondents is believed that in view of requirement of Sr. Research Scientists in 2008 two posts of Principal Research Scientists were down graded in 2008 itself and were advertised within a span of not even five months from the date of issuing of the appointment letter to the applicant on contract basis.  It was further unfair on the part of the respondents in filling up only one post in 2008 and the other post in 2011 against the advertisement for two posts in 2008 apparently designed to suit their purpose, which appears to be in gross  misuse and abuse of their power. 17. We, therefore, direct the respondents to regularize the appointment of the applicant.  If no post of Senior Research Scientist is available, the respondents will create a supernumerary post for regular appointment of the applicant with effect from the date Mr.
23 O.A. No. 597/2012 Subramaniam was appointed and give her all consequential benefits.  The respondents shall comply with the directions within a period of three months from the date of receipt of a copy of this order.  The interim relief granted vide Tribunal's order dated 13.02.2013 is made absolute.  18. The O.A. stands allowed in terms of above directions.  No order as to costs.
(Smt. Chameli Majumdar)   Member (J)   (Smt. Leena Mehendale)             Member (A)

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