Krishan Kumar vs Union Of India Through

V. Ajay Kumar, J

The facts and law involved in these batch of OAs are identical and hence are disposed of by way of this common order. However, the facts in OA No.3279/2018 are taken into consideration.

The sole applicant in OA No.3279/2018, who is an Offset Machine Attendant in the 3rd respondent-Government of India Press, Minto Road, New Delhi, who was originally appointed at the Government of India Press, Faridabad, filed the OA seeking quashing of the Annexure A-1 Notice of Termination of Service dated 23.08.2018, on various grounds and the said impugned Notice of Termination reads as under:-

"NOTICE OF TERMINATION OF SERVICE

Subject: Termination of employees recruited through irregular recruitment process in GIP, Faridabad during 2007-08-reg.

The Government of India Press, Faridabad has appointed Shri Krishan Kumar to the post of Offset Machine Attendant during the recruitment process held by the Press in 2007-08. Due to complaints of large scale irregularities in the

recruitment, the AS and CVO of the Ministry was entrusted to investigate the complaints.

In pursuance of the decision taken by the competent authority to terminate the services of such employees in whose cases irregularities in recruitment were found in the report of AS ad CVO and sub rule (1) of Rule 5 of the Central Civil Services (Temporary Service) Rules, 1965, notice is hereby give to Shri Krishan Kumar that his services shall stand terminated with effect from the date of expiry of a period of one month from the date on which this notice is served upon him".

The applicants in all other OAs, working in different capacities, filed the OAs challenging the identical notices of termination of service, with the only difference of name and designation, raising identical grounds.

A bare perusal of the impugned notices of termination reveals that all the applicants have been appointed in the Faridabad, Government of India Press, during the recruitment process held by the Press in 2007-08 and due to complaints of large scale irregularities in the said recruitment, the Additional Secretary and Chief Vigilance Officer of the 1st respondent-Ministry of Housing and Urban Affairs was entrusted to investigate the complaints and since in the said investigation, as per the report of the AS & CVO, irregularities were found in the recruitment of the applicants, and as per the decision taken by the competent authority, the services of the applicants are sought to be terminated under Rule 5(1) of the CCS (Temporary Service) Rules, 1965 with effect from the date of the expiry of a period of one month from the date on which the respective notices of termination were served on them.

Heard Shri S.K. Gupta, Shri Ajesh Luthra, Shri Amit Anand, Shri Manjit Singh, Shri Sudarshan Rajan, Shri Sunil Bansal, Shri Manjeet Singh Reen, Shri Padma Kumar. S, Shri S.K. Vashisht, Shri Mohan Kumar, Shri Pramit Saxena, Shri Shankar Divate, the learned counsel for the applicants in all the OAs and Shri Subhash Gosain, Shri Ranjan Tyagi, Dr. Ch. Shamsuddin Khan, Shri A.K. Singh, the learned counsel for the respondents in all the OAs and perused the pleadings on record.

At the outset, we deal with the submission made by the learned counsel appearing for the respondents that in identical circumstances, the employees belonging to the Government of India Presses, Aligarh and Nilokheri were also terminated and challenging the said identical termination orders, the said employees of Aligarh and Nilokheri Presses have filed OAs No.1554/2012 and batch in Manjeet Sharma and Others Vs. Union of India and Others (Annexure R-6) and this Tribunal upheld the identical action of the respondents and the said order was again upheld by the Hon'ble High Court of Delhi and Hon'ble Supreme Court of India and hence, the instant batch of OAs are also liable to be dismissed, for parity of reasons.

To examine this issue, it is sufficient if we note certain paragraphs of the judgment in O.A. No.1554/2012 and batch (Manjeet Sharma and Others Vs. Union of India and Others) and the same read as under:-

"The facts of this case are that selection process for appointment to various Group-C and D posts was carried by several Government of India Presses situated at different places such as Aligarh (UP), Minto Road (Delhi), Mayapuri (Delhi) and Nilo Kheri District Karnal (Haryana). In the year 20078-08 a written test was held and thereafter those who had qualified in the same were called for interview. Those selected were asked to complete formalities like medical test, verification of character and antecedents etc. Many of the selected persons were even allowed to join. While appointment letters to others were in the process of issue, a complaint was received by the respondents in which it was alleged that large scale irregularities had been committed in the recruitment process. Based on this a decision was taken in the Ministry not to let the remaining selected candidates join till the investigation was completed. However, those who had already joined were allowed to continue working. This decision was conveyed to various Government Presses by the Ministry on 04.04.2008. Meanwhile, the selected candidates who had not been allowed to join continued to wait for further developments in the case. However, when no action was being taken by the respondents they approached this Tribunal by filing OA-377/2010. This O.A. was disposed of on 03.02.2010 by directing the respondents to take decision in the matter in terms of earlier orders of the Tribunal dated 07.12.2009 in OA-1194/2009. By their orders dated 14.07.2010 the respondents conveyed their decision not to appoint the remaining candidates to the posts for which they were selected. Aggrieved by this decision some of the OA applicants filed Contempt Petitions in the Tribunal. However, their Contempt Petitions were closed after giving them liberty to assail orders of the respondents through appropriate judicial proceedings. Thereafter, many of the applicants filed OA-3264/2010 challenging the order dated 14.07.2010 of the respondents by which they had been denied appointment. This O.A. was allowed by the Tribunal on the grounds that the applicants of the OA had been discriminated against inasmuch as many others who had been selected through the same process had been allowed to join whereas the applicants had been denied appointment. The respondents then filed several Writ Petitions No. 4745/2011, 5962/2011 and 5825/2011 in the Hon'ble High Court of Delhi. These were disposed of by the Hon'ble High Court by a common order dated 07.03.2012. The Hon'ble High Court set aside the directions of the Tribunal to appoint the OA applicants and gave further following directions:-

""Final view in the matter shall be taken within one month from the date of this order. If the proposal, as mentioned above, namely, report of the CVO is accepted, the necessary action would be taken qua the persons already appointed as well. However, if for some reason it is decided not to accept the proposal and to continue with the existing appointments then the respondents herein shall also be appointed."

We may make it clear that we have not touched upon the question as to whether findings of the CVO that the selection process is vitiated because of irregularities stated therein is correct or not. It is not even necessary to do so as all those who are appointed are not before us and we cannot take any view in the matter in their absence. Therefore, needless to mention, in case the petitioners decide to scrap the selection process and the services of those appointed are terminated, they shall be within their right to challenge the action of the Government on its own merits and as per law.

The writ petitions are disposed of in the aforesaid terms. There shall be no order as to costs."

In compliance thereof the respondents have passed the impugned orders dated 03.05.2012, 04.05.2012 and 21.05.2012 scrapping the selection process and terminating the services of those who had already joined. Aggrieved by the aforesaid decision of the respondents the applicants have filed the above mentioned OAs before us. While admitting OA-1554/2012 this Tribunal passed interims directions on 28.05.2012 staying the operation of OMs dated 03.05.2012 and 04.05.2012. Subsequently, the same relief was extended in other OAs also. Aggrieved by these orders the respondents approached Hon'ble High Court of Delhi challenging the interim orders of this Tribunal. Hon'ble High Court directed that Union of India shall implement the orders of the Tribunal but made it clear that the implementation of these orders will be subject to the final outcome of the decision of the Tribunal in the OAs".

xxx xxx xxx

We have heard counsel for the parties and have also perused the material on record. We have also seen the original record made available by the Department consisting of File Nos. C-13019/1/2011-Pts and A-12031/1/2008-Ptg. For adjudication of this case we have framed the following issues for our determination:-

(i) Whether the irregularities found in the recruitment process were such as to warrant scrapping of the examination?

(ii) Whether the respondents have applied their mind to come to the conclusion that scrapping of the examination was necessary or whether they have done so mechanically on the grounds that Hon'ble high Court has so ordered?

(iii) Whether those who had completed more than two years of service can be deemed to have been confirmed and whether their termination without even as much as issue of a show cause notice was in order.

This Tribunal, after considering the identical facts held in respect of first issue that "thus, we come to the conclusion that scrapping of the examination was necessary on account of the irregularities noticed". With regard to the second issue, it was held that "in our opinion, this decision has been taken after application of mind by the respondents and not mechanically on the ground that Hon'ble High Court of Delhi had so ordered. Thus, the respondents cannot be faulted on this account". With regard to the third issue, it was held as follows:-

"Thus, the position that emerges is that no straightjacket formula for deemed confirmation can be prescribed and the facts and service rules of each case have to be seen for deciding this issue. However, if the rules provide for maximum period of confirmation beyond which probation cannot be extended and if the officer concerned is continued beyond such period, then he will be deemed to have been confirmed.

In the instant case, we find that while the appointment letter stated that the probation period of the employee would be two years, it did not prescribe that the probation period under no circumstances can be extended beyond two years. Moreover, the applicant also could not show any applicable service rule which prescribed the maximum period of probation beyond which further extension was not possible. Under these circumstances, based on the above citations, we conclude that till an order of confirmation is issued by the respondents it will be presumed that the period of probation of the applicants was extended and that they continued to remain as probationers. The argument of the applicants' counsel that they be considered as deemed confirmed is not sustainable".

With regard to the last issue, it was held as under:-

"9. On the basis of above rulings the conclusion that can be drawn is that a probationer has no right to hold the post during the period of probation and therefore there is no requirement of following principles of natural justice while terminating his appointment provided termination has not been done on the grounds of misconduct. In the instant case, the termination orders have not been passed on account of alleged misconduct of any of the applicants. They have been passed on the grounds that the selection process through which they were appointed was itself vitiated and therefore their entry into service was not lawful. Therefore, in our opinion, there is no infirmity in the terminations orders as there was no requirement of issuing a show cause notice and giving an opportunity to the applicants to defend themselves. In fact in the instant case no defence by them would have been possible as they would not have been aware of the irregularities that had been brought in the CVOs report.

9.1 The applicant's counsel had also contended that while appointments were made in several other Presses action to terminate the appointments was taken only in three Presses, namely, Aligarh, Mayapuri and Nilokheri. We have perused original record of the department and we find that action has been taken in all the Presses in which inquiry was conducted by CVO and irregularities detected. There is nothing on record to show that complaints were received and inquiry conducted into appointments made in other places. As such, this cannot be a ground for allowing the relief asked for by the applicants.

On the basis of the above analysis, we are of the opinion that there is no infirmity in the action of the respondents. The entire selection process was vitiated on account of interviews conducted in a farcical manner. Therefore, the respondents were left with no option but to withhold the appointment letters of those who were awaiting their appointment after their selection. They were also right in terminating those who had been appointed and had been serving for different periods after such appointment. This action of the respondents was also as per the directions of Hon'ble High Court given in Writ Petition Nos. 4745/2011, 5962/2011 and 5825/2011 wherein they had ordered that those appointed and those who were yet to be appointed were to be treated in a similar manner after the respondents take a view on the report of the CVO.

We, therefore, dismiss all the OAs mentioned above. No costs".

On careful perusal of the Investigation Reports pertaining to

the Aligarh and Nilokheri Presses and with that of Faridabad Press, wherein the applicants in the instant batch of OAs were appointed, we agree with the submissions made by the learned counsel for the respondents that the only difference is that the Investigation Reports in respect of Aligarh and Nilokheri Presses were submitted in the year 2010 and in respect of Faridabad Press the report was submitted only in the year 2015.

When the respondents along with their original counter filed an undated, uncertified and unsigned Inspection Report, pertaining to Faridabad Press, they were directed to file a certified copy of the said report along with an additional affidavit. Accordingly, the respondents filed an additional affidavit and submitted that the report was submitted by the then Additional Secretary and Chief Vigilance Officer, Shri D. Diptivilasa and filed a certified copy of the same as certified by Shri M.P. Khadolia, Director (PSP), Government of India. The overall conclusions and the recommendations made through the said Report are as under:-

"Chapter V Overall Conclusions and Recommendations

5.1 The evident statutory violations/discrepancies are as under:-

Comments/conclusions on each of the significant complaints are as under:-

Sl. No.

Nature of complaint/category of post

Conclusions

1.

No. trade test conducted for copy holder.

Appears to be correct. No reason found in the minutes of the Board.

2.

Senior Apprentices not selected to the post of Asstt. Binder.

Appears to be correct. Subsequently, the panel had to be revised as per the orders of Delhi High Court in the WP No. 26/2009.

3.

Complaint against entire direct recruitment process.

This report explains the facts and findings.

4.

Irregularities in recruitment of Offset Machine Attendants.

The seniority in the Apprentice has not been prepared as required in the light of the judgment of Supreme Court in the case reported as 1995(2) SSC1 and reiterated in the WP No. 26/2009 wherein the seniority of Apprenticeship cannot be superseded. (Annexure-XI). The selection appears vitiated.

5.

No. Minority community candidate selected.

There is no reservation for Minorities. (amplified in Pty. & Binding)

6.

Sh. Darshan lal Hindi Translator, along with Manager, AM(A) of the Press has earned lakhs of rupees in the recruitment.

No evidence has been received by any authority to substantiate the allegations. However seeing the extent of irregularities, the presumption cannot be ruled out. The complaint being of criminal nature, the matter can be examined in detail by any investigating agency.

7.

31 posts of Assistant Binder have been filled up by taking amounting to Rupees 4 lakhs each by Sh. S.K. Jetly-Manager & Shri Sinha H.Q. office. Sh. Manzoor Ahmed-AM(T), Bharat Bhushan and Hazari Lal all workers collected rupees 80 lakhs and handed over to Shri S.K. Jetly and Shri Sinha.

No evidence has been received by any authority to substantiate the allegations. However seeing the extent of irregularities, the presumption cannot be ruled out. The complaint being of criminal nature, the matter can be examined in detail by any investigating agency.

8.

The medical examination has been received before offering appointment. Police verification was got done later. Sample verification report is at Annexure XII. On finding the report unsatisfactory, one of the candidates Mr. Rajendra Kumar Jat was terminated from the post of Offset Machine Assistant on 19.05.2009 (Annexure-XIII).

5.2 Selection of candidates:-

Post-wise consolidated recommendations along with recommendations by the Board are as under:-

Sl. No.

Name of the Post

No. of Posts Advertised

Selection Committee recommendation

Recommendation of the Enquiry

Category Wise

1.

Artist Retoucher

02 (UR)

02 (Not appointed)

Cancellation

2.

Asstt. Artist Retoucher

03 (UR), 2 OBC

3 (UR) appointed

Cancellation

3.

Senior Artist

01 (UR)

1 (UR) not appointed

Cancellation

4.

Junior Artist 0

01 (UR)

1 UR (appointed)

Cancellation

5.

Desk Top Publishing Operator

05 (UR), 02 OBC

1 UR (appointed)

Cancellation

6.

Welder

01 (UR)

1 UR (appointed)

Cancellation

7.

Carpenter

01 (UR)

1 UR (appointed)

Cancellation

8.

Offset Machine Man

08 (UR), 02 (SC), 05 OBC

2 UR, 1 OBC, 2 SC (4 appointed, 1 did not join) Total : 5

Cancellation

9.

Offset Machine Asstt.

09 (UR), 02 (SC) 01 (ST) 03 OBC

1UR, 2 SC, 1 ST (All appointed) Total: 4

Cancellation

10.

Offset Machine Attendant

02 (SC) 01(SC) 04 (OBC) 10 (UR)

8 UR, 5 OBC, 2 SC, 1 ST (All Appointed) Total: 16

Cancellation

11.

Mechanic (Printing & Binding)

02 (UR) 02 OBC

1 UR, 1 OBC (All appointed) Total : 2

No irregularities found

12.

Asstt. Mechanic (Ptg. & Binding

03 (UR) 01 (OBC)

2 UR (All appointed)

One appointment found irregular

13.

Copy Holder

03 (UR) 02 (OBC)

3 UR, 2 OBC, (All appointed) Total: 5

Cancellation

14.

Asstt. Binder

23 (UR), 01 (SC) 04 (ST) 17 OBC

19 UR, 13 OBC, 1 SC, 4 ST, Total: 37 (All appointed)

Cancellation

15.

Labourer

09 (UR) 07 (OBC) 02(ST

21 UR, 14 OBC, 3 ST, 1 SC Total: 39 (All appointed)

Cancellation

16.

Chowkidar

03 (UR) 03 (OBC)

7 UR, 3 OBC Total: 10 (All appointed))

Cancellation

17.

Peon

04 (UR) 01 (ST) 02 (OBC)

5 UR, 3 OBC, 1 ST Total: 9 (All appointed)

Cancellation

18.

Farash

02 (UR)

1 UR (appointed)

Cancellation

19.

Orderly (Nursing)

01 (UR)

1 UR (appointed)

Cancellation

20.

Safaiwala

04 (UR) 01 (ST) 03 (OBC)

5 UR, 1 ST, 3 OBC Total: 9 (All appointed)

Cancellation

21.

Asstt. Cook

01(UR)

1 UR (appointed)

Cancellation

22

Tea Make0072

01(UR)

1 UR (appointed)

Cancellation

23

Coupon Clerk

01(UR)

1 UR (appointed)

Cancellation

Total 153

Further from the Bio-data provided by the successful candidates to the Press it has been revealed that out of the 153 selected candidates, 59 candidates are related to the employees of the Government of India Press, Faridabad (Annexure-XV)

5.3 After the examination of the selection of the entire selection process, the following aspects have been noticed:-

(i) There are discrepancies in advertisement with reference to qualifications. Besides, the numbers of vacancies given in the advertisement were not firmed up in advance. Details of employees where discrepancies have been found in placed at Annexure XIV.

(ii) The Appointing Authority in some cases was no the appropriate one. The competent authority for appointments in Director (Printing) whereas Manager of the GIP appears to have taken the decision in some cases.

(iii) Selections to certain posts without consideration of laid down criteria have resulted in preparation of lists against Apprentice Act leading to litigation.

(iv) Wherever candidates in reserved category/categories have been selected for unreserved posts, relaxations have been permitted which appears to be against the instructions of DoP&T.

(v) The order in which appointments were recommended in some cases differs from rankings by the Selection Committee. Further, candidates who failed in trade tests have been recommended for appointment.

(vi) Despite a large number of applications, the criteria for rejection and identification of eligible candidates appears to be not objective or systematic.

(vii) 16 of the candidates in various categories who were overage, or short of experience or failed in trade test.

(viii) 59 candidates out of total 153 selected candidates are found to be relatives of mostly Press Employees of Faridabad. This is approximately 1/3rd of the persons appointed. This casts shadow of doubt on the entire process of selection.

Keeping in view large scale irregularities and lack of transparency it would be appropriate if detailed investigation is done by any specialized agency".

Basing on the said report, the respondents passed the impugned notices of termination.

The learned counsel appearing for the applicants strenuously pursued this Tribunal by submitting that the Investigation Reports in respect of Aligarh and Nilokheri Presses as well as Faridabad Press are different and hence, the common judgment in OA No.1554/2012 dated 19.03.2014 in Manjeet Sharma and Others Vs. Union of India and Others cannot be applied to the instant batch of OAs. However, we cannot accept the said submission, in view of the fact that the circumstances leading to the termination of the services of the applicants in the said batch as well as the applicants in the instant OAs are identical. Further, the issues raised in the instant batch of OAs are also identical to the issues raised and answered by this Tribunal in the said batch. It is also to be noted that most of the judgments on which both sides placed reliance before us, were already considered by this Tribunal in Manjeet Sharma and Others Vs. Union of India and Others, before dismissing the said batch of OAs. Moreover, the said decision in Manjeet Sharma and Others (supra) was already upheld by a detailed and reasoned order of the Hon'ble High Court of Delhi in W.P. ( C) No.1989/2014 dated 24.12.2014 (Annexure R-7). Even the SLPs filed by the Government of India Press Employees and their Unions were also dismissed on 19.01.2015 (Annexure R-8) and 24.10.2017 (Annexure R-9) as under:- 19.01.2015

"We find no merit in these special leave petitions and the same are dismissed.

However, appointment of any of the petitioner affected by the impugned order, when applies in future, pursuant to any advertisement, the Union of India shall consider age relaxation in their favour as provided under the law". 24.10.2017

"We find no merit in these special leave petitions and the same are dismissed.  However, appointment of any of the petitioners affected by the impugned order, when applies in future, pursuant to any advertisement, the Union of India shall consider age relaxation in their favour as provided under the law.  The applications for discharge of Advocate-on-Record are allowed.  As a sequel to the above, pending interlocutory applications, if any, stand disposed of".

In the circumstances and in view of our finding that the subject matter in the instant batch of OAs is squarely covered by a decision of a Co-ordinate Bench of this Tribunal in OA No. 1554/2012 and batch in Manjeet Sharma and Others (supra) dated 19.03.2014, the instant batch of OAs are also liable to be dismissed for parity of reasons.

In the circumstances and for the aforesaid reasons, all the OAs are dismissed in terms of the judgment in Manjeet Sharma and Others (supra) in O.A. No.1554/2012 and batch dated 19.03.2014 and as upheld by the orders of Hon'ble High Court and Hon'ble Supreme Court of India. No costs.

Let a copy of this order be placed in all the OA files.