Central Silk Board Vs. G.S. Shivaprakash (Deceased) by L.R. - Court Judgment

Excerpt:
service - mandamus - whether respondent had made out any case for mandamus to regularise his services - services of some persons who made entry into service of appellant on contract basis were subsequently absorbed in service of appellant on regular basis would not be justification for court to issue mandamus to appellant to regularise services of respondent. - karnataka transparency in public procurements act, 1999 (29 of 2000) section 4: [n. kumar, j] notice inviting tender for supply of billing machines, stationeries and other equipments to electricity supply company held, requisite qualification of having 3 years experience in providing similar service would mean experience of providing similar goods to any electricity supply co. expression similar service is referable to goods invited to be supplied under tender. earlier experience of tuning and maintenance of billing software would not suffice. hence award of contract on basis of aforesaid earlier experience is liable to be quashed. section 4(b): [n. kumar,j] award of contract to a particular person without calling for tender held, the committee constituted was not of experts. they were unable to take a decision. the said committee committed an error in referring the matter to a professor, an expert in the field for which they had no power under the act. it is the procurement entity which has to constitute a three member expert committee to consider the services rendered by the second respondent and then to find out whether he is the only person who has got exclusive control of the said service. that has not been done. after the matter was referred to professor obviously he was not aware of the provisions of this act. he has not certified that the petitioner is the only source from which this service could be procured. the recommendation made by him is very general in nature. it does not satisfy the requirement contemplated under proviso to sub-section (b) of section 4. in the letter addressed by him to the first respondent, he has not declared that goods or services are available from a single source or that the second respondent has exclusive rights in respect of the goods and services. another error committed was without properly understanding the contents of the said letter, the first respondent has proceeded on the assumption that professor is of the view that the second respondent is the only single source from whom the said service could be procured and they have awarded the contract to the second respondent on the basis of the said letter. this award of contract in utter violation of section 4(b) is liable to be quashed. -- section 4(b) :award of contract for spot billing and collection and total revenue management of billing and collection of bescom sub-divisions - compliance to the provisions of section 4 - requirements to be satisfied under, before a contract could be awarded without calling for tender- importance of appointing expert committee - held, during the period of natural calamity or emergency declared by the government for procuring goods or services it is not necessary to follow the procedure prescribed under the act. where the goods or services are available from a single source or where a particular supplier or contractor has exclusive rights in respect of the goods or services or construction work and no reasonable alternatives or substitutes exist. then it is not necessary to follow the procedure prescribed under the act. there is no obligation to procure such services and goods by inviting tenders. but, before this provision could be invoked, there should be a finding by a competent authority that the goods or services are available only from a single source or a particular supplier or a contractor who has exclusive rights in respect of the goods or services. for that purpose the statute provides for constitution of a committee of three experts. on facts held, it is clear that there is total non-application of mind by the first respondent in the constitution of the expert committee, in making reference to an expert and also in not understanding what the expert has stated by way of his opinion. therefore, the first respondent committed a serious illegality in awarding the contract to the second respondent. -- section 9: tender award of contract to second respondent in preference to the petitioner who appears to have all the requisite qualification-challenge to on facts held, the second respondent did not have the three years experience as required under the terms of the bid document. the second respondent did not possess the three years experience in supplying spot billing machines and other hardware items which is the subject matter of the tender in question. the decision of the procurement entity that the second respondent do possess three years qualification in supplying spot billing machines to the first respondent of a period of three years is ex facie illegal and contrary to the material on record. the award of contract to the second respondent in preference to the petitioner who appears to have all the requisite qualification is a clear case of preferring a bidder who does not satisfy the qualification prescribed by the procuring entity. therefore, the award of the contract to the second respondent is illegal and is liable to be quashed. - prayer 'wherefore, the petitioner most respectfully prays that this hon'ble court be pleased to call for records and issue a writ of certiorari or any other writ, direction or order of like nature as follows. this petition is well-settled in view of the judgments of the apex court in r. , air1995sc586 .further, it is well-settled that regularisation is not a mode of recruitment. the orders of the non-renewal of contract beyond 4-6-1992 had been communicated to the petitioner by the deputy secretary (administration) vide memo dated 9-6-1992, which clearly states that 'this issues with the approval of member-secretary',who is the competent authority. while thanking you very much for the above memorandum, i would like to state that i would like to continue working for our great organisation even after the expiry of the contract which is due to expire on 4-6-1992. while i am eager to brief you again regarding the recent delay in the publication of the nsp newsletter which was beyond my control, i submit again i will strive with further strength to come up to your expectations in this regard'.15. we are at a loss to understand how the willingness elicited from the respondent by the member-secretary as to whether he was willing to continue in the service of the board beyond 4-6-1992 on contract basis would attract the equitable doctrine of promissory estoppel. 16. the contention that the board is guilty of practising an invidious discrimination is also not well-founded. it is well-settled that under no circumstance, mandamus would lie against an authority to do something in breach of public law requirement and that principle does not admit any exception. the materials placed before the court, including the proceedings of the board, clearly show that the board, in its wisdom, thought it necessary to regard the post of editor of the journal on a different footing having regard to the duties and functions attached to the said post and the expertise and excellence expected of an editor, and that is what exactly weighed with the board to make a provision in the rules that the post of editor shall be filled only by way of promotion and not any other method of recruitment. having thought over the issue, we are not prepared to condemn the policy decision taken by the board to fill up the post of editor only by way of promotion as arbitrary or perverse.s.r. nayak, j.1. the management of the central silk board, being aggrieved by the order of learned single judge in g.s. shivaprakash v. central silk board, bangalore, 1999(2) kar. l.j. 175 has preferred this writ appeal. sri g.s. shivaprakash, respondent herein, filed the above writ petition praying for the following reliefs:prayer 'wherefore, the petitioner most respectfully prays that this hon'ble court be pleased to call for records and issue a writ of certiorari or any other writ, direction or order of like nature as follows.-- (a) quash the memorandum no. csb-17(27)/86-es-i, dated 9-6-1992 issued by the respondent under the signature of deputy secretary (administration) as per annexure-a as being illegal, arbitrary and without the authority of the law;(b) directing the respondent to continue the petitioner in employment as editor, indian silk, in pursuance of the memorandum no. csb-17(27)/86-esm, volume ii, dated 3-6-1992 as per annexure-b and the acceptance of the petitioner as per annexure-c in the interest of justice;(c) directing the respondent to continue the facilities extended to the petitioner all these years as editor of indian silk for the discharge of his duties;(d) an order as to the costs of this petition'. 2. the events leading to the filing of the above writ petition be noted briefly as under:the respondent was appointed as an editor of the periodical called 'indian silk' brought by the management, initially for a period of two years with effect from 5-6-1986. despite the expiry of contractual period of two years, the service of the respondent was continued on contract basis periodically upto 9-6-1992. the management refused to continue the service of respondent on contract basis or on regular basis beyond 9-6-1992. that led to the respondent filing the above writ petition praying for the reliefs noticed above.3. the management opposing the writ petition, filed a detailed statement of objections contending that the initial appointment of the respondent and continuation of his service in the board are purely on contract basis and this position was made very clear to the respondent and therefore, the respondent is not entitled to the relief of regularisation.4. learned single judge, having heard learned counsels for the parties and perusing the pleadings of the parties and the documents annexed to the pleadings, found arbitrariness and unreasonableness in the action of the board in appointing and continuing the respondent on contract basis for years and such a course of action pursued by the board being a 'state' under article 12 of the constitution of india could not be sustained on the touchstone of article 14 postulates. that is what we gather from reading the lengthy judgment of learned single judge and that is the view of learned single judge to grant the relief to the respondent. hence, this writ appeal is filed by the management.5. during the pendency of the writ appeal, we are told that respondent died and his legal representative was brought on record vide court order dated 12-6-2002 in i.a. no. iii.6. we have heard sri prasad, learned counsel for the appellant and sri s.n. murthy, learned counsel for the respondent.7. sri prasad, would, at the threshold, contend that regularisation is not a mode of recruitment and since the field of recruitment in the board is governed by statutory regulations, it is not permissible either for the board or for the court to grant regularisation, particularly, as the post of an editor has been made a promotional post under the cadre and recruitment rules called the central silk board (consolidated) recruitment rules, 1989, for short, 'the rules'. even otherwise, sri prasad, would maintain that in the light of a catena of judgments of the supreme court, this court and several other high courts, in order to grant relief of regularisation de hors any scheme or programme framed by an employer concerned, two factors which are regarded as conditions precedent should co-exist and the burden to prove the existence of those conditions is on the applicant who seeks the relief. since those conditions are absent in the present case, no mandamus would lie to the board to regularise the services of the respondent and if such a direction were to be issued by the court, it would tantamount to the court directing the board to do something contrary to and in breach of the public law requirement and such a course is impermissible for the court in view of the settled position of law.8. sri murthy, learned counsel for the respondent, on the, other hand, would strenuously contend that the impugned order terminating the services of the respondent is ex parte and without authority of law. elaborating his contention, learned counsel would point out that the petitioner was appointed by the board and therefore, only the board could terminate the services of the respondent and not the member-secretary to the board, much less the deputy secretary (administration). sri murthy would also maintain that this is a fit case where the court should apply doctrine of promissory estoppel, because, even as late as on 3-6-1992, the management sought consent of the respondent as to whether he was willing to serve the board on contract basis for a further period and having thrown open such offer, the management, quite strangely, terminated the service of the respondent with effect from 9-6-1992. according to sri murthy, this single circumstance itself, without anything more, would entail the application of the doctrine of promissory estoppel. sri murthy lastly contended that the board is guilty of practising an invidious discrimination which is violative of article 14 postulates. in support of this contention, learned counsel would draw our attention to what is stated in para 7 of the writ affidavit and the reply of the board in para 11 of the statement of objections. they read:'para 7. having regard to the service rendered by the petitioner the respondent have assured him of regularising the appointment. the petitioner is also been requesting the respondent and submitted the representations for regularisation of appointment. the respondent has been assuring the petitioner that his appointment will be regularised. in fact, the respondent has regularised the services of a number of persons who were initially taken on contractual basis. the petitioner was awaiting the regularisation of his appointment as indicated and promised by the respondent from time to time'.'para 11. traversing the averments made in para 7 of the writ petition, the respondent submits that the contentions of the petitioner are false and he is put to strict proof of the same. the respondent at no point of time assured the petitioner to regularise his services as the petitioner was very much aware that he was retained on contract basis and such relationship cannot be regularised. the respondent has so far regularised the services of three officials who were initially retained on a contract basis; but their cases are entirely different from the case of the petitioner, as all the three officials were sponsored by the local employment exchange for one post of senior mechanic and two posts of attender, respectively. the said posts are filled by 100% direct recruitment, and since they fulfilled the criteria prescribed for the said posts under the central silk board (consolidated) recruitment rules, 1989, they were appointed on the regular basis against the said posts, whereas, the post of editor under the respondent-board is a promotional post filled by 100% departmental promotion from the feeder cadre post viz., superintendent (publicity) having two years regular service in the grade. in view of this the post of editor cannot at all be filled by direct recruitment. besides, at present there is no permanent post of 'editor' available under respondent-board'.9. having heard the learned counsels for the parties, the only question for our decision is, whether the respondent has made out any case for mandamus to regularise his services?this question need not detain the court for long having regard to the admitted facts. the admitted facts are that the petitioner was appointed on contract basis as an editor of the journal brought by the management of the board initially for a period of two years and even his further continuation as editor was also on contract basis. therefore, at no point of time, the respondent was regarded or considered to be a regular employee of the board.10. the law relating to regularisation of services of an employee de hors a scheme or a programme has been crystallised. in ashwani kumar v. state of bihar, : (1997)iillj856sc 7, sri s.b. majmudar, j., speaking for the three-judges bench of the supreme court, held that in order to grant relief of regularisation de hors a scheme or a programme, two conditions regarded as conditions precedent should co-exist. according to the supreme court, the two conditions are--(i) that the appointment of the concerned employee should be against a clear vacancy in the sanctioned post; and(ii) that even such vacancy was filled by the employer in accordance with the rules and regulations governing recruitment of the said postthe only flaw in such recruitment would be that opportunity to apply for the post would not be thrown open to all eligible candidates. having said it, the supreme court has hastened to add that even in a case where the above two conditions precedent exist, it is not a matter of right for an applicant for the writ to seek mandamus to regularise his services. in other words, whether in such fact situation, mandamus should go to the employer to regularise services of an employee having regard to facts and circumstances of the case and the length of service put in by such employee is very much within the domain of the discretionary power of the court. this petition is well-settled in view of the judgments of the apex court in r.n. nanjundappa v. t. thimmaiah and anr., : (1972)illj565sc , b. babu and ors. v. vice-chancellor, andhra pradesh agricultural university and ors., 2001(3) ald 374, b.n. nagarajan and ors. v. state of karnataka and ors., : (1979)iillj209sc and v. sreenivasa reddy and ors. v. government of andhra pradesh and ors., : air1995sc586 .further, it is well-settled that regularisation is not a mode of recruitment. in that regard, reference may be made to the case of dr. arundhati ajit pargaonkar v. state of maharashtra and ors., air 1995 sc 962 : 1994 supp.(3) scc 380 : 1995 scc (l and s) 31 and several decisions of the apex court to follow. a person who is appointed on contract basis in a public organisation cannot claim permanence only because he had been working for considerable time.furthermore, the supreme court in the case of state of madhya. pradesh and anr. v. dharam bir, : [1998]3scr511 held that status of a person cannot be changed with the passage of time. in other words, simply because the respondent herein had put in service on contract basis for a number of years in the establishment of the board, that fact itself would not alter his status with which he made entry into the service of the board. in e. ramakrishnan v. state of kerala, : (1997)illj1215sc , refusal of the high court of kerala to grant relief of regularisation to the petitioners therein appointed de hors the recruitment rules, although officiating for a long period of 14 years, is upheld by the supreme court. the plea of the petitioners therein to direct the employer to relax the age limit on the ground of they having turned overaged for applying to public service commission, the supreme court held that it is not for the court to relax the age limit, but for the employer.in view of the above noticed binding authorities of the apex court, issuance of mandamus to the board to regularise services of the respondent should not arise.11. we do not find merit in any of the contentions put forth by sri murthy on behalf of first respondent. the first contention with regard to the incompetency of the member-secretary of the board who passed the impugned order is required to be noticed only to be rejected. it needs to be noticed that there is total lack of factual plea in support of the above contention. in para 24 of the writ affidavit, the respondent has stated thus:'the petitioner submits that the impugned action under annexure-a is without the authority of law as the same is issued by the deputy secretary (administration) who is not competent to terminate the services of employees and he is not the competent appointing authority of the respondent. on this ground also annexure-a is liable to be struck down by this hon'ble court'.12. traversing the averments made in para 24 of the writ affidavit, the board in its statement of objections, in para 23, has stated thus:'traversing the grounds urged in paras 20 and 24 of the writ petition the respondent submits that these contentions of the petitioner are baseless and the member-secretary of the respondent-board is fully empowered to terminate the contract with the petitioner. the orders of the non-renewal of contract beyond 4-6-1992 had been communicated to the petitioner by the deputy secretary (administration) vide memo dated 9-6-1992, which clearly states that 'this issues with the approval of member-secretary', who is the competent authority. this is the procedure followed in all government departments, as the member-secretary of the board cannot sign each and every correspondence emanating from the office'.13. as could be seen from the pleadings, the respondent did not question the competency or legal authority of the member-secretary of the board to pass the impugned order dated 9-6-1992. what was assailed, as reflected in para 24 of the writ affidavit, is the competency of the deputy secretary (administration) to pass the impugned order. it was specifically pointed out by the board in its statement of objections that the order was actually passed by the member-secretary of the board and the deputy secretary (administration) communicated that order and that he was not the author of the impugned order. in addition, the question with regard to competency of the member-secretary to pass the impugned order cannot be allowed to be raised without proper pleading and factual matrix. be that as it may, learned single judge himself, after examining the records, has pointed out that the power of the board has been delegated to the member-secretary and such a delegation is permissible having regard to sub-rule (9) of rule 26 of the rules. therefore, the first contention of learned counsel for the respondent has no legs to stand.14. the contention based on application of doctrine of promissory estoppel is totally misconceived and the very basic condition to apply that doctrine does not exist, in this case. the argument is built up solely on the basis of a letter dated 3-6-1992 of the member-secretary to the respondent. the said letter no. csb-17(27)/86-esi-i vol. ii, produced as annexure-b reads as follows:'the present term of contract appointment of shri g.s. shivaprakash expires on 4th june, 1992. if he is intending to continue working for central silk board, he should indicate the same today, 3rd june, 1992, in writing, to the undersigned.shri g.s. shivaprakash is informed that the term of his appointment are subject to review by the board in the light of his performance. this has reference to the two memos dated 1st and 2nd june, 1992 regarding the unsatisfactory work relating to nsp newsletter'. in response to the above letter, the respondent replied the same day and the reply is produced as annexure-c, at page 82 of the paper-book. it reads as follows:'while thanking you very much for the above memorandum, i would like to state that i would like to continue working for our great organisation even after the expiry of the contract which is due to expire on 4-6-1992.while i am eager to brief you again regarding the recent delay in the publication of the nsp newsletter which was beyond my control, i submit again i will strive with further strength to come up to your expectations in this regard'. 15. we are at a loss to understand how the willingness elicited from the respondent by the member-secretary as to whether he was willing to continue in the service of the board beyond 4-6-1992 on contract basis would attract the equitable doctrine of promissory estoppel. it is not the case of the respondent that in view of the offer contained in the letter of the member-secretary dated 3-6-1992, he altered his position to his peril. in order to apply the doctrine of promissory estoppel, the first and foremost condition required to be established is that the promisee, on the basis of the promise, altered his position to his peril. that basic ingredient to apply the doctrine of promissory estoppel is totally absent in this case and, therefore, application of that doctrine to the facts of this case is ruled out.16. the contention that the board is guilty of practising an invidious discrimination is also not well-founded. it is well-settled that under no circumstance, mandamus would lie against an authority to do something in breach of public law requirement and that principle does not admit any exception. if that is kept in mind, simply because, services of some persons, who made entry into the service of the board on contract basis, were subsequently absorbed in the service of the board on regular basis, that fact itself without anything further or more would not be a justification for the court to issue mandamus to the board to regularise the services of the petitioner too. the materials placed before the court, including the proceedings of the board, clearly show that the board, in its wisdom, thought it necessary to regard the post of editor of the journal on a different footing having regard to the duties and functions attached to the said post and the expertise and excellence expected of an editor, and that is what exactly weighed with the board to make a provision in the rules that the post of editor shall be filled only by way of promotion and not any other method of recruitment. it is trite that the decision taken by the board is undoubtedly a policy decision and this court cannot sit in judgment over a policy decision taken by the board unless it is satisfactorily demonstrated that the policy decision is perverse, being violative of article 14 postulates. having thought over the issue, we are not prepared to condemn the policy decision taken by the board to fill up the post of editor only by way of promotion as arbitrary or perverse.in the result, writ appeal is allowed, the order of learned single judge is set aside, writ petition no. 17506 of 1992 is dismissed with no order as to costs.