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2003 DIGILAW 1357 (SC)

UNION OF INDIA v. NARENDRA NATH ROY CHOUDHURY

2003-10-29

body2003
ORDER 1. This appeal arises out of the judgment and order passed by the Central Administrative Tribunal, Calcutta Bench in OA No. 484 of 1994 preferred by the respondent. By means of the impugned order, the Central Administrative Tribunal gave a direction to the appellant Union of India to review the matter relating to imposition of ban on recruitment. Such a review was directed to be made within ten weeks from the date of communication of the order. In case it was found that the ban was not necessary to be continued, the respondent would be offered an appointment for the post for which he had applied and in case it is decided to continue the ban on recruitment, in that event, as soon as it is lifted, the respondent would be offered an appointment without considering the age bar. 2. We have heard learned counsel for the parties. 3. The brief facts are that an advertisement was published on 12-5-1984 for recruitment to the posts of Chargeman (Grade II) on probation. They were required in different disciplines, namely, mechanical, electrical, electronics, etc. The advertisement was for different ordnance factories all over India. In pursuance of the aforesaid advertisement, selection test was held sometime in July 1984 and it appears that later a select list was also prepared. The respondent happened to be one of those who are said to have been selected for appointment, the appellants have though submitted that the selection process had not yet completed. We, however, find that there hardly remained anything yet to be done in the process. In any case, the persons who were selected can be said to be only on the select list for appointment to the post of Chargeman (Grade II). This process seems to have completed sometime in .1986 but actual appointments were not being made. Hence, the respondent made representations to the authorities but of no avail. By letter dated 16-3-1990, the authorities informed the respondent that selection process could not be processed any further due to ban on recruitment. After receipt of that reply, it appears that the respondent took no steps except by filing an OA before the Central Administrative Tribunal in the year 1994. The said OA was disposed of with the directions as indicated in the preceding paragraph. 4. After receipt of that reply, it appears that the respondent took no steps except by filing an OA before the Central Administrative Tribunal in the year 1994. The said OA was disposed of with the directions as indicated in the preceding paragraph. 4. Learned counsel for the appellants submits that there is no justification for the Tribunal to have issued any direction for a review of the policy of ban on recruitment since it is a matter of policy to be solely considered administratively, and further that being on the select list itself does not confer any right on the selectee to be appointed; hence, legally no direction could be given to make appointment on the basis of the selection process executed in pursuance of the advertisement dated 12-5-1984. 5. The main ground on which the respondent based his case is that though plea of ban on recruitment has been taken by the appellants, but appointments on the post of Chargeman (Grade II) had been made during all this period ignoring the candidates from the select list prepared in pursuance of the selection held against the advertisement dated 12-5-1984. It has also been indicated that some Lower Division Clerks have also been appointed and in case it was correct that there was ban on recruitment, there was no occasion for the appellants to have made such appointments. So far as the appointments of LDCs are concerned, it has been indicated that those appointments had been made in pursuance of the directions issued in some other OA by the Central Administrative Tribunal. It is submitted that except complying with the directions issued by the Central Administrative Tribunal, no other appointments were made. 6. So as to be clear about the nature of the ban imposed, we had sought some information from the appellants as to whether the ban was complete or partial and if it was still continuing. The appellants were also required to inform the Court if some appointments on the post of Chargeman (Grade II) have been made during all this period. An affidavit has been filed accordingly. Along with the said affidavit (a copy of which has also been served upon the respondent on 4-9-2003), Annexure A-I has been filed which is Notification No. F.7(1)/E-Coord/84, Government of India, Ministry of Finance, dated 3-1-1984. An affidavit has been filed accordingly. Along with the said affidavit (a copy of which has also been served upon the respondent on 4-9-2003), Annexure A-I has been filed which is Notification No. F.7(1)/E-Coord/84, Government of India, Ministry of Finance, dated 3-1-1984. It appears that the Government of India has been considering the measures which could be taken for economy in the Central Government expenditure and in pursuance thereof the said notification was issued, sub-paragraphs (a) and (b) of which are reproduced hereunder: "(a) Except in the most exceptional circumstances, no new posts should be created for the next nine months i.e. up to 30-9-1984. (b) All existing agencies (vacancies) i.e. non-operational posts where recruitment action has not been taken should not be filled up for the same period. However, Ministries, etc. will have flexibility to readjust their existing staff in a manner as to avoid dislocation of work due to vacancies remaining unfilled." 7. The above notification clearly shows that no new posts were to be created and all existing vacancies relating to non-operational posts for which action had not been taken should not be filled up for the same period, namely, up to 30-9-1984. An exception also seems to have been provided for to create new posts and to make arrangement in the existing staff in a manner as to avoid dislocation of work due to vacancies remaining unfilled. The next document which has been filed is dated 13-1-1984 which indicates that the notification dated 3-1-1984 was applicable to both, namely, plan and non-plan posts. Thereafter, another notification dated 12-9-1984, on the subject, has been filed according to which except in most exceptional circumstances, no new posts were to be created for a further period of six months, that is, up to 31-3-1985. It further clarified that it was applicable to both plan and non-plan posts as well as operational and non-operational posts. It was further clarified that existing vacancies were also not to be filled up for the same period. Yet another notification dated 2-4-1985 has been filed along with the affidavit. It further clarified that it was applicable to both plan and non-plan posts as well as operational and non-operational posts. It was further clarified that existing vacancies were also not to be filled up for the same period. Yet another notification dated 2-4-1985 has been filed along with the affidavit. It refers to the notification dated 3-1-1984 and other notifications on the subject extending the ban and says that: "Having regard to the continued need for utmost economy in government expenditure, it has been decided that the above instructions should stand extended until further orders." On behalf of the appellant it is submitted that the same position is continuing, that is to say, that the restriction on recruitment still continues in terms of the notification dated 3-1-1984 and subsequent notifications of the subject. 8. Insofar as the ground taken regarding appointment to the post of Chargeman (Grade II) is concerned, a chart has been annexed along with the affidavit which shows that for the first time, five posts of Chargeman (Grade II) were filled up in the year 1995, 8 in the year 1996, 2 in the year 1997 and so on so forth, totalling 79 posts. The appointments are spread over the period from 1995 to 2003 i.e. in about eight years, and the first of such appointment was made in 1995, that is to say, 11 years after the advertisement and selection held in the case in hand and the last appointment after 19 years. It is submitted that the appointments have been made in ordnance factory so that the work may not be dislocated. It is further submitted that it was permissible to do so under the notification dated 3-1-1984. Learned counsel for the appellants has further submitted that due to retirement, etc., some experienced hands were needed to man the posts of Chargeman (Grade II). Therefore, need-based recruitment in different years was made recruiting only the experienced Chargemen. No fresh person without experience was directly recruited. It is submitted that over the years due to retirement or other reasons, experienced hands were necessary to be employed to keep the work going on in the ordnance factory. Hence such appointments had been made in Ishapore Ordnance Factory. Learned counsel for the appellants submits that no appointment of any fresher from the select list or otherwise has been made. Hence such appointments had been made in Ishapore Ordnance Factory. Learned counsel for the appellants submits that no appointment of any fresher from the select list or otherwise has been made. We find that the Tribunal has also recorded a finding that nothing was brought on the record to indicate that any appointments were made on the post of Chargeman (Grade II) on probation for which the applicant was a candidate. We do not find any element of mala fides or discrimination in making need-based appointment, spread over a span of eight years, as and when need arose in the interest of the work in the ordnance factory. That reasonable scope was rightly left open in the notification itself. We do not think the appellant acted beyond the scope of the latitude which was permissible under the notification dated 3-1-1984. Admittedly, no one has been appointed from amongst those said to be selected in 1986 in pursuance of the selection made against the advertisement of 1984. We find that the respondent has chosen not to file any affidavit-in-reply or refuting the averments made in the affidavit filed by the appellant, a copy of which had been served upon the respondent quite some time back. 9. We find no justification for the view taken by the Tribunal directing the Government to review the ban imposed on the recruitment even after having observed that it was imposed as a matter of policy. That being the position, namely, it being a matter of administrative policy for the State as to when and to what extent there would be restriction or ban on recruitment in larger public interest, no interference in the same is required to be made by the courts. There also does not seem to be any justification to say that whenever the ban is lifted, the respondent should be offered appointment excluding the ground of over age. As it appears from the material on record that the ban on the recruitment still continues, no such occasion has arisen to offer appointment to the respondent. However, we would like to observe that such a direction without any restriction of period would lead to unreasonable consequences as it may lead to issuance of appointment letter even though one may have attained the age of fifty years or so. The directions as issued by the Tribunal on the face of it are not sustainable. However, we would like to observe that such a direction without any restriction of period would lead to unreasonable consequences as it may lead to issuance of appointment letter even though one may have attained the age of fifty years or so. The directions as issued by the Tribunal on the face of it are not sustainable. 10. Learned counsel for the respondent has, however, pointed out that according to the appellants, the ban was imposed in January 1984, yet the appellants issued the advertisement in May 1984. Learned counsel for the appellants submits that it is obviously a mistake which was realised later as a result of which the further process in the matter was dropped. We feel that the authorities should have been more careful and should not have issued such an advertisement which gave some illusory hope to the aspirants/applicants, which, in view of the policy of the Government, could not be materialised. It further gave occasion for this litigation to come up to this Court and a period of about ten years has been spent by the respondent in courts alone. All this could have been avoided if proper care was taken and such an advertisement was not issued after imposition of ban on recruitment, which learned counsel for the appellants in his argument submitted was issued by mistake. In these peculiar circumstances, we feel that it would be appropriate to impose costs upon the appellants as for their mistake the respondent has certainly suffered this litigation up to this Court. 11. In the result, we allow the appeal and set aside the judgment and order passed by the Central Administrative Tribunal, but impose costs against the appellants, which we assess in a sum of Rs 10,000 (Rupees ten thousand only), to be paid by the appellants to the respondent. The costs shall be paid within a period of three months.