Research › Search › Judgment

Calcutta High Court · body

2017 DIGILAW 81 (CAL)

Akshay Pant v. Lieutenant Governor

2017-01-13

RANJIT KUMAR BAG

body2017
JUDGMENT : R.K. Bag, J. The writ petitioner, a social worker and RTI activist has challenged the illegal appointment of the respondent No.6 as Protocol Officer initially on ad hoc basis and thereafter his absorption in the permanent post by order dated December, 26, 2014. The writ petitioner has prayed for a writ of quo warranto directing the respondents to remove the respondent No.6 from the post of Protocol Officer and further writ commanding the respondent No.1 and 2 to quash the order No. 3849 dated December 2, 2013 issued by Assistant Secretary (GA), Andaman and Nicobar Administration and subsequent order of absorption of the respondent No.6 in the said post of Protocol Officer under General Administration. 2. The back drop of the present writ application is as follows. One Dhram Raj, the respondent No.6 was appointed as Lower Grade Clerk with effect from the date of reporting for duty by order No. 1962 dated April 9, 1990 of the Assistant Secretary (Personnel), Andaman & Nicobar Administration. The respondent No.6 had undergone training in the Indian Institute of Legal Metrology at Ranchi while serving as Lower Grade Clerk in the Department of Civil Supplies and Consumers Affairs by virtue of the order No. 691 dated July 29, 1994 issued by Andaman & Nicobar Administration. On May 31, 2011 the respondent No.6 was appointed in the post of Inspector of Weights and Measures (Group B Non Gazetted) in the Department of Civil Supplies and Consumers Affairs in the scale of pay of PB-2, Rs. 9300-34800 plus Grade Pay of Rs. 4200 in relaxation of the Recruitment Rules with effect from July 8, 2006 by issuing order No. 842 dated May 31, 2011 by the Director (CS & CA), Joint Controller of Legal Metrology under the Directorate of Civil Supplies and Consumers Affairs, Andaman & Nicobar Administration. Without making any pleading it is contended on behalf of the respondent No.6 that the post of Inspector of Weights and Measures (Group B Non Gazetted) in the Department of Civil Supplies and Consumers Affairs was redesignated as Legal Metrology Officer. Without making any pleading it is contended on behalf of the respondent No.6 that the post of Inspector of Weights and Measures (Group B Non Gazetted) in the Department of Civil Supplies and Consumers Affairs was redesignated as Legal Metrology Officer. On June 6, 2011 the Assistant Secretary (GA) under Secretariat of Andaman & Nicobar Administration issued order No. 2083 dated June 6, 2011 directing the respondent No.6 to continue to look after the charge of Protocol Officer of Andaman & Nicobar Administration in addition to his own duties in the Department of Civil Supplies and Consumers Affairs without any extra remuneration. On July 28, 2011 the Assistant Secretary (Personnel) under the Secretariat of Andaman & Nicobar Administration issued order No. 2817 dated July 28, 2011 by accepting the technical resignation tendered by the respondent No.6 from the post of Lower Grade Clerk by his letter dated June 1, 2011 with effect from July 8, 2006 from which date effect of his appointment as Inspector of Weights and Measures in the Department of Civil Supplies and Consumers Affairs was given by order No. 842 dated May 31, 2011. The Director (CS & CA), Joint Controller of Legal Metrology under Directorate of Civil Supplies and Consumers Affairs, Andaman & Nicobar Administration complied with the order of the Hon'ble Division Bench of the High Court at Calcutta on November 29, 2012 in MAT No. 36 of 2012 and MAT No. 39 of 2012 affirming the order of the Hon'ble Single Bench of the High Court on July 17, 2012 in WP No. 23 of 2012 by issuing order No.1157 dated July 24, 2013 to the effect that the appointment of the respondent No.6 to the post of Legal Metrology Officer vide order No. 842 dated May 31, 2011 was cancelled and the respondent No.6 was repatriated to his substantive post in the parent department as Lower Grade Clerk with immediate effect. The Special Leave Petition preferred by the respondent No.6 against the judgment and order of the Hon'ble Division Bench of the High Court being petition of special leave to appeal (Civil) 13884 and 13885 of 2013 was dismissed as withdrawn with liberty to the respondent No.6 to approach the High Court for moving the appropriate application. The Special Leave Petition preferred by the respondent No.6 against the judgment and order of the Hon'ble Division Bench of the High Court being petition of special leave to appeal (Civil) 13884 and 13885 of 2013 was dismissed as withdrawn with liberty to the respondent No.6 to approach the High Court for moving the appropriate application. Review petition being RVW No. 006 of 2013 preferred by the respondent No.6 on September 23, 2013 was also dismissed on September 2, 2016 as contended on behalf of respondent No.6 and not disputed by learned counsel for the petitioner and learned counsel for the other respondents. 3. The Lt. Governor, Andaman & Nicobar Administration, respondent no.1 re-designated the post of Deputy Superintendent of Police (Group B Gazetted) in the Directorate of IP & T in the Pay Band of Rs. 9300 and 34800 plus Grade Pay of Rs. 4200 as Protocol Officer (Group B Gazetted) under Tourism Department in the same Pay Band and Grade Pay with immediate effect by order No. 1146 dated September 29, 2009 issued by the Assistant Director (Administration) in the Directorate of Tourism, Andaman & Nicobar Administration. The Assistant Director (Administration) under the Directorate of Information Publication and Tourism, Andaman and Nicobar Administration issued order No. 597 on June 9, 2010 for placement of the post of Protocol Officer (Group B Gazetted) from Tourism Department to General Administration of the Secretariat, Andaman & Nicobar Administration. On July 30, 2012 the Assistant Secretary (GA) under the Secretariat, Andaman and Nicobar Administration forwarded the draft Recruitment Rules for filling up the post of Protocol Officer to the Secretary, Union Public Service Commission, Dholpur House, Sahajahan Road, New Delhi by enclosing a copy of the said Draft Recruitment Rules for filling up the post of Protocol Officer in the General Administration of the Andaman and Nicobar Administration. 4. The respondent No.6 approached Central Administrative Tribunal, Calcutta Bench (Circuit Bench at Port Blair) ventilating his grievances for not having appointed as Protocol Officer inspite of performance of such duty by him and for non payment of his salary for three months during which he discharged his duty as Protocol Officer. 4. The respondent No.6 approached Central Administrative Tribunal, Calcutta Bench (Circuit Bench at Port Blair) ventilating his grievances for not having appointed as Protocol Officer inspite of performance of such duty by him and for non payment of his salary for three months during which he discharged his duty as Protocol Officer. By order dated November 29, 2013 the Tribunal disposed of the application of the respondent No.6 being OA No. 121/AN/2013 with direction to the Andaman and Nicobar Administration to consider the grievance of the respondent No.6 for suitable appointment to the post of Protocol Officer, subject to outcome of the review application pending before the Hon'ble High Court within a period of one month from the date of disposal of the said application. On December 2, 2013 the respondent No. 6 was appointed in the vacant post of Protocol Officer (Group B Gazetted) under the General Administration of Secretariat Establishment in the scale of PB-2, Rs. 9300-34800 plus Grade Pay of Rs. 4800 on ad hoc basis for a period of six months with immediate effect by order no. 3849 dated December 2, 2013 issued by the Assistant Secretary (GA) under the Secretariat, Andaman & Nicobar Administration. The said ad hoc appointment of the respondent No.6 as Protocol Officer in the General Administration was extended beyond the period of Six months till the final decision is taken on his representation dated April 30, 2014 under order No. 280 dated September 9, 2014 issued by Assistant Secretary (Personnel) under the Secretariat, Andaman and Nicobar Administration. Ultimately, on December 26, 2014 the respondent No.6 was absorbed in the permanent post of Protocol Officer (Group B Gazetted) under the General Administration of the Secretariat Establishment with effect from July 25, 2013 under order No. 3918 dated December 26, 2014 issued by the Assistant Secretary (Personnel) under the Secretariat, Andaman & Nicobar Administration. 5. The writ petitioner has challenged the above ad hoc appointment of the respondent No.6 in the post of Protocol Officer initially on ad hoc basis and thereafter his absorption in the said post of Protocol Officer as illegal and dehors the Draft Recruitment Rules. Mr. 5. The writ petitioner has challenged the above ad hoc appointment of the respondent No.6 in the post of Protocol Officer initially on ad hoc basis and thereafter his absorption in the said post of Protocol Officer as illegal and dehors the Draft Recruitment Rules. Mr. Jayapal, learned counsel for the petitioner contends that the respondent No.6 has no eligibility for appointment to the post of Protocol Officer and the appointment of the respondent No.6 as Protocol Officer in violation of the provisions of Recruitment Rules is liable to be set aside. The further contention of Mr. Jayapal is that the respondent No.1 and 2 did not consult the Union Public Service Commission before giving appointment to the respondent No.6 in the post of Protocol Officer as contemplated under the Draft Recruitment Rules which was in force at the time of issuing the order of appointment of the respondent No.6. According to Mr. Jayapal, the respondent No.6 is still usurping the post of Protocol Officer in illegal and unauthorised manner and as such the writ of quo warranto may be issued for immediate removal of the respondent No.6 from the said post of Protocol Officer. 6. Mr. S.Samanta, learned counsel representing respondent No.1 and 2 and Mrs. Anjili Nag, learned counsel representing the respondent No. 3 and 4 jointly submit that the appointment of the respondent No.6 in the post of Protocol Officer was done in violation of the provisions of Draft Recruitment Rules and without consultation of Union Public Service Commission as laid down in the said Draft Recruitment Rules and as such the appointment of respondent No. 6 as Protocol Officer (Group B Gazetted) under General Administration of the Secretariat, Andaman and Nicobar Administration may be quashed. Mrs. Nag has specifically submitted that the respondent No.6 did not join back for duty in the post of Lower Grade Clerk even after repatriation of the respondent No.6 to the substantive post as Lower Grade Clerk in the parent department on July 24, 2013 and he tendered resignation from the post of Lower Grade Clerk which was accepted by the authority concerned and as such respondent No.6 cannot report for the duty to the post of Lower Grade Clerk. 7. No specific submission is made by Mr. Mishra, learned counsel representing respondent No.5. 8. Mr. 7. No specific submission is made by Mr. Mishra, learned counsel representing respondent No.5. 8. Mr. Roshan George, learned counsel representing respondent No.6 has strenuously argued that the respondent No.6 has been discharging the duty of Protocol Officer from May 31, 2011 till date. He further contends that the respondent No.6 had the eligibility for appointment to the post of Protocol Officer as per provisions of the Draft Recruitment Rules as he served in the prescribed scale of Pay and Grade Pay for more than ten years, he is graduate from the recognised University and he has the experience in discharging duty of Protocol Officer of VVIPs for more than five years. Mr. George has urged this court to consider that the Andaman & Nicobar Administration is in league with the petitioner for removal of the respondent No.6 from the post of Protocol Officer, inspite of the fact that the respondent No.6 discharged his duty as Protocol Officer for substantial period of his career. On my specific quarry Mr. George has submitted after taking instruction from his client that the respondent no.6 is willing to report for duty to the post of Lower Grade Clerk in his parent department. He also submits that the respondent No.6 may be given the benefit of advance career progression and other benefits of service to which he is entitled as Lower Grade Clerk in the parent department. 9. The present writ application was disposed of on March 18, 2016 by quashing the order of ad hoc appointment and subsequent regularisation/absorption of the respondent No.6 in the post of Protocol Officer and by giving direction to the respondent No.1 and 2 to fill up the vacant post of the Protocol Officer by following Recruitment Rules within a period of three months from the date of communication of the order. The said order passed by learned single Judge of this Court was challenged by the respondent no.6 by preferring appeal being MAT No. 019 of 2016. The Hon'ble Division Bench of this Court has decided the issue that the petitioner has the locus standi to file the writ application and his prayer for issuance of writ of quo warranto is also maintainable in law. The Hon'ble Division Bench of this Court has decided the issue that the petitioner has the locus standi to file the writ application and his prayer for issuance of writ of quo warranto is also maintainable in law. However, on June 13, 2016 the Hon'ble Division Bench had set aside the judgment and order passed by the learned single judge on the ground that the respondent No.6 did not get the opportunity to file affidavit-in-opposition before the Hon'ble Single Bench. The Hon'ble Division Bench also give direction for expeditious disposal of writ application after exchange of affidavits between the parties and after giving the respondent No.6 opportunity of hearing. Accordingly, the parties have exchanged the affidavits and adequate opportunity is given to all the parties including the respondent No.6 during the hearing of the writ application afresh. 10. The points for consideration of the Court in this writ application are (i) whether the order of ad hoc appointment of the respondent No.6 in the post of Protocol Officer and subsequent absorption of the said respondent No.6 in the permanent post of Protocol Officer are liable to be set aside and (ii) whether respondent No.6 is liable to be removed from the post of Protocol Officer by issuance of the writ of quo warranto. There is no dispute that the respondent No.6 was appointed as Lower Grade Clerk with effect from the date of reporting for duty by order dated April 9, 1990. It is also not disputed that the respondent No.6 was appointed to the post of Inspector of Weights and Measures (Group B Non Gazetted) in the Department of Civil supplies and Consumers Affairs by order dated May 31, 2011 and the effect of the said appointment is given from July 8, 2006. The submission made on behalf of the respondent No.6 that the post of Inspector of Weights and Measures (Group B Non Gazetted) in the Department of Civil Supplies and Consumer Affairs is redesignated as the post of Legal Metrology Officer under the same Department, has not been disputed by learned counsel representing the petitioner and learned counsel representing the respondent No. 1 to 4. The further admitted position is that the technical resignation tendered by the respondent No.6 from the post of Lower Grade Clerk vide letter dated June 1, 2011 has been accepted by the authority concerned with effect from July 8, 2006 consequent on his appointment to the post of Inspector of Weights and Measures in the Department of Civil Supplies and Consumers Affairs on May 31, 2011 with effect from July 8, 2006. It has, thus, been established from the materials on record that the resignation tendered by the respondent No. 6 was accepted with effect from July 8, 2006 consequent on his appointment to the post of Inspector of Weights and Measures (Group B Non Gazetted)/ Legal Metrology Officer with effect from July 8, 2006. The respondent No.6 was given additional charge of Protocol Officer of Andaman and Nicobar Administration in addition to his own duties in the Department of Civil Supplies and Consumers Affairs without any extra remuneration by issuance of order No.2083 dated June 6, 2011 by the Assistant Secretary (GA) under the Secretariat of Andaman and Nicobar Administration. Since the appointment of the respondent No.6 to the post of the Legal Metrology Officer under the Department of Civil Supplies and Consumers Affairs (the post being redesignated from the previous post of Inspector of Weights and Measures in the Department of Civil Supplies and Consumers Affairs) was cancelled by the order of the High Court on July 24, 2013, and since the respondent No.6 was repatriated to his parent department as Lower Grade Clerk with effect from July 24, 2013, the respondent No.6 cannot perform the duty of Protocol Officer of Andaman and Nicobar Administration which he held as additional charge while working as Legal Metrology Officer in the Department of Civil Supplies and Consumers Affairs. 11. Admittedly, respondent No.6 did not report for duty as Lower Grade Clerk after the repatriation to the parent Department with effect from July 24, 2013. The Andaman and Nicobar Administration, the respondent No.2 has given a go by to the order of acceptance of technical resignation of the respondent No.6 from the post of Lower Grade Clerk with effect from July 8, 2006 by issuance of order of repatriation of the respondent No.6 to his parent Department as Lower Grade Clerk with effect from July 24, 2013. The respondent No.6 did not join back to the post of Lower Grade Clerk in his parent Department, inspite of the fact that the order of Hon'ble Division Bench of the High Court on the basis of which respondent No.6 was repatriated to his parent Department as Lower Grade Clerk has attained finality after withdrawal of Special Leave Petition preferred by respondent No.6 before the Supreme Court and after disposal of review application filed by the respondent No.6 before Hon'ble Division Bench of the High Court. 12. Even when the respondent No. 6 did not join the post of Lower Grade Clerk in the parent Department in compliance with the order No. 1157 dated July 24, 2013 issued by the Director (CS & CA), Joint Controller of Legal Metrology under the Directorate of Civil Supplies and Consumers Affairs, the respondent No.6 was favoured by the Lt. Governor, Andaman and Nicobar Administration, respondent No.1 by appointing him as Protocol Officer on ad hoc basis for a period of six months with effect from December 2, 2013 and the said ad hoc appointment of the respondent No.6 in the post of Protocol Officer under the General Administration was extended beyond the period of six months till final decision is taken on his representation submitted on April 13, 2010. Subsequently, on December 26, 2014 the respondent No.6 was absorbed in the post of Protocol Officer by order No.3918 issued by the Assistant Secretary (Personnel) under the Secretariat, Andaman and Nicobar Administration. Since the respondent No.6 did not join back to the post of Lower Grade Clerk after his repatriation on July 24, 2013 and since the appointment of respondent No.6 as Legal Metrology Officer/Inspector of Weights and Measures in the Department of Civil Supplies and Consumers Affairs was cancelled by the authority concerned, I am of the view that the respondent No.6 did not fulfil the eligibility criterion laid down in Rule 11 (iii) of the Draft Recruitment Rules to fill up the post of Protocol Officer in the General Administration. Moreover, the respondent No.6 was appointed as Protocol Officer on ad hoc basis only on December 2, 2013 and his previous appointment for discharge of duty of Protocol Officer as additional charge while working as Inspector of Weights and Measures under the Department of Civil Supplies and Consumers Affairs was cancelled by the authority concerned. Moreover, the respondent No.6 was appointed as Protocol Officer on ad hoc basis only on December 2, 2013 and his previous appointment for discharge of duty of Protocol Officer as additional charge while working as Inspector of Weights and Measures under the Department of Civil Supplies and Consumers Affairs was cancelled by the authority concerned. So, the respondent No.6 did not fulfil the eligibility criterion for appointment to the post of Protocol Officer as laid down under Rule 11 (b) (ii) of the Draft Recruitment Rules to fill up the post of Protocol Officer in the General Administration. The last eligibility criterion laid down under Rule 11 (c) of the Draft Recruitment Rules to fill up the post of Protocol Officer in the General Administration was also not fulfilled as the respondent No.6 was appointed as Protocol Officer in the Department of General Administration without any consultation with Union Public Service Commission. Since the appointment of the respondent No.6 in the post of Protocol Officer under the General Administration was done dehors Draft Recruitment Rules to fill up the post of Protocol Officer in the General Administration, the appointment of the respondent No.6 on ad hoc basis and subsequent absorption of the respondent No.6 in the permanent post of Protocol Officer is illegal and without jurisdiction and as such the said appointments are liable to be quashed. The respondent No.6 has usurped the post of Protocol Officer under the General Administration illegally and without having any authority under the law and as such he is liable to be removed from the post of Protocol Officer under the General Administration by issuance of writ of quo warranto as prayed by the petitioner. 13. The last question which calls for determination of the Court to give complete justice in this case is whether respondent No.6 is deemed to be still in the service for discharge of duty as Lower Grade Clerk in the parent Department. I have already observed that on my query to the learned counsel for the respondent No.6, Mr. Roshan George has submitted on instruction from his client that the respondent No.6 is willing to join back to the post of Lower Grade Clerk in the parent Department within specific period of time. I have already observed that on my query to the learned counsel for the respondent No.6, Mr. Roshan George has submitted on instruction from his client that the respondent No.6 is willing to join back to the post of Lower Grade Clerk in the parent Department within specific period of time. I have also observed that the acceptance of technical resignation tendered by the respondent No.6 from the post of Lower Grade Clerk has no legal validity after issuance of the order by the authority concerned for repatriation of the respondent No.6 to the parent Department as Lower Grade Clerk with effect from July 24, 2013. Since the respondent No.6 usurped the post of Protocol Officer under the General Administration without having any authority under the law, he is not entitled to get the financial benefit for discharge of duty of the Protocol Officer under the General Administration from December 2, 2013 till he is removed from the post of Protocol Officer under General Administration by the respondent No.1 and 2. The question may crop up as to what will be the status of the respondent No.6 from July 24, 2013 when his appointment as Legal Metrology Officer was cancelled by the authority concerned. Since the service of the respondent No.6 in the parent Department as Lower Grade Clerk has not been terminated and since the respondent No.6 is willing to join back to the post of Lower Grade Clerk in the parent Department, the period of service rendered by the respondent No.6 under Andaman and Nicobar Administration from July 24, 2013 till the date of this order will be treated as on duty in his substantive post of Lower Grade Clerk under the parent Department. The respondent No.6 is entitled to get all benefits of service including financial benefits and advance career progression and promotion if any, to which he is entitled as Lower Grade Clerk in the department of Civil Supplies and Consumers Affairs, subject to the condition that the respondent No.6 will report for duty in the post of Lower Grade Clerk under the Department of Civil Supplies and Consumers Affairs within a period of ten days from the date of the order. The respondent No. 1 and 2 are at liberty to realise excess payment, if any, made to the respondent No.6, for the discharge of duty as Protocol Officer under General Administration from July 24, 2013 till the date of the order passed by the Court. 14. In view of my above findings the respondent No.1 and 2 are directed to remove the respondent No.6 from the post of Protocol Officer under General Administration within a period of ten days from the date of communication of the order. The order No. 3849 dated December 2, 2013 issued by the Assistant Secretary (GA) under the Secretariat, Andaman and Nicobar Administration by giving appointment of the respondent No.6 as Protocol Officer (Group B Gazetted) under General Administration on ad hoc basis and order No. 3918 dated December 26, 2014 issued by the Assistant Secretary (Personnel) under the Secretariat, Andaman and Nicobar Administration for absorption of the respondent No.6 in the post of Protocol Officer under the General Administration are quashed. 15. The writ application is, thus, disposed of. 16. The urgent photostat certified copy of the judgment and order if applied for be given to the parties on compliance of all necessary legal formalities.