Jawaid Rahmani and Another vs UOI and Others

Rajiv Sahai Endlaw, J.—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.

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.

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.

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".

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.

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.

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-�-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.

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.

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 Rs. 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.

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

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.

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.

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.

Though the general principle as laid in Dr. Duryodhan Sahu and Others Etc. Etc. Vs. Jitendra Kumar Mishra and Others Etc. Etc., & B. Srinivasa Reddy Vs. Karnataka Urban Water Supply and Drainage Board Employees'' Association and Others, 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.

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.

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

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.

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.

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.

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.

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.

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.

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 and Others, 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 M.S. Mudhol and Another Vs. S.D. Halegkar and Others, 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.

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.

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.

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:

Tenure of appointment on Deputation or contract

Not exceeding 3 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.

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.

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.