Delhi High Court
Dr. Atul Kumar Sodani vs Union Of India & Ors. on 1 August, 2018
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 16th July, 2018
Pronounced on: 1st August, 2018
+ W.P.(C) 4414/2016 and CM No.18474/2016
DR. ATUL KUMAR SODANI ..... Petitioner
Through: Petitioner in person
versus
UNION OF INDIA & ORS. ..... Respondents
Through : Dr. Ashwani Bhardwaj,
Adv.
CORAM:-
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR JUSTICE C. HARI SHANKAR
% (JUDGMENT)
C. HARI SHANKAR, J.
1. The petitioner, who claims to be a freelance journalist and an
"RTI and social activist", has, by means of this writ petition,
expressed his discomfiture at appointments having been effected
against posts, in the Press Information Bureau (hereinafter referred to
as "PIB"), which stand abolished by operation of law, and at public
monies having been defrayed towards disbursement of pay and
allowances to such appointees.
2. The petitioner contends that, by virtue of the fact that they had
remained unfilled for more than a year, and had not been
created/revived afresh with the approval of the Ministry of
Information and Broadcasting (hereinafter referred to as "the
Ministry"), two posts of librarian, at the Information Centres of the
PIB located at Jalandhar and New Delhi, were deemed to have been
abolished with effect from 1st September, 1990 and 16th March, 1996.
No pay, or allowances, the petitioner contends, could have been
disbursed to persons against such posts, which were deemed to stand
abolished by operation of law. Not only, the petitioner would contend,
were persons appointed against these abolished posts; such
incumbents were also granted benefits under the Assured Career
Progression (ACP) and Modified Assured Career Progression
(MACP) Schemes, resulting in elevation of their pay-scales. In total,
the petitioner contends that, sans HRA, an amount of ₹ 87,929/- was
being disbursed, every month, to the incumbents appointed against
these abolished posts.
3. The petitioner also points out that Recruitment Rules were
never framed, with respect to these posts, and financial benefits were,
nevertheless, being disbursed, to the officials appointed thereagainst.
4. A legal notice, purporting to have been addressed, by the
petitioner, to the respondents, in this regard, on 22 nd July, 2015, met
with a non-committal response, merely stating that the matter was
being examined in the Ministry and that, after it was fully examined,
the petitioner would be informed appropriately.
5. Following on the above asseverations, the petitioner, by means
of this writ petition purporting to have been filed in public interest,
prays that a writ of mandamus be issued to the respondents, to
immediately stop all kinds of payments, against the posts of librarian
in the New Delhi and Jalandhar Information Centres under the PIB.
Additionally, a direction is also sought for issuance of a writ of
mandamus, to the respondents, to provide details of all deemed
abolished posts within its jurisdiction, against which officers are
drawing payments. Initiation of departmental proceedings, against the
officials responsible for making of such payments, has also been
prayed for.
6. We may, here, reproduce OM No. 7(7)-E (Coord)/93, dated 3rd
May, 1993, issued by the Department of Expenditure, Ministry of
Finance, which deems posts, unfilled for one year, to be abolished:
"No.7(7) - E (Coord)/93
Government of India
Department of Expenditure
New Delhi the 3rd May 1993
OFFICE MEMORANDUM
Subject: Economy in administrative expenditure of
the Government./ Ban on creation of posts/Filling of
vacancies/Guidelines for processing of the cases
The undersigned is directed to refer to this Ministry's OM
No. No. 7(1) - E(Coord)/84 dated 20th June, 1984 as
amended time to time on the subject indicated above and
to state that instructions already exist for ban on
creation/filling of post(s) and the procedure for creation
thereof in exceptional cases. Some doubts which arose in
this regards were clarified time to time. Further
instructions are, however, being sought by various
Ministries/Departments etc. regarding the following two
points. The matter has been considered in this Ministry
and the correct position is clarified below against each
point:-
POINTS CLARIFICATIONS
(a) Whenever higher Yes, whenever higher posts
level posts are abolished, are abolished, it will be
whether junior level posts necessary to abolish
are also to be abolished personal/supporting staff
as a consequence thereof. of that higher level post(s)
simultaneously. In addition
to such abolition, it will
also be desirable to have a
work sty conducted to
determine what other
restructuring and abolition
of lower level posts would
be required as a result of
abolition of higher level
post (s).
(b) If a post is vacant or If the post is held in
held in abeyance for some abeyance or remains
time, whether the post can unfilled for a period of one
be filled up or revived, as year or more, it would be
the case may be, by the deemed to be abolished.
administrative Integrated Finance of each
department/Ministry Ministry/Department may
monitor abolition of such
posts and ensure that
abolition orders are issued
within one month of the
post remaining
unfilled/held in abeyance
for a period of one year. If
the post is required
subsequently, the
prescribed procedure for
creation of new posts will
have to be followed i.e. as
briefly set out below:-
PLAN POSTS Approval of Finance
Minister will be required.
GROUP A POSTS
GROUP B,C & D POSTS May be created with the
approval of the Secretary
of the Administrative
Ministry/Department
provided:-
(i) The Expenditure on
the establishment is within
10% of the project cost.
(ii) The post to be created
are in conformity with the
prescribed norms, and
(iii) Group A post (s), if
necessary, have been
approved by the Finance
Minister.
NON PLAN POSTS May be created with the
approval of Cabinet after
(i) Group A Posts of and obtaining the approval of
above the level of Joint Finance Ministry
Secretary (Rs.9500-6700)
(ii) Group A posts below May be created with the
the level of Joint approval of Finance
Secretary and Group B,C Minister.
& D Posts
For creation of Non Plan
posts matching savings are
required, which should be
by surrender of posts in the
same group or of posts in
the immediate line of
promotion.
Posts which are found
justified on the basis of
workload and functional
justification can only be
created.
2. All Ministers and Departments are requested to
kindly note the above clarifications for strict compliance,
particularly in view of the need for adopting austerity
measures for containing Govt. expenditure in the
economic scenario. They may also issue instructions to
their attaché and subordinate offices including UT
Admn., and monitor compliance. Autonomous Bodies
under the control of Ministry/department may also be
asked to follow these clarifications mutatis mutandis.
3. Hindi version is enclosed.
Sd/-
(D Swarup)
Joint Secretary to the Govt. of India
All Ministries/Departments to the Govt. of India., etc. etc.
(as per standard distribution list.)"
7. The counter affidavit, filed on behalf of the respondents,
candidly admits that (i) the post of librarian in the Information Centre,
Jalandhar, became vacant in September, 1990, consequent on the
transfer of Gulab Khan, the incumbent thereon, to the Information
Centre, New Delhi, (ii) the said post could not be filled till July, 1996,
and was deemed to have been abolished on the expiry of one year
from its becoming vacant, i.e. in September, 1991, (iii) Gulab Khan
expired on 15th March, 1996, whereupon the post of librarian at the
Information Centre, New Delhi, also became vacant and (iv) as this
post, too, could not be filled up till 2004, it was also deemed to have
been abolished in March, 1997. The respondents have asserted that
no officer was posted against these posts of librarian, at the
Information Centres at Jalandhar or New Delhi. At the same time,
para 8 of the counter-affidavit avers thus:
"The post (of Librarian at the Information Centre, New
Delhi) remained vacant till 2004 when Shri Vijay P.
Nitnaware was transferred from Information Centre, Shri
Nagar to this deemed abolished post. In this connection
it is stated that Information Centre Srinagar were
attacked by terrorist on 09.03.2004, in which the
Information Centre was damaged and partly burned and
as a result of which the Information Centre became non-
operational for quite some time. Shri Vijay P.
Nitnaware, Librarian was left without adequate work and
to utilise his services, he was transferred to PIB, New
Delhi by the Regional Office, Chandigarh vide order No
F 2/1/01-NR 651, dated 11.03.2004 issued by Press
Information Bureau, Northern Region and he joined the
PIB, New Delhi and was posted at Information Centre,
PIB, New Delhi vide order No 51/2004-Admn. I, dated
29.04.2004. Subsequently Ministry of Information and
Broadcasting vide its ID No 25/22/2002-Press, dated
20.12.2004 stated that post of Librarian at Information
Centre, New Delhi was lying vacant since 1996 and as
per M/o Finances instructions such post is deemed
abolished and advised to take corrective measures. PIB
(NR) vide order No F.2/1/01-NR, dated 23.12.2004
shifted the capital of the post of Librarian of
Information Centre, Jalandhar to Information Centre,
New Delhi with effect from 27.04.2004."
(Emphasis supplied)
8. In their response to para 10 of the writ petition, the respondents
admit the grant of the benefits of one upgradation, under the MACP
scheme, to Sh. Vijay P. Nitnaware and three financial upgradations to
Ms. Shakila Dikhusha, who had been appointed against the abolished
post of Librarian at the Information Centre, Jalandhar. However, it is
sought to be contended that the grant of the ACP or MACP benefits
would be available to the officers, irrespective of whether she, or he
were working against the existing or abolished posts.
9. Para 15 of the counter affidavit also admits that PIB had
approached the Ministry, vide ID No.10/2/2013-Admn.I dated
05.04.2013 for revival of the "deemed abolished" post of librarian at
the Information Centres at New Delhi and Jalandhar, and that the
Ministry, vide its response dated 12th May, 2014, sought certain
clarifications from the PIB, in order to process the case further. It is,
however, candidly admitted by Dr. Ashwani Bhardwaj, learned
counsel for the respondents, that no such approval, for revitalizing the
abolished posts of Librarian at the Information Centre, New Delhi and
Jalandhar was, in fact, received or obtained.
10. It may be noted, here, that the petitioner has also objected, in
the writ petition, to the categorization of the posts at New Delhi and
Jalandhar several years after they were deemed to have been
abolished. However, this is not strictly germane to the relief prayed
for by the petitioner; moreover, as we are of the view that the
appointment of officers against the posts, which were deemed to stand
abolished by operation of law was, on its face, illegal, we are not
proposing to examine the said issue.
11. Interestingly, the respondents have, in their surrejoinder, sought
to submit that it was only in 2012 that the fact that the post of librarian
at the Information Centre, Jalandhar was deemed to have been
abolished in 1997, came to light.
12. Having heard the petitioner, who appears in person and
Dr. Ashwani Bhardwaj, learned counsel for the respondents, we are of
the considered opinion that the manner in which respondents had
acted, in the present case, is totally alien to law.
13. The respondents cannot plead ignorance of Ministry of Finance
Office Memorandum (OM) No 19 (1)/IC/86 (supra), regarding
abolition of posts which remained unfilled for a period of one year,
and seek to capitalize thereon. Once the posts of librarian at the
Information Centres, Jalandhar and New Delhi remained unfilled for a
year i.e. till 16th March, 1996 in the case of the Information Centre,
New Delhi and till 1st September, 1990 in the case of the Information
Centre, Jalandhar, the said posts were deemed to have been abolished,
and the respondents frankly acknowledge as much. There could be no
question, therefore, of grant of any salary or emoluments, to any
person working as librarian in either of the said Information Centres,
after the said dates. The only option, to the respondents, would have
been to seek creation of fresh posts of librarian. No authority,
permitting the respondents to request the Ministry to "revive" the
posts which stood abolished by operation of law, is referred to, by the
respondents, or has been brought to our notice in Court. The OM
dated 3rd May, 1993, is categorical in requiring that, in case a "deemed
abolished post" is required to be filled, it would have to be re-created,
in accordance with the procedure and stipulations prescribed therein.
There is no question, therefore, of any "revival" of a post which is
deemed to stand abolished, far less of any appointment being made
against such post. (In any case, it is an admitted position that the said
posts have never been "revived".) Neither have the respondents
pointed out any statutory provision or executive instruction, which
empowered them to shift the "capital of the post of Librarian" from
the Information Centre, Srinagar to the Information Centre, New
Delhi, six months after Sh. Vijay P. Nitnaware had been appointed
against the said post, and to regularise the said appointment
retrospectively. These are all actions which, in our view, were in the
nature of knee-jerk responses, with no basis, in law, whatsoever.
14. Once the post of librarian at the Information Centres at New
Delhi and Jalandhar stood abolished by operation of law, it was, ex
facie, illegal, on the part of the respondents, to disburse payments, to
Sh. Vijay P. Nitnaware and Ms. Shakila Dikhusha against the said
posts. It is important to reiterate, in this regard, that para 8 of the
counter affidavit specifically admits that Sh. Vijay P. Nitnaware was
transferred from the Information Centre, Srinagar "to the deemed
abolished post" of Librarian at the Information Centre, New Delhi.
This, needless to say, was entirely unconscionable in law.
15. The respondents have sought to contend that no appointments
were made against the abolished posts of librarian at the Information
Centres at Jalandhar and New Delhi, but that they had transferred
librarians, holding posts at other stations, to Jalandhar and New Delhi,
along with the posts. Specifically, in the case of librarian at New
Delhi, it is asserted that Shri Vijay P. Nitnaware, who was working as
librarian at the Information Centre at Srinagar, was transferred with
the post of librarian, to New Delhi. This, in our view, is also equally
impermissible and made tantamount to a fraud on the mandate
contained in the OM dated 3rd May, 1993 (supra).
16. The said OM is categorical in stipulating that posts which
remain unfilled for a period of more than one year, are deemed to
stand abolished and that in case the posts require at a later point of
time, they would have to be re-hyphened created in the manner
stipulated therein. When it was not permissible, for the respondents, to
appoint librarians at New Delhi or Jalandhar, because of the said posts
standing abolished by virtue of the aforementioned OM, posting
persons as librarian, at the said stations, by purportedly transferring
the posts held by them elsewhere, would amount to a circuitous
attempt to circumvent the mandate of the OM, thereby seeking to do,
indirectly, what could not be done directly. It is trite, in law, that it is
not permissible to do, indirectly, that which cannot be done directly.
17. That any attempt to do so, would amount to a fraud on the
statute (in this case, the OM). Reference may be made, in this context,
to the judgments of the Supreme Court in Jagjir Hussain v. Ranbir
Singh and District Collect, Chittoor v. Chittoor District Groundnut
Traders Association, AIR 1989 SC 989 which had been followed by
this Court, in MTNL v. Telecom Regulatory Authority of Delhi, AIR
2000, Delhi 208.
18. The respondents, therefore, had no authority, whatsoever, to
appoint anyone as Librarian, at the Information Centres at Jalandhar
after September, 1991 and New Delhi, after March, 1996. Neither
could any payment have been disbursed, to the officers purportedly
holding the post of librarian at these Information Centres, after the
said dates.
19. However, as the issue has been raised by the petitioner, before
this Court, only in 2016, and the incumbents who were appointed
against the deemed abolished posts of librarian at the Information
Centres at Jalandhar and New Delhi have not been impleaded as
respondents in this case, we are not inclined to pass any orders against
the said incumbents. It appears, from the record that, as on date, no
officer is working as librarian at the Information Centre at Jalandhar
or at New Delhi. We clarify that, as these posts stood abolished by
operation of law, and no new post of librarian, at either of the
Information Centres at Jalandhar or New Delhi, has been created, it
would not be permissible to appoint anyone as librarian at either of
these Information Centres, or disburse payments, to any such
appointee, against such post. The act of shifting the "capital of the post
of librarian", from the Information Centre, Srinagar to the Information
Centre at New Delhi, is also sans any authority of law, and is,
therefore, declared illegal. The post of librarian at the Information
Centre, Srinagar shall, therefore, stand revived accordingly.
20. Needless to say, this judgment shall not operate as a fetter in the
way of creation of fresh posts of librarian at the Information Centres at
Jalandhar or New Delhi, should the Ministry deem it appropriate, so to
do, in accordance with law.
21. The writ petition is disposed of, in terms of the above
observations and directions. There shall be no order as to costs.
C. HARI SHANKAR
(JUDGE)
ACTING CHIEF JUSTICE
AUGUST 1, 2018
dsn
