Sonya Ghosh vs Union Of India & Ors.
2010 Latest Caselaw 1863 Del

$
*IN THE HIGH COURT OF DELHI AT NEW DELHI

27
+       W.P. (C) No. 11973/2009 & CM APPL 12158/09, 1134/10


        SONYA GHOSH                                      ..... Appellant
                                     Through: Mr. Bankey Bihari, Advocate


                            versus


        UNION OF INDIA & ORS              ..... Respondents
                      Through: Mr. Jatan Singh with Mr. Ashok
                      Singh, Advocate for GOI.
                      Mr. Parag P. Tripathi, ASG with Ms.
                      Divya Kesar and Ms. Aradhana Kaura,
                      Advocates for R-2 & 3.

        CORAM: JUSTICE S. MURALIDHAR

1.      Whether Reporters of local papers may be
        allowed to see the judgment?                              No

2.      To be referred to the Reporter or not?                    Yes

3.      Whether the judgment should be reported                   Yes
        in Digest?


                                      ORDER

% 09.04.2010

1. This petition seeks a quo-warranto to quash the appointment of

Respondent No.3 Professor Mridula Mukherjee as Director of the

Nehru Memorial Museum and Library („NMML‟) consequent upon

the decision dated 15th July 2005 taken at 127th meeting of the

Executive Council („EC‟) of the NMML and the consequential

order dated 7th August 2006 issued by the NMML appointing her as

Director for a period of three years on deputation basis. The

Petitioner also challenges an order dated 5th August 2009 issued by

the Director, Prime Minister‟s Office („PMO‟), Governemnt of

India („GOI‟) and the order dated 6th August 2009 passed by the

Secretary, Ministry of Culture, GOI granting extension of the

services of Respondent No.3 for a period of two years with effect

from 10th August 2009.

2. This Court has heard the submissions of Mr. Bankey Bihari,

learned counsel for the Petitioner, Mr. Parag P. Tripathi, learned

Additional Solicitor General and Ms. Divya Kesar, learned counsel

for the Respondent Nos. 2 and 3 and Mr. Jatan Singh, learned

counsel for the Respondent No.1.

3. NMML is an autonomous institution which was registered as a

Society under the Societies Registration Act 1860, as per the

decision dated 25th August 1965 of the Union Cabinet. It is

completely financed and controlled by the GOI. The Prime Minister

of India is its ex-officio President. It is stated that several directions

and orders have been issued from the PMO for the smooth and

effective functioning of NMML.

4. In terms of Rule 7 of the NMML Service Bye-laws („Bye-laws‟)

which came into effect on 1st March 1975, the methods of

recruitment to a post in the NMML can be made:

"(i) by promotion;

(ii) by direct recruitment;

(iii) by appointment of a borrowed employee;

(iv) by re-employment of a retired employee of the Society or of any other organization or

(v) on contract for a specified period in accordance with the Recruitment Rules for the various posts laid down in the Second Schedule."

5. It may be mentioned that under Rule 70 (2) of the Bye-Laws the

EC of the NMML is empowered to relax any of the provisions of

the Bye-Laws in case of any employee in order to relieve him of

any undue hardship or in the interests of the society. Rule 70 (2)

reads as under:

"70 (2) : The Executive Council may amend, modify or add to these Bye-Laws from time to time, all amendments, modifications, or additions, when promulgated by the society shall take effect from such date as may be prescribed by it."

6. It is stated that on 29th August 2003 after taking the approval of

the EC, NMML implemented the amended bye-laws and

recruitment rules. The Rule 7 of the amended bye-laws provided for

recruitment to a post in addition to methods already reflected in the

unamended Rule 7 by way of "transfer/deputation" Consequently,

in terms of amended bye-laws recruitment to a post in the NMML

could be by deputation as well.

7. The post of Director of NMML fell vacant when Shri O.P.

Kejariwal retired from that post on 28th February 2004. A Search

Committee was constituted to recommend three names from which

one could be selected for the post. The vacancy was advertised in

the Employment News dated 12th-18th March 2004. The

advertisement indicated that the pay for the post would be in the

scale of Rs.16400-20900. The maximum age was 55 years. The

essential qualifications were as under:

"(i) Eminent scholar with specialization in modern Indian history and ability to conduct and guide original research.

(ii) Published research work of high merit.

(iii) At least ten years‟ experience in a responsible petition in Government Autonomous Organisation or a university."

It was indicated that it was desirable for the candidate to have

"close acquaintance with the history of the Indian national

movement."

8. It appears that no suitable name emerged for appointment

pursuant to the applications received in response to the

advertisement. At the 127th meeting of the EC held on 15th July

2005 it was decided to appoint Respondent No.3 as Director of

NMML with the approval of the GOI. Accordingly, by a letter

dated 21st July 2005 NMML sought the approval of the GOI in

accordance with Rule 37 of the amended Rules for appointing

Respondent No.3 to the post of a Director for a period of five years.

In response thereto, the Ministry of Culture, GOI conveyed by a

letter dated 18th August 2005 the approval of the GOI for

appointment of Respondent No.3 as Director on deputation basis

for a period of three years in the pay scale of Rs.16,400-450-20900.

9. It may be mentioned at this stage that the Respondent No.3 is an

eminent scholar and at the relevant point in time she was Professor

and Chairperson Centre for Historical Studies, Jawaharlal Nehru

University, New Delhi („JNU‟). By a letter dated 19th September

2005 addressed to the Chairman of the EC of the NMML,

Respondent No.3 pointed out that the pay scale offered to her as

Director, NMML was lower than her pay scale at JNU which was

therefore, required to be protected. Also, the offer made to her was

for appointment as Director, NMML for a period of three years.

However, Service Bye-laws prescribed the age of retirement as

applicable to Central Government employees. She accordingly,

requested that her terms of appointment may be modified. On the

basis of this letter, the Secretary, Ministry of Culture wrote a letter

to Vice Chancellor of JNU on 12th December 2005 communicating

its assurance that it would take steps to get the necessary approval

for protecting her pay scale and that the Respondent No.3 should be

relieved on the basis of the said assurance. The Director, NMML,

New Delhi proposed changes in the recruitment rules protecting the

pay-scale of Respondent No. 3 Rs.16400-22400/- for her

appointment on deputation basis. The Ministry of Culture by its

letter 8th May 2006 informed NMML that this could be done by

way of relaxation of the recruitment rules by the EC itself. This was

accordingly done by the EC of NMML on 8th May 2006. The

relaxation in the recruitment was effective from the date of

appointment of Respondent No.3 as Director.

10. By a letter dated 7th August 2006 NMML offered Respondent

No.3 the appointment to post of Director after receiving the

approval of the Central Government. She was appointed on 10th

August 2006 as Director on deputation basis for a period of three

years. It appears that at that stage there was no challenge to either

the appointment of Respondent No.3, or one to the amendments to

the bye-laws.

11. When the three year period was coming to an end, a proposal

was moved for extension of the appointment of Respondent No.3

by another two years on deputation basis. The Director, Ministry of

Culture prepared a note on 13th July 2009 putting forth the

following two proposals for approval of the Minister of

Culture/Prime Minister:

"(i) Prof. Mridula Mukherjee may be granted an extension on deputation period up to her

attaining the age of 60 years i.e. March 2010. For the period beyond 60, advice of DOPT may be sought. This may bring an element of uncertainty and the issue may figure in various representations and in media circle.

(ii) The period of deputation may be extended by two years.

In case of (ii) above, after obtaining the approval of Minister of Culture, the file may itself be referred to DOPT for their concurrence since this may involve relaxation of age beyond 60 years [under FR 56(d)]. A note in this regard is placed below."

12. The proposal at (ii) above was approved and on that basis an

order dated 5th August 2009 was issued by the Director, PMO‟s

office, with the approval of the Prime Minister. On that basis a

formal communication was sent by the Ministry of Culture on 6th

August 2009 to the Chairman, NMML granting the approval of the

GOI to the extension of the appointment of Respondent No.3 as

Director, NMML on deputation basis by two years.

13. Even prior to the proposal for extending the term of Respondent

No.3, W.P. (C) No. 8658 of 2009 was filed by one B.R. Manhas.

This Court by an order dated 1st May 2009 declined to interfere

since no decision as such has been taken by then. It was observed

that a challenge could be raised as and when such decision is taken.

Thereafter a second writ petition, Writ Petition (Civil) No. 7528 of

2009 was filed by one Deepa Bhatnagar. In a reply dated 9th

December 2009 filed in the said writ petition the Ministry of

Culture took the stand that the EC of NMML could under Rule 70

(2) of the Bye-laws relax the rules of appointment.

14. The present writ petition was filed on 5th September 2009 and

notice was issued on 5th September 2009.

15. The main plank of the argument of learned counsel for the

Petitioner, seeking a writ of quo-warranto to quash the initial

appointment of Respondent No.3 as Director, NMML and her

extension of her services in the post of a Director for a further

period of two years is that both actions were ultra vires of the rules

of recruitment as contained in the bye-laws of NMML. It must at

the outset be noticed that the Supreme Court has in University of

Mysore v. C.D. Govinda Rao AIR 1965 SC 491 explained that in

order to succeed in a petition seeking issuance of a writ of quo

warranto, the challenger should satisfy the Court that "the office in

question is a public office and is held by a usurper without legal

authority." In P.L. Lakhanpal v. Ajit Nath Ray AIR 1975 Delhi 66

the above proposition was further explained by a Full Bench of five

judges of this Court. It was held that the enquiry in such a writ

petition was for ascertainment of the fact "whether the holder of the

office has been appointed in accordance with law or not." In B.

Srinivasa Reddy v. Karnataka Urban Water Supply and Drainage

Board Employees Association(2006) 11 SCC 731 the Supreme

Court held that "unless there is a clear infringement of the law no

writ of quo warranto could issue."

16. In the present case, there is no challenge to the amendments

made to the bye-laws. There is also no dispute that the appointment

of Respondent No.3 as Director of NMML on deputation is in

conformity with the amended bye-laws. Although initially the

maximum age for the post of a Director was 55 years, the EC, in

exercise of its powers under Rule 70 (2), amended Rule 18 of the

Bye-laws by inserting Clause (iv) thus enabling the EC to retain the

services of the Director, NMML till the incumbent attaining 62

years, subject to a maximum of 65 years, with the prior approval of

the Central Government. The protection of the pay-scale could also

be explained with reference to the powers of the EC under Clause 2

(2) of the Bye-laws. The GOI also conveyed its approval to the

initial appointment on 5th August 2006 and the extension on 6th

August 2009.

17. Reliance is sought to be placed on the note prepared by the

Ministry of Culture for approval of the Minister in which a

reference is made to FR 56 (d) requiring approval to be sought for

the extension of the appointment of Respondent No.3 by the DOPT.

As rightly contended by the learned ASG appearing for the NMML,

being an autonomous institution under the administrative control of

the Ministry of Culture, it is doubtful if FR 56 (d) would apply. In

any event, the approval to the extension has indeed been granted by

the PMO. The note for the extension was put up to the Minister of

Culture/PM and the PM approved the proposal.

18. This Court is, in the circumstances, not persuaded to interfere in

the matter. There is no illegality vitiating either the initial

appointment of the Respondent No.3 as Director, NMML or the

extension granted to her for a period of two years with effect from

10th August 2009.

19. The writ petition is without merit and it is dismissed as such.

The applications are dismissed.

S. MURALIDHAR, J.

     APRIL 09, 2010
     rk




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