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Calcutta High Court · body

2013 DIGILAW 385 (CAL)

Tanuja Ghosh v. Chairman Board of Trustee

2013-06-28

SAMBUDDHA CHAKRABARTI

body2013
Judgment : The Court : Two senior Guide Lecturers of the Indian Museum have challenged the appointment of the respondentno.5 as the Officer on Special Duty (Education) and as a Member of the Project Implementation Team for the forthcoming Bicentenary Celebration of Indian Museum in 2014. It appears that the Acting Director of the Indian Museum had, on an application filed by the respondentno.5 who was a Programme Assistant of Centre for Archelogical Stuidies and Training, Eastern India, expressing his desire to work in the Education Department of the Museum on deputation basis, had written to the Joint Secretary, Ministry of Culture, Government of India as early as on April 5, 2010 that the Indian Museum was running with acute shortage of staff and most certainly without an Education Officer since July 2008 and expressed the difficulty of filling up the post for various reasons and the consequent difficulties that the Museum was facing. Considering the applicants’ educational qualification and working experience the Director was of the view that he was a very suitable candidate for working in the Education Department of the Museum and proposed to bring the respondentno.5 on deputation as an Officer on Special Duty (Education) on the terms and conditions as contained in the said letter. The Director had sought for approval of the proposal with a request to write a letter to the Member Secretary, CAST to release the respondent no.5 for a period of two years on deputation basis. By a letter dated April 26,2010 the Undersecretary to the Government of India, Ministry of Culture, conveyed the Ministry’s approval to the proposal to appoint the respondentno.5 in a certain scale of pay on deputation basis for two years or till the post is filled up on regular basis whichever was to be earlier subject to the conditions that the Museum would take necessary action in the matter under its Recruitment Rules. It further appears from the Office Order dated, September 12, 2011 that the respondent no.5 had joined the Indian Museum as an Officer on Special Duty (OSD, for short) and as a Member of the Project Implementation Team strictly on contractual basis for two years. The petitioners claiming themselves as duly qualified for the post of Education Officer have challenged the appointment of the respondent no.5 on various grounds. According to them the post was lying vacant for a very long time. The petitioners claiming themselves as duly qualified for the post of Education Officer have challenged the appointment of the respondent no.5 on various grounds. According to them the post was lying vacant for a very long time. But from April, 2010 they came to notice that the respondentno.5 had been inducted into the employment of the Museum without going through the regular recruitment process and without publishing any advertisement. According to them the respondent no.5 had in fact been appointed for a post which is basically the post of the Education Officer. In support of this contention they have referred to an Office Order dated January 9, 2012 issued by OSD and Project Manager of the Indian Museum which said that the respondent no.5 would be in overall charge in Education Section and would look after all educational activities of this section and exercise necessary control over the Education Department. This prompted the petitioners to file an application under the Right to Information Act and after the answers were received they made a representation pointing out the lacunae in the recruitment process. Mr. Majumdar, learned Advocate for the petitioners has submitted that the concerned post has been specified to be a Class I post and recruitment in the said post is to be made by the direct recruitment only by advertisement and through the Employment Exchange or both. This procedure having not been complied with the appointment of the respondent no.5 was bad in law. Over and above these the petitioners have also taken a point that the said respondent does not fit in the criteria of an Education Officer. The other grievance is that the respondents by this measure deprived the petitioners of the right to participate in the recruitment process. Thus they inter alia prayed for a writ in the nature of Mandamus commanding the respondent no.3 i.e. the Director, Indian Museum to forthwith quash and set aside the Office Order issued with regard to the employment of the respondentno.5, a writ in the nature of Mandamus commanding the respondent no.3 to issue appropriate advertisement publishing for vacant post in the newspapers to enable the bonafide applicants to apply for the same and a writ in the nature of Mandamus commanding the respondent no.3 to remove the respondentno.5 from the post of Education Officer or the post presently being held by him and for other reliefs. On behalf of the Museum authorities the Director has affirmed an affidavit. While denying the allegations of the petitioners he has referred to various provisions of the Indian Museum Recruitment Rules, 1977. According to him the post of the Education Officer is a single cadre post. As such there cannot be any reservation for a single cadre post. The petitioner no.1 did not have the requisite qualification for being appointed as an Education Officer and the petitioner no.2 had become overaged for the said post. The maximum age for appointment to the said post was 45 years and even with relaxation of maximum permissible limit of five years for departmental candidates as per the Government of India orders, she was not eligible for being appointed to the said post. Stand of the respondents is that the post of the Education Officer could not be filled up for a long time because of specific instructions issued by the Government on optimisation of direct recruitment according to which direct recruitment was strictly banned without specific clearance from the screening committee constituted by the Government. Since the respondent no.5 filed an application for consideration of his candidature for any post with his qualifications, experience etc., the Museum authorities found him to be suitable and eligible and made a reference to the Ministry for permission to appoint an OSD (Education) on deputation. The Central Government had accorded its approval to the appointment of the respondent no. 5. A most specific defence taken be the answering respondents is that he was selected keeping in view that he would also function as a member of the Project Implementation Team which had been constituted in connection with the Bicentenary Celebration of the Indian Museum to be held in 2014. The question that crops up for preliminary consideration in this case is whether the petitioners are competent to challenge the appointment of the respondent no. 5. If so, whether the respondents authorities by giving appointment to the respondent no. 5 have taken away any of the rights of the petitioners. Other issues that are to be considered in connection therewith arise out of these issues. The Museum authorities have taken a point that the petitioner no. 1 does not have the educational qualification and the petitioner no. 2 was overaged. The requisite age for appointment to the post of Education Officer is 45 years and the petitioner no. Other issues that are to be considered in connection therewith arise out of these issues. The Museum authorities have taken a point that the petitioner no. 1 does not have the educational qualification and the petitioner no. 2 was overaged. The requisite age for appointment to the post of Education Officer is 45 years and the petitioner no. 2 cannot be considered even with relaxation of maximum permissible limit of five years for departmental candidates for the post as she had become 53 years. Thus both of them were ineligible for the said post. In the affidavit-in-reply the petitioners have denied the specific allegation rather evasively. From the relevant extract of the Indian Museum Recruitment Rules, 1977 (the Rules, for short) it appears that the post of Education Officer has been mentioned in serial no. 25 for which the method of recruitment is selection and the maximum age for appointment is 45 years which is relaxable by the Board on the recommendations of the selection committee in the case of candidates already in employment. Mr. Majumdar has strenuously argued that if the post had been advertised the petitioner no. 2 could have applied and the appropriate authority could relax the age of appointment for the said post. It has also been argued that there have been precedents of relaxation of age limit by 5 years. But it cannot be lost sight of that in their affidavit-in-opposition the petitioner has not challenged the statement of the Museum authorities that the maximum permissible relaxation is up to five years. The relevant Government Orders relating to the relaxation of age in case of departmental employees which have been annexed to the affidavit also lends support to the respondents’ case. This disqualifies the petitioner no. 2 on the ground of age. Neither of the petitioners thus being eligible for the post of Education Officer the appointment of the respondent no. 5 cannot be questioned by them who are not fit to hold the said post. The writ petition is liable to be dismissed on this ground alone. The petitioners want that the post of Education Officer should be advertised and recruitment should be made according to the rules. The Museum authorities specifically submitted that the post of the Education Officer could not be filled up for a very long time because of certain administrative inconveniences. The writ petition is liable to be dismissed on this ground alone. The petitioners want that the post of Education Officer should be advertised and recruitment should be made according to the rules. The Museum authorities specifically submitted that the post of the Education Officer could not be filled up for a very long time because of certain administrative inconveniences. The proforma respondent made an application for consideration of his candidature for any post commensurate with his qualification and experience. The Museum authorities found him suitable for an appointment in the post of OSD (Education) on deputation for a period of 2 years. He was not even allowed the sanctioned Grade Pay for the post of Education Officer. This emergent act had become imperative in view of the forthcoming bicentenary celebration of the Museum and the petitioner was directed to function as a member of the Project Implementation Team. The Museum authorities submitted they had issued the advertisement for the concerned post but they were served with a notice of contempt by the petitioners in view of the interim order already granted. After receiving this notice they had withdrawn the said advertisement. The respondents had submitted that if the advertisement had not been withdrawn the post of the Education Officer would have been filled up by now. The respondents submitted that in the face of the threat of contempt they had to withdraw the advertisement. Thus the petitioners on the one hand would like to have the post filled up and at the same time if any step towards that is taken will oppose the same in view of the interim order passed in the matter. If the petitioners seriously wanted to have the post filled up they would never have made the respondents withdraw the advertisement. This is all the more a reason why this application should not be entertained and the same is dismissed. The other point the petitioner had raised is that the post concerned should be reserved for Scheduled Caste candidates according to the roster. This has been very seriously opposed by the Museum authorities alleging that a single cadre post is never reserved. For the present I need not enter into that aspect of the case. I have already held that the writ petition at the instance of the petitioner is not maintainable. The writ petition is thus dismissed. The interim order is vacated. This has been very seriously opposed by the Museum authorities alleging that a single cadre post is never reserved. For the present I need not enter into that aspect of the case. I have already held that the writ petition at the instance of the petitioner is not maintainable. The writ petition is thus dismissed. The interim order is vacated. There shall, however, no order as to costs. Urgent photostat certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities. Later: After the delivery of the judgment the petitioner has prayed for stay of the operation of the order. Since the writ petition has been dismissed there is no question of staying of the operation. The prayer is rejected.