Mr. Uma Kant Dubey vs The Chairperson, Protectiion Of ...
2013 Latest Caselaw 1955 Del

$~13 & 14
*     IN THE HIGH COURT OF DELHI AT NEW DELHI
                                                            30th April, 2013


+     W.P.(C) 4239/2012 & CM No.8808/2012
      MR. UMA KANT DUBEY                                  ..... Petitioner
                   Through               Mr. Abhishek Saket, Adv.

                          versus

      THE CHAIRPERSON, PROTECTIION OF PLAINT VARIETIES
      AND FARMS RIGHTS AUTHORITY AND ORS .... Respondents

Through Mr. Ram Niwas, Adv.

AND + W.P.(C) 4257/2012 & CM No.8828/2012 AJAY KUMAR SINGH AND ANR ..... Petitioners Through Mr. Abhishek Saket, Adv.

versus

CHAIRMAN , PROTECTION OF PLANT VARIETIES AND FARMS RIGHTS AUTHORITY AND ORS. .... Respondents Through Mr. Ram Niwas, Adv.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J. MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. Petitioners in these writ petitions were appointed by the Statutory

Authority under The Protection of Plant Varieties and Farmers' Act,

2001(PPV & FR Act). Pursuant to advertisements issued, petitioners

appeared before the Selection Committee and petitioners were thereafter

appointed as Senior Technical Officers. The respondents however issued a

show cause notice/office memo dated 15/18.06.2012 stating that since the

appointments of the petitioners were in violation of Rule 20 of The

Protection of Plant Varieties and Farmers Rights Rules, 2003, action will be

taken in accordance with the rules. Obviously, this action was to terminate

the services of the petitioner. The petitioners have, therefore, approached

this Court for quashing of the memo dated 15/18.06.2012 and for

regularization of their services.

2. Counsel appearing for the respondents points out the difficulty of the

authority because of the Rule 20 of the Rules and which reads as under:-

"20. The method of appointment of officers and other employees of the Authority.-(1) The Authority may make recruitment and appointment to the posts of officers specified in the Fourth Schedule.

(2) The Authority shall after advertising the posts in the Employment News and at least one national daily recruit officers and other employees of the Authority by the method of direct recruitment or contract basis by selection after conducting interview.

(3) Notwithstanding anything contained in sub- rule (1) and subject to the approval of the Central Government the Authority may also appoint such other officers and employees as may required by it on transfer or deputation basis or on contract basis.

(4) The salary, allowances and other conditions of service of the officers and employees of the Authority shall be the same as applicable to Central Government servants of equivalent rank.

(5) If any question on the service conditions of any officer or employee of the Authority arises, it shall be decided by the Central Government."

It is contended that the problem arises because of sub-Rule 3 as per which

the appointments of such other officers and employees as may be required

can only be on transfer or deputation or on contract basis in case the posts

are not included in the 4th Schedule of the Rules.

3. Learned counsel for the petitioner has in response pointed out Section

6 of The Protection of Plant Varieties and Farmers' Rights Act, 2001 and as

per which authorities may appoint various officers and employees who are

necessary for the efficient performance of its functions. It is argued that this

section does not state that the Authority cannot increase its sanctioned posts

so as to perform various functions as required by the Authority under the Act

except by amendment in the 4th Schedule.

4. In my opinion, sub-Rule 3 of Rule 20 being subordinate legislation

cannot override the parent Act provision of Section 6. Language of Section

6 stating that the appointments will be subject to control and restriction as

may be prescribed, is a requirement which will surely pertain to terms and

conditions of services of the officers and employees of the Authority but not

qua creation of posts.

5. In my opinion, unless there is a specific express bar to recruit officers

and employees by the respondent-Authority by direct recruitment, Rule 20

cannot be read so as to prevent creation of sanctioned posts, provided the

sanctioned posts, are created by following the due process including

obtaining approval of the Central Government who has control of the

Authority functioning under the Act.

6. I may state that aforesaid are only prima facie observations inasmuch

as writ petition can be presently disposed of in view of the decision taken by

the Authority in its 17th Meeting dated 19.10.2012 and which read as under:

16 Consideration of request of Considering the circumstances of the incumbents to the posts of case and also in view of the fact that Sh. Joint Registrar, Deputy Dipal Roy Choudhury, Joint Registrar, Registrar and Senior Sh. Umakant dubey, Deputy Registrar, Technical Officers for Dr. A.K. Singh and Dr. Susheel Kumar, substantive appointments. Senior Technical Officers have been

working resigning their previous posts in response to the advertisement given by the Authority and have been selected in a proper manner, the Authority resolved to allow them to continue on their respective posts and status quo may be maintained. The member secretary informed one of the employee (Dr.

Susheel Kumar, STO) has already resigned on being selected for the post of Assistant Professor in the University. It was also recommended that the case for inclusion of these posts in the fourth schedule should be done with retrospective dates. Further the Authority desired that the Recruitment Rules framed in accordance with PPV&FR Rules 2003 already approved by the Authority should be expedited by the Authority with the Govt., in order to avoid such complications in future.

7. In my opinion, in view of the peculiar facts and circumstances of the

case, it would be advisable for the concerned Authority to examine the

impact of sub rule 3 of Rule 20 and also as to whether the same can in any

manner constrict the operation of Section 6 of the impugned parent Act

inasmuch as the said provision of Section 6 does not bar appointments by

direct recruitment on and after creation of posts, in terms of the necessary

approval from the Central Government.

8. This writ petition is, therefore, disposed of in view of item 16 of the

17th Meeting of the Authority dated 19.10.2010 and the petitioners will not

be removed from their services and will be regularized from the date of their

original appointments as stated in item 16 of the 17th Meeting of the

Authority dated 19.10.2012. The Authority under the Act may follow

whenever procedure is required in accordance with law for acting upon item

16 of the 17th Meeting of the Authority dated 19.10.2012. It is clarified that

in case the petitioners are aggrieved as in future, of any action seeking to

remove them from services or not regularizing their services from the

original date of appointment or their confirmations, then petitioners are at

liberty to approach the Court at that stage.

9. It is clarified that petitioner No.2 in W.P.(C) 4257/2012 has already

left the services of respondent-Authority and, therefore, the writ petitions

stand allowed and disposed of with respect to the remaining petitioners in

terms of the observations made above.

                                               VALMIKI J. MEHTA, J

APRIL      30, 2013
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