Sudhir Kumar, Member (A).
1. This case was filed by the applicant on 03.06.2013, and it was listed before the Vacation Bench on 04.06.2013, when notices were issued to the respondents on admission, and also on interim relief, and the case was ordered to be listed before the Vacation Bench on 07.06.2013. It may be noted here that though the Vacation Benches of this Tribunal are headed by single Members of this Tribunal, they exercise all the powers of Division Benches.
2. The Vacation Bench on 07.06.2013 considered the case of the applicant for grant of interim relief in detail, and disallowed the prayer for interim relief.
3. Thereafter, an MA No.1865/2013 came to be filed by the applicant on 19.07.2013, reply to which was also filed by the respondents, and the OA along with the MA, was heard in part firstly on 13.08.2013, and finally on 18.09.2013, and then reserved for orders. Voluminous documents of the relevant departmental records were submitted by the respondents, which have since been perused by us in detail, patiently, apart from their written submissions and the list of judgments, along with a copy of the rejoinder filed by the applicant in his previous OA No.1238/2013, which was the applicants third OA before this Tribunal, based upon the pleadings in which the respondents had relied to prove their case against the applicant, by using his own words against him.
4. Soon after the judgment was reserved for orders on 18.9.2013, as had been permitted by the Bench, the learned counsel for the respondents filed copies of the following documents also, references to which had been made during the arguments:
Copy of Establishment Manual 2007 Recruitment Rules for Administrative Staff.
Copy of Establishment Manual 2011 Recruitment Rules for Administrative Staff.
Copy of Extracts of Agenda of 8th meeting of the Empowered Committee of the Establishment Matters held on 12.07.2011.
Copy of extracts of 1st Meeting of the Board of Governors held on 16.04.2007.
Copy of Extracts of Agenda of 1st meeting of the Board of Governors held on 16.04.2007.
Copy of Recommendations of VIth CPC including revision in pay scale which was implemented on 29.09.2008.
Copy of Extracts of Minutes of the 4th Meeting of the Standing Committee of the Board of Establishment Matters of National Institute of Fashion Technology, held on 16th October, 2008 at NIFT Campus, New Delhi.
FACTS OF THE CASE
5. In order to correctly understand about the grievance of the applicant, we have to first highlight the structure of the respondents' organization. The National Institute of Fashion Technology (in short, NIFT), which is headed by Respondent No.2, Director General, and Respondent No.3, is the Registrar of the said NIFT, is located in Hauz Khas, New Delhi, which was given a statutory status in 2006, after the Parliament passed the National Institute of Fashion Technology (NIFT) Act, 2005, in order to provide it statutory status, and empowered the Institute to grant its own degrees and other academic distinctions. While its Headquarter is at New Delhi, the NIFT has its Regional Centres at Mumbai, Kolkata, Kangra, Gandhinagar, Hyderabad, Chennai, Bangalore, Rae Bareli, Patna, Shillong, Bhopal, Taliparamba, Bhubaneshwar and Jodhpur. It also has a dual degree programme with Fashion Institute of Technology, with the selected students from NIFT receiving a Dual Degree from the two fashion education institutes, and at the Masters level, NIFT offers Post Graduate Degrees of Master of Fashion Management, Master of Design and Master of Fashion Technology.
6. The applicant was duly appointed as Deputy Registrar with Respondents No.2 and 3 on 24.11.1992. Around 10 years later, in 2002, the applicant was promoted to the post of Registrar on ad hoc basis, followed by confirmation in the year 2005, while being continued against the post at Delhi. In the year 2008, the respondents Institute was looking to face the challenge of upgrading its various Regional Centres into Centres of Excellence, and issued an Advertisement, inviting applications for appointment to the posts of Directors of such Regional Institutes in the pay scale of Rs.14300-18300, prescribing that the officers in the rank of Deputy Secretary/Directors in the Government of India, from All India Services and other Central Services, and from the State Civil Services, could apply to come on deputation as Director to these Centres, through proper channel. It was also mentioned that eligible NIFT employees could also apply.
7. The contention of the applicant, in this regard, is that while the others were invited to come as Directors of such Centres on deputation basis, for the eligible NIFT employees, who were within the organization already, it was meant to be an appointment to a promotional post, which could not have been made on deputation or contract basis, as promotion is never categorized as on deputation on contract basis under the service jurisprudence. He, however, did not raise this as an issue in 2008, and seek any clarification thereupon from his employers.
8. The applicant, considering himself fully qualified for the posts as advertised, submitted his application for appointment against the said advertised posts. When the process of selection was carried out by the respondents, the applicant also got selected, and was appointed as Director of the NIFT, Patna Centre, in the pay scale of Rs.14300-18300, through Order dated 17.06.2008. He did not lodge a protest against any portion of that order then, or for four years thereafter.
9. This, being a new Regional Institution, was to be set up by the applicant from a scratch. However, the applicant has now submitted, much belatedly, that with mala fide intention, and due to non application of mind, this appointment of his, through Order dated 17.06.2008 (Annexure R/2), was termed as to be on `contract basis, for a period of 5 years, beginning from the date of the assumption of charge of the post of Director, NIFT Centre. Though the applicant did not assail this order then, he has assailed it now, as being illegal and arbitrary, as his promotion ought to have been made on a regular basis, and not for a specific period, along with the use of terms `Contract or `Deputation', which were misnomer in his case.
10. The applicant has submitted that even though he had no option at that time but to accept the terms and conditions of such appointment, on promotion to be contractual, coupled with illegal and arbitrary terms and conditions, however, there is no estoppel in law which debars him from challenging the same, even belatedly, today.
11. Within one year thereafter, through order dated 24.06.2009, the applicant came to be transferred to NIFT, Kangra (Himachal Pradesh), which was, again for him, a new Institution, which he established. However, nearly three years thereafter, through Orders dated 06.09.2012, Annexures A4 and A5, the respondents ordered the termination of the Contract of the applicant against the post of Director of the Independent Centre of Kangra, and he was sought to be reverted to the post of Joint Director (JD), and was posted/transferred to NIFT, Bhubaneswar, with immediate effect, though he never joined there.
PREVIOUS PROCEEDINGS :OA
12. Being aggrieved by the action of the respondents, the applicant issued them a legal notice, through his counsel, on 12.10.2012, through Annexure A/6, which was replied to by the respondents on 22.12.2012, through Annexure A/7, indicating that the competent authority had decided to terminate the offer of his contractual appointment as Director, and to revert him to his substantive post of Joint Director, which action, the applicant has assailed, as being impermissible under Article 311(2) of the Constitution of India. The applicant also approached this Tribunal against those orders in OA No.4327/2012 (Annexure A/8), in which orders came to be pronounced on 04.03.2013, Paragraphs 8 onwards of which Judgment have been reproduced by the applicant as part of his OA.
13. That order of the concurrent Bench of this Tribunal had noted that the respondents had decided to terminate the contract of the applicant for violation of Clauses 12 and 15 of the contract, but for this they should have first issued a proper show cause notice to him in this regard, and then considered his reply thereto. The Bench had noted that Clause 16 of the contract provides for termination of the contract, in case of violation of any of the conditions of the contract, which should have been invoked by the respondents for terminating the applicant's contract, which was not done. It had noticed that instead the contract of the applicant was terminated by invoking Clause 14, which provides for termination of the contract without assigning any reasons, after giving three months notice. The Bench, therefore, came to the conclusion that the very terms of the Clauses of the contract have been violated, and that Clause 14 of the contract could not have been used. The Bench had, therefore, held that the impugned order of termination of contract issued by the respondents was not sustainable in the eyes of law, and it was quashed, and the applicant was ordered to be reinstated on the post of Director for the remaining period of his contract. The respondents had been further directed to comply with the order within a period of six weeks from the date of receipt of a certified copy of the order.
PREVIOUS PROCEEDINGS: CONTEMPT PETITION
14. In pursuance of this Tribunals Order dated 04.03.2013 in the said OA No.4327/2012, the applicant submitted a representation dated 06.03.2013, but he was not allowed to re-join at Kangra, and another order was issued on 13.03.2013. He, then, approached this Tribunal again, by filing Contempt Petition No.240/2013, in which a notice was issued on 14.05.2013, and, directions were issued to the respondents not to proceed with the implementation of the subsequent Order dated 13.03.2013.
15. The applicant has pleaded that in terms of this interim direction issued in his Contempt Petition, he ought not to have been relieved from his post of Director, Kangra Centre, in pursuance of the subsequent order dated 13.03.2013. It was further pleaded that as the said order had been challenged by him in a separate proceedings, and as such the same is not being mentioned in this OA, and, therefore, it does not concern us in the present case.
16. The applicant further alleged mala fide saying that when the respondents could not have proceeded ahead with the premature termination of his alleged contract, and they were facing contempt proceedings, they had planned to act against him in the guise of completion of five years of his alleged contract on 16.06.2013, which had been ordered through order dated 18.04.2013 impugned in this OA, which was illegal and arbitrary. However, his C.P. No.240/2013 was disposed off by the same concurrent Bench on 30.08.2013, by noting in para 2and3 of its order as follows:
2. Pursuant to the aforesaid order of this Tribunal, the respondents have reinstated the applicant in service on 18.04.2013. However, he is not satisfied with the aforesaid order. On the other hand, the respondents themselves have reinstated him and retained him as Director at Rai Bareli Center instead of posting him at NIFT Kangra Center. He has also submitted that before his reinstatement, the respondents have issued a charge sheet to him on 13.3.2013 which since has been challenged by him vide another OA No.1238/2013.
3. In view of the above position, we do not consider it appropriate to continue with the present contempt proceedings. Accordingly, this Contempt Petition is closed. Notice issued to the alleged contemnor is discharged. There shall be no order as to costs.
LEGAL ISSUES AND GROUNDS NOW RAISED
17. The case of the applicant now is that the use of term Contract or Deputation for a fixed period of 5 years was wrong. His contention is that he had been appointed as a Director by way of `promotion on regular basis, and that both those terms Contract and Deputation were misnomers, and could not have been invoked by the respondents to remove him from the post of Director of NIFT Regional Centre, to which he already stood substantively promoted. He has also pointed out that such an approach was adopted in the case of one Shri S. Devadoss, Director, NIFT, Chennai Centre, who was given an extension in the year 2010, and was continued at the same place.
18. Therefore, the applicant has assailed the actions of the respondents taken through the impugned orders at Annexures A1 and A2, treating him to have been appointed as Director only by way of deputation/contract instead of his having been promoted by way of substantive promotion, and that these orders are illegal, arbitrary, unconstitutional, and against the rule of law, and also violative of his rights under the Articles 14 and 16 of the Constitution of India.
19. Contending that his case was that of substantive promotion, he has submitted that Honble Apex Court had in Ram Ujarey v. Union of India, (1999) 1 SCC 685 = 1999(2) SLJ 43, held that promotion once given should not be cancelled without giving the concerned employee an opportunity of being heard. He has further submitted, in ground 5(b) of his OA, that he was eligible for appointment by way of promotion to the post of Director, and once he was so appointed to that post, in an open selection, by way of promotion, and such promotion having been given to him, he has to be treated as having been appointed on regular basis by way of promotion, and the respondents cannot now treat such appointment to be on contract or on deputation, as he had come up from a feeder cadre, and was not an outsider who had come on deputation.
20.In ground 5(c) of his OA, he has submitted that even in the advertisement issued in 2008 for recruitment to the posts of Directors of various Centres of the respondents Institutes, there was no mention qua departmental candidates that they will be appointed on contract or on deputation basis, and on such an incorrect appointment order having been issued, containing certain conditions, it was liable to be quashed and set aside, as it did not flow from the advertisement as was issued.
21. In Para 5(e) of the grounds taken by him in his OA, he has submitted that, even if, for the arguments sake, he is treated to have been appointed only on `contractual basis only, though not so conceded, it ought to be noted that Honble Apex Court has in two cases (a) State of Haryana v. Pyara Singh, 1992 (4) SLR 770, and (b) in Dr. A.K.Jain and Others v. Union of India and Others, 1987 (Supp) SCC 497, observed that one set of contractual employees should not be replaced by another set of contractual employees, unless a finding is recorded by the authorities that the persons already working on contractual basis are not working satisfactorily, but that the contractual employees can always be replaced by regularly selected persons. The applicant has sought shelter behind these judgments by stating that by virtue of these judgments, he cannot be removed or reverted, as only another contractual appointee would come in to replace him.
22. In support of his contentions, he has cited the judgment of the Hon'ble Apex Court in Manager, Government Branch Press and Anr. v. D.B.Belliappa, AIR 1979 SC 429, to state that the termination of services can only be brought about in accordance with the terms and conditions of employment, and that the old theories of `master and `servant cannot be made directly applicable, as public employment has come to be recognized as public property, and the employer, whether `private or `public, does not enjoy absolute freedom to dictate the terms and conditions.
23. The applicant further tried to take shelter behind the judgments pronounced by the Hon'ble Apex Court in the cases of short term contracts of service, which have been held to be wholly unjust, and also against the letter and spirit of the Constitution of India. In this context, he had cited the case of Central Inland Water Transport Corporation v. Brojo Nath Ganguly and Ors., 1986 (3) SCC 156,, which was further upheld by the Hon'ble Apex Court in Delhi Transport Corporation v. D.T.C. Mazdoor Congress and Ors., AIR 1991 SC 101, and both of which judgments had come in the wake of the Honble Apex Courts earlier decision in the case of West Bengal State Electricity Board v. Desh Bandhu Ghose, AIR 1985 SC 722. He had pointed out that similar stand had been taken by the Principal Bench of this Tribunal in the case of Dr (Mrs.) Sangeeta Narang and Others v. Delhi Administration and Ors., 1998 (1) ATR 556, and he had also heavily relied upon the two judgments of the Hon'ble Punjab and Haryana High Court, regarding appointments on short term contractual basis, firstly in the case of Rajni Bala v. State of Haryana, 1996 (1) SLR HC (PandH) 271, and secondly in the case of Polu Ram and Another v. State of Haryana and Another, 1998(4) RSJ 152. The applicant had also cited the Honble JandK High Court judgment in the case of Neena Gupta v. State, 2002(4) SCT 174, in which it was held that where the need is permanent, the practice of appointing a person for a limited tenure would not be in consonance with the public policy. In the light of this, the applicant has prayed for the following relief(s):
Quash the order dated 18.4.2013 (Annexure A-1) to the extent the respondents have termed the regular appointment of applicant to the post of Director as contractual and he is sought to be relieved in pursuance thereof w.e.f. 16.6.2013 and is sought to be posted as Joint Director.
Quash the order dated 17.6.2008 (Annexure A-2) to the extent the regular promotion order of the applicant on the post of Director in the pay scale of Rs.14300-400-18300 has been termed to be contractual and for a limited period of 5 years only which is illegal and arbitrary inasmuch as a appointment on promotion is never made on contractual or deputation basis.
Issue a declaration that the use of terms contract and deputation used in the appointment order dated 17.6.2008 (A-2) and order dated 18.4.2013 (A-1) are mis-namer and cannot be sustained in the eyes of law and it be further declared that the appointment of applicant vide order/letter dated 17.6.2008 was by way of promotion as a regular one and not on contract and deputation and he cannot be reverted or demoted, except after following due process of law and for lawful reasons only and by following the principles of natural justice and procedure laid down in Articles 311 (2) of the Constitution of India.
Any other order or direction deemed fit and proper in the facts and circumstances of the case may also kindly be issued in favour of the applicant.
Costs of the O.A. be allowed in favour of the applicant.
RESPONDENTS STAND:
24. The respondents No.2 and 3 filed their counter reply on 12.07.2013. They had pointed out that by way of the present OA, the applicant is actually seeking a review of the order passed by this Tribunal in his earlier OA No.4327/2012 dated 04.03.2013 which was not permissible under the law. It was pointed out that the relevant portion of the order in his earlier OA No.4327/2012, which had already given him protection to continue in the post of Director for the remaining period of his contract, had also been complied with, and even his Contempt Petition had been disposed off.
25. The respondents had further pointed out that the applicant has now filed another OA No.1238/2013 on 10.04.2013, in which he had categorically admitted that his appointment as Director of the NIFT Regional Centre was on contract basis, and, therefore, they had submitted that after enjoying the fruits of the letter dated 17.06.2008 for a period of five years, at the fag end of his tenure, the applicant was indulging in abuse of process of law, in order to forestall his reversion to his substantive post, which was against the principles of service jurisprudence. It was pointed out that even at the time of issuing the letter of appointment as Director of the Centre, Clause 5 of the appointment letter had clearly laid down that his appointment as Director was on contract basis, and at the same time, he was allowed to retain his lien against the substantive post of Registrar in NIFT. It was further submitted that the post of Registrar, formerly held by the applicant in substantive capacity, had since been re-designated as Joint Director.
26. The respondents No.2 and 3 had further pointed out that the above appointment letter was fully in consonance with the Advertisement No.37 of 2008 issued on 28.02.2008 by the respondents, and at the fag end of his five years period of appointment on contract against such post, the applicant is barred from challenging the same belatedly, after he had accepted, and also acted upon the terms and conditions of the advertisement, and also in the letter of his appointment.
27. It was further submitted that no fresh cause of action has accrued to the applicant, as even otherwise, as per the Recruitment Rules of 2008, as applicable to the post of said Directors of the Regional Centres, it is nowhere provided that the posts of such Directors of Regional Centres are the promotional posts of the Registrar of NIFT, and, as per the Recruitment Rules, the appointments to the posts of Directors of the NIFT Regional Centres can only be made on contract i.e., through direct recruitment or on deputation. They had denied that the period of 5 years was a short term contract period, and had submitted that internal deputation and appointment of existing employee on a higher post, on contract, with his lien being maintained on his lower substantive post, is not unheard of, but that rather it is a well established and standard practice in various premier Educational Institutions and Organizations and Universities. It was further pointed out that even after the applicant's selection and appointment to the post of Director of the concerned NIFT Regional Centre at Patna, he was also allowed to continue to simultaneously hold the additional charge of Controller of Examination of NIFT, New Delhi, on the basis of his substantive appointment against an equivalent post, and he was allowed to continue to function from his substantive post and appointment at NIFT, New Delhi, for quite sometime, before he was transferred from the Patna Centre to NIFT, Kangra Centre.
28. It was pointed out that in the present OA, for the first time, the applicant has challenged the nature of his appointment in 2008, on the ground that it was not contractual, after having completed almost 5 years, and having reached the fag end of his tenure, without explaining as to how this OA was maintainable. It was further pointed out that in spite of the respondents having accommodated him as Director, Rae Bareli NIFT Centre, through Order dated 18.04.2013, for the remaining period of his contract term, till 16.06.2013, he had not joined there. It was also submitted that the order of the Tribunal dated 04.03.2013 had also settled the nature of the applicants appointment to be contractual, for a fixed five years tenure, and that the applicant cannot be allowed to now reopen that issue, judicial notice and determination of which has already taken place.
29. It was, therefore, submitted that he cannot now be allowed to challenge the terms and conditions of the orders of his appointment dated 17.06.2008, after a delay of five years, in the year 2013, which had since been noticed and upheld by this Tribunal also on 04.03.2013. They had thereafter explained the circumstances, and dates of the appointment of the applicant from his earlier post of Deputy Registrar, but had denied that his selection as Director of the newly opened NIFT Centre was in the promotional hierarchy of his substantive post of Registrar, which he had joined on 16.08.2002. It was further pointed out that it was the applicant who was not obeying the orders passed by this Tribunal, and that he had failed to join at NIFT, Rae Bareli, in spite of the receipt of the order dated 18.04.2013 of his reinstatement as Director of the NIFT Centre there, for the remaining period of his five years contract appointment as Director. They had also submitted that even Shri S. Devadoss, Director, NIFT, Chennai, who was also a Joint Director (formerly Registrar) like the applicant, had been re-appointed as Director, Chennai Centre, only on contractual basis, with his lien being maintained on the substantive post of Joint Director (formerly as Registrar), and the contrary submission of the applicant, in this regard, was denied.
30. The respondents had denied the applicability of any of the case law cited by the applicant, as the applicants case was not that of substantive promotion in the regular channel and avenues of promotion, as he was selected in 2008 for the post of Director for appointment on contract basis only, for limited period of 5 years, as mentioned in the advertisement itself. It was submitted that the respondents had never violated Articles 14 and 16 of the Constitution of India, and have not denied the applicant the benefit of any of his rights. It was further submitted that the contract appointment of the applicant for a period of five years did not have any unfair or unreasonable terms, and hence, the Honble Apex Courts judgments, cited and relied upon by the applicant, were not applicable in the instant case, and even this Tribunal had in its Order dated 04.03.2013 not found any fault with such contractual appointment for a period of five years. They had, therefore, vehemently objected to the reliefs, as prayed for by the applicant in the present OA, and had prayed for the OA to be dismissed.
31. At Annexure R/1, the respondents had produced a photocopy of the concerned Advertisement, in response to which the applicant had applied, the details of which, as had been given on the Web Site of the Institute, were also produced at Page 97 of the paper book. A copy of the Minutes of the Selection Committee meeting held on 16.06.2008 had also been produced by the respondents, in which the Committee had decided as follows:
For filling up the posts of Director at NIFT Centres, Bangalore, Rae Bareli and Kolkata and for proposed new NIFT Centres at Patna, Shillong, Kannura and Bhopal, all Chief Secretaries of State Government and Union Territories and Cadre Controlling Authorities were requested to forward applications/nomination of the eligible and willing officers for appointment to this post. An advertisement inviting applications for the above posts was also posted on NIFT Website. In response 12 applications were received, out of which 05 were received through proper channel alongwith ACR Dossier. The Committee also noted that Sh. D.K. Rangra, Registrar (AandA), NIFT Head Office and Prof. S.K. Balasiddartha, Head (AA) have also applied for the above posts.
On the basis of performance as reflected in the ACRs, the Committee recommended appointment of the following candidate as Director, NIFT Patna Centre on contract basis for a period of five years.
Shri D.K. Rangra
The committee recommended that he will continue to hold the additional charge of Controller of Examinations, NIFT and hence, his place of functioning will be from NIFT Head Office till further orders.
The Committee decided to wait for the suitable applicants for other Centres.
(Monica S. Garg) (Rajiv Takru) (D.P. Singh)
Director, NIFT Delhi DG, NIFT Chairman, BOG
(Emphasis supplied)
32. At Annexure R/2, they had produced a photocopy of the letter of appointment dated 17.06.2008, issued to the applicant. At Annexure R/3 they had produced the letter dated 17.06.2008, through which, at Delhi, Head Office itself, the applicant had assumed the charge of post of NIFT Centre, Patna, along with the charge of Controller of Examinations, and had opted to draw the pay in the higher scale of pay after granting of annual increments drawn, and had prayed for the pay fixation be done accordingly. A copy of the Certificate of transfer of charge, by which he had assumed at Delhi itself the charge of the post of Director, NIFT, Patna Centre, in the form of GFR 33 [See Rule 255(1)] Certificate of transfer of charge, had also been produced by the respondents at page 103 of the paper book.
33. The respondents had also produced a copy of the OA No.1238/2012 filed by the applicant, in which both in the list of dates, and in the body of the OA, the applicant had mentioned his appointment as Director to have been on contract basis.
MISCELLANEOUS APPLICATION NO.1865/2013
34. M.A.No.1865/2013 was, in the meanwhile, filed by the applicant on 19.07.2013, explaining as to how on his first OA No.4327/2012, the orders dated 04.03.2013 had came to be passed, reproducing paras 8 to 10 thereof, and then submitting that, when despite those orders the applicant was not allowed to join, and the respondents did not reinstate him in service at Kangra, he had filed Contempt Petition No.240/2013, in which notices have been issued to the respondents, and the hearing was about to take place. He had submitted that the present OA has been filed by him for a specific declaration that his appointment was not on contract but on regular basis. He had also brought to the notice of the Tribunal that through orders dated 10.06.2013, Annexure MA-3, the respondents had since directed that consequent upon the expiry of the period of his contract for the post of Director in NIFT on 16.06.2013, from his last posting as Director, NIFT Campus, Rae Bareli, he had been posted to his substantive post of Joint Director (erstwhile Registrar, which was thus re-designated as per the provisions of the NIFT Act, 2006), and that they had posted him at NIFT Campus, New Delhi, with effect from 17.06.2013.
35. He had also brought to the notice of this Bench a letter dated 23.05.2013 (Annexure MA-5), issued by the respondents, by which he had been informed that in the original order dated 17.06.2008, the words "you will be allowed to retain lien to the substantive post of Registrar in NIFT" would now stand modified as "you will be allowed to retain lien to the substantive post of Joint Director in NIFT, consequent upon re-designation of the post, in the meanwhile, with the approval of the Board of Governors of NIFT. Further, through the said letter he had been informed that all officers of the rank of Deputy Secretary, Government of India and above rank will be eligible for consideration for the post of Registrar, NIFT, and the Interview would be held on 29.05.2013 at NIFT Head Office, and he was also asked to be present for personal interview before a Selection Committee, which he had assailed in this MA. He had submitted that this document cannot go on to prove that he had ever come to be re-designated as Joint Director in place of Registrar, the substantive post which he had held earlier prior to his selection as Director of NIFT Centre.
36. He had alleged prejudice on the part of the respondents, who are leaving no chance to harass him, inasmuch as when he had submitted an application on 17.06.2013 for grant of leave w.e.f. 21.06.2013 to 31.07.2013, that too had been rejected by the respondents, through their letter dated 24.06.2013, Annexure MA-7. He had further alleged that now the respondents have devised a novel method of harassing him by issuing an Advertisement No.18/2013, Annexure MA-8, by which the post of Campus Director of the Rae Bareli Centre, against which post he was last posted, and which according to him is, therefore, a subject matter of the decision of this OA, has also been advertised and proposed to be filled up on contract/deputation basis. He had, therefore, prayed for the respondents being restrained from proceeding ahead with the selection process qua the post of Campus Director in the Advertisement No.18/2013. He had submitted that he has since given a representation against the rejection of his application for grant of Earned Leave, etc. on 24.06.2013, through Annexure MA/9, but the respondents have pursued his persecution, and through letter dated 27.06.2013, Annexure MA-10, addressed to the Joint Director, NIFT Campus, Kangra, they have issued a direction to ask the applicant to vacate the official accommodation occupied by him at Kangra, which was still in his possession, as the matter regarding his holding the post of Director of the NIFT Centre, Kangra, is still sub judice before this Tribunal, and as such the respondents cannot take any precipitate action.
37. The applicant had, thereafter, assailed the further order dated 03.07.2013 passed by the NIFT Headquarters Campus, New Delhi, whereby even his post operative discomfort had not been taken into account, and even though he has not been granted physical fitness certificate till date, the leave requested by him had been refused once again, and he was directed to join duties at NIFT Campus, New Delhi, failing which, it was ordered that his absence beyond 20.06.2013 would be treated as `dies non.
38. He has submitted that his work and conduct in regard to professional ability has never been questioned, as he has always done his job in a thorough and professional manner/nature, but yet, even though the post is available, and he is also available to work against that post, the respondents have advertised for the post of Director for the Rae Bareli Centre to be filled up, and if that post is filled up, the very purpose of his challenge about contract or deputation terms being misnomer would stand defeated. He had, therefore, prayed that the balance of convenience lies in his favour, since, on his reversion as Joint Director by the respondents, he will have to work against a lower post, in the same department, which leads to humiliation, and, therefore, to secure the ends of justice, he had prayed for the respondents being restrained from giving effect to their final communication dated 03.07.2013, Annexure MA/11.
39. The respondents promptly filed a reply to this MA also on 31.07.2013, pointing out that when the applicant had failed to obtain the Interim Relief earlier on 07.06.2013 in the main OA, by filing this MA, he has tried to seek a review of the earlier order passed on 07.06.2013, which is not permissible in the eyes of law, and he has filed a frivolous application, which is not maintainable at all. They had pointed out that the applicant had been continuously on leave since 07.09.2012, which is clear from the order dated 03.07.2013, but strangely, even though he claims to have not been granted medical fitness certificate, but still he finds time to come to Delhi, and indulge in litigation. It was further submitted that both letters dated 27.06.2013, Annexure MA/10, and dated 03.07.2013, Annexure MA/11, are self explanatory, and the exigencies of Government service have already been mentioned therein. It was submitted that the present MA does not call for any judicial interference, as the Regional Institutes cannot run without a Director, and five years continuation of the contract of the applicant has already expired, as per his own admission time and again, when he had already admitted that his tenure was contractual, as has been taken note of by this Tribunal in its earlier order. They had further justified their actions as per the counter reply filed earlier regarding financial irregularities committed by the applicant at Kangra, which need not be repeated here once again.
40. It was submitted that the Tribunal has rightly denied stay to the applicant, by making observations that the order of appointment of 2008 could have been challenged then only, and not in 2013, when much water was flown in the river. They had also submitted that what relief the applicant had not been able to get through filing the present OA No.1955/2013, he has now sought by praying for the same through the MA. They had justified all of their actions taken after expiry of the contractual appointment of the applicant on 16.06.2013. Pointing out the conduct of the applicant, they had submitted that he was reverted to the substantive post of Joint Director, and transferred from Kangra to NIFT, Bhubaneswar, but he never joined as Joint Director at NIFT, Bhubaneswar. He had also not joined at Rae Bareli Centre as Director, as he was directed, after the order dated 04.03.2013 was passed by this Tribunal in his first OA. They had pointed out the various leave applications filed by the applicant for the continuous period since 07.09.2012 and up-to-date. It was further denied that the applicant had any right to challenge the Advertisement No.18/2013, as the concerned post was vacant now, after the completion of 5 years contractual basis appointment of the applicant against the post of Director, and that the applicant cannot be allowed to seek relief of stay in that process of selection. They had also explained the circumstances in which his application for leave could not be sanctioned, submitting that on the one hand he has been continuously on leave since 07.09.2012, and on the other hand, as per his presently ordered post as Joint Director at the NIFT, Headquarters, New Delhi, he has to carry out the responsibilities of Establishment and Administration of the Campus as Joint Director, as also the Controller of the Examination of the Campus, and his presence was very much required due to exigencies of work at NIFT Delhi Campus, such as online admission counselling, lateral entry Admissions in 2nd year, commencement of new Semester, orientation programme for new entrants, and other responsibilities.
41. Regarding the notice of vacation of the official accommodation at Kangra, it was submitted that after his having been relieved from Kangra from 2012, on his request, sent through E-mail dated 07.09.2012, he was allowed to retain the said accommodation till December, 2012, and he was thereafter advised to vacate the said accommodation vide letter dated 14.01.2013, in response to which he had sought, vide letter dated 15.01.2013, to retain the accommodation, but giving him only five months more time thereafter, on 27.06.2013, he had been again asked to vacate the official accommodation. It was denied that the applicant was not medically fit for joining service ever since 07.09.2012, even though he was indulging ever since then in continuous litigation, and it was submitted that he had initially applied for leave on the ground of his son's Examination and Pooja ceremonies, etc., but never on the ground of his own medical conditions, which is an afterthought in the present MA. It was submitted that if a person has to work on his own substantive post, the question of humiliation does not arise. In the result, the respondents had prayed for the MAs also to be dismissed along with the OA.
42. In support of their contentions, they had filed copies of documents at RA/1 dated 27.06.2013, RA/2 dated 03.07.2013, and RA/3 dated 18.04.2013, which have already been filed by the applicant earlier. The only new documents filed by the respondents were Annexure RA/4, a DO letter written to the applicant on 30.01.2013 by Shri P.K.Gera, Director General, addressed to him, at three addresses - firstly, to his permanent address in Village Padlu, Rawa, District Kurushetra (Haryana), secondly, to his address at NIFT, Bhubaneswar, where he had been ordered to be posted at that relevant point of time, and thirdly, to the residential address at Kangra, which house is still under his occupation. For the sake of brevity, we are not reproducing the contents of that letter here, in which DG, NIFT had tried to assuage the applicant regarding his applications filed before the National Commission for Scheduled Castes, and the cases filed before this Tribunal.
43. The applicant filed a further rejoinder to the respondents counter reply to the MA on 12.08.2013, once again reiterating most of the contentions, as already raised by him in the OA, which have been discussed in detail above. In this reply affidavit, he had explained his absence to be on the ground of his own medical condition. He had, therefore, prayed that the relief sought by him in the OA may be granted.
MISCELLANEOUS APPLICATION NO.2128/2013
44. Through MA No.2128/2013, also filed on 12.8.2013, the applicant had prayed for the respondents being directed for production of the original records, for proper appreciation of the facts of the case by this Tribunal, which the respondents ultimately did, and which have been perused by us.
MISCELLANEOUS APPLICATION NO.2129/2013
45. Through MA No.2129/2013, also filed on 12.08.2013, the applicant had prayed for appropriate directions to the respondents to sanction him leave with effect from 20.06.2013 till 15.09.2013, in the light of the fact that he still had 141 days of Earned Leave in his favour, which could be availed of by him for his medical needs, and praying for any other orders as may be passed by this Tribunal as may be deemed fit in the interest of justice.
46. The written arguments on behalf of the applicant, were filed on 30.08.2013, once again reiterating all the contentions as already discussed in great detail above.
47. The respondents, on the other hand, filed their replies to the MA No.2128/2013 and MA No.2129/2013 on 11.09.2013, once again assailing the conduct of the applicant, and submitted that these MAs were not at all maintainable, as it was the applicant who was running away from his responsibilities of service. It was further submitted that the applicant has twisted the facts as presented by him before this Tribunal, and had submitted that leave is not a matter of right for a Government employee. They had also opposed issuance of any directions in response to the MA No.2129/2013.
FINDINGS
48. Heard. The case was argued vehemently by both sides. It is seen that in the previous order dated 04.03.2013, passed by a concurrent Bench in the applicant's first OA No.4327/2012, it has already been held that the applicant's appointment as Director of the Regional Centre of NIFT was on contract basis for a period of 5 years, and the Bench had protected such contractual appointment, and issued directions for him to be continued as Director of Regional Centre, NIFT, for the full contractual period of five years, till 16.06.2013. It is seen that the respondents had obeyed the essence of the orders of this Tribunal. The respondents had instead posted him as Director at Rae Bareli Centre, after cancelling the earlier orders of his posting as Joint Director at Bhubaneshwar, and in that sense they had obeyed the orders of this Tribunal. However, the applicant himself did not obey the orders which he had obtained from this Tribunal, and did not go and join as Director of the NIFT Regional Institute, Rae Bareli, while he continued to pursue the applications filed by him before the National Commission for Scheduled Castes, against certain officials of the respondent authorities, and had filed before this Tribunal Contempt Petition No.240/2013, and one more OA No.1238/2013, in the meanwhile, before filing of the present OA, and MAs, which we are presently dealing with.
49. We have taken extra care to go through the pleadings of both the sides, in great detail, as above, only to be able to elicit the actual nature of the prayer, as made out by the applicant, and as to what extent the field is not yet covered by any previous final or interim orders of a Concurrent Bench of this Tribunal, on which we can undertake the exercise of judicial review, and pronounce our order.
50. It is seen that one of the prayers in the present OA is for us to declare that the applicants appointment as Director of the Regional Centre, Patna, and Kangra later, and Rae Bareli ultimately, though he did not join there, was not a contractual appointment. We find that, we are prohibited from giving a finding in the affirmative in response to this prayer, because of the final orders of the Concurrent Bench passed in OA No. 4327/2012 on 04.03.2013, in which the Concurrent Bench had treated his appointment as `contractual for a period of 5 years.
51. The Hon'ble Apex Court has held in a catena of cases, and more particularly in Sub Inspector Roop Lal and Another v. Lt. Governor, through its Chief Secretary, Govt. of NCT of Delhi, JT 1999 (9) SC 597, that the concurrent Benches of this Tribunal are bound by the findings arrived at by the other similar Benches. We, therefore, find ourselves bound by the findings arrived at by the concurrent Bench in its final order dated 04.03.2013 in OA No.4327/2012 that the appointment of the applicant as Director of the Patna Regional Centre of NIFT first, and later to Kangra Centre, were only in the nature of contractual appointment for a period of 5 years, in spite of the case law cited by him.
52. Even otherwise, nowhere in his pleadings, nor in the oral arguments submitted, the applicant has been able to prove that the post of Director of Regional Centres of NIFT was in the channel or avenues of promotion available to him, after he was confirmed in the post of Registrar at NIFT, Principal Campus at New Delhi, which has since been re-designated as Joint Director, in view of the 2006 re-designation of posts under the Act of 2006. Therefore, the benefit of the judgments in the cases Manager, Government Branch Press and Anr. vs. D.B.Belliappa (supra) and Ram Ujarey v. Union of India (supra) cannot be made available to the applicant. Since his was a 5 year time bound Contract appointment, he cannot also derive any benefit from the numerous cases cited by him, by calling it a short-term contract employment.
53. In service law, lien has a very important role to play, to protect the service of any Government employee. It is nowhere in doubt that the applicant had acquired a lien against the post of Registrar of the NIFT, Principal Campus, which post of Registrar has since been properly re-designated under the Act of Parliament w.e.f. 2006 to be the post of Joint Director. No umblical relationship between the post of Registrar/now Joint Director, and the posts of Directors of Regional Centres of NIFT, has been either sought to be established or proved by the applicant, or demonstrated through any of his pleadings, to exist either in reality, or in law.
54. When the post of Director of Regional Centres was not a promotional post from the post of Registrar/now re-designated as Joint Director in the NIFT, the concurrent Bench was absolutely correct in having arrived at a conclusion in its order in OA No. 4327/2012 on 04.03.2013 that the appointment of the applicant as such a Director was only contractual, for a fixed period of five years, and the Bench went ahead to provide him protection for continuation of such contract for that full period of five years of his contract.
55. After having run the full course of such contractual appointment from 17.06.2008 to 16.06.2013, if and when the respondents have directed the applicant to revert to his substantive post, against which he still holds a lien, they cannot be faulted on this account whatsoever. The appointment of the applicant against the post of Director of Regional Centre has already been held by the Concurrent Bench to be contractual in the order passed in his earlier OA, and it has neither been claimed nor established through pleadings in any manner whatsoever, that the applicant had come to acquire a lien against the post of the Director of a Regional Centre, NIFT.
56. A Government employee can always plead for protection of his lien, and cannot lay a claim to jump, as a matter of right, to a post against which he has no lien, and ask to be allowed to occupy such a post. In such circumstances, we do not find that the applicant can be allowed to plead to be continued to be allowed to occupy such a post, and to plead for respondents to be directed to allow him to occupy the post against which he does not hold a lien. He had occupied that post more than 5 years back, and he was ordered to be continued to occupy that post all through the period of his temporary five years contractual appointment as Director of the one of the Regional Centres, of Patna, Kangra, and lastly Rae Bareli, which he never joined, but he never came to acquire a lien against such a post which was occupied by him only on a contractual basis.
57. In the result, we find that the applicant has to conform to the settled principles of service law, and join a post against which he has acquired a lien, and he cannot, as a matter of right, ask to be continued against a post which he held through a contractual appointment, in the meanwhile, and against which he had never acquired any lien whatsoever. For the same reason, he cannot also be allowed to prevent the respondents from filling up that post against which the applicant does not hold any lien but the exigencies of Government service require that post to be filled up by the respondents, so that the Regional Institute can function properly.
58. However, we may observe that through MA 1865/2013, the applicant had actually tried to enlarge the scope of the OA, and his prayer in that MA arose from a fresh cause of action, which had accrued to him, in the meanwhile, due to subsequent orders having been passed by the respondents. Though these subsequent orders were independent orders, but in view of their umbilical relationship with the prayers as made out in this OA, although we are dismissing the said MAs on the point of plurality of remedies sought for, in fact, both in OA as well as in the MAs, in essence, only one single remedy had been sought for by the applicant, for his contractual appointment as Director to be continued, as if he had acquired a lien against that post, which prayer cannot be allowed, since a contractual appointment does not give rise to a lien against any post.
59. In the result, as noted above, the prayer in MA 2128/2013 already stands complied with, and we find no merit in the OA, and accordingly, the OA, MA 2129/2013, and MA 1865/2013, are, therefore, rejected, but there shall be no order as to costs.
Registry is directed to return the original departmental records produced by the learned counsel of the respondents, as mentioned in paras 3 and 53/above, to him.