$~3 *IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P.(C) 5433/2018 & CM No.21094/2018 % Date of decision :
9. h July, 2018 G. K. SOOD Through : Mr. Ankit Gosain, Adv. for Mr. ........ Petitioner
versus Jojo Jose, Adv. UNION OF INDIA AND ORS. ........ RESPONDENTS
Through : Ms. Monika Arora, CGSC with Mr. Harsh Ahuja, Adv. for R-1. Mr. Sandeep Sethi, Sr. Adv. with Mr. Ajit Warrier, Mr. Aditya Nayyar and Mr. Varun, Advs. for R-2&3. CORAM: HON'BLE THE ACTING CHIEF JUSTICE HON'BLE MR. JUSTICE C.HARI SHANKAR JUDGMENT (ORAL) GITA MITTAL, ACTING CHIEF JUSTICE W.P.(C) 5433/2018 1. This writ petition challenges the appointment of respondent no.3 as a whole-time Director on the board of National Dairy Development Board (in short ‘NDDB’) primarily on the two grounds. The first ground of challenge is premised on an office memorandum No.18(6)/98-GM-GL-72 dated 20th October, 2005 (page
139) which prescribes cut-off age for Board level appointments in “Central Public Sector Enterprises” 2. The writ petitioners points out that as per this office WP(C)No.5433/2018 Page 1 of 5 memorandum, the Government had prescribed the cut-off age for consideration for Board level posts in Public Sector Enterprises being a minimum of three years service left (on the date of occurrence of vacancy) with reference to the superannuation age applicable in the Public Sector Enterprises against which the candidate was being considered. The submission is that the respondent no.3 was born on 1st June, 1957 and by an appointment letter dated 28th March, 2017, he was appointed as Executive Director to the NDDB, when his age was 59 years and 10 months. This is the primary ground of challenge in the writ petition.
3. Mr. Sandeep Sethi, ld. Additional Solicitor General appearing for the respondent nos.2 and 3 has drawn our attention to this Office Memorandum pointing out that this memorandum governs appointments only to the boards in Central Public Sector Enterprises. The Government of India has notified a list of Public Sector Enterprises as on 31st March, 2017. It is submitted that the name of the National Dairy Development Board has not been included in the list of public sector enterprises. Ld. ASG points out that the NDDB has been constituted under the provisions of National Dairy Development Act, 1987 and is a statutory body. It is submitted that the Office Memorandum therefore, clearly has no application to the board of NDDB and the challenge premised thereon by the petitioner is devoid of any legal merit.
4. Mr. Ankit Gosain, Advocate who appears for the petitioner further points out that the respondent no.3 was earlier working as the WP(C)No.5433/2018 Page 2 of 5 General Manger of NDDB and was controlling its human resources department as well at the time when the advertisement for appointment to the post of Executive Director of NDDB was issued in January, 2017. He submits that in this capacity, the respondent no.3 influenced the manner in which the advertisement was issued, to enable his eligibility for appointment to the said post. This advertisement was admittedly issued in January, 2017 and the appointment was effected by the order dated 28th March, 2017. Pursuant thereto, the respondent no.3 also joined the position as the Executive Director of NDDB. Admittedly, the petitioner has made no objection at all to either the advertisement or the appointment. The challenge to the said advertisement at this highly belated stage is clearly unwarranted.
5. The second objection of the petitioner is that the respondents have appointed the petitioner as whole-time Director on the board of NDDB in violation of the provisions of Section 8(3) and Section 19 of the National Dairy Development Board Act.
6. Mr. Sandeep Sethi, ld. ASG has placed the statutory provisions before us which read as follows:-
"“8(3) The Chairman and the director referred to in clause (b) of sub-section (2) shall be nominated by the Central Government and the directors referred to in clauses (c), (d) and (e) of sub-section (2) shall be nominated by the Central Government after consultation with the Chairman.” 19. (1) Notwithstanding anything contained in this Chapter, the National Dairy Development Board may make such orders or take such action as may be necessary WP(C)No.5433/2018 Page 3 of 5 for restructuring and streamlining the organisational and functional set-up of the National Dairy Development Board to secure utmost efficiency in its functioning, and the Board shall be achieving this object, be competent to declare any officer or other employee or any class of officers or other employees to be redundant if it finds them redundant by way of being surplus or otherwise due to duplication of posts of the same nature, or absence of the special expertise required for the post in the revised set- up, or the non-availability of posts in a particular office or unit of the National Dairy Development Board and it is not practicable to accommodate him in the type of post in the particular grade. (2) Nothing in this Chapter shall preclude the Board, if it is considered necessary for the purpose of rationalising the conditions of service of the officers and other employees so transferred to it, to change their designation, conditions of service or the scales of pay applicable to them or to reallocate their duties and functions.” (Emphasis by us) 7. The petitioner’s objection is that the above statutory provision envisages that nomination of whole-time Director by the Central Government was to be effected by the Central Government after consultation with the Chairman and that this was not so done. It is stated in the writ petition that appointment of respondent no.3 as whole-time Director is premised on a recommendation of the Chairperson of the NDDB. In our view, this is in substantive compliance with the statutory requirement under Section 8(3) of the statute.
8. For all these reasons, we find no merit in the writ petition, which is hereby dismissed. WP(C)No.5433/2018 Page 4 of 5 CM No.21094/2018 In view of the order passed in the writ petition, this application does not survive for adjudication, and is hereby dismissed. JULY09 2018 mk ACTING CHIEF JUSTICE C.HARI SHANKAR, J WP(C)No.5433/2018 Page 5 of 5