Union of India & Ors. Vs. Kishorilal Bablani
EmailAppeal: Civil Appeal No. 1328 of 1995
(From the Judgment and Order dated 6-9-94 of the Central Adminis-trative Tribunal at Bombay in T.A. No. 11 of 1992)
(From the Judgment and Order dated 6-9-94 of the Central Adminis-trative Tribunal at Bombay in T.A. No. 11 of 1992)
Petitioner: Union of India & Ors.
Respondent: Kishorilal Bablani
Apeal: Civil Appeal No. 1328 of 1995
(From the Judgment and Order dated 6-9-94 of the Central Adminis-trative Tribunal at Bombay in T.A. No. 11 of 1992)
(From the Judgment and Order dated 6-9-94 of the Central Adminis-trative Tribunal at Bombay in T.A. No. 11 of 1992)
Judges: MRS. SUJATA V. MANOHAR & MR. G.B. PATTANAIK, JJ.
Date of Judgment: Dec 03, 1998
Appearances:
Mr. Anoop G. Choudhary, Senior Advocate (Mr. Hemant Sharma) Ad-vocate for Mr. V.K. Verma, Advocate with him for the Appellants.
Mr. G.D. Gupta and Mr. S.R. Setia, Advocates for the Respondent.
Mr. Pankaj Kalra and Mr. Vijay Kumar, Advocates for Intervenor.
Mr. G.D. Gupta and Mr. S.R. Setia, Advocates for the Respondent.
Mr. Pankaj Kalra and Mr. Vijay Kumar, Advocates for Intervenor.
Head Note:
SERVICE AND LABOUR LAW
Constitution
Article 136 – Appointments – Candidate qualifying in IAS and Allied services – Appointment made in class II services in cus-toms against 40 vacancies – Vacancies not correctly notified – Tribunal ordering Respondent’s appointment in class I services – Appeal – Long lapse of time – Candidate already granted relief pursuant to orders of Tribunal.Held that orders of Tribunals are upheld as total vacancies had to be notified including permanent and long term temporary vacancies, since benefit has been availed it is not fair to disallow or with draw : However, after such long time no such benefit to be granted to any other person as that would disturb the whole functioning.
Held:
As per the Recruitment Rules pertaining to this Department, there is a quota of 50% for direct recruits and 50% for promotees. The vacancies which have to be considered for applying the quota of 50% for direct recruits, are not just permanent vacancies but also temporary vacancies of long term duration. However, by mistake, upto the year 1990, only permanent vacancies which were available to direct recruits on the basis of 50% quota were notified. Memorandum issued by the Central Board of Revenue dated 20-4-1953 in which the procedure for confirmation, promotion, reversion, retrenchment etc. in grades which are filled partly by direct recruits and partly by promotions, has been laid down. This memorandum clearly mentions that in filling up the permanent vacancies and long term vacancies and vacancies which though temporary in the first instance, are likely to be a long term or permanent vacancies, for example, posts sanctioned for specified periods likely to be renewed, the proportion fixed for direct recruits and promoted officers should be rigidly maintained. The same position is maintained in Office Memorandum dated 8-6-1967 issued by the Ministry of Home Affairs. The appellants, there-fore, were required to notify not just permanent vacancies but also temporary vacancies of a long term duration and to determine the total number of vacancies available for direct recruits for their 50% quota accordingly. (Held – A1 & A2 Para 4)
Delay defeats equity is a well known principle of jurisprudence. Delays of 15 and 20 years cannot be overlooked when an applicant before the Court seeks equity. It is quite clear that the applic-ants for all these years had no legal right to any particular post.(B – Para 6)
JUDGEMENT:
ORDER
1. The respondent appeared in the I.A.S. and Allied Services examination in the year 1974. He passed that examination and was placed at S.No. 221 in Category III. Candidates upto S.No. 198 were accommodated in Class I service on the basis of the avail-able vacancies. Since the respondent was at S.No. 221, he was accommodated in Class II service in the Customs Department.
2. With effect from 10-11-1976, he was working as Customs Appraiser (Class II) in the Bombay Customs House. In 1983, the respondent made a representation to the effect that in 1974, when the Department of Customs and Excise has notified available vacancies to be filled in by the candidates who qualified at the I.A.S. and Allied Services examination,the number of vacancies was wrongly intimated. Initially, this Department had intimated 35 vacancies to be so filled in for Class I posts. This figure was finally revised to 40 vacancies. According to the respondent, 97 vacancies should have been so notified in Class I posts in 1974 and not 40. Had the vacancies been correctly notified, he would have been appointed to Class I post in this Department in 1974. The representation which was made in 1983 was rejected on 23-9-1985.
3. Thereafter the respondent filed a writ petition before the Bombay High Court, being writ Petition No. 1933 of 1985 which was transferred to the Bombay Bench of the Central Administrative Tribunal. The Tribunal, by its judgment and order dt. 6-9-94, has allowed the application of the respondent. The present appeal is filed from the said judgment and order of the Tribunal.
4. The appellants have conceded that as per the Recruitment Rules pertaining to this Department, there is a quota of 50% for direct recruits and 50% for promotees. The vacancies which have to be considered for applying the quota of 50% for direct re-cruits, are not just permanent vacancies but also temporary vacancies of long term duration. However, by mistake, upto the year 1990, only permanent vacancies which were available to direct recruits on the basis of 50% quota were notified. The position has been rectified from the year 1990. The appellants also accept that had temporary vacancies of long duration been taken into account in 1974, 97 vacancies should have been noti-fied. The Tribunal has, in this connection, rightly referred to a memorandum issued by the Central Board of Revenue dated 20-4-1953 in which the procedure for confirmation, promotion, reversion, retrenchment etc. in grades which are filled partly by direct recruits and partly by promotions, has been laid down. This memorandum clearly mentions that in filling up the permanent vacancies and long term vacancies and vacancies which though temporary in the first instance, are likely to be a long term or permanent vacancies, for example, posts sanctioned for specified periods likely to be renewed, the proportion fixed for direct recruits and promoted officers should be rigidly maintained. Temporary vacancies like leave vacancies may, however, be filled by promotion of departmental members irrespective of the quota fixed for them. The same position is maintained in Office Memo-randum dated 8-6-1967 issued by the Ministry of Home Affairs which specifies, “All clear vacancies arising in a post/grade/service due to death, retirement, resignation, promo-tion of incumbents from one post to higher post/grade, including deputation for a period exceeding 3 years, and vacancies arising from creation of temporary posts which are likely to be made permanent or continued on a long term basis should be filled according to the provisions of the recruitment rules and brought on to the recruitment roster. The appellants, therefore, were required to notify not just permanent vacancies but also tempo-rary vacancies of a long term duration and to determine the total number of vacancies available for direct recruits for their 50% quota accordingly.
5. The Tribunal has, therefore, given a direction to the ap-pellants to consider the appointment of the respondent after adjusting the vacancies in strict compliance of 50:50 quota system between direct recruits and the promotee for the posts of Assistant Collector of Customs/ Central Excise existing when the results of the UPSC examination of 1974 were announced. If the vacancies are found to be large enough, he may be allotted the notional position and seniority along with other entrants who were appointed on the basis of 1974 examination. However, this relief will not entitle the respondent to benefits of pay and allowances of the post of Assistant Collector against which he had worked till his promotion to that grade.
6. The appellants submitted before us with some justification, that in a writ petition which was filed in the year 1985, ap-pointments which were made as far back as in the year 1974, ought not to have been disturbed. If a similar relief is to be granted to all those who were in the merit list of 1974 of I.A.S. and Allied Services examination and who were placed in Class II posts because of wrong notification of vacancies in the year 1974, there would be a complete disruption in the postings and posi-tions of persons appointed as far back as in the year 1974 who are now ocnot exceed five years and will be renewable for further periods as may be decided by the University.”
Clause 11 deals with terms of appointment of the Profes-sor. It says that the Professor would be subject to all the rules and regulations of the University as any other Professor in the University etc.
5. Soon after creation of this Endowment by the SBI, the Utkal University advertised the post on 18.5.87. Clause 10 of the advertisement, upon whose interpretation the entire case de-pends, reads as follows:
“C6clause 10: Essential Qualifications:
(a)Professor: An eminent scholar with prescribed work of high quality, actively engaged in research.
about ten years experience of teaching and/or research and experience of guiding research at doctoral level
OR
An outstanding scholar with established reputation who has made significant contribution to knowledge.
(b) Professor: SBI Chair(same as Professor)
(c)……………………………….”
6. For the post of Professor(SBI Chair), 14 candidates applied, 13 candidates were called for interview and 8 of them appeared at the interview. The appellant and the 5th respondent were among them. The appellant’s application is dated 30.6.1987. The Selection Committee’s proceedings dated 29.12.1989 stated that
“Taking into consideration the academic record, teaching experience, research activities, teaching experience of the candidates and their performance at the interview, the Com-mittee recommends in order of preference:-
(i) Dr. Kumar Bar Das
(ii) Dr.(Mrs.) Bedabati Mohanty.”
In other words, the appellant was placed at No.1 while the 5th respondent was placed at No.2.
7. Thereafter, the Syndicate of the University approved the same on 2.2.1990 and directed appointment of the appellant. Consequently the appellant was appointed as Professor(SBI Chair) on 3.2.1990. The appellant gave his joining report on 10.4.1990.
8. Thereafter, it appears that the 5th respondent filed a representation before the Chancellor of the University in Febru-ary, 1990 stating that the appellant was not eligible to be considered for the post of Professor as he had only 7 years and 7 months of teaching experience on the date of his application though the required period was 10 years. On that, a show-cause notice was issued in April, 1990 by the Chancellor to the appell-ant stating that on a “preliminary enquiry and on scrutiny of direct recruits.
9. In the premises, the civil appeal is dismissed.
1. The respondent appeared in the I.A.S. and Allied Services examination in the year 1974. He passed that examination and was placed at S.No. 221 in Category III. Candidates upto S.No. 198 were accommodated in Class I service on the basis of the avail-able vacancies. Since the respondent was at S.No. 221, he was accommodated in Class II service in the Customs Department.
2. With effect from 10-11-1976, he was working as Customs Appraiser (Class II) in the Bombay Customs House. In 1983, the respondent made a representation to the effect that in 1974, when the Department of Customs and Excise has notified available vacancies to be filled in by the candidates who qualified at the I.A.S. and Allied Services examination,the number of vacancies was wrongly intimated. Initially, this Department had intimated 35 vacancies to be so filled in for Class I posts. This figure was finally revised to 40 vacancies. According to the respondent, 97 vacancies should have been so notified in Class I posts in 1974 and not 40. Had the vacancies been correctly notified, he would have been appointed to Class I post in this Department in 1974. The representation which was made in 1983 was rejected on 23-9-1985.
3. Thereafter the respondent filed a writ petition before the Bombay High Court, being writ Petition No. 1933 of 1985 which was transferred to the Bombay Bench of the Central Administrative Tribunal. The Tribunal, by its judgment and order dt. 6-9-94, has allowed the application of the respondent. The present appeal is filed from the said judgment and order of the Tribunal.
4. The appellants have conceded that as per the Recruitment Rules pertaining to this Department, there is a quota of 50% for direct recruits and 50% for promotees. The vacancies which have to be considered for applying the quota of 50% for direct re-cruits, are not just permanent vacancies but also temporary vacancies of long term duration. However, by mistake, upto the year 1990, only permanent vacancies which were available to direct recruits on the basis of 50% quota were notified. The position has been rectified from the year 1990. The appellants also accept that had temporary vacancies of long duration been taken into account in 1974, 97 vacancies should have been noti-fied. The Tribunal has, in this connection, rightly referred to a memorandum issued by the Central Board of Revenue dated 20-4-1953 in which the procedure for confirmation, promotion, reversion, retrenchment etc. in grades which are filled partly by direct recruits and partly by promotions, has been laid down. This memorandum clearly mentions that in filling up the permanent vacancies and long term vacancies and vacancies which though temporary in the first instance, are likely to be a long term or permanent vacancies, for example, posts sanctioned for specified periods likely to be renewed, the proportion fixed for direct recruits and promoted officers should be rigidly maintained. Temporary vacancies like leave vacancies may, however, be filled by promotion of departmental members irrespective of the quota fixed for them. The same position is maintained in Office Memo-randum dated 8-6-1967 issued by the Ministry of Home Affairs which specifies, “All clear vacancies arising in a post/grade/service due to death, retirement, resignation, promo-tion of incumbents from one post to higher post/grade, including deputation for a period exceeding 3 years, and vacancies arising from creation of temporary posts which are likely to be made permanent or continued on a long term basis should be filled according to the provisions of the recruitment rules and brought on to the recruitment roster. The appellants, therefore, were required to notify not just permanent vacancies but also tempo-rary vacancies of a long term duration and to determine the total number of vacancies available for direct recruits for their 50% quota accordingly.
5. The Tribunal has, therefore, given a direction to the ap-pellants to consider the appointment of the respondent after adjusting the vacancies in strict compliance of 50:50 quota system between direct recruits and the promotee for the posts of Assistant Collector of Customs/ Central Excise existing when the results of the UPSC examination of 1974 were announced. If the vacancies are found to be large enough, he may be allotted the notional position and seniority along with other entrants who were appointed on the basis of 1974 examination. However, this relief will not entitle the respondent to benefits of pay and allowances of the post of Assistant Collector against which he had worked till his promotion to that grade.
6. The appellants submitted before us with some justification, that in a writ petition which was filed in the year 1985, ap-pointments which were made as far back as in the year 1974, ought not to have been disturbed. If a similar relief is to be granted to all those who were in the merit list of 1974 of I.A.S. and Allied Services examination and who were placed in Class II posts because of wrong notification of vacancies in the year 1974, there would be a complete disruption in the postings and posi-tions of persons appointed as far back as in the year 1974 who are now ocnot exceed five years and will be renewable for further periods as may be decided by the University.”
Clause 11 deals with terms of appointment of the Profes-sor. It says that the Professor would be subject to all the rules and regulations of the University as any other Professor in the University etc.
5. Soon after creation of this Endowment by the SBI, the Utkal University advertised the post on 18.5.87. Clause 10 of the advertisement, upon whose interpretation the entire case de-pends, reads as follows:
“C6clause 10: Essential Qualifications:
(a)Professor: An eminent scholar with prescribed work of high quality, actively engaged in research.
about ten years experience of teaching and/or research and experience of guiding research at doctoral level
OR
An outstanding scholar with established reputation who has made significant contribution to knowledge.
(b) Professor: SBI Chair(same as Professor)
(c)……………………………….”
6. For the post of Professor(SBI Chair), 14 candidates applied, 13 candidates were called for interview and 8 of them appeared at the interview. The appellant and the 5th respondent were among them. The appellant’s application is dated 30.6.1987. The Selection Committee’s proceedings dated 29.12.1989 stated that
“Taking into consideration the academic record, teaching experience, research activities, teaching experience of the candidates and their performance at the interview, the Com-mittee recommends in order of preference:-
(i) Dr. Kumar Bar Das
(ii) Dr.(Mrs.) Bedabati Mohanty.”
In other words, the appellant was placed at No.1 while the 5th respondent was placed at No.2.
7. Thereafter, the Syndicate of the University approved the same on 2.2.1990 and directed appointment of the appellant. Consequently the appellant was appointed as Professor(SBI Chair) on 3.2.1990. The appellant gave his joining report on 10.4.1990.
8. Thereafter, it appears that the 5th respondent filed a representation before the Chancellor of the University in Febru-ary, 1990 stating that the appellant was not eligible to be considered for the post of Professor as he had only 7 years and 7 months of teaching experience on the date of his application though the required period was 10 years. On that, a show-cause notice was issued in April, 1990 by the Chancellor to the appell-ant stating that on a “preliminary enquiry and on scrutiny of direct recruits.
9. In the premises, the civil appeal is dismissed.
