Delhi High Court
S.M. Tangri vs Indraprastha Power Generation ... on 22 October, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 22nd October, 2018
+ W.P.(C) 7728/2015, CM Nos. 15151/2015 & 5476/2017
S.M. TANGRI
..... Petitioner
Through: Mr. Chandra Prakash, Adv.
versus
INDRAPRASTHA POWER GENERATION COMPANY LIMITED
AND ANR
..... Respondents
Through: Mr. Vinay Sabharwal, Adv. for R1, R2
& R4
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE V. KAMESWAR RAO
V. KAMESWAR RAO, J. (ORAL)
1. The present petition has been filed by the petitioner with the
following prayers:
"In view of the facts and submissions made herein
above it is most respectfully prayed that this Hon'ble
Court be graciously pleased to:
(i) issue a Writ, Order or direction in the nature
of Quo-Warranto or any other order or
direction or declaration thereby holding the
absorption of the respondent No.4 Shri P.N.
Sharma, as Assistant Manager (HR) with
respondent No.1, as null and void; and
(ii) consequently, quash the appointment of
respondent No.4 as Assistant Manager (HR);
and
(iii) issue appropriate directions to the respondent
Nos.2 to hold an enquiry against the conduct
of respondent No.5 for processing the case of
the respondent No.4 contrary to the rules; and
(iv) award cost of the writ petition against the
respondent; and
(v) May also pass any further order or orders has
to deemed just and proper to meet the ends of
justice."
2. In substance, the petitioner is challenging the absorption of
the respondent No.4 as Assistant Manager (HR) with the respondent
No.1. It is the case of the petitioner and contended by his counsel
that the respondent No.4 joined the Indraprastha Generation
Company Ltd. (respondent No.1) on January 28, 2008 on
deputation. At the time of joining on deputation, the respondent
No.4 was MSc. LLB and MBA and has secured his permanent
absorption in the company by making false statement / fraudulent
misrepresentation before the Board of Directors of the Company in
connivance with the respondent No.5.
3. According to him, the respondent No.4 did not have the
minimum qualification nor he had undergone a written test
prescribed in the Recruitment regulations for the post of Assistant
Manager (HR). He states that in terms of OM dated June 20, 2007
the permanent absorption has to be made subject to a person
fulfilling the requirement under the Recruitment and Promotion
regulations for the particular post.
4. He has drawn our attention to the Recruitment and
Promotion regulation for the post of Assistant Manager (HR) which
stipulates the method of recruitment to be 25% by promotion and
75% by direct recruitment. Short term contract in exceptional cases.
According to him, even the absorption has been made giving the
relaxation of the prescribed qualification and age which is also
impermissible.
5. He has also drawn our attention to the note sheets procured
by him through the process of RTI to contend that the CMD of the
Company has in unequivocal terms stated that the case of the
respondent No.4 cannot be processed for absorption. Despite such
noting, in the next Board meeting, it was decided that the
respondent No.4, be permanently absorbed on the post of Assistant
Manager (HR) against the direct recruitment quota in respondent
No.1 Company, in relaxation to prescribed qualification and age.
6. He would rely upon the judgment of the Supreme Court in
the case of Union of India (UOI) and Anr. vs. Narendra Singh
(2008) 2 SCC 750 to contend that no person can be given any
benefit, if the same is impermissible under the Rules.
7. On the other hand, Mr. Vinay Sabharwal, learned counsel
appearing for the respondent No.1 states that the present petition
filed by the petitioner is not bona fide, inasmuch as the respondent
No.4 was the officer involved in a disciplinary action taken against
the petitioner which culminated in the penalty of "censure" imposed
on the petitioner. In other words, the petitioner is settling scores
against the respondent No.4, who in discharge of his official duties
was involved in a disciplinary action against the petitioner.
8. That apart, he states that the respondent No.4 was working
as a Gazetted Officer in the office of Controller General of
Accounts, Ministry of Finance, Government of India, New Delhi
and had applied for deputation on the post of Assistant Manager
(Vigilance) in the respondent no.1 in the year 2007. He was called
for interview by a high-powered interview panel of the respondent
No.1 Company. The respondent No.4 was offered the post of
Assistant Manager (Vigilance) and the respondent No.4 joined the
said post on January 28, 2008 with the consent of his parent
department. The deputation period of respondent No.4 was also
extended from time to time by the answering respondent with the
consent of the parent department of respondent No.4. As the
respondent No.1 Company was not having an expert officer for
handling disciplinary and vigilance matters, hence, keeping in view
the expertise and excellent and outstanding performance of
respondent No.4 during his tenure, the HR Department of
respondent No.1 Company initiated a proposal for permanent
absorption of respondent No.4 on the post of Assistant Manager
(HR) as respondent No.4 was discharging the duties of Assistant
Manager (Vigilance) in addition to additional charge of Assistant
Manager (HR).
9. Mr. Vinay Sabharwal also stated that the views of the CVO
were also taken into consideration. According to him, the
respondent No.1 was of the view that it is difficult to get
experienced officer especially for Vigilance Branch and recently
attempt was made to recruit officers for Vigilance Branch on
deputation basis, however, there was very poor response as the
shortlisted officers did not turn up for interview. Noting the fact
that the respondent No.4 was holding degree of MBA (Marketing)
and had completed his PG Diploma in HR in 2011 and was above
the age of 30 years, relaxation in the age and qualification criteria
was required from the Board if he was to be absorbed against the
vacancy meant for direct recruitment, the same was granted. It is
his submission that the absorption of respondent No.4 has been
made in public interest by the Board of Directors by granting
relaxation. Thereafter, a letter dated September 30, 2013 was
written to the Controller General of Accounts, i.e., the parent office
of respondent No.4 conveying the decision of the Board of
Directors of respondent No.1 to permanently absorb the respondent
No.4 and requested them to send their concurrence / NOC.
10. Accordingly, the parent department sent the NOC vide letter
dated November 12, 2013. After receiving the NOC from the
parent department of respondent No.4, the respondent No.1
Company issued a letter dated December 09, 2013 directing the
respondent No.4 to settle his dues, if any, and to tender technical
resignation in his parent department. It is only after directions from
the respondent No.1 Company that the respondent No.4 tendered his
technical resignation dated December 09, 2013 in his parent
department. The parent department accepted the technical
resignation of respondent No.4 vide office order dated January 02,
2014. The respondent No.4 joined the respondent No.1 Company
on January 02, 2014.
11. It is the submission of Mr. Vinay Sabharwal that it is not the
case of the petitioner that the absorption of the respondent No.4 is
mala fide / with ulterior motives. That apart, he states that process
has been in accordance with Recruitment and Promotion policy as
the Board has power to relax any of the conditions of recruitment
and promotion for both, internal and external candidates in the
interest of the Company. He seeks the dismissal of the writ petition.
12. Having heard the learned counsel for the parties, insofar as
the plea of Mr. Vinay Sabharwal that the present petition filed by
the petitioner is not bona fide is concerned, suffice it to state that the
plea of the petitioner is more of violation of the Recruitment and
Promotion rules as noted above. From the perusal of the same, it is
clear that the post of the Assistant Manager (HR) has necessarily to
be filled to the extent of 25% by promotion and 75% by direct
recruitment. It is only in exceptional cases; the appointment can be
made on contract basis. In other words, the recruitment rule does
not stipulate the appointment by way of deputation / absorption and
there is no dispute to the fact that the respondent No.4 had come on
deputation in the year 2008.
13. On specific query to the learned counsel for the petitioner as
to why the petitioner had not challenged the deputation of the
respondent No.4 in the respondent No.1 Company in the year 2008,
he could not give any satisfactory reply. Having noted the stand
taken by the respondent No.1 in the counter affidavit, it is clear that
the absorption of the respondent No.4 was in public interest,
because of the vast experience of 6-7 years, the respondent No.4
had in working with Vigilance Department with additional charge
of HR. It is also their case that despite attempts, to fill up vacancies
in the Vigilance Department, the respondent No.1 could not fill the
same. So, a need was felt to have an officer, who can look after the
work of HR.
14. What is important in this case is that pursuant to the
decision taken by the respondent No.1, the respondent No.4 has
submitted his technical resignation and settled his dues with his
parent department. Any order of this Court affecting the absorption
of respondent No.4 would have drastic consequences, inasmuch as
the respondent No.4 not only shall loose his employment in the
respondent No.1 Company, but also, not get employment in his
parent department as he has technically resigned from the post and
settled his dues.
15. Learned counsel for the petitioner may be justified in
relying upon the judgment of the Supreme Court in Union of India
(UOI) and Anr. (supra) that the recruitment rules need to be
scrupulously followed. But on a deeper consideration of the facts,
we find that the respondent No.4 is not at fault, if he has been
absorbed in the respondent No.1 Company. There is also some
justification given by the respondent No.1, for his absorption.
16. That apart, keeping in view, the petitioner had not
challenged the deputation of the respondent no.4 with the
respondent no.1 since 2008 and also this petition has been filed after
almost one year of the respondent no.4 joining the respondent no.1
on absorption, in the peculiar facts and circumstances of this case,
this Court is of the view that it should not exercise its extraordinary
jurisdiction under Article 226 of the Constitution in favour of the
petitioner by granting the relief as prayed for by him in this writ
petition and unsettle a settled position. This shall not mean that the
recruitment rules permit deputation / absorption of an officer.
17. This writ petition is dismissed. No costs.
CM Nos. 15151/2015 & 5476/2017
Dismissed as infructuous.
V. KAMESWAR RAO, J
CHIEF JUSTICE
OCTOBER 22, 2018/aky
