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Tripura High Court · body

2016 DIGILAW 89 (TRI)

Arjun Kumar Dey v. Union of India

2016-03-31

S.TALAPATRA

body2016
ORDER : By means of this petition the petitioner who is an Assistant Professor of Tripura Institute of Technology, TIT in short, has urged this court to set aside the advertisement dated 15.05.2015, Annexure-P/1 to the writ petition and the recruitment process carried out in terms of the said advertisement. Further the petitioner has urged this court to prohibit the respondents from filling up the post of Registrar in terms of the Recruitment Rules, Annexure-P/3 to the writ petition as the said Recruitment Rules are not enforceable in terms of the Section 34(3) of the National Institute of Technology Act, 2007. 2. The facts are mostly admitted. By the employment notification dated 15.05.2015, the Director of National Institute of Technology invited applications for recruitment of Registrar in the NIT, Agartala. In the said employment notification it has been noted that essential qualifications and experience would be as per Uniform Recruitment Rules for non-faculty employees of NIT issued by the MHRD. 3. The petitioner has admitted that pursuant to the said employment notification he has submitted an application for the post of Registrar of NIT on 30.06.2015. The petitioner has further asserted that by the letter bearing No.F.33-2/2012-TS.III dated 05.02.2014, the Recruitment Rules were circulated for the post of Registrar under the NITs. In terms of the said Recruitment Rules, Annexure-P/3 to the writ petition the petitioner has admitted that the respondents have issued the impugned employment notification dated 05.02.2014. The said Recruitment Rules according to the petitioner are not enforceable as Section 25 of the NIT Act, 2007 provides that the classification, method of appointment and determination of terms and conditions of service of Teachers and other staffs of the institute shall only be provided by the statute. Section 25(4) of the said Act postulates that a new statute or amendment or repeal of the existing statute shall have no force unless it is assented by the visitor. Though it is mandatory to obtain the assent of the visitor in respect of new statute or an amendment of the statute or repeal of an existing statute, according to the petitioner, the framing of the Recruitment Rules by the respondents has been done in contravention of Section 25(g) of the NIT Act. Moreover, no assent of the visitor i.e. the President of India has been obtained for enforcing the Recruitment Rules as stated. Moreover, no assent of the visitor i.e. the President of India has been obtained for enforcing the Recruitment Rules as stated. Hence, the said Recruitment Rules, as of now, has no authority in the eye of law. The petitioner has referred to a decision of Allahabad High Court in Union of India & Ors. vs. Teachers Association of MINNIT, Allahabad & Anr. The said judgment dated 30.04.2015 was delivered in WA No.51603 of 2014 etc. where Allahabad High Court has inter alia observed as under: “Once the statutory provisions, provide for an act to be done and performed in particular manner, then the said act has to be performed accordingly, in the manner prescribed by the authority vested with the power to act under the statutory provisions. Here every new statue or addition to the statute or any amendment or repeal of statute requires prior approval of the Visitor, who may grant assent or withhold assent or remit to the Board for consideration. There is a mandate provided for that new statute or statute amending or repealing an existing statute shall have no validity unless it has been assented by the Visitor. Once law lays down the procedure and also provides for that a new statute or statute amending or repealing an existing statute shall have no validity, then taking assent of the Visitor is part and parcel of Statute making process, and until and unless said exercise is not under taken, the statute will have to be accepted and treated as incomplete. There appears to be a purpose for taking assent of visitor, as here the visitor is no one else but the President of India as per Section 9 of the Act and Visitor is not an ornamental head, rather under Sub-Section 2 of Section 9, the visitor may appoint one or more persons to review the work and progress of Institute and to hold enquiries thereof and to report in such manner as Visitor may direct. Sub-Section 3 of Section 9 empowers the visitor, upon receipt of report to take such action as he considers necessary in respect of matter dealt with in report and Institutes are duty bound to comply with the same. Sub-Section 3 of Section 9 empowers the visitor, upon receipt of report to take such action as he considers necessary in respect of matter dealt with in report and Institutes are duty bound to comply with the same. Visitor is not a rubber stamp when he receives the Statute (Amended; New; Additional) for his consideration, he holds a unique position as visitor is free to withhold assent and even remit the same for reconsideration. The so called 'Rules' have to be introduced through statutory forum i.e. by incorporating the same and making the same as part of the Statute and admittedly the same has not been done. In view of this, as far as policy decision is concerned, framing of policy decision is in the domain of the expert body i.e. the Council but its implementation certainly, has to take place as per the statutory provisions that holds the field and in the present case, once the policy decision is in reference to the subject that falls within the domain of the statutes, then such policy decision has to be incorporated in the statute as per the provision for amending, altering and adding statutes i.e by taking assent from the visitor and mere ratification of the same by the board will not be sufficient. In view of the above, till the said policy decision is not made part of the statute and assent is not taken by the visitor, the same cannot be enforced. In view of this, future action based on said Rules be kept on hold till said Rules are not made part of the Statute. Any action that has already been taken in the past and already attained finality, in no way would be effected by our judgment.'' [Emphasis added] 4. The said decision of Allahabad High Court, according to the petitioner, is clearly applicable in respect of the Recruitment Rules of the NIT, Agartala. The petitioner has also referred to the provisions of Section 34(2) of the NIT Act. The petitioner has further asserted that the rule making power shall be exercised for the subjects enumerated in Section 34(2)(b) of the said Act. As the Recruitment Rules was not assented by the visitor, neither was it laid in the Parliament, the said Recruitment Rules cannot be given effect. The petitioner has further asserted that the rule making power shall be exercised for the subjects enumerated in Section 34(2)(b) of the said Act. As the Recruitment Rules was not assented by the visitor, neither was it laid in the Parliament, the said Recruitment Rules cannot be given effect. Moreover, the advertisement should have been issued by the Registrar of the NIT in terms of clause 23(11) of the first statute which provides that when the post is filled up by an advertisement the Registrar shall issue the same clearly providing the terms and conditions relevant for recruitment. The screening committee constituted for the purpose of selection, shall screen the candidates who applied within the specified terms in the advertisement or the statute or the recruitment rules. 5. The respondents have squarely refuted the said contention of the petitioner by filing the counter-affidavit. The respondents have not only defended their action enforcing the Recruitment Rules but also defended the procedure that they had followed in framing the Recruitment Rules. That apart, it has been urged by the respondents that since the petitioner has submitted the application after going through the content of the advertisement, he is estopped to raise objection against the validity of the Recruitment Rules or the advertisement. 6. In response to the judgment of Allahabad High Court the respondents have stated that Union of India has already challenged that judgment of Allahabad High Court by filing a Special Leave Petition(Civil) No. 6465 of 2015 and the same is now in the seison of the Supreme Court. According to the respondents Section 32(2)(b) of the NIT Act, 2007 provides as under: “to lay down policy regarding cadres, methods of recruitment and conditions of service of employees, Institutions of Scholarships and freeships, levying of fee and other matters of common interest.” 7. Recruitment Rules have been approved by the 3rd meeting of the NIT Council held on 18.11.2011. Recruitment Rules were so framed on taking consideration of Dr. Sarangi Committee report on recruitment of faculty and non-faculty members. Recruitment Rules have been approved by the 3rd meeting of the NIT Council held on 18.11.2011. Recruitment Rules were so framed on taking consideration of Dr. Sarangi Committee report on recruitment of faculty and non-faculty members. The respondents have further submitted that the Board of Governors(BOG) of NIT Agartala, had adopted the said Recruitment Rules for non-teaching officers in its 29th meeting held on 27.02.2014 in terms of Section 13(1) of the NIT Act, 2007 which provides as under: “Subject to the provisions of this Act, the Board of every Institute shall be responsible for the general superintendence, direction and control of the affairs of the Institute and shall exercise all the power of the Institute not otherwise provided for by the Act, the Statutes and the Ordinance, and shall have the power to review the acts of the Senate.” 8. The power as delegated specifically by the Section 32(2)(b) of the NIT Act has been exercised for framing Recruitment Rules. According to them there is no irregularity and there is no application of the Section 26(3)(4) of the NIT Act nor is there any application in Section 34(3) of the NIT Act. The contention of the petitioner cannot be accepted and the decision of Allahabad High Court may not be taken in view of the fact that the Supreme Court is in seison to reconsider the proposition of Allahabad High Court. 9. Mr. A. Bhowmik, learned counsel appearing for the petitioner has strenuously submitted that Allahabad High Court has lucidly expoused the proposition of law in terms of the NIT Act and there cannot be any difference of opinion in this regard. However, he has admitted that there is no provision in the statute of the NIT regarding the recruitment of the Registrar. He has submitted that recruitment of the Registrar falls in the domain of statute in terms of Section 25 of the NIT Act. Clause-g of Section 25 of the NIT Act deals with classification, the method of appointment and determination of terms and condition of service of teachers and other staffs. He has submitted that recruitment of the Registrar falls in the domain of statute in terms of Section 25 of the NIT Act. Clause-g of Section 25 of the NIT Act deals with classification, the method of appointment and determination of terms and condition of service of teachers and other staffs. Thus, there cannot be any action without making out or laying down classification and the method of appointment or determining or incorporating the terms and condition for the post of Registrar in the first Statute by way of amendment or by enacting the new statute or making addition to the statute or repealing any part of the statute for such act. The assent of the Visitor is mandatory in terms of Section 26(3) and (4) of the NIT Act. It has been categorically provided that unless the assent has been obtained, the said amendment or addition would not be valid for enforcement. Mr. Bhowmik, learned counsel has stated that it is a straight away case and as such, this court will have no difficulty in holding that the Recruitment Rules cannot be enforced without incorporating the same by way of amendment or otherwise as stated or without the assent of the President or before laying in the Parliament. 10. From the other side, Mr. B. Majumder, learned CGC has relied on a decision of the apex court in Madras Institute of Development Studies and Another vs. Dr. K. Sivasubramaniyan and Others etc., in the judgment dated 20.08.2015 delivered in Civil Appeal No. 6465 of 2015 etc. where the apex court has held as under: “20. The question as to whether a person who consciously takes part in the process of selection can turn around and question the method of selection is no longer res integra. 21. In Dr. G. Sarana vs. University of Lucknow & Ors., (1976) 3 SCC 585 , a similar question came for consideration 10 Page 11 before a three Judges Bench of this Court where the fact was that the petitioner had applied to the post of Professor of Athropology in the University of Lucknow. After having appeared before the Selection Committee but on his failure to get appointed, the petitioner rushed to the High Court pleading bias against him of the three experts in the Selection Committee consisting of five members. He also alleged doubt in the constitution of the Committee. After having appeared before the Selection Committee but on his failure to get appointed, the petitioner rushed to the High Court pleading bias against him of the three experts in the Selection Committee consisting of five members. He also alleged doubt in the constitution of the Committee. Rejecting the contention, the Court held:- “15. We do not, however, consider it necessary in the present case to go into the question of the reasonableness of bias or real likelihood of bias as despite the fact that the appellant knew all the relevant facts, he did not before appearing for the interview or at the time of the interview raise even his little finger against the constitution of the Selection Committee. He seems to have voluntarily appeared before the committee and taken a chance of having a favourable recommendation from it. Having done so, it is not now open to him to turn round and question the constitution of the committee. This view gains strength from a decision of this Court in Manak Lal’s case where in more or less similar circumstances, it was held that the failure of the appellant to take the identical plea at the earlier stage of the proceedings created an effective bar of waiver against him. The following observations made therein are worth quoting: 11 Page 12 “It seems clear that the appellant wanted to take a chance to secure a favourable report from the tribunal which was constituted and when he found that he was confronted with an unfavourable report, he adopted the device of raising the present technical point.” 22. In Madan Lal & Ors. vs. State of J&K & Ors. (1995) 3 SCC 486 , similar view has been reiterated by the Bench which held that:- “9. Before dealing with this contention, we must keep in view the salient fact that the petitioners as well as the contesting successful candidates being respondents concerned herein, were all found eligible in the light of marks obtained in the written test, to be eligible to be called for oral interview. Up to this stage there is no dispute between the parties. The petitioners also appeared at the oral interview conducted by the Members concerned of the Commission who interviewed the petitioners as well as the contesting respondents concerned. Thus the petitioners took a chance to get themselves selected at the said oral interview. Up to this stage there is no dispute between the parties. The petitioners also appeared at the oral interview conducted by the Members concerned of the Commission who interviewed the petitioners as well as the contesting respondents concerned. Thus the petitioners took a chance to get themselves selected at the said oral interview. Only because they did not find themselves to have emerged successful as a result of their combined performance both at written test and oral interview, they have filed this petition. It is now well settled that if a candidate takes a calculated chance and appears at the interview, then, only because the result of the interview is not palatable to him, he cannot turn round and subsequently contend that the process of interview was unfair or the Selection Committee was not properly constituted. In the case of Om Prakash Shukla v. Akhilesh Kumar Shukla it has been clearly laid down by a Bench of three 12 Page 13 learned Judges of this Court that when the petitioner appeared at the examination without protest and when he found that he would not succeed in examination he filed a petition challenging the said examination, the High Court should not have granted any relief to such a petitioner. 23. In Manish Kumar Shahi vs. State of Bihar, (2010) 12 SCC 576 , this Court reiterated the principle laid down in the earlier judgments and observed:- “We also agree with the High Court that after having taken part in the process of selection knowing fully well that more than 19% marks have been earmarked for viva voce test, the petitioner is not entitled to challenge the criteria or process of selection. Surely, if the petitioner’s name had appeared in the merit list, he would not have even dreamed of challenging the selection. The petitioner invoked jurisdiction of the High Court under Article 226 of the Constitution of India only after he found that his name does not figure in the merit list prepared by the Commission. This conduct of the petitioner clearly disentitles him from questioning the selection and the High Court did not commit any error by refusing to entertain the writ petition.” 24. This conduct of the petitioner clearly disentitles him from questioning the selection and the High Court did not commit any error by refusing to entertain the writ petition.” 24. In the case of Ramesh Chandra Shah and others vs. Anil Joshi and others, (2013) 11 SCC 309 , recently a Bench of this Court following the earlier decisions held as under:- “In view of the propositions laid down in the above noted judgments, it must be held that 13 Page 14 by having taken part in the process of selection with full knowledge that the recruitment was being made under the General Rules, the respondents had waived their right to question the advertisement or the methodology adopted by the Board for making selection and the learned Single Judge and the Division Bench of the High Court committed grave error by entertaining the grievance made by the respondents.” In this regard, the other decisions of the apex court as relied on by the learned CGC, in Ramesh Chandra Shah and others vs. Anil Joshi and others judgment dated 03.04.2013 and in Dhananjay Malik and Others vs. State of Uttarachal and Others reported in (2008) 4 SCC 171 , have enunciated the similar proposition of law. This court is therefore not required to refer those decisions elaborately. 11. Having regard to the rival contentions and the records, this court is of the view that the sheet-anchor of the controversy is whether the Recruitment Rules as framed and notified on the basis of the decision of the Board of Governors (BOG) for the post of Registrar are valid in terms of Section 25(g), 26(3) & (4) of the NIT Act, as well as in terms of Section 34(3) of the NIT Act. In other words the controversy can be framed as under: Whether the NIT Act has delegated the power to the Council to frame Recruitment Rules for recruitment of the Registrar of the NIT, Agartala having regard Section 25(g) of the NIT Act which provides that classification, the method of appointment and determination of terms and conditions of service of teachers and other staff of the Institute shall be subject to the provisions of the Act? For this purpose, it is to be noted that there has been no attempt to amend the statute or repeal it, as a whole or in part and as such the question of obtaining the assent of Visitor does not follow directly in the context. However, this court is not reluctant to consider its implication. The paramount question that has really surfaced is that whether Section 25 delegates the general powers to the council and or to the Board of Governors to lay the policy of recruitment in respect of the post of Registrar of NITs. Let us read Section-25 keenly. It begins with the following lines: “ Subject to the provisions of this Act, the Statutes may provide for all or any of the following matters, namely.....” It provides that the statute may provide for all or any of the matters inherent in it is that statute also may not provide any matters, leaving it to be dealt separately in terms of the NIT Act. Section 32 has laid down the power of the council to co-ordinate the activities of the Institutes but without prejudice to the Sub-Section 1, the councils may perform the functions inter alia as under: “32(2)(b): to lay down policy regarding cadres, methods of recruitment and conditions of service of employees, institution of scholarships and freeships, levying of fees and other matters of common interest.” 12. As such, there is no conflict between the two powers. Section 34 is altogether for a different purpose. It provides the power to the Central Government to make the rules in respect of the matters under chapter III of the NIT Act. That chapter deals with the performance and establishments of the council. Whenever the Central Government by notification makes rules for purpose of the matters under that chapter those shall be laid in each houses of Parliament when it is in session. Unless the Parliament agrees in making any modification in the rules or both the houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be so. However, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule. However, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule. Allahabad High Court judgment has been wrongly put forward by the petitioner so far Section 34 of the NIT Act is concerned. In order to illustrate the power of the Central Government in framing the rules in respect of the matters as provided under Chapter III, it has been held that unless the said rules are sailed through or modified it may not be given effect to. This aspect of the matter in the considered view of the court is not falling for consideration as no rule in this case has been framed by the Central Government. The petitioner has asserted the said fact in this writ petition. The moot question as emerged is that whether Section 32(2)(b) has delegated the power for that purpose to the Council to frame the Recruitment Rules as to the method or recruitment and services and conditions or whether such power as provided under Section 32(2)(b) is subservient to Section 25(g) of the Act. 13. This court has found no apparent conflict in the arrangement of power. If the statute does not accommodate any provision in respect of classification, method of appointment and determination of terms and condition of service of the Registrar, NIT Agartala, it is to be deemed that has been left to the council to modulate or exercise its power as delegated under Section 32(2)(b), as a source of power to lay down the policy in respect of the cadre, method or recruitment and conditions of service of employees. If in the context of omission in the statute, the said policy in the form of the Recruitment Rules cannot be held arbitrary, illegal and without authority of law. Sub-Section 32(2)(b) of the NIT Act is preceded by the following lines: “Without prejudice to the provisions of sub-section(1), the council shall perform the following functions namely” which includes the duty ascribed in the clause, Sub-Section(1) of Section 32 of the NIT Act. Similarly, Section 44 of Air Corporation Act, 1953, provides as under: “The Central Government may, by notification in the official Gazette, make rules to give effect to the provisions of this Act. Similarly, Section 44 of Air Corporation Act, 1953, provides as under: “The Central Government may, by notification in the official Gazette, make rules to give effect to the provisions of this Act. (2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely....” The said clause is depicted under Sub-Section 2 of the Section 44 of the Air Corporations Act, 1953. The apex court in K.A. Nagmani vs. Indian Airlines and Others reported in (2009) 5 SCC 515 has held as under: “24. In the present case the agreement/settlement arrived at between the Management and its Officers' Association has the effect of protanto amending the Recruitment and Promotion Rules. The Rules and the agreement/settlement are complimentary to each other and have to be read together. 25. The decisions, in Sukhdev Singh Vs. Bhagat Ram Sardar Singh Raghuvanshi [ AIR 1975 SC 1331 ], B.K. Srinivasan Versus State of Karnataka [ AIR 1987 SC 1059 ] and Inder Pradash Gupta Vs. State of Jammu & Kashmir & Ors. [ (2004) 6 SCC 786 ], in no manner assist the point urged by the appellant. The High Court having analysed those decisions came to the right conclusion that they are not applicable in deciding the issue whether the Recruitment and Promotion Rules are statutory in nature? We are in agreement with the view taken by the High Court. 26. It is unnecessary to burden this short order of ours with the various authorities upon which the appellant sought to place reliance as we have no doubt in our mind whatsoever that the Recruitment and Promotion Rules are not statutory in nature. 27. For the aforesaid reasons, we are in complete agreement with the view taken by the Division Bench of the High Court and as well as the learned Single judge in coming to the conclusion that the Recruitment and Promotions Rules do not draw any statutory flavour from the service Regulations. 28. The next question that requires consideration is whether the merger of the two cadres is valid? 29. The Indian Airlines Officers' Association of which the appellant is also a member had requested the Corporation for merger of seniority of the cadres. 28. The next question that requires consideration is whether the merger of the two cadres is valid? 29. The Indian Airlines Officers' Association of which the appellant is also a member had requested the Corporation for merger of seniority of the cadres. The Corporation having considered the representations so made decided that the software and hardware divisions of EDP Department should be merged and a common seniority list should be maintained. It was also decided that the vacancies of Deputy Manager (Maintenance/Systems) may be filled up through the merged cadre of software and hardware where technically qualified personnel are available. Later, pursuant to a further request by the Officers' Association, it was decided that the seniority of software and maintenance cadre be merged. 30. We find it difficult to agree with the contention of the appellant that the respondents could not have entered into agreement/settlement with the Indian Airlines Officers Association and decided to make promotions/appointments as per the said agreement contrary to Recruitment and Promotion Rules. It is not unusual for the Managements to consider the representation of its Officers' Association and arrive at a mutually agreed settlement after negotiations as long as such settlement does not run counter or contrary to any statutory instrument. Once it is to be held that the Recruitment and Promotions Rules are not statutory in nature but are in the nature of guidelines, there are no impediments to uphold the merger of software and hardware cadres into one cadre. [Emphasis added] 14. In this case also there is no attempt to bring the method of recruitment or the condition of service under the first statute or a new statute, nor the Central Government has made any attempt in this regard and as such no statutory exercise is made. Recruitment Rules do not emanate from the statute or from the rules, framed by the Central Government, in terms of the Section 34 of the NIT Act. Therefore, the question of assent or laying down the rules in each houses of the parliament for purpose of ratification or otherwise, is not very relevant in the context of this case. 15. Having due regard to the case of K.A. Nagmani vs. Indian Airlines and Others, this court is of the further view that in exercise of the powers conferred under Section 32(2)(b) of the NIT Act, the Recruitment Rules have been framed. 15. Having due regard to the case of K.A. Nagmani vs. Indian Airlines and Others, this court is of the further view that in exercise of the powers conferred under Section 32(2)(b) of the NIT Act, the Recruitment Rules have been framed. Unless challenged on other grounds, those cannot be held invalid or unreasonable. The objection based on the doctrine of estoppel has to be appreciated for making reference to the conduct or the law. Here the objection on estoppel is based on conduct of the petitioner. This court is again of the view that 'participation' cannot be given a narrow meaning. For mere filing of an application, it can not invite the doctrine of estoppel against the petitioner. It must be shown that he has not only applied but he has participated in the process in such a manner that he has thereby waived his right to resile from the action. For illustration, after appearing in the selection process and gathering the knowledge of his failure when someone embarks on to challenge the selection-process, in view of the settled position of law, that person is estopped from raising such objection. But in this case, this court does not find that participatory action of the petitioner is so substantive. Hence it does not constitute waiver. More so, the challenge is structured on non-observance of the relevant statute. Having held so, this writ petition stands dismissed. There shall be no order as to costs.