Ravindra Damodar Durugkar vs The Union Of India & 3 Others
2016 Latest Caselaw 7591 Bom

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                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          NAGPUR BENCH AT NAGPUR




                                                                                        
                              WRIT PETITION NO.4598/2003




                                                                
            Shri Ravindra s/o Damodar Durugkar, 
            aged about 46 years, Occ. Service,
            r/o 211/3, Sonilane, Sitabuldi,
            Nagpur 440 012.                      .....PETITIONER




                                                               
                                   ...V E R S U S...

     1.     The Union of India through the




                                                
            Secretary, in the Department of Culture,
            New Delhi.       
     2.     The Chairman, South Central Zone
            Cultural Centre, Rajbhavan, Mumbai.
                            
     3.     The Director, South Central Zone
            Cultural Centre, 56/2, Civil Lines, Nagpur.
      

     4.     South Central Zone Cultural Centre,
            56/2, Civil Lines, Nagpur, a society
   



            duly registered under the Societies
            Registration Act.                                     ...RESPONDENTS
     -----------------------------------------------------------------------------------------------
     Mr. S. B. Bhandarkar, Advocate for petitioner.





     Mrs. A. Joshi, Advocate for respondent No.1, 3 and 4.
     Mr. N. Rao, A.G.P. for respondent No.2.
     -----------------------------------------------------------------------------------------------
                     CORAM:-  B. R. GAVAI &    V. M. DESHPAND E, JJ.

                     DATED :-      DECEMBER 22, 2016





      ORAL JUDGMEN T 
                      (Per : B. R. Gavai, J.)


     1              The petitioner had initially approached this Court, being

aggrieved by the order passed by respondent No.3 dated 17.03.2003

vide which remuneration payable to the petitioner was reduced to

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Rs.7170/- per month and vide which the petitioner was directed to

show cause as to why this interim order be not made final. However,

it appears that during the pendency of the petition, there was

confusion amongst the various respondents as to which authority is

competent to take a final decision in the matter, as would be evident

from the record of the present case. It would be appropriate to refer

to the order of this Court dated 22.12.2004 wherein the Division

Bench of this Court has expressed an anguish as to how the Central

Government was not in a position to decide which is the competent

authority to decide the issue. The said order reads thus:

"Shri Dastane, learned Counsel for the petitioner, states that this Court passed order dated 18.10.2004 on Civil Application

No.3893/2004 moved by the petitioner and directed Central

Government to decide the issue of the petitioner referred to it by the respondent nos. 3 and 4 vide communication dated 12.7.2004 as early as possible and in any case not beyond the

period of eight weeks from the date of receipt of the order after following principles of natural justice. It is submitted that Central Government did not comply with the directions issued

by this Court and on the other hand, communication dated 10.11.2004 issued by the Central Government to respondent no.3 reveals that stand of the Central Government is that it does not have jurisdiction to decide the issue and respondent no.3 is the Authority to decide the issue. The above referred letter is placed on record by the learned Counsel for the

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petitioner. It is, therefore, submitted that appropriate directions may be given to respondents in this regard.

Mrs. Joshi, learned Counsel for the respondent no.1, states

that Central Government has not finally concluded that it has no authority to decide the issue. It is submitted that some time may be granted to the Central Government to reconsider

whether Central Government has power and jurisdiction to decide the issue referred to it by the above referred communication by the respondent no.3 and if Central

Government has jurisdiction, then the Central Government

would take a decision as per direction of this Court.

Shri Mokadam, learned counsel for respondent nos. 3 and

4, states that respondent nos. 3 and 4 do not have jurisdiction to decide the issue in question and, therefore, issue is referred to the Central Government vide communication dated 12.7.2004.

It is really unfortunate that the respondents are not in a

position to inform this Court which is the competent Authority to decide the issue in question. This Court vide order dated 18.10.2004 directed the respondent no.1 to decide the issue

referred to it by the respondent nos. 3 and 4 vide communication dated 12.7.2004 within eight weeks. However, till this date, no decision has been taken by the Central

Government even in regard to whether it has jurisdiction to decide the issue or not. We deprecate this conduct of the respondent no.1. in fact, respondent no.1 ought to have decided by now whether it has jurisdiction to decide the issue in question. However, because of inaction on the part of the respondent no.1, the matter is being listed again and again

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before this Court and valuable time of this Court is wasted. Be that as it may, we now direct the Central Government to decide

whether it has jurisdiction to decide the issue referred by the

respondent nos. 3 and 4 vide communication dated 12.7.2004 within a period of three weeks from the date of receipt of this order and if it decides that if has jurisdiction to consider the

issue, then we direct the Central Government to take a decision on its own merits according to law in regard to issue in question within six weeks thereafter. If the Central

Government decides that it has no jurisdiction to consider the

issue, then we direct the Central Government to refer the issue to the appropriate Authority with a direction to appropriate

Authority to decide the same within four weeks from the date of receipt of such reference..."

Be that as it may. The final order is passed on 05.04.2005

by the Secretary to the Hon'ble Governor of Maharashtra whereby he

has confirmed the order passed by the respondent No.3.

2. Mr. Bhandarkar, learned counsel for the petitioner

submits that as per the Memorandum of Association of the

respondent No.3, the powers with regard to the appointment, etc. are

vested with the Executive Board. It is further submitted that it is only

the Governing Body, which can set aside the decision taken by the

Executive Board. It is submitted that the appointment of the

petitioner has not been regularized by the Executive Board and the

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Governing Body. The Hon'ble Governor of Maharashtra, in his

individual capacity as Chairman of the South Central Zone Cultural

Centre (hereinafter referred to as the "Centre") could not have

revoked the order passed by the Executive Board and the Governing

Body. He submits that in any case, the order is also not passed by

the Hon'ble Governor in his capacity as Chairman. It is signed by the

Secretary to the Hon'ble Governor. He submits that the order

nowhere shows that there has been an application of mind by

Hon'ble Governor in his capacity as Chairman of the said Centre.

The learned counsel, therefore, submits that the impugned order is

not at all sustainable in law.

3. The learned counsel further submits that the facts in the

present case are identical with the facts in Writ Petition No.

3245/2005 decided by Division Bench of this Court (Coram: Smt.

Vasanti A. Naik and Ku. Indira Jain, JJ.) on 22.09.2016. It is

submitted that perusal of the said judgment would reveal that the

respondents attempted to make the Recruitment Rules, 2003

retrospectively applicable to the employees who were regularized in

the year 1998. It is submitted that the learned Judges of the Division

Bench have clearly held that the rules governing the service

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conditions cannot be made retrospectively applicable and in similar

circumstances has set aside the action taken by the respondent No.3

and restored the petitioners therein to the position as per the

resolution of the Executive Board.

4. Per contra, Mrs. Joshi, learned counsel for the respondent

Nos.1, 3 and 4, vehemently opposed the petition. She submits that

the facts in the present case are totally different than the facts in Writ

Petition No.3245/2005. She submitted that in the present case, the

petitioner was not at all entitled to be appointed since he did not

possess the necessary eligibility. It is submitted that the petitioner

was granted an erroneous pay fixation and, therefore, the respondent

No.3 has rightly passed an interim order, which has been confirmed

by the respondent No.2.

Facts in brief:

5. The petitioner was initially appointed as Program

Assistant with the Centre in the year 1986 on contract basis and

continued to work as such till 1995. In the year 1995, the petitioner

was continued on contract basis but in the capacity of an Assistant

Director. The said Centre is established to preserve and promote

projection of dissemination of arts, especially tribal and folk art of

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people residing in the States of Andhra Pradesh, Karnataka, Madhya

Pradesh and Maharashtra. The said Centre is established under the

Memorandum of Association. The Memorandum of Association

provides for various authorities of the said Centre i.e. the Governing

Body and the Executive Board. The Governing Body consists of the

Chairman, Minister for Culture, Government of India, Minister for

Culture of the States for which the Centre is established, the

Secretary of the Department of Culture and various other office

bearers, mainly being officers of the State Government. A perusal of

the Memorandum would reveal that the repository of the powers of

the Centre vests in the Governing Body including the making of bye-

laws for creation or abolition of posts and the procedure for

appointment of the technical, administrative and ministerial staff.

6. Whereas, it appears that the executive powers of the said

Centre vests with the Executive Board subject to the general rules

and directions of the Governing Body. It will be relevant to refer to

Sub Clauses (iii) and (iv) of Clause 7 of the said Memorandum.

"iii) to make bye-laws relating to services under the society, and governing the payments of travelling allowances and daily allowances to be Members of the Society for undertaking any journeys in connection with the work relating to society and in all matter connected thereon;

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            iv)            to create the institute & abolish posts as may be

necessary and to make appointments in accordance with the

Rules and Regulations of the Society. All action concerning

the appointment & dismissal of the Director including disciplinary proceedings shall be taken by the Executive Board. However, the Director shall have the right to appeal

to the Chairman of the Governing Body."

It can thus be seen that the powers with regard to the

appointment and dismissal of the employees would be with the

Executive Board subject to the general rule and directions of the

Governing Body.

7. It appears that while the petitioner was in the

employment of the said Centre on contract basis, various posts were

advertised by the said Centre vide advertisement dated 17.06.1995.

The post with which we are concerned is the post of the Assistant

Director. The qualification prescribed for the said posts are thus:

"QUALIFICATIONS:

1. Master Degree I Performing/Visual Arts of a

recognized University.

2. Minimum five years experience of Planning/ Projecting/Organizing National or State Level Cultural Programmes such as Festivals, Workshops, Seminars or Exhibitions in the field of Music/Dance/Theatre/Visual Arts/Fold Arts.

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3. Adequate knowledge of Culture, Classical and Folk arts in Madhya Pradesh, Maharashtra, Andhra Pradesh and

Karnataka.

AGE LIMIT 18 to 35 Years as on 1.1.1996. Relaxable in case of employed or departmental candidates. The post (excepting the

deputationists) shall carry fixed monthly remuneration of Rs.7,170/-."

It can be seen that though the said advertisements

provided the age limit to be between 18 to 35 years as on

01.01.1996, it was relaxable in case of the employees or

departmental candidates. Pursuant to the said advertisement, the

petitioner has applied and was selected. It appears that the proposal

of the candidates who have applied for the various posts and who

were selected by the Selection Committee were placed before the

Executive Board and the Governing Body. It further appears that the

Executive Board and the Governing Body decided to regularize the

services of the staff and officers of the Centre w.e.f. 01.12.1998. An

order under the signature of the respondent No.3 to that effect came

to be issued on 23.11.1998. The name of the petitioner could be

found in the said list at serial No. 2. From the said date, the

petitioner was getting regular emoluments as per the said order

dated 23.11.1998.

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8. However, it appears that with the change of the

incumbent in the office of the respondent No.3, an order came to be

passed on 17.03.2003, thereby reducing the pay payable to the

petitioner. The said order is styled as "Interim Order" and states that

there are various irregularities noticed in the audit objections and,

therefore, it was necessary to pass the interim order. The order

states that the pay fixation of the petitioner was also erroneous.

9. Being aggrieved thereby, the petitioner immediately

approached this Court. Perusal of the order passed by this Court

would reveal that it was submitted before this Court that the order

was interim in nature and the final order was yet to be passed.

Perusal of the order dated 18.10.2004 passed by this Court would

reveal that a statement was made by learned counsel appearing on

behalf of the respondent Nos.3 and 4 that the Hon'ble Governor of

Maharashtra, who is the Chairman of the respondent No.3, has

informed that the petitioner's case is required to be referred to the

Government of India and that the Government of India was the

competent authority.

The Court, therefore, vide the said order, expressed that it

will be appropriate if the final order is passed by the authority

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competent to pass such an order. The Court, therefore, directed the

Central Government to decide the issue of the petitioner as early as

possible and in any case within a period of eight weeks from the said

date.

10. Again when the matter was listed before this Court on

22.12.2004, the learned counsel appearing for the respondent No.1

stated that the Central Government has no authority to decide the

issue. The learned counsel appearing for the respondent No.1 sought

time so as to enable the Central Government to reconsider whether

the Central Government has power and jurisdiction to decide the

issue referred to it by the respondent No.3 or not. Per contra, it was

sought be argued on behalf of the respondent Nos. 3 and 4 that they

did not have jurisdiction to decide the issue. The Court, therefore,

observed that it was really unfortunate that the respondents were not

in a position to inform the Court as to which was the competent

authority to decide the issue in question. The Court again directed

the Central Government to decide as to whether it has jurisdiction to

decide the issue or not. It appears that further the Court observed

that if the Central Government decides that it has no jurisdiction to

consider the issue then the Central Government should refer the issue

to the appropriate authority with a direction to the competent

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authority to decide the same within a period of four weeks from the

date of the receipt of such reference.

11. It appears that subsequently the Central Government

decided that it had no jurisdiction and, therefore, referred the matter

to the respondent No.2, which office was then occupied by the

Hon'ble Governor of Maharashtra. It further appears that on

05.04.2005, the Secretary of the Hon'ble Governor has passed the

order confirming the interim order dated 17.03.2003. The perusal of

the order would reveal that there is only a reference in the order that

the Chairman of the SCZCC is convinced that all the alleged

irregularities/illegalities as regards the service matter of the

petitioner as mentioned in the memorandum stands proved against

him. Perusal of the said order would reveal that what has mainly

weighed with the Secretary to the respondent No.2 is that the

petitioner was over age at the time of his appointment since he was

more than 38 years old.

12. We are of the considered view that the petition deserves

to be allowed on several grounds, one of them being that the issue is

covered by the judgment of the Division Bench of this Court in Writ

Petition No.3245/2005. The Division Bench has categorically held

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that the Recruitment Rules of 2003 cannot be made applicable to the

regularization which was made in the year 1998. In that view of the

matter, the petition can be allowed on the short ground of the

present case being covered by the judgment of the Coordinate Bench

of this Court in Writ Petition No. 3740/2005.

However, since Mrs. Joshi, learned counsel for the

respondents, strenuously contends that the facts in the present case

are different, it would be appropriate to also consider the other issues

involved in the present petition.

13. As already discussed hereinabove, perusal of the

memorandum would reveal that the entire repository of the powers

of the said Centre vests in the Governing Body. The executive

powers vest with the Executive Board subject to General Rules and

Directions by the Governing Body. Perusal of the Memorandum of

Association would further reveal that insofar as appointments, etc.

are concerned, the powers vest with the Executive Board. As already

discussed hereinabove, regularization of the petitioner was done as

per the resolution passed by the Executive Board as well as the

Governing Body. Not only that but the subsequent correspondence

by the subsequent incumbents in the office of the respondent No.3

would itself show that regularization of the petitioner was done in

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legal and valid manner. It appears that during the pendency of the

present petition, there has been a correspondence between the

Central Government and the office of the Director of Audit on one

hand and the respondent No.3 on the other hand. A perusal of the

communication dated 04.02.2005 by the Deputy Secretary to the

Government of India to the Director of Centre, would make the issue

clear. The said letter reads thus:

"I am directed to refer to our letter of even number

dated 9th December, 2004 on the above subject and to state that the direction issued by the Hon'ble High Court, Nagpur

Bench has been considered by the Ministry.

It is seen from perusal of the facts of the case that Shri R. D. Durugkar and other employees of the Centre had

been regularized with the approval of the Executive Board and

Governing Body, which is competent to take action in this regard as per existing rule and regulation. Therefore, the matter may be placed before the Governing Body which is the

appropriate authority for reconsideration and the decision may be communicated to Hon'ble High Court. The Central Government Counsel may also be informed accordingly. The

time limit allowed by Hon'ble High Court may please be adhered to while making the submission."

It could thus be seen that the Central Government itself

has opined that the present petitioner as well as the other employees

of the Centre had been regularized with the approval of the

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Executive Board and the Governing Body, which was competent to

take a decision in that regard as per the existing rules and

regulations. Respondent No.3 had, thereafter, directed to place the

matter for reconsideration before the Governing Body which was the

appropriate authority. However, it appears that the matter was not

sent for reconsideration before the Governing Body but was placed

before the respondent No.2 in his individual capacity. As already

discussed hereinabove, the order was not passed by the Hon'ble

Governor but by his Secretary. By now, it is settled law that in quasi

judicial matters, the orders have to be passed by an authority which

is empowered to do so. When the matters are required to be decided

by the Hon'ble Governor in his capacity as Chairman of the Centre, it

is the Hon'ble Governor alone who had jurisdiction to pass an order

and not his Secretary.

14. We are of the considered view that the submission of Mrs.

Joshi, learned counsel for the respondents, that the Hon'ble Governor

was delegated the powers of Governing Body in his capacity as

Chairman of the Centre and, therefore, the order passed by him is

valid is also without substance. It will be appropriate to refer to sub

clause (1) of clause (14) of the said Memorandum, which reads thus:

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           "14.1)         The Governing Body, may by resolution delegate to

its chairman such of its powers for the conduct of business as it

may deem fit, subject to the conditions that the action taken by

the Chairman under the powers so delegated shall be ratified and confirmed at the next meeting of the Governing Body."

It could thus be seen that though the Governing Body is

entitled to delegate its powers to the Chairman, the decision taken by

the Chairman under the powers so delegated are required to be

ratified and confirmed at the next meeting of the Governing Body.

Nothing is placed on record to show that the action taken by the

Hon'ble Governor in his capacity as Chairman of the respondent No.3

is ratified by the Governing Body.

15. In that view of the matter, we are of the considered view

that the decision taken by the Executive Board and the Governing

Body could not have been reversed by the Hon'ble Governor in his

capacity as respondent No.2, unless the same is ratified by the

Governing Body. The decision taken by the Hon'ble Governor in his

capacity as respondent No.2 would not be valid in law.

16. The only ground on which the Secretary to the Hon'ble

Governor found fault is that the petitioner was overage on the date of

his appointment. However, perusal of the advertisement itself would

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reveal that the upper age limit of 35 years is relaxable in case of the

candidates who are employed or departmental candidates

Undisputedly, the petitioner was in service with the Centre at the

relevant time. As such, the petitioner was entitled for relaxation of

the condition of upper age.

17. It is further to be noted that taking cue from the earlier

experience, the Governing Body as well as the Executive Board, vide

resolution dated 14.12.2006, which is approved in the meeting dated

04.02.2008 have themselves modified the relevant rules in the

Recruitment Rules, which provided for upper age limit. It will be

appropriate to refer to the amended Rules.

"(4) The upper age limit will be relax-able in case of all

the existing departmental employees and there will be no age limit for existing departmental employees for their

regularization of services."

It could thus be seen that now the Rules specifically

provide that the upper age limit is relaxable in case of all the existing

departmental employees and there will be no age limit for existing

departmental employees for their regularization in service. No doubt

that the said rules cannot be made retrospectively applicable.

However, the said rule explicitly depicts the intention of the

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Governing Body as well as the Executive Board that there should be

no upper limit in case of the existing employees. Be that as it may, at

the cost of repetition, the advertisement itself provides for relaxation

of the upper age limit in case of the departmental and employed

candidates.

18. Another ground on which a fault is found by the Secretary

to the Hon'ble Governor is with regard to the audit objection in the

matter of regularization of the petitioner. However, the said ground

also, in our view, is without substance. The respondent No.3 in his

communication, as late as on 08.04.2010 has clarified the position. It

will be appropriate to refer to the said communication, which reads

thus:

"With reference to the above representation received by this office and subsequent representation addressed to Hon'ble

Chairman, S.C.Z.C.C., Nagpur with a request to review and regularize the services of Assistant Director Shri Ravindra D. Durugkar, I am submitting certain facts, which can not be

ignored hence following facts are submitted for kind perusal and sympathetic consideration:

He is working in this Centre since inception and was regularized along with all other employees in the year 1998 I persuasion to the decision of the Executive Board and Governing Body and continuously was in service till 2003.

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The audit objection and the age factor considered for conversation of his services on contract was used with

discrimination as out of eight employees covered under this

objection six were regularized in service and three other employees were given the relaxation in age. The salary being paid to the Assistant Director as on date is less as compared to

other Programme Officers and clerical staff, which is very ridiculous and discriminated to him and the annual increment of Rs.450/- (Rs. Four hundred and fifty only) is fixed

hypothetically.

Ironically the audit objections raised earlier by the Principal director of Audit (Central), Mumbai has been closed

(dropped) after review vide their letter no.OAD/C/CH/IV/ SCZCC/nag/603 dated 07.01.2008 and his representation was placed before the Executive Board and Governing Body in its

meeting dated 04.02.2008 but no decision was taken and it

was resolved that since he has approached the Hon. High Court of Nagpur Bench, Nagpur, we may await for the decision.

The Assistant Director has made an appeal to

continue his regularization status from the year 1998 as has been done for other employees and there is no audit objection, which was the main cause for conversion of his services from

regular to contract. He has also shown his willingness to withdraw the case provided he is given justice.

Looking into the long pending litigation and the decision of the Executive Board and Governing Body in the year 2006 the order no.GSA/SCZCC/2005/A-5/578 dated 05.04.2005 made applicable with effect from 17.03.2003 may

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please be reviewed and earlier status since regularization of his

services in the year 1998 may please be considered for him."

It could thus be seen that respondent No.3 itself, in 2010

has found that the action, which was taken in the year 2003 and

confirmed by the Secretary to the Hon'ble Governor on 05.04.2005

was not on the basis of correct factual position.

19. It could be seen that all the audit objections were

dropped. Not only this but the representation of the petitioner was

also placed for consideration before the Executive Board and

Governing Body. However, since the matter was sub judice before the

Court, the same was not considered.

20. It appears that only on account of some personal views of

the incumbent in the office of the respondent No.3 in the year 2003,

the action has been taken by him contrary to the resolution of the

Executive Board and the Governing Body which has given rise to the

present unwarranted litigation. We further find that had the

respondents correctly understood the position as to which is the

appropriate authority to take a decision in the matter, the matter

could have been resolved at an earlier point of time, rather than

keeping the it lingering for years together.

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21. In the totality of circumstances, we find that neither the

respondent No. 3 nor the respondent No.2 i.e. the Hon'ble Governor

in the capacity of respondent No.2, had jurisdiction to annul the

earlier decision of the Governing Body and the Executive Board. This

is apart from the fact that the order dated 05.04.2005 is not signed

by the Hon'ble Governor but it is signed by his Secretary.

22. In the result, we have no hesitation to hold that the

present petition deserves to be allowed. Rule is, therefore, made

absolute in terms of prayer clauses (i) and (i-a). Needless to state

that all the emoluments till the date on which the petitioner was in

service, shall be paid to him within a period of three months from

today.

                          (V. M. Deshpande, J.)                   (B. R. Gavai, J.)



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