Malti Sharma, W/O Shri Piyush ... vs Union Of India (Uoi), Through The ...
2003 Latest Caselaw 29 Del

JUDGMENT

Vijender Jain, J.

1. This petition has been filed after the earlier petition filed by the petitioner (CWP No.1582/96) was allowed. However, relief was not granted to the petitioner as respondent no.1, on the recommendation of respondent no.2, abolished the post of Inspector.

2. The case set up by the petitioner is that petitioner was appointed as an Inspector by respondent no.2 on 1st June, 1992 on ad hoc basis. Thereafter a proper interview was held on 2nd August, 1993 and the Selection Committee found petitioner to be most eligible candidate. However, respondent no.2 appointed the petitioner on ad hoc basis. Respondent issued a memorandum dated 9th September, 1993 thereby informing the petitioner that her services have been extended retrospectively from 1.8.1993 to 9.9.1993 and on 9.9.1993 services of the petitioner stood terminated and on the same date petitioner was appointed purely on temporary and ad hoc basis from 13.9.1993 to 12.3.1994. The stand of the petitioner was that she had no choice and in order to save her job she accepted the offer. Although the petitioner was selected by a duly held Selection Committee, however, the respondent again invited application for the post of Inspector. The petitioner again applied and the petitioner was called for interview by the respondent on 15th December, 1993. Petitioner was again issued the letter of appointment on 8th April, 1994. It is pertinent to reproduce the order:

"On the recommendation of the Selection Committee and approved by the General Body of Indian Nursing Council, I am pleased to appoint Mrs.Malati Sharma as a Inspector of the Indian Nursing Council at the scale of pay Rs.2000-60-2300-EB-75 -3200-100-3500 plus the usual allowances as admissible to the staff of Indian Nursing Council from time to time on the term and conditions mentioned below :-

i) The post is permanent and she is appointed on regular basis. She will be on probation for a period of 2 years from the date of her appointment which may be extended or curtailed at the discretion of the competent authority. During the period of probation her services can be terminated at any time without assigning any reason. After the satisfactory completion of the period of probation, the termination of appointment will be on one month's notice on either side. The appointing authority however, reserves the right to terminate her services forthwith or before the expiry of the stipulated period of notice by making payment to her of that period.

ii) She will be entitled to draw dearness and other Allowances at the rates admissible to central Government employees of her status stationed at the place of duty.

iii) Production of a Medical certificate of fitness from a Civil Surgeon or from the staff surgeon, Dr.Ram Manohar Lohia Hospital, New Delhi.

iv) Production of a Character certificate in the attached form duly attested by a District Magistrate or a Sub Divisional Magistrate or their superior officers.

v) The post is pensionable and she will be entitled to the benefits of INC G.P.F. She will be eligible to subscribe to the General Provident Fund after completion of one year continuous service.

vi) The appointment carries with it the liability to service in any part of India or outside and she will be required to undertake an extensive touring all over India. T.A. & D.A. will be paid as per Rules of the Council.

vii) She is required to submit a declaration regarding her marital status in the enclosed form.

viii) Other conditions of services will be governed by the relevant rules and orders of the Council from time to time.

ix) If any declaration given or information furnished by her proves to be false or if she is found to have willfully suppressed any material information, she will be liable to removal from service and such other action as the Council may deem necessary."

3.

From the above order it is clear that the post was permanent and the petitioner was appointed on a regular basis. The case of the petitioner is that the petitioner has been working with the respondent from June, 1992 and had faced two interview boards and was found suitable. However, she was again kept on probation for a period of two years. Just when the so called period of probation was coming to an end on 3rd April, 1996, the petitioner was asked to submit her achievements as the petitioner's confirmation was to be considered by respondent no.2. However, the respondent in a mala fide manner terminated the services of the petitioner with immediate effect by order dated 9th April, 1996. The petitioner challenged said order of termination on the ground of being mala fide and filed a writ petition (CWP No.1582/96). The finding in the said writ petition has lot of bearing in disposing the present petition. The operative part of the order is as under :-

"Significantly the writ petition was filed on 16th April, 1996 and the notice thereof was served in the first week of May, 1996 on the respondent and the counter affidavit of the respondent was filed on 20th May, 1996. In the writ petition clear allegations of mala fides have been made against Shri R.N. Singh. The admitted subsequent participation of Shri R.N. Singh in the General Body meeting dated 5th July, 1996 vitiates the proceedings which sought to ratify the confirmation of the termination order dated 9th April, 1996. The reliance by the respondents on the judgments of the Hon'ble Supreme Court reported as Shamsher Singh vs. State of Punjab, and Anoop Jaiswal vs. Govt. of India, , to contend that the impugned order was discharge simplicitor cannot be sustained in view of the fact that there was a stigma cast on the petitioner. The resolution passed in the meeting of the Council recorded that the petitioner is unfit and unfeasible. In the light of the facts as stated in the writ petition, the motive of the respondent, however, becomes apparent from the fact that the memorandum dated 22nd May 1995 rejecting the application for ex post facto sanction of leave sent by the petitioner on 26th April 1994 was issued almost one year after the petitioner's application.

Significantly the first memoranda was issued on 14th September 1994, and replied to on 15th September 1994 by the petitioner and only by the letter dated 16th March 1995 six months later, was the explanation of the petitioner was belatedly rejected.

The post is clearly statutory as per the provisions of Section 13 and the judgment of this Court in P Ghai's case and cannot be unilaterally abolished by the respondents.

It is also significant to note that the petitioner was appointed by an appointment letter dated 8th April, 1994 to the statutory post of inspector and had continued in the said post on ad hoc basis till 1st June 1992. It was open to the respondents to have considered the petitioner's suitability during the period 1st June 1992 to 8th April 1994. The case of the respondents that the petitioner was not found suitable by the DPC has laid much emphasis on the period of probation in the present case which totally loses sight of the earlier ad hoc period of almost 2 years served by the petitioner from 1st June 1992 to 8th April 1994.

Another fact which points to the motivated termination is that in spite of a self appraisal sought for 3rd April 1996 from the petitioner which was submitted on 9th April 1996, the DPC had already on 8th April 1996 recommended non confirmation of petitioner without the benefit of the appraisal report sought from the petitioner.

The approval of the DPC is of no material significance in view of the hasty action taken by the DPC even without waiting for the self appraisal report of the petitioner.

It is also to be noted that the petitioner has detailed the charges issued in the memoranda against her all of which very trivial in nature. To illustrate one such charge was taking one day's leave. The counter affidavit mentions repeatedly that the petitioner's work was not found satisfactory without any particulars except to state that she was irregular. No dates were given to the petitioner's absence nor any unsatisfactory nature of the petitioner's mis conduct or misbehavior has been set out. Thus this makes it clear that in the guise of simple termination of the services of the petitioner, in fact punitive action has been taken against the petitioner. Significantly even the General Body Meeting of 5th July 1996 was apprised of the filing of the writ petition by the petitioner and that the same meeting sought to affirm the termination of services of the petitioner by the President. The meeting could as well have deferred this issue in view of the pendency of the writ petition.

The petitioner's main challenge to the termination of the services by the President on 9th April 1996 and not the Executive Committee has not been specifically denied by the respondent. The only plea that the termination though by the President has received subsequent ex post facto sanction by the Executive Council on 8th May 1996 is thus of no consequence. Furthermore the foundation of the President's impugned order dated 9th April 1996 is the order of DPC dated 8th April 1996 which has already been found to be unsustainable as the DPC passed an order on 8th April 1996 without waiting for an appraisal report sought from the petitioner on 3rd April 1996 which was submitted by her on 9th April 1996. Since the DPC's report itself is vitiated, any action founded on the said report is obviously unsustainable. Thus in the light of the above discussion the subsequent ratification by both the Executive Council and the General Body is unsustainable, particularly, in view of the judgment of this Court in P Ghai's case as reported in 1984 Labour & Industrial Cases 108."

4. After recording the aforesaid findings, Court further observed as follows :-

"In view of the above discussions, the petitioner would have been entitled to the consequent relief of reinstatement. In view of my findings that the post in question of the Inspector with the respondent was a statutory post and my further findings that the so called simple termination of the petitioner's services was not sustainable and was motivated, the petitioner would have been entitled to the relief of reinstatement upon the setting aside of the termination order dated 9th April 1996, impugned in this writ petition. However, after the judgment was reserved in this case an affidavit dated 4th September 1999 was filed by the respondents stating that the Govt. of India, Ministry of Health and Family Welfare has abolished the post in question. The respondents have attached with the affidavit a communication dated 17th June 1999 received from the Govt. of India, Ministry of Health and Family Welfare, Annexure R 1, to the said affidavit which states that the post mentioned i.e. Inspector has been abolished as it was lying vacant for more than one year since 9th April 1996 as per the communication received from the respondents office and as per the instructions of the Ministry of Finance. This order has obviously been passed without taking note of the fact that the writ petition was pending in this Court challenging the order of termination dated 9th April 1996 subsequent to which the post is said to have been lying vacant. As the position stands today, the post has been abolished and the consequent relief of reinstatement cannot be granted. However, it would be open to the petitioner to take such steps in law in respect of abolition of the post by the order dated 17th June 1999 as she may be advised. Nothing stated in this judgment would have any bearing on the legality and validity of the aforesaid abolition of the said post of the Inspector by the order dated 17th June 1999.

With these observations, the writ petition stands disposed of with no order as to costs.

This order of the learned Single Judge was not challenged by the respondent. However, the same was challenged by the petitioner by filing LPA no.22 of 2000, which was disposed of on September 15, 2000. The order passed in LPA is as under :

"The impugned order reveals that liberty has been granted to the appellant to challenge the order of abolition of the post in an appropriate proceedings. In our opinion, the impugned order does not suffer from any jurisdictional error or legal infirmity. However, it is still open for the appellant to file a fresh petition by impugning the order of abolition dated 17th June, 1999, if advised to so do. The present appeal is disposed of accordingly."

5. It is in this backdrop that the petitioner filed the present writ petition. The post in question was a statutory post as per the provisions of Section 13 and, therefore, the same could not have been abolished by the respondent. The aforesaid order also makes it clear that the petitioner would have been entitled to the consequent relief of reinstatement and the so called simple termination of the petitioner was not sustainable and was motivated. What is more significant is the observation of the learned Single Judge that the judgment was reserved in this case and during said period when the judgment was reserved, an affidavit dated 4th September, 1999 was filed by the respondent stating, inter alia, that the Govt. of India, Ministry of Health & Family Welfare has abolished the post in question. Learned Single Judge also adverted to the fact that in the said affidavit, it was mentioned that the post of Inspector has been abolished as it was left vacant for more than one year since 9th April, 1996. The Court observed that order was passed without taking note of the fact that writ petition was pending in this Court challenging the order of termination dated 9.4.1996, subsequent to which the post was said to have been lying vacant. In the circumstances, the Court directed the petitioner to challenge the order of abolition of the post by filing separate writ petition.

6. Learned counsel appearing for respondent no.2 contended that the post to which the petitioner was appointed was not a statutory post. Learned counsel for the respondent contended that it was a post which was created under Section 8 of the Indian Nursing Council Act and, therefore, the said post was not a statutory post in terms of Section 13 of the said Act. Section 13 of the Indian Nursing Council Act is to the following effect :

"13. Inspections :- (1) The Executive Committee may appoint such number of inspectors whether from among members of the Council or otherwise, as it deems necessary to inspect any institution recognised as a training institution, and to attend examinations held for the purpose of granting any recognised qualification or recognised higher qualification.

(2) Inspectors appointed under this section shall report to the Executive Committee on the suitability of the institution for the purposes of training and on the adequacy of the training therein, or as the case may be on the sufficiency of the examinations.

(3) The Executive Committee shall forward a copy of such report to the authority or institution concerned, and shall also forward copies with the remarks, if any, of the authority or institution concerned thereon to the Central Government and to the State Government and State Council of the State in which the authority or institution is situated."

7. Learned counsel for respondent no.2 also contended that Regulation 41 of the Regulations have been framed under the powers conferred under Section 16 of the Indian Nursing Council Act and same provides that the Executive Committee shall exercise such power as are beyond the scope of the President and the Secretary. It was contended that the said decision was taken by the Executive Committee and, thereafter, this Court will not interfere as the post was under Section 8 of the Act and not under Section 13 of the Act. It was further contended that the post was abolished in view of the fact that in the interest of uniformity of inspections and adequate follow up it was resolved to have five posts of Zonal Inspectors and, therefore, the said post was abolished. Mr.Jayant Bhushan, learned counsel for respondent no.1/Union of India has contended that in terms of Section 8 particularly under sub-Section (2) (f) the Central Government fixes the fees and allowances to be paid to the officers and servants of the Council and, therefore, as the pay and allowances are paid by respondent no.1, respondent no.1 sanctions the post at the disposal of respondent no.2. It was contended by Mr.Bhushan that the said post of Inspector was abolished on account of the representation made by respondent no.2 that the said post was lying vacant for a period of one year.

8. I have given my careful consideration to the arguments advanced by learned counsel for both the parties. At the outset I must say that the petitioner has been unnecessarily harassed in the matter. On all counts the judgment by the learned Single Judge which was affirmed by the Division Bench of this Court had granted relief to the petitioner but for the abolition of the post by the respondent during the time when the judgment was reserved to be delivered by the learned single Judge of this court in the previous writ petition. Therefore, I do not find any force in the argument of counsel for Indian Nursing Council that post is not a statutory post created under Section 13 of the Act. That finding has attained finality in view of the judgment in CWP No.1582/96 decided on 22nd December, 1999, which was not challenged by respondent no.2. Even otherwise, from the plain and simple reading of Section 13 it is manifestly clear that Inspector plays a very important role in the Council. He has to inspect for the purposes of grant of recognition. As it is on the basis of report of such inspector, the Executive Committee considers the suitability of the institution for the purposes of training and on the adequacy of the training therein. Regulation 63 deals with the role of the Inspector. Therefore, the said post is statutory and could not have been abolished by the respondents. Knowing fully well that the challenge to the termination of the services from the said statutory post was pending disposal before this Court, a wrong statement was made to respondent no.1 by respondent no.2 that the post is lying vacant, the same was not a proper representation of the statement of fact by respondent no.2 to respondent no.1. Mr.Bhushan had clearly stated that it was not brought to the notice of Union of India that any petition by the holder of said post was pending in the High Court. For the simple reason that the post was a statutory post, the same was not lying vacant as the vacancy was created by respondent no.2 and was being challenged by the petitioner who got her writ petition allowed but for the said abolition of the post, got the prayer of the re-instatement but could not be reinstated. I do not find any merit in the contention of respondent no.2 that the post was not statutory. As respondents have not challenged the findings of CWP No.1582/96, that has become final. Respondents cannot be permitted to challenge the same. The whole exercise was mala fide and to deprive the petitioner of her rightful re-instatement.

9. Therefore, I quash the impugned order dated 17.6.1999 passed by respondent.1. The net result would be that the petitioner shall be entitled for reinstatement with all consequential benefits.

10. Petition is allowed. Rule is made absolute.