Jawaid Rahmani & Anr. vs Uoi & Ors.
2011 Latest Caselaw 6018 Del

          *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                    Date of decision: 9th December, 2011

+                         W.P.(C) NO.857/2011

JAWAID RAHMANI & ANR.                                       ..... Petitioners
                Through:                Mr. Arjun Harkauli, Adv.

                                     Versus
UOI & ORS.                                                 ..... Respondents
                          Through:      Mr. Rakesh Tiku, Sr. Adv. with Dr.
                                        Saif Mahmood & Mr. Sudarshan
                                        Rajan, Advs. for R-2&3.
CORAM :-
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

                              JUDGEMENT

RAJIV SAHAI ENDLAW, J.

1. This petition filed in public interest seeks a writ of quo warranto

quashing the continuance of the respondent No.2 Mr. Hamidullah Bhat as

the Director of the respondent No.3 National Council for Promotion of Urdu

Language (NCPUL). Declaration is also sought that the appointment of the

respondent No.2 to the said post was illegal and unlawful. Direction is also

sought to the Central Bureau of Investigation (CBI) to file complete

investigation report in case RC 50/2005 pending against the respondent

No.2.

2. Notice of the petition was issued and counter affidavits have been

filed by the respondent No.3 NCPUL and the respondent No.1 UOI and to

which rejoinder have been filed by the petitioners. The respondent No.2 has

chosen not to respond.

3. The admitted position is that respondent No.3 NCPUL, a Society

registered under the Registration of Societies Act, 1860, was set up in the

year 1996 under the Ministry of Human Resource Development with the

objective inter alia to promote, develop and propagate Urdu language and as

the national nodal agency for promotion of Urdu language. NCPUL

comprises of a Chairman and a Vice Chairman to be nominated by the

Government of India and other members as prescribed in the Memorandum

of Association (MOA) thereof. The Director of the respondent No.3

NCPUL is a salaried officer, to be appointed by the Government of India to

be the Principal Executive Officer of the Council. The MOA of respondent

No.3 NCPUL prescribes, that the Director shall be appointed in such manner

and on such terms and conditions as may be laid down in the bye-laws and

till the framing of the said bye-laws / Regulations, the Financial Rules, the

Fundamental and Supplementary Rules and such other Rules as applicable to

Central Government employees were to be applicable mutatis mutandis to

the employees of respondent No.3 NCPUL also.

4. It is further the admitted position that a Search-cum-Selection

Committee comprising of Sh. Abid Hussain, former Indian Ambassador to

USA, Sh. Mahmood-ur-Rehman, Vice Chancellor, Aligarh Muslim

University and Joint Secretary (Languages), Department of Education,

Ministry of HRD constituted on 17.04.1996 to make recommendation for the

post of Director of NCPUL. The Search-cum-Selection Committee on

27.06.1996 decided to have a preliminary discussion with a group of

eminent persons both academics and those who have contributed to the

advancement of Urdu language, to prepare a panel of suitable candidates /

selectees for the post of Director to be placed before the Government of

India. Pursuant to the said discussion, a panel of three names and of which

the name of the respondent No.2 was at the top, was placed before the

Human Resource Minister who accepted the said recommendation and on

05.06.1997 appointed the respondent No.2 as the Director of respondent

No.3 NCPUL. Since till then there were no bye-laws / Regulations of

respondent No.3 NCPUL determining the terms and conditions of

employment of the Director, the Office Memorandum dated 05.06.1997 and

the order dated 12.06.1997 of appointment of the respondent No.2 described

his appointment as "for a period of five years or till the age of 58 years

whichever is earlier".

5. The respondent No.2, prior to his said appointment, was the Deputy

Registrar of Kashmir University and pursuant to his appointment was

holding a lien to the said post in Kashmir University. Since the Kashmir

University, owing to the said lien was not able to fill up the post of Deputy

Registrar on regular basis and which was creating functional difficulties for

the Kashmir University, a proposal was mooted for absorption of the

respondent No.2 as Director of the respondent No.3 NCPUL to enable the

Kashmir University to fill up the post of Deputy Registrar in their

University. Accordingly, vide order dated 21.09.1999, the respondent No.2

was absorbed as Director of respondent No.3 NCPUL.

6. Yet further admitted position is, that respondent No.3 NCPUL in the

year 2006 framed the Recruitment Rules inter alia for the post of Director

and as per which Recruitment Rules, the tenure of appointment of the

Director on deputation or contract is, not exceeding three years extendable at

the discretion of the Central Government, upto a maximum of five years or

until the incumbent attains superannuation prescribed for Central

Government employees, whichever is earlier.

7. The petitioners, from the year 2009 onwards, started making

representations for the removal of the respondent No.2 from the post of

Director of respondent No.3 NCPUL and upon the same remaining

unheeded, in the beginning of the year 2011 filed this petition. It is their

case that the respondent No.2 has a history of allegations of corruption

against him and used his political clout in the year 1997 to get appointed to

the said post; that no applications were called for appointment and the

respondent No.2 was selected without any discussion and without his merit

being adjudged vis-à-vis other candidates; that he does not even have the

qualifications prescribed in the Recruitment Rules framed in the year 2006

for the said post; that even though as per the said Recruitment Rules, the

tenure of the post of Director is three years or maximum of five years, the

respondent No.2 is being allowed to continue; that the respondent No.2 was

in the year 2005 arrested in RC 50/2005 for possessing assets

disproportionate to his known sources of income, the check period for which

investigation was from January, 1997 to December, 2005 i.e. when he was

holding the said post; that though he was during the tenure of the said

investigation suspended for a period of one year but had been reinstated; that

the closure report filed by the CBI in the Court was not accepted by the

Special Judge and further investigation had been directed; however despite

over two and half years having elapsed no charge sheet had been filed by the

CBI as the respondent No.2 was using his influence to delay the

investigation; that on 18.05.2009 the Ministry of Human Resource

Development, Government of India had initiated an inquiry under Rule 14 of

the Central Civil Services (Qualification, Control and Appeal) Rules, 1965

against the respondent No.2 but the respondent No.2 has been permitted to

continue in his position; that the Goyal Committee constituted by the

respondent No.1 UOI to look into the functioning of the respondent No.3

NCPUL had also in its report criticized the functioning of the respondent

No.2.

8. The respondent No.3 NCPUL in its counter affidavit, has pleaded that

the petition though filed in public interest by the two petitioners is

motivated, to vent their personal animosity against the respondents No.2&3;

the locus of the petitioners is also challenged; accolades are paid to the

contribution of the respondent No.2 as Director of respondent No.3 NCPUL;

pleas of laches and delay are also raised; that the Goyal Committee was not

constituted to look into any allegations against the respondent No.2 and the

report submitted was also not unanimous and had not been accepted.

9. The respondent No.1 UOI in its counter affidavit has pleaded that

respondent No.3 NCPUL is a fully funded autonomous organization under

the UOI and has justified the appointment of the respondent No.2. It is

further informed that the CBI on completion of investigation, though had

filed a closure report but recommended Regular Departmental Action for

major penalty on the charges of (i) non intimation of transactions in respect

of a house at D-II, Noor Nagar, Okhla, (ii) non intimation to the department

regarding transactions in the bank account of his wife; and (iii) possessing

assets of `1,84,623/- which were found to be disproportionate to the extent

of 3.09%; that the said recommendation of the CBI was accepted by the

Government of India and with the approval of the Disciplinary Authority

and on the first advice of the Central Vigilance Commission (CVC) Regular

Departmental Action for major penalty was initiated against the respondent

No.2 and the inquiry is since over and Inquiry Officer is likely to submit the

report at any time.

10. The petitioners, in rejoinders filed, have reiterated their version.

11. The respondent No.3 NCPUL in an additional affidavit filed has inter

alia pleaded that the respondent No.2 is a permanent Central Government

employee holding a Group „A‟ post.

12. The counsel for the petitioners has clarified that the petitioners were

never and are not aspirants for the post of Director. On enquiry as to how

much time is left before the respondent No.2 attains the age of 58 years, it is

informed that he has about one and a half years more till then.

13. The counsel for the respondent No.1 UOI and the counsel for the

respondent No.3 NCPUL have contended that the Recruitment Rules framed

in the year 2006 are prospective in nature and cannot apply to the respondent

No.2 who was appointed prior thereto. It is contended that it is the basic

principle of service jurisprudence that the Recruitment Rules framed

subsequent to appointment cannot affect the rights which have accrued in

favour of the respondent No.2. Similarly, it is stated that the qualifications

prescribed in the Recruitment Rules would not be applicable to the

respondent No.2, he having been appointed prior thereto.

14. Though the general principle as laid in Dr. Duryodhan Sahu Vs.

Jitendra Kumar Mishra (1998) 7 SCC 273 & B. Srinivas Reddy Vs.

Karnataka Urban Water Supply & Drainage Board Employees'

Association AIR 2006 SC 3106 is that public interest litigation shall not be

entertained in service matters but the Supreme Court in N. Kannadasan Vs.

Ajoy Khose (2009) 7 SCC 1 has held that a writ of quo warranto can be

claimed in public interest even where the petitioner does not claim any right

of appointment in himself.

15. The challenge in the present case can be bifurcated into two; (i)

challenge to the appointment of the respondent No.2, and (ii) challenge to

the continuation in office of the respondent No.2.

16. As far as the challenge to the appointment of the respondent No.2 is

concerned, what emerges is that at the time of appointment in the year 1997,

there were no rules of the respondent No.3 NCPUL itself regarding such

appointment. What has to be gathered is, whether there was any error in the

procedure followed for his appointment. It stands established that a Search-

cum-Selection Committee was constituted for such appointment. The only

ground urged by the petitioners is that applications were not invited from

others for the said post. What thus falls for consideration is whether such

applications were required to be invited. In the absence of any procedure

laid down qua the respondent No.3 NCPUL, the procedure prescribed in the

Government of India is to be followed. The said procedure is found to have

been prescribed in Office Memorandum dated 25.10.1994 issued by the

Department of Personnel & Training which is as under:

"NO:AB-14017/36/94-Estt. (RR) Government of India Ministry of Personnel, P.G. & Pensions Department of Personnel & Training.

25-10-94

OFFICE MEMORANDUM

SUBJECT:- Search Committee - Composition of

1. The undersigned is directed to say that for recruitment to certain scientific, technical and specialized posts, Search Committees are set up for locating persons with the requisite background, knowledge and experience. The primary object of the Search Committees is to be assist the Government for preparing a list of suitable persons to enable the right selection. Therefore, they have a vital rule to play in the selection process.

2. There are guidelines laid down to regulate the operation of such Committees. There are however no instructions indicating the

situations in which Search Committees should be appointed and what should be their composition.

3. This issue has been examined and it is considered desirable to issue instructions which will regulate the constitution and operation of Search Committees. Accordingly the following guidelines are hereby laid down for this purpose.

3.1 Situation in which a Search Committee may be constituted

(i) A Search Committee can be constituted only for posts which do not fall within UPSC‟s purview. For posts which fall within UPSC‟s purview, recruitment has to be on the basis of Commission‟s recommendations.

(ii) It is to be kept in mind that as a rule, appointments in Government are to be made on the basis of open advertisement. Therefore, proper advertisement of vacancies to be filled up by direct recruitment is an essential requirement. There may, however, be situations where advertisement itself may not result in adequate response for recruitment to similar posts which require specialized scientific/technical knowledge and experience. It is only in these situations that a Search Committee should normally be appointed to locate suitable persons with the desired qualifications and experience to augment the response to the advertisement. The Search Committees should be appointed only for sufficiently senior posts which require specialized scientific/technical knowledge and experience. It has been decided that Search Committees may be constituted where considered necessary only for posts of the level of Director (`4500-5700) and above. Recruitment to posts below this level may be only through open advertisement. It may also be noted that the constitution of Search Committee cannot be a substitute for advertisement of posts and its role is only to supplement the recruitment effort through advertisement.

3.2 Composition of Search Committees.

While constituting a Search Committee, the following guidelines should be followed:

i. The Search Committee should normally consist of not more than five members including the chairman.

ii. The Search Committee should be chaired by the concerned Secretary. However, where it has been constituted for a Secretary level post, a senior and distinguished academician may be invited to chair the Search Committee.

iii. No person who is a recipient of grants/funding from the Ministry concerned or who is closely related to such a recipient should be invited to join the Search Committee.

iv. The composition should be well-balanced. The Committee should invariably include persons of appropriate standing having acknowledged expertise in the relevant field of relevant specialization. At least half of such experts should be from outside the Department;

v. Where officers of Government, Autonomous bodies, PSUs etc. are nominated as members, they should be at least one level above the post to which recruitment is being made;

vi. It is noticed that in many cases the same experts are invited for year together. While it may not be possible to lay down a hard and fast rule as regards the period for which an expert may be asked to participate in such Committees‟ the tendency to rely on the same experts for long period of time is to be avoided. Considering the rapid pace of advancement in research and obsolescence of technology, it is necessary to infuse fresh blood in such committees in order that they may locate personnel who are engaged in research in frontiers of the relevant field.

vii. In some cases, the rules themselves prescribe search cum selection Committee(s). Usually the rules also lay down that the Committee should comprise a certain number of outside experts to be nominated by the Secretary. In such cases, it should be ensured that the composition is strictly as per rules. While selecting members of such committees, the guidelines set out in the preceding paras should also be adhered to.

3.3 Approval of composition of the Search Committee by DOPT

(i) It has also been decided that the composition of Search Committee for posts of and above the SAG level (i.e. pay

scale of `5900-6700/7300) should be decided with the prior approval of Department of Personnel and Training.

(ii) As regards other posts below SAG level, the composition of the Search Committee, wherever necessary may continue to be decided by the Ministries/Departments themselves. However, it should be ensured that composition of such Committees is in conformity with the guidelines contained in para 3.2 above.

3.4 In future, all proposals sent to Establishment Officer for submission to A.C.C. for posts in the scale of `5900-7300/- should be accompanied by a certificate certifying that the composition of Search Committee has the approval of the Department of Personnel and Training. In all other cases it should be certified that the constitution of the Search Committee is in conformity with the existing guidelines.

      3.5     Application

            (i)      These instructions will, however, apply to future recruitments

and not to the cases where a Search Committee has already been constituted and has commenced its activities.

(ii) These instructions may also be applied, mutatis/mutandis to autonomous bodies, funded wholly or partly by Government, in respect of appointments which are required to be made by or with the approval of Government of India.

4. All Ministries / Department are also requested to forward to this Department a list of posts to which recruitment is made on the basis of a Search Committee. This list may be sent to this Department within a fortnight of the receipt of this O.M."

17. It would thus be seen that the procedure prescribed by the

Government of India also was of making the appointment on the basis of

open advertisement and proper advertisement of vacancies to be filled up

was laid down as one of the essential requirements for appointment.

18. Admittedly in the present case no such advertisement was inserted and

the Search-cum-Selection Committee, without inviting applications and

merely on the basis of consultation with certain other eminent persons of the

field, list whereof is given in the counter affidavit of the respondent No.1

UOI, proceeded to draw up the panel for recommendation to the

Government of India.

19. However, the said error in procedure happened 15 years prior to the

filing of this petition. The plea taken by the respondent No.3 NCPUL,

though apparently at the behest of the respondent No.2, of the petitioners

being not entitled to the reliefs for the reason of laches, waiver and

acquiescence thus has merit. This Court in exercise of powers of judicial

review would not strike down an appointment after 15 years therefrom.

Thus even though an error is found (the Supreme Court in State of Bihar Vs.

Upendra Narayan Singh (2009) 5 SCC 65 has held that equality clause

enshrined in Article 16 mandates that every appointment to public post or

office should be made by open advertisement so as to enable all eligible

persons to compete on merit), the petitioners are not found entitled to the

relief claimed on the basis thereof for the reason of delay and laches. The

Supreme Court in Dr. Mudhol Vs. S.D. Halegkar (1993) 3 SCC 591 held

that where the incumbent has continued in the post for 12 years, his

appointment need not be disturbed at that late stage particularly when he was

not at fault when his selection was made.

20. As far as the aspect of continuance of the respondent No.2 in the post

is concerned, the counsel for the petitioners have not been able to dislodge

that the Recruitment Rules subsequently framed in the year 2006 would not

affect the appointment made ten years prior thereto of the respondent No.2.

Though the initial appointment of the respondent No.2 in the year 1997 was

for a period of five years or till the age of 58 years whichever is earlier but

subsequently in the year 1999, the respondent No.2 was absorbed in the post.

Thus the respondent No.2 cannot be removed from the post merely because

the recruitment rules subsequently framed in the year 2006 provide the

tenure of the said post as for three or maximum five years.

21. However, the argument veered around to, whether the respondent

No.2 is entitled to continue till the age of 58 years or till the increased age of

superannuation of 60 years. As aforesaid, the initial appointment was for

five years or till the age of 58 years. The counsel for the petitioners thus

contends that the respondent No.2 can at best continue till the age of 58

years only and is not entitled to extension since made available to

government servants till the age of 60 years.

22. The counsel for the respondent No.1 UOI and respondent No.3

NCPUL however have invited attention to the 2006 Regulations which

provide for extension being available to the maximum age of superannuation

prescribed for Central Government employees. We are however not able to

agree with the said contention. The Rule prescribing the tenure of Director,

is as under:

        "9. Tenure of appointment               Not      exceeding     3
        on Deputation or contract               years. The term may
                                                be extended at the
                                                discretion    of     the
                                                Central Government
                                                upto a maximum of
                                                five years or until the
                                                incumbent        attains
                                                superannuation
                                                prescribed for Central
                                                Government
                                                employees, whichever
                                                is earlier."

The aforesaid would show that the maximum term can be for five

years unless the age of superannuation intervenes prior thereto. Even

otherwise, the respondent No.2 who is defending the challenge in this

petition by contending that he is not bound by the said Recruitment Rules

cannot at the same time claim any benefit thereof.

23. Though the MOA of the respondent No.3 NCPUL in Clause 8 thereof

provided for the applicability of the Rules applicable to Central Government

employees to the employees of respondent No.3 NCPUL also till the

framing of Regulations thereof but the fact remains that at the time of

appointment in the year 1997 of the respondent No.2, his appointment terms

did not prescribe his appointment to be in terms of rules applicable to the

government servants but as "till the age of 58 years". Moreover, the

respondent No.2 had notice that under the MOA, his appointment was to be

governed by bye-laws / Regulations of respondent No.3 Society and the

applicability of Government Rules was a stop-gap arrangement. Now that

the bye-laws / Recruitment Rules of respondent No.3 NCPUL prescribe the

maximum term of Director as five years, it will be inappropriate to allow the

respondent No.2 to avail benefit of subsequent change in Government Rules

now inapplicable to respondent No.3 NCPUL. We therefore clarify that the

respondent No.2 shall be entitled to continue till attaining the age of 58 years

only and shall not be entitled to any extension thereafter even if available to

the government servants.

24. The counsel for the respondent No.1 UOI has fairly stated that he has

no objection to a direction being issued for filing a report in RC 50/2005 and

for completion of departmental proceedings against the respondent No.2 in a

time bound manner. We accordingly, while disposing of this writ petition

with the clarifications / observations aforesaid, direct the CBI to file the

complete investigation report in RC 50/2005 within 10 weeks of today and

direct the disciplinary authority of the respondent No.3 NCPUL to pass an

order in the departmental proceedings initiated against the respondent No.2

within six weeks hereof.

No order as to costs.

RAJIV SAHAI ENDLAW, J

ACTING CHIEF JUSTICE DECEMBER 9, 2011/„gsr‟