Mehar Singh Rathee vs Union Of India (Uoi) And Ors.
2006 Latest Caselaw 546 Del

JUDGMENT

S. Ravindra Bhat, J.

Page 1230

1. Issue Rule. Ms. Rekha Palli, learned counsel for respondents 1,2,3 and 5 waives notice of Rule. With consent of learned counsel for parties, the matter was heard finally.

2. The petitioner claims a directed to quash Rule 13 of the Indian Investment Service Rules which permits the management of the Indian Investment Centre (hereafter called 'the Centre') to terminate services of the permanent employees; an order to quash the memorandum dated 29th April, 2005 has also been sought.

3. The Indian Investment Centre was set up in 1960 to facilitate and act a nodle unit for processing overseas investment in the country. It is undisputed that the Centre was being managed under ageis of Ministry of Finance. It is Page 1231 admitted case of the parties to these proceedings that the petitioner had rendered more than 24 years service to the Centre.

4.In April 2005, the Centre announced that persuant to a meeting dated 19th November, 2004, it was publishing a Voluntary Retirement Scheme (VRS). This was in view of impending dissolution of the Centre and handing over its functions to the newly constituted Ministry of Overseas Indian Affairs.

5. Apparently, an overwhelming number of employees of the Centre opted for voluntary retirement and there were relieved from duties. The petitioner, however, did not choose that option. He sought permanent absorption with the Central Government. The Ministry of Overseas Indian Affairs, however, did not accede to his request and, therefore, he approached this Court.

6. It is contended by Mr. Behera, learned counsel on behalf of the petitioner that the decision of the Union Cabinet pursuant to which the Centre was wound up was to take over the entire functioning of the Centre including its infrastructure and personnel. If it were to be given effect to, there was no room for either the Centre or the Ministry of Overseas Indian Affairs to decline absorption of a permanent employee of the erstwhile Centre. It was submitted that the decision to leave out the petitioner who had rendered loyal and faithful service for about two and half decades, it is arbitrary and unreasonable.

7. Learned counsel has also relied upon the inter se communication between the Centre and the Ministry of Overseas Indian Affairs by letters dated 26th July, 2005 and 29th July, 2005 to say that both the organs of Government understood the decision of the Cabinet in its proper perspective and nevertheless the petitioner has been denied absorption in the Ministry of Overseas Indian Affairs.

8. It has been contended on behalf of the respondent by Ms. Rekha Palli that the Union Cabinet had while deciding to wind up the Centre, not given a carte blancha to take over the service of all existing employees. It was contended that the Cabinet merely stated that the Ministry of Overseas Indian Affairs which was to take over the functioning 'may utilize the services of some personnel'. Learned counsel also points out that the Ministry of Overseas Indian Affairs was not merely taking over the function of the Centre but was empowered to play a wider role. In other words, the objectives of setting up of the Ministry were not merely to act as facilitates for investors but also play a wider role in regard to the overseas Indian Affairs.

9. It was also contended that in fact the building or infrastructure of the Centre had not been utilized by the newly created Ministry nor did any proposal in regard to this exist. Learned counsel submitted that although there was a proposal by the Ministry of Overseas Indian Affairs in its letter dated 26th July, 2005 offering contract on fresh terms to existing employees of the Centre, later, the Department of Personnel had advised that the post newly en-cadred as part of the Central pool were to be filled in accordance with the statutory rules.

10. The factual matrix meted about more or less is undisputed. The petitioner has admittedly worked with the Centre for more than 24 years. The Centre Page 1232 was wound up in its existing form and its activities were taken over by the Ministry of Overseas Indian Affairs in July 2005. Just before that the Centre had formulated a VRS scheme which had been opted to by several employees. The materials on record do not disclose that the post held by the petitioner could not be characterised as a civil post or one answering the description under Article 311 of the Constitution of India. It is not the case of the petitioner that he was recruited in accordance with the process prescribed for recruitment of Central Government Employees. His grievance, however, is that upon abolition of the post or even alternatively winding up of the Centre, the Central Government as a successor unit is bound by the imperatives of Article 14 not to exclude his services and ought to have absorbed him in its organisation.

11. The Ministry of Overseas Indian Affairs is admittedly a part of the establishment of the Central Government. The posts created in the Ministry have to be filled through the normal process for which statutory rules exist. In such a situation, where in the absence of statute, the transferee or new employer which takes over a functioning of the erstwhile or pre-existing body (as happened in the present case), the position of the employees like the petitioner can at best no higher than that of the employees in the Central Government whose post stand abolished or who have to leave the Government employment due to the cessation of the work. In such situations, the Court has consistently held that abolition of post cannot be per se termed arbitrary. The only exception is that if there is any rule or binding guidelines to offer alternative employment in some department or unit, the employee can insist on their adherence. Such too is not the case here.

12. In this view of the matter, the petitioner cannot claim the relief that he has sought for in these proceedings. However, the letter of 26th July, 2005 issued by the Government of India, Ministry of Overseas Indian Affairs indicates that some of the secretariat posts were created and it had taken action to fill them up by circulation. The relevant part of the letter written to the Secretary of the Department of Economic Affairs reads as follows: We have recently sanctioned some Secretariat posts and have initiated action to fill them by circulation. It might be possible for MOIA to fill some of these posts with suitable candidates form among the ex-IIC employees. As I had mentioned to you, this would be subject to the following conditions:

2.1 These would be de novo, contract appointments, renewable annually but terminable with three months notice;

2.2. MOIA would not be concerned with any residuary issues relating to the termination of their employment under IIC and would be indemnified against liabilities;

2.3 Suitability of the former IIC employees would be assessed and offer of an appropriate job would be made only to those who are eligible. A transparent process would be set up for this purpose.'

13. It has been contended by the respondents that offering a contractual appointment may not feasible since the newly created posts would have to be filled through the normal recruitment channel by advertisement or Page 1233 borrowing through transfer from other organisations. Having considered the materials on record, I am of the opinion that every effort should be made by the respondents to ensure that the stand indicated in the letter dated 26th July, 2005 is given effect to, as far as possible.

14. In this view of the matter, it would be appropriate that the respondents consider the feasibility of offering some form of employment to the petitioner whether in terms of letter dated 26th July, 2005 or any other manner acceptable in law, having regard to the fact that he had rendered nearly 25 years undisputed and satisfactory service to the Centre. This is in view of the fact that admittedly some of the activities of the Centre would be of relevance for the newly created Ministry; it would be in the interest of the continuity that such personnel are retained.

15. In case the petitioner is interested, he may make an appropriate application in terms of the above observation within a period of four weeks. The same shall be considered and the decision of the respondent shall be communicated to him in earliest possible time.

16. The writ petition is disposed off in terms of the above observations.