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2003 DIGILAW 442 (JHR)

Deobrat Sahay v. Union Of India

2003-04-08

M.Y.EQBAL

body2003
JUDGMENT M.Y. Eqbal, J. 1. In this writ application the petitioner has challenged the office order dated 19-2-2003 issued under the signature of Chief General Manager (Personnel) Coal India Ltd. whereby the petitioner was intimated that the tenure of the petitioner as Director (Personel) Central Coalfield Ltd. has been terminated and he has been relieved from his duties as Director (Personnel) w.e.f. 10-2-2003. 2. The facts of the case lies in a narrow compass. The petitioner joined M/s. Central Mines Planning & Design Institute (in short-C.M.P.D.I.) as Deputy Chief Engineer (E & M) in the year 1990 and thereafter he was promoted to the post of Additional Chief Engineer in the year 1991. Thereafter he was promoted to the post of Chief General Manager CMPDL In the year 1996 the petitioner being one of the eligible candidates for appointment as Director was called for interview along with other eligible candidates. By office order dated 27.5.97 and 21.12.97 petitioner was appointed as Director (Personnel) on lien in M/s Eastern Coalfield Ltd. for a period of 5 years on the terms and conditions contained in the said order. It is contended by the petitioner that during the period the petitioner worked as a Director there was no complaint and therefore, he was again called for interview for extension of the period and since the tenure of the petitioner was to expire on 1st June 2002, the respondent Coal India Ltd. by office order dated 25-5-02 intimidated that the Joint Secretary to the Government of India Ministry of Coal & Mines, Department of Coal, New Delhi passed an order of status quo for a further period of six months. However, by another office order dated 26-7-02 it was intimated that the period of extension was only for three months and not six months. By another office order dated 16-9-02 the extension period of three months was again reduced to a period of one month beyond August 2002. The petitioner said to have shocked and surprised to receive the office order dated 18-11-02 whereby he was informed that since the tenure of the appointment of the petitioner as Director (Personel) was under consideration he will only look after the work relating to welfare and community development pending further communication. Finally pursuant to the impugned letter dated 19-2-03 the petitioner was informed that the Director, Govt. Finally pursuant to the impugned letter dated 19-2-03 the petitioner was informed that the Director, Govt. of India Ministry of Coal, New Delhi relieved the petitioner from the post of Director with immediate effect. In the supplementary affidavit the petitioner stated that he completed 5 years in the post of Director (Personnel) on 1st June 2002 and as such beyond the said date followed by extension upto 19-1-03 he has lost his lien to his original post of Chief General Manager and as such now the petitioner cannot be reverted back to the said post and he was entitled to continue as Director. 3. A counter affidavit has been filed by respondent Nos. 1 to 5 namely the Ministry of Coal Mines. Department of Coal, Govt of India, wherein it is stated that admittedly the petitioner was appointed on a tenure post as Director on contract basis for a period of five years which expired on 1-6-02 and thereafter he was allowed to continue on ad hoc basis only upto 30-9-02 and ultimately he was relieved from the said post. It is stated that in view of the instructions of Department of Personnel and Training contained in OM No. 27 (II)-EO/86 (ACC), dated 19/21st May 1986, appointment to board level post in Central Public Enterprises are made for a period of five years or till the date of superannuation which ever is earlier on contract basis containing a provision that either party will have the option to terminate the services prematurely after giving three months notice. It is further stated that the appointment of the petitioner on contract basis is to be governed by the Articles of Association of the Central Coalfield Ltd, particularly Article 34(1)(A) and 34(E). The respondents further case is that the question of extension/nonextension of tenure of the petitioner beyond 1-6-02 was considered by the Central Govt. in terms of prescribed instructions in consultation with the Public Enterprises Selection Board . The PSEB conducted joint appraisal on the performance of the petitioner on 29-10-01 and had recommended for extension of tenure of the petitioner. However, in the meanwhile, the Ministry received several complaints against the petitioner. Thereafter the complaints were examined in consultation with the Chief Vigilance Officer of the respective Coal Companies and sent to CVC for their advice in the matter. However, in the meanwhile, the Ministry received several complaints against the petitioner. Thereafter the complaints were examined in consultation with the Chief Vigilance Officer of the respective Coal Companies and sent to CVC for their advice in the matter. Since there were several complaints and taking a decision was likely to take considerable time, therefore, the petitioner was allowed to continue on adhoc basis with the approval of the competent authority. Against two complaints CVC recommended for initiation of departmental proceedings other than censure. However, when the adverse comments on the conduct of the petitioner came to the notice of Govt. of India, it transpired that the conduct of the petitioner was under cloud and suspicion, the therefore it was not expedient to recommend extension of his tenure as Director (Personnel) CCL. Accordingly a proposal was sent to the Department of Personnel and Training for non-extension of tenure of the petitioner for consideration of ACC and also ex-post facto regularization of tenure of the petitioner as Director (Personnel) CCL w.e.f. 1-10-02 till non extention of his tenure. 4. Mr. M.L. Verma, learned senior counsel appearing for the petitioner assailed the impugned order as being illegal, arbitrary, malafide and based on based on extraneous consideration. Learned counsel firstly submitted that the petitioner completed 5 years in the post of Director (Personnel) on 1st June, 2002 followed by extension upto 19-1-03. The petitioner has lost his lien to his original post of Chief General Manager and as such now the petitioner cannot be reverted back to the said post and he is entitled to the extension of his tenure. Learned counsel submitted that when the process of extention in the post of Director (Personnel) initiated, the petitioner being considered suitable for extension, required information of the petitioners performance was called from the CMD, CCL and detailed information in the prescribed proforma for extension of the petitioner positive report was made in every respect along with the recommendation by CMD, CCL for his extension. It was reported that the petitioners performance has been outstanding and he is officer of high integrity. It is the petitioner who introduced a special female Voluntary Retirement Scheme and he reduced the loss of production and improved industrial relation and discipline. It was reported that the petitioners performance has been outstanding and he is officer of high integrity. It is the petitioner who introduced a special female Voluntary Retirement Scheme and he reduced the loss of production and improved industrial relation and discipline. Learned counsel submitted that on 22-10-01 interview letter was issued to the petitioner for the extension of the period which unequivocally goes to suggest that till that date the petitioner was found eligible and competent in all respect and his performance report was further examined by the Ministry and PESB and recommendation was sent for extension for further period of 5 years. According to the learned counsel inspite of such facts not extending the petitioners services in the post of Director (Personnel) amounts to arbitrariness on the part of the respondents and the action of the respondents failed the test of reasonableness and equality and thus violative of Article 14 of the Constitution of India. Learned counsel contended that impugned order is punitive, stigmatic and visits the petitioner with evil and civil consequences. Such action is bad in law for want of compliance of principle of natural justice. Learned counsel drawn my attention to Annexure 14 which is directives contained in the letter dated 21.11.96 issued by Public Enterprises Selection Board (PESB) regarding the process of extension and non-extension tenure of full time Board level employees in the public sector undertakings and submitted that according to this guidelines joint appraisal is to be made by the PESB as well as the concerned administrative Ministry/Ministry of Coal and not by PESB alone. According to the learned counsel the respondents have deliberately suppressed the said letter and did not follow the guidelines. Mr. Verma learned senior counsel then submitted that it is only in the case of appointment vigilance clearance is required and not for the extension of the period of Board level services. In the alternative, learned counsel submitted that CVC is merely an advisory body whose recommendation are not the last word and it is the disciplinary authority, in case any departmental proceeding is Initiated, which has not been done in the case of the petitioner. 5. In the alternative, learned counsel submitted that CVC is merely an advisory body whose recommendation are not the last word and it is the disciplinary authority, in case any departmental proceeding is Initiated, which has not been done in the case of the petitioner. 5. On the point of discrimination learned counsel submitted that there are various Directors in different department under the Ministry of Coal who have been awarded minor penalties or even served with memorandum of charges but have been appointed as Board level employees and are still working, as such under the Ministry of Coal to the full knowledge of the respondents. Learned counsel lastly submitted that in fairness the term of petitioner should have been extended as Director (Personnel) for another 5 years. Decision on the recommendation of CVC regarding initiation or non initiation of departmental proceeding should have been taken only after the petitioner would have had the opportunity to defend himself. Learned counsel contended that in similar circumstances despite the initiation of departmental proceeding and imposition of minor punishment one Mr. S.A. Yusuf was allowed to continue as Director (Personnel), Western Coalfields Ltd. In this connection learned counsel relied upon two decisions of the Supreme Court in the case of State Bank of India and Ors. v. D.C. Agrawal and Anr., AIR 1993 SC 1197 in the case of Nagraj Shivarao Karjaji v. Syndicate Bank, Head office, Manipal and Anr., 1991 (3) SCC 219 . 6. Mr. Verma, learned counsel lastly contended that the decision of the respondents is illegal, arbitrary and violative of Article 14 of the Constitution of India and put reliance on the decision of the Supreme Court in the case of Kumari Shrilekha Vidyarthi and Ors., v. State of U.P. and Ors. reported in 1991 (1) SCC 212 and in the case of Style (Dress Land) v. Union Territory Chandigarh and Anr. reported in AIR 1999 SC 3678 . Learned counsel also advanced his submissions on the theory of legitimate expectation and promissory estoppel and relied upon the decision of the Supreme Court in the case of Food Corporation of India v. Kamdhenu Cattle Feed Industries reported in 1993 (1) SCC 71 and in the case of Pawan Alloys and Casting Pvt. Ltd Meerut v. U.P. State Electricity Board and Ors. reported in 1997 (7) SCC 251 . 7. On the other hand, Mr. P.K. Roy, learned Sr. reported in 1997 (7) SCC 251 . 7. On the other hand, Mr. P.K. Roy, learned Sr. counsel appearing for the respondents firstly contended that the petitioner was appointed on contract basis and after expiry of the tenure he has no legal right to get the contract of service renewed. Learned counsel submitted that the post of Director is not promotional post rather it is an appointment made on open advertisement for a fixed period subject to certain terms and conditions. Mr. Roy submitted that Coal India Limited and P.S.E.B. had cleared the case of the petitioner for extention but it is because of CVC objection, extension was refused. Learned counsel submitted that CVC recommended for initiating a departmental proceeding against the petitioner and the C.B.I. is investigating the matter because of several complaints made against the petitioner. Learned counsel submitted that none of the guidelines or instructions issued by the Ministry of Coal, Govt. of India says that CVC clearance is not required for extension of the tenure of the Director. It is contended that the appointment to Board Level post in all Central Public Enterprises is made on the recommendations of the Public Enterprises Selection Board (PESB) with the approval of the appointment committee of the Cabinet, Even the recommendations of the PESB are not binding on the ACC which has the discretion either to accept or to reject the recommendations made by PESB. Learned counsel submitted that when the adverse comments on the conduct of the petitioner came to the notice of the Govt. of India and it transpired that the conduct of the petitioner was under cloud and suspicion, therefore, it was not expedient to recommend extension of his tenure as Director (Personnel) CCL. Learned counsel submitted that the action of the respondents is neither illegal, arbitrary or discriminatory nor violative of Article 14 of the Constitution of India. According to the learned counsel the entire procedure was followed for considering the case of the petitioner for extension and it reached upto the stage of CVC clearance but because of the complaints made against the petitioner and the integrity was found doubtful, the CVC did not give clearance, rather recommended for initiating a proceeding against the petitioner. Mr. According to the learned counsel the entire procedure was followed for considering the case of the petitioner for extension and it reached upto the stage of CVC clearance but because of the complaints made against the petitioner and the integrity was found doubtful, the CVC did not give clearance, rather recommended for initiating a proceeding against the petitioner. Mr. Roy contended that in any view of the matter the petitioner cannot claim extension as a matter of right and even assuming that there is some Illegality in giving extension to other Board level person, that illegality or discretion cannot be perpetuated. In this connection learned counsel relied upon the decision of the Supreme Court in the case of Dr L.P. Agar-wal v. Union of India others, (1992) 3 SCC 526 , in the case of Dr. L.M. Nath v. Dr, S.K. Kacker and Ors., (1997) 3 SCC 321 . 8. Before dealing with the contentions canvassed it would be useful to notice the settled principles of law laid down by the Supreme Court relating to tenure post. In the case of L.P. Agrawal v. Union of India and Ors. reported in 1992 (3) SCC 526 the question that arose for consideration before the Supreme Court was whether the incumbent for the post of Director, All India Institute of Medical Science can be prematurely retired before completion of his tenure. In other words, whether the service law concept of premature retirement in public interest is applicable to a tenure post filled by way of direct recruitment. Their lordships held as follows : "We have given our thoughtful consideration to the reasoning and the conclusions reached by the High Court. We are not inclined to agree with the same. Under the Recruitment rules the post of Director of the AIIMS is a tenure post. The said rules further provide the method of direct recruitment for filling the post. These service conditions make the post of Director a tenure post and as such the question of superannuating or prematurely retiring the incumbent of the said post dies not arise. The age of 62 years provided under proviso to Regulation 30 (2) of the Regulations only shows that no employee of the AIIMS can be given extension beyond that age. This has obviously been done for maintaining efficiency in the Institute service. The age of 62 years provided under proviso to Regulation 30 (2) of the Regulations only shows that no employee of the AIIMS can be given extension beyond that age. This has obviously been done for maintaining efficiency in the Institute service. We do not agree that simply because the appointment order of the appellant mentions that he is appointed for a period of five years or till he attains the age of 62 years, the appointment ceases to be to a tenure post. Even an outsider (not an existing employee of the AIIMS) can be selected and appointed to the post of Director. Can such person be retired prematurely curtailing his tenure of five years ? Obviously not. The appointment of the appellant was on a five years tenure but it could be curtailed in the event of his attaining the age of 62 years before completing the said tenure. The High Court failed to appreciate, the simple alphabet of the service jurisprudence. The High Courts reasoning is against the clear and unambiguous language of the Recruitment rules. The said rules provide tenure of five years inclusive of one year probation and the post is to be filled by direct recruitment. Tenure means a term during which an office is held. It is a condition of holding the office. Once a person is appointed to a tenure post, his appointment to the said office begins when he joins and it comes to an end on the completion of the tenure unless curtailed on justifiable grounds. Such a person does not superannuate, he only goes out of the office on completion of his tenure. The question of prematurely retiring him does not arise. The appointment order gave a clear tenure to the appellant. The High Court fell into error in reading "the concept of superannuation" in the said order. Concept of superannuation which is well understood in the service jurisprudence is alien to tenure appointments which have a fixed life span. The appellant could not, therefore, have been prematurely retired and that too without being put on any notice whatsoever. The High Court fell into error in reading "the concept of superannuation" in the said order. Concept of superannuation which is well understood in the service jurisprudence is alien to tenure appointments which have a fixed life span. The appellant could not, therefore, have been prematurely retired and that too without being put on any notice whatsoever. Under what circumstance can an appointment for a tenure be cut short is not a matter which requires our immediate consideration in this case because the order impugned before the High Court concerned itself only with premature retirement and the High Court also dealt with that aspect of the matter only. This Courts judgment in Dr. Bool Chand v. Chancellor Kurukshetra University relied upon by the High Court is not on the point involved in this case. In that case the tenure of Dr. Bool Chand was curtailed as he was found unfit to continue as Vice Chancellor having regard to his antecedents which were not disclosed by him at the time of his appointment as Vice Chancellor. Similarly the judgment in Dr. D.C. Saxena v. State of Haryana has no relevance to the facts of this case." 9. In the case of Dr. L.M, Nathv. S.K. Kacker and others reported in 1996 (1) SCC, 229 a similar question arose for consideration before the Supreme Court. The facts of the case was that the respondent Dr. S.K. Kacker was appointed as Director of All India Institute of Medical Science for a term of five years. His term as Director stood expired on 14.10.1995. The Chief of the Institute decided to select a Director as per the procedure. At that time the request for reappointment of Dr. Kacker also came up for consideration. It was decided that no extension as Director could be made and instead his ease was also considered along with others for fresh appointment as Dire.c-tor. The President of the Institution exercising powers under Rule 7(4) of the All India Institute of Medical Science Rules appointed the petitioner, L.M. Nath as Director of the Institute Since in the writ petition filed by Dr. Kacker interim order was passed for his continuance as Director. Dr. L.M. Nath moved the High Court by filing a writ petition. While deciding the dispute their lordships observed as under. Kacker interim order was passed for his continuance as Director. Dr. L.M. Nath moved the High Court by filing a writ petition. While deciding the dispute their lordships observed as under. "We heard elaborate arguments on merits addressed by the learned counsel for the appellant as well as the contesting first respondent, only to satisfy our conscience, whether Division Bench of the High Court was justified at that stage, to interfere with the order. Giving our anxious consideration to the contentions, we think that the High Court was not at all justified in its interference. It is seen that the order of appointment of Dr. Kacker as the Director, came to an end in the after noon of 14.10.1995 since admittedly it is a tenure post. Unless there is an order specially extending his tenure, he has no right to continue thereafter. The Court cannot exercise the power of the authorities under Rule 7(4) except when it deems legal to consider them to be so exercised for the reasons given in the order. After 14.10.1995 the first respondent cannot continue as Director unless he is appointed under Rule 17(4) which empowers the President or Institute Body to make an interim arrangement till a regular Director appointed or for six months." 10. In the case of S.K. Kackar v. All India Institute of Medical Science, 1996 (10) SCC 734 the question that emerged for consideration was whether on the expiry of five years tenure as Director, he would be entitled to go back as professor of ENT department till he attains the age of superannuation. The post of Director in AIIMS is selective post to be filed by competition in open market. Their lordships following the judgment of Dr. L.P. Agrawals case observed as follows. "It would indicate that on appointment to a permanent post, be it under the Central Government or the State Government, outside the cadre on which he is borne, his lien on the previous permanent post stands terminated on his acquiring a lien in a permanent post. The post of Director is the Head of AIIMS and it is independent of all the departments. The Director is enjoined to supervise not only the administrative work of the AIIMS, but also its management for and on behalf of the Institute Body. The post of Director is the Head of AIIMS and it is independent of all the departments. The Director is enjoined to supervise not only the administrative work of the AIIMS, but also its management for and on behalf of the Institute Body. Therefore, on his appointment to the permanent post as a Director, he lost his lien on the post as a professor and head of the ENT department. Resultantly, when the tenure of the appellant had expired on by efflux of time or in case any of the eventualities mentioned in Regulation 30-A had happened, he cannot revert to the post of professor and Head of the department." 11. Recently in the case of State Bank of India v. E.K. Andrew and Anr. reported in 2002 (9) SCC 724, the fact of the case was that the respondent E.K. Andrew was the permanent employee of the Bank of Cochin and while serving as D.G.M., was appointed as Chairman of the Bank initially for two years and later for three more years. While continuing as such he was removed from the post of Chairman pursuant to a proceeding initiated by the Reserve Bank of India on the basis of cer tain charges. But the High Court set aside the entire proceeding. In the meantime the Bank of Cochin amalgamated with the State Bank of India. The respondent then approached the High Court with a prayer that he is entitled to be held as an employee of the Bank of Cochin on the date the Bank stood amalgamated with the State Bank of India and, therefore, he is entitled to be posted against the post of D.G.M. under the S.B.I. The S.B.I. as well as the R.B.I. resisted the claim of the respondent. While deciding the question their lordships considered the case of S.K. Kacker (supra) and held as follows : "Mr, Mohan, the learned Sr. counsel appearing for the Bank, strenuously contended before us that the very fact that the respondent was appointed as Chairman under the approval of RBI ipso facto would indicate that he did not retain any lien against his substantive post of Deputy General Manager and, therefore, the High Court erred in law in issuing impugned direction. counsel appearing for the Bank, strenuously contended before us that the very fact that the respondent was appointed as Chairman under the approval of RBI ipso facto would indicate that he did not retain any lien against his substantive post of Deputy General Manager and, therefore, the High Court erred in law in issuing impugned direction. In support of this contention the learned counsel placed reliance on a decision of this Court in the case of S.K. Kacker (Dr.) v. All India Institute of Medical Science. In the said case, the question for consideration was whether a professor of AIIMS after being appointed as Director could be entitled to revert back to the post of professor on the post of Director being terminated. This court, on examining the relevant provisions under which the service conditions of employees of AIIMS are governed and the relevant order, came to conclusion that it would not be open for him to go back to the parent post of professor. But the said decision will have no application to the case in hand where; neither the order of appointment as Chairman, nor the provisions of the Banking Resolution Act nor any rules of Bank of Cochin hold that there is an automatic cessation from the substantive post of the employee the moment he is appointed as Chairman though for a fixed tenure. In the absence of any specific provision to that effect, it is difficult to sustain the contention of Mr. Mohan appearing for the Bank that there would be an automatic cessation of his service as D.G.M. the moment the respondent was appointed as Chairman for a fixed tenure. Mr. Mohan further contended that even under the scheme of amalgamation, the respondent would not be entitled to get the job in question as it would depend upon the very scheme itself. But this contention does not appear to have urged ether before the learned single Judge or before the Division Bench and, therefore, we are not persuaded to examine the correctness of the said submission and decide anything on that score." 12. But this contention does not appear to have urged ether before the learned single Judge or before the Division Bench and, therefore, we are not persuaded to examine the correctness of the said submission and decide anything on that score." 12. In the light of the settled proposition of law laid down by the Supreme Court now I shall examine the case of the petitioner as to whether as a matter of right he can claim extension of his services on the post of Director (Personnel) on the expiry of the tenure of five years. 13 Annexure 1 is a copy of letter dated 27-5-97 whereby the petitioner was informed about his appointment on the post of Director (Personnel) in Eastern Coalfields Limited. The letter reads as under : "In pursuance of Articles of Association of the Eastern Coalfields Limited, Sanctoria, I am directed to convey the approval of the President to the appointment of Shri D. Sahay as Director (Personnel) in the Eastern Coalfields Limited, Sanctoria in Schedule C scale of pay of Rs. 10,000-400-12,000 (revised), for a period of five years or until further orders which ever is earlier, from the date he takes over charge of the post of Director (Personnel) in E.C.L. The appointment of Shri D. Sahay as Director (Personnel) is made on contract basis and the Govt. will have the option to terminate his service with three months notice or with three months pay in lien thereof. Detailed terms and conditions of his appointment will be issued in due course of time." 14. By another letter dated 21-12-97 the petitioner was informed about the terms and conditions of his appointment as Director (Personnel). In the said letter it was mentioned that the period of his appointment was for five years at the first instance or till the age of superannuation which ever is earlier and in accordance with the provisions of the Companies Act, the appointment was liable to be terminated even during this period by either side on three months notice or on payment of three months salary in lieu thereof. Few days before the expiry of tenure of five years the Coal India Limited issued office order dated 25-5-02 to the effect that the extention of tenure of the petitioner as Director (Personnel) CCL beyond 1-6-02 for another five years period is under consideration of the Government. Few days before the expiry of tenure of five years the Coal India Limited issued office order dated 25-5-02 to the effect that the extention of tenure of the petitioner as Director (Personnel) CCL beyond 1-6-02 for another five years period is under consideration of the Government. It was therefore, directed to maintain status quo for a period of six months or until further orders. Subsequently in super- cession of the aforesaid letter dated 25-5-02 the Director, Ministry of Coal, Govt. of India, New Delhi communicated that status quo may be maintained for a further period of three months beyond 1-6-02 or until further orders. By another office order dated 28-8-02 the Director, Ministry of Coal communicated that extension of tenure of the petitioner for another five years period is under consideration of the Govt. and therefore status quo may be maintained for a period of three month beyond 31-8-02 or until further orders. By another office order dated 16th September, 2002 in super-cession of the earlier order dated 28-9-02 the period of status quo was reduced to one months beyond 21-8-02. Another office order dated 18th November, 2002 was issued by the Chief Personnel Manager, CCL to the effect that pending further communication for the Ministry of Coal the petitioner will look after the work relating to welfare and community development and all other jobs hitherto being looked after by Director (Personnel) CCL will be discharged by the CMD, CCL, until further orders. Finally the impugned order dated 19th February, 2003 was issued whereby non- extension of the tenure of the petitioner as Director (Personnel) was conveyed and he was relieved from his duties as Director (Personnel) CCL w.e.f. 19-2-03. The impugned office order dated 19th February 2003 (Annexure 9) is reproduced here in below. COAL INDIA LIMITED COAL BHAVAN 10 N.S. ROAD, KOLKATA-700001 No. CIL/C-5A(ii)Dir/DS/114 Dated February 19, 2003 ORDER In pursuance of letter No. 21/12/97-ASO, dated 19-02-2003 from Director Government of India, Ministry of Coal, New Delhi and in continuation of Ministrys letter No 21/16/96- ASO, dated 27th May, 1997 and in pursuance of Articles of Association of Central Coalfields Ltd. ex-post facto approval of the President to the extension of tenure of Shri. D. Sahay, Director (Personnel) CCL, Ranchi for a further period from 1-10-2002 to 19-2-2003 on the existing terms and conditions is hereby conveyed. Approval of the President is also conveyed to non- extension of tenure of Sri. D. Sahay as Director (Personnel) Central Coalfields Limited, Ranchi with immediate effect. Sri Sahay is hereby relieved from his duties as Director (Personnel) Central Coalfields Limited, Ranchi with effect from 19-2-2003 (A/N). B.N. Jha Chief General Manager (Personel) 15. Admittedly before appointment as Director (Personnel) the petitioner was holding the post of Chief General Manager, Central Mine, Planning and Design Institute Ltd. and his appointment as Director was on lien in M/s. Central Coal Field Ltd. The tenure of five years was to expire on 1st June, 2002. since his extension on the post of Director (Personnel) was under consideration, he was allowed to continue for a few months and, thereafter, he was relieved from the said post because extension was not finally granted. Since admittedly it is a tenure post, unless there is an order specially extending his tenure, he has no right to continue in the said post, thereafter. As a matter of right the petitioner cannot claim extension of his tenure on the post Director (Personnel). It has not been disputed by the petitioner that appointment on the post of Chairman, Executives and Directors are made in accordance with the provisions of Articles of Association which provides that the Chairman shall be appointed by the President and all other members of the Board of Directors including the Vice-Chairman shall be appointed by the President in consultation with the Chairman of the Company. In other words, appointment on the post of Director in the coal company are made by the President of India in exercise of powers and authority derived from Articles of Association read with Article 310(2) of the Constitution of India. It appears that the question of extension /non-extension of the tenure of the petitioner beyond 1st June, 2002 was considered by the Central Govt. in terms of the prescribed instruction in consultation with the Public Enterprises Selection Board. The PESB conducted a joint appraisal on the conduct and performance of the petitioner and recommended for extension of tenure but the CVC, on the ground of several complaints received against the petitioner, did not give clearance, rather, recommended for initiation of a departmental proceeding. Consequently the Govt. of India, Ministry of Coal, decided for non-extention of the tenure of the petitioner as Director (Personnel). 16. Consequently the Govt. of India, Ministry of Coal, decided for non-extention of the tenure of the petitioner as Director (Personnel). 16. From perusal of the office memorandum dated 29.7.88 issued by the Govt. of India, Ministry of Personnel, it appears that in all appointments in the Board level post, vigilance clearance is necessary to be ascertained from the Central Vigilance Commission. It is not correct to say, as Mr. Verma submitted, that for extension on the Board level post CVC clearance is not required. In this regard it is also useful to quote the letter issued by the Cabinet Secretary, New Delhi to the Secretary department of coal vide memo dated 9.1.90 which reads as under. "as you are aware, appointments listed in the annexure to the 1st schedule to the Govt. of India (Transaction of Business) Rule, 1961, as amended from time to time, require the approval of the ACC before they are actually made by the Ministries/departments concerned. In this context, the Prime Minister has directed that the Ministries/departments concerned should ensure that officials/persons whose appointments are proposed for consideration of the ACC are of absolute integrity and are clear from Vigilance angel as well. In case, it comes to notice that the official person concerned was under a cloud after appointment has actually been made, the responsibility for the lapse will be of the Secretary of the Ministry/department concerned. The aforesaid instruction may be noted for strict compliance and acknowledge." 17. As noticed above, the appointment of the petitioner was on a five years tenure but it could be curtailed in the event of attaining the age of superannuation before completing the said tenure. Once a person is appointed to tenure post his appointment to the said office begins when he joins and it comes to an end on the completion of tenure. Unless there is an order specially extending his tenure, he has no right to continue thereafter. This Court exercising jurisdiction under Article 226 and 227 of the Constitution of India can not issue mandamus directing the respondents to extend the period for another five years nor the Court can issue declaration that as a matter of right petitioners tenure as Director (Personnel) is liable to be extended or the petitioner as a matter of right is entitled to the extension of the tenure as Director (Personnel) for a further period of five years. 18. 18. As regard, the application of promissory estoppel and legitimate expectation is concerned. I am of the view that in a tenure post removal of the employee on the said post without giving extension does not amount to arbitrariness in exercise of power. Their Lordship of the Supreme Court in the case of Food Corporation of India v. Kamdhenu Cattle Feed Industries, (1993) 1 SCC 71 observed : "The mere reasonable or legitimate expectation of a citizen, in such a situation, may not by itself be a distinct enforceable right, but failure to consider and give due weight to it may render the decision arbitrary and this is how the requirement of due consideration of a legitimate expectation forms part of the principle of non arbitrariness, a necessary concomitant of the rule of law. Every legitimate expectation is relevant factor requiring due consideration in a fair decision making process. Whether the expectation of the claimant is reasonable or legitimate in the context is a question of fact in each case. Whenever the question arises, it is to be determined not according to the claimants perception but in larger public interest wherein other more important consideration may out way what would otherwise have been the legitimate expectation of the claimant. A bonafide decision of the public authority reached in this manner would satisfy the requirement of non arbitrariness and withstand judicial scrutiny. The doctrine of legitimate expectation gets assimilated in the rule of law and operates in our legal system in this manner and to this extent." 19. It is hot a case where the case of the petitioner was not taken into consideration for giving extension, rather, as noticed above, with all fairness the case of the petitioner was cleared by Coal India Ltd. and PSEB and it reached up to the stage of CVC clearance. At that stage the integrity of the petitioner was found doubtful because of several complaints made against him and the CVC, instead of giving clearance, recommended for initiating a proceeding against the petitioner. The action of the respondents, therefore, cannot be said to be malafide. 20. Although the petitioner tried to make out a case of discrimination on the ground that in similar circumstance Mr. G.K. Choudhary and Mr. Sethia were given extension on the post of Director and also one Mr. The action of the respondents, therefore, cannot be said to be malafide. 20. Although the petitioner tried to make out a case of discrimination on the ground that in similar circumstance Mr. G.K. Choudhary and Mr. Sethia were given extension on the post of Director and also one Mr. S.N. Yusuf was given extension despite pendency of inquiry but nowhere it has been pleaded by the petitioner that these persons were given extension in their tenure post without obtaining CVC clearance. On the contrary it is the specific case of the respondents that in cases of extension of tenure in the Board level post, of all persons including Mr. G.K. Choudhary, Mr. Sethia and Mr. S.N. Yusuf CVC clearance were not withheld. In that view of the matter it cannot be held that the action of the respondents is discriminatory. 21. Now, the question that consequently arises for consideration is whether the petitioner would be entitled to continue on the post which he was holding prior to his appointment on lien on a tenure post. 22. It is well known that lien, in service law connotes the right of a public servant to hold the post substantively to which he is appointed. Existence of such lien and the incidents thereof are dependent on the service rules or terms and conditions by which public servant is governed. Generally when a person with a lien against a post is appointed substantively to another post, he acquires a Hen against the later post and lien against his previous post automatically disappears. But if the rules provides to the contrary, a public servant holding substantively a permanent post retains a lien on that post during the period provided in the rule. There are circumstances where the lien of a government servant is suspended on a permanent post which he holds substantively on his appointment on a tenure post in a substantive capacity. 23. There are circumstances where the lien of a government servant is suspended on a permanent post which he holds substantively on his appointment on a tenure post in a substantive capacity. 23. Admittedly before appointment as Director (Personnel) in Western Coalfields Ltd. on substantive post the petitioner was holding a substantive post of Chief General Manager in Central Mine Planning and Design Institute Ltd. There is no dispute that all these Central Coalfields Ltd. Western Coalfields Ltd., Eastern Coalfields Ltd., Central Mine Planning and Design Institute Ltd. are the subsidiary companies of Coal India Ltd. Both in the capacity of Chief General Manager and Director (Personnel), petitioner was in the service of the Coal India Ltd. There is nothing in the letter of appointment or in the terms and conditions annexed therewith which expressly provides that after the expiry of the period of five years, petitioner shall cease to be the employee of the subsidiary company of Coal India Ltd. In the impugned order dated 19.2.2003 whereby extension of the tenure was not approved, it is directed that the petitioner is relieved from his duties as Director (Personnel) Central Coalfields Ltd. Ranchi. The respondents have not shown any rule or service conditions whereby, in the event of non-extension of tenure, petitioner shall ceases to be the employee of the Coal India Ltd. In any circumstance, petitioner can not and shall not be deemed to have been removed from the service of the subsidiary company before attaining the age of superannuation only because the tenure of service as Director expired. In that view of the matter, in my considered opinion, petitioner is entitled to continue as Chief General Manager of the subsidiary company of Coal India Ltd. 24. In the case of T.R. Sharma v. Prithvi Singh and Ors., (1976) 1 SCC 226 , the effect of the failure of the competent authority to suspend lien under the rule of acquisition of substantive post in another department came for consideration before the Supreme Court, Their lordships held : "The learned Judges constituting majority of the Full Bench in holding that the appellants lien on the post of Agricultural Inspector had stood terminated relied upon Rule 3.12. Perusal of the above rule shows that normally a government servant on substantive appointment to any permanent post acquires a lien on that post and ceases to hold any lien previously acquired on the other post. The opening words of the above, however, show that it would apply unless it be otherwise provided in the rules. Rule 3.14 (a) (2) carves out an exception to the general rule contained in Rule 3.12. According to Rule 3.14 (a) (2), a competent authority shall suspend the lien of a government servant on a permanent post which he holds substantively if he is appointed in a substantive capacity to a permanent post outside the cadre on which he is borne. When the appellant was appointed as Block Development and Panchayat Officer in a substantive permanent capacity, his case squarely fell within the ambit of Rule 3.14 (a) (2) as the post of Block Development and Panchayat Officer was outside the cadre of Agricultural Inspector to which the appellant belonged. In the circumstance, it was imperative for the competent authority to suspend the lien of the appellant on the permanent post of Agriculture Inspector which he had held substantively. The competent authority, however, failed to suspend the lien of the appellant on the post of Agricultural Inspector. The appellant plainly cannot suffer because of such in action or omission on the part of the competent authority. A reading of the rule leaves no doubt that a duty is cast upon the competent authority to suspend the lien of a government servant on a permanent post which he holds substantively if he is appointed in a substantive capacity to a permanent post outside the cadre on which he is borne. The imperative nature of the rule is also clear from the use of the word "shall" in Clause (a) as against the use of the word "may" in Clause (b) of that rule. The appellant in our opinion, cannot be penalized because of the omission of the competent authority to act in accordance with mandatory provisions of Rule 3.14 (a) (2). Clause (b) of Rule 3.15 also makes it clear that in a case covered by Sub-clause (2) of Clause (a) of Rule 3.14, the suspended lien of the government servant concerned may not, except on the written request of that government servant, be terminated while he remains in government service. Clause (b) of Rule 3.15 also makes it clear that in a case covered by Sub-clause (2) of Clause (a) of Rule 3.14, the suspended lien of the government servant concerned may not, except on the written request of that government servant, be terminated while he remains in government service. The note to Rule 3.15 shows a way out in case any difficulty is experienced on account of the operation of Rule 3.14 (a) (2). It is nobodys case that any written request was made by the appellant for terminating his suspended lien on the post of Agricultural Inspector. As such, we find it difficult to uphold the finding of the majority of the learned judges that the lien of the appellant on the post of Agricultural Inspector had stood terminated. In our opinion, the third Judge who was in the minority took a correct view of the matter when he observed that the Government servant is not to be penalized and cannot be deprived of the safeguards provided by Rule 3.14 because of the fact the competent authority had not taken the necessary steps. 25. Similar question came for consideration before a Division bench of Delhi High Court in the case Basant Lal Wadhwa v. Union of India, (1996) 3 SLR 39 , the Court observed that if an employee appointed in substantive post in subsidiary company his appointment or transfer or give charge to higher company in the holding company, in such circumstances which shows that his lien on the post in the subsidiary company continued, then termination of his appointment in holding company would not effect his lien in the subsidiary and he would continue in substantive post in the subsidiary company. 26. Taking into consideration the entire facts and circumstances of the case and the law discussed hereinabove, in my considered opinion, for the reasons aforesaid, the impugned order cannot be held to be illegal, arbitrary, mala fide, discriminatory or violative of principle of natural justice and the same needs no interference by this court. However, I hold that the petitioner is entitled to continue in the post of Chief General Manager which he was holding prior to his appointment as Director (Personnel). The respondents are directed to issue office order forthwith latest by 15th April, 2003 posting the petitioner as Chief General Manager in the respondent-company. 27. However, I hold that the petitioner is entitled to continue in the post of Chief General Manager which he was holding prior to his appointment as Director (Personnel). The respondents are directed to issue office order forthwith latest by 15th April, 2003 posting the petitioner as Chief General Manager in the respondent-company. 27. With the aforesaid observations/ directions this writ application stands disposed of.