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2021 DIGILAW 374 (HP)

Manjeet Singh Saini v. Union Of India & Ors.

2021-07-05

SANDEEP SHARMA, SURESHWAR THAKUR

body2021
JUDGMENT Sandeep Sharma, J. - Instant writ petition filed under Art. 226 of the Constitution of India, lays challenge to office order dated 3.5.2021, Annexure P-6, whereby respondent No.3 Dr. Shatrughan Singh, Assistant Professor, Composite Regional Centre, Sundernagar, has been directed to take over the charge of Officer-In-Charge, CRC Sundernagar for a term of two years or till further orders in addition to his own duties with effect from 10.5.2021, in place of the petitioner, who was otherwise holding said office since the year 2003. 2. For having a bird's eye view of the matter, certain undisputed facts germane for the adjudication of the present dispute are that the respondent No.2 i.e. National Institute for the Empowerment of Persons with Visual Disabilities (Divyangjan) (hereinafter, 'Institute'), earlier known as the national Institute for the Visually Handicapped, Dehradun, is a society registered under the provisions of Societies Registration Act, 1860 with effect from 21.10.1982, an autonomous body governed by its Executive Council. For the management and administration, the Institute has formulated its own by-laws/rules and regulations, which otherwise stand duly approved by the Ministry of Social Justice and Empowerment, Government of India. The Ministry of Social Justice and Empowerment, Department for Empowerment of Persons with Disabilities (Divyangjan) functions for the empowerment and upliftment of the differently-abled persons and as such a total number of seven National Institutes and twenty Composite Regional Centre for Skill Development, Rehabilitation and Empowerment of Persons with Disabilities ('CRC', for short), have been set up in the various parts of the country. CRC's function as an extended arm of the National Institutes. Administration and jurisdiction of the CRC's has been distributed and re-distributed amongst National Institutes, vide communication date 7.5.2020, issued under the signatures of the Under Secretary, Ministry of Social Justice and Empowerment, Department for Empowerment of Persons with Disabilities (Divyangjan). In the year 2001, one such CRC came to be established at Sundernagar, District Mandi, Himachal Pradesh. The administration and jurisdiction of the aforesaid CRC vests with the National Institute Dehradun, Uttrakhand. Currently, CRC Sundernagar has four posts of Assistant Professors on regular basis viz. (1) Assistant Professor (Special Education)-cum-Officer-In-Charge, (2) Assistant Professor (Clinical Psychology), (3) Assistant Professor (Speech and hearing) and, (4) Assistant Professor (Physical Medicines and Rehabilitation). As per prevalent practice, the senior most Assistant Professor is given the additional duties of administration and accounts and he/she acts as an Officer-In-Charge. 3. (1) Assistant Professor (Special Education)-cum-Officer-In-Charge, (2) Assistant Professor (Clinical Psychology), (3) Assistant Professor (Speech and hearing) and, (4) Assistant Professor (Physical Medicines and Rehabilitation). As per prevalent practice, the senior most Assistant Professor is given the additional duties of administration and accounts and he/she acts as an Officer-In-Charge. 3. Post of Assistant Professor (Special Education)-cumOfficer-In-Charge, prior to the issuance of impugned office order dated 3.5.2021, was being manned by the petitioner whereas, respondent No.3, who pursuant to the aforesaid impugned order, has been given the charge of the Officer-InCharge, CRC Sundernagar is otherwise Assistant Professor (Clinical Psychology). Undisputedly, petitioner joined the service as a Teacher (Special Education) at special centre functioning under respondent No.2 in the year 1989, whereafter, he was transferred and posted at CRC Srinagar (J&K). Upon establishment of CRC Sundernagar, which is under the administration and control of respondent No.2, petitioner besides his having been posted as Assistant Professor (Special Education), also came to be designated as Officer-In-Charge, vide letter dated 13.7.2001. 4. Material available on record further reveals that in the absence of the petitioner, respondent No.3, who happened to be Assistant Professor (Clinical Psychology) was given the charge of Officer-In-Charge, CRC Sundernagar on many occasions. Petitioner, since his posting as Assistant Professor (Special Education) vide letter dated 13.7.2001(Annexure P-2) has been regularly discharging duties of Officer-In-Charge, CRC Sundernagar, but now, since vide office letter dated 3.5.2021 (Annexure P-6), respondent No.3 has been ordered to take over the charge of the Officer-In-Charge, CRC Sundernagar, petitioner has approached this court, in the instant proceedings, praying therein for the following main reliefs: "I. That the present Writ Petition be allowed and impugned office order dated: 03-05-2021 (Annexure P-6) be set aside and Petitioner be allowed to carry on holding the charge of Officer In-Charge at Composite Regional Centre (s) for Skill Development, Rehabilitation & Empowerment of Persons with Disabilities, Sundernagar, District: Mandi, H.P. II. That in alternate the Respondent No.2 be directed to withdraw the impugned office order dated: 03-05-2021 and be directed to allow the Petitioner to continue discharging duties as Officer In-Charge." 5. We have heard learned counsel for the parties and perused the material available on record. 6. That in alternate the Respondent No.2 be directed to withdraw the impugned office order dated: 03-05-2021 and be directed to allow the Petitioner to continue discharging duties as Officer In-Charge." 5. We have heard learned counsel for the parties and perused the material available on record. 6. It is not in dispute that the petitioner, prior to issuance of impugned office order dated 3.5.2021 (Annexure P-6) had been discharging the duties of Officer-In-Charge, CRC Sundernagar uninterruptedly for eighteen years, but it is also not in dispute that the aforesaid office order dated 3.5.2021 (Annexure P-6) came to be issued pursuant to the communication dated 9.2.2021 (Annexure P-5), whereby competent Authority has approved policy of rotation of Office (I/c) in CRC's. At this stage, it would be apt to take note of the aforesaid communication, which is extracted thus: "I am directed to refer to your letter No. NIEPVD/CRC2020/Misc. dated 28.12.2020 on the subject mentioned above and to say that Competent Authority has approved the policy of rotation of Officer (I/C) in CRCs. The policy of rotation is as under: i. The charge of the In-charge will be given on seniority basis amongst the Assistant Professors. ii. The period of the Charge shall be for the duration of only 02 years. iii. Whenever the Officer-In-Charge proceeds on leave/official tour/out of station (including on holiday) it wall be his/her responsibility to hand over the charge to the next officer in line of the panel. iv. The rotation will only be given to those officers: - a) Whose ACRs will be "Very Good" for the last three years. b) There should not be any vigilance case pending against the officer. c) NO officer should be found trapped in any of the sexual harassment cases. d) The officer having any cases related to their post/seniority/scale of pay etc. If found to be prejudice will not be entitled to the post of In charge. 3. You are requested to take necessary steps in this regard. 4. This issues with the approval of Joint Secretary (NI) DEPWwD and Chairperson, EC, NIEPVD, Dehradun." 7. d) The officer having any cases related to their post/seniority/scale of pay etc. If found to be prejudice will not be entitled to the post of In charge. 3. You are requested to take necessary steps in this regard. 4. This issues with the approval of Joint Secretary (NI) DEPWwD and Chairperson, EC, NIEPVD, Dehradun." 7. Careful perusal of the aforesaid policy formulated by respondent No.1, though reveals that the charge of the office of Officer-In-Charge will be given on seniority basis from amongst the Assistant Professors but only for two years, meaning thereby, after completion fo two year, person next in seniority would become entitled to hold the charge of the office of Officer-In-Charge of a particular CRC. Policy further reveals that whenever the Officer-In-Charge proceeds on leave/official tour/out of station (including on holiday) it wall be his/her responsibility to hand over the charge to the Assistant Professor next in seniority. The policy clearly suggests that a person, whose ACR's are below 'Very Good' for the last three years and cases against him/her has been registered by Vigilance, shall not be considered for giving duties of OfficerIn-Charge. Besides above, any officer, found involved in cases of sexual harassment, has not been held entitled to hold the office of Officer-In-Charge. 8. Though, in the case at hand, petitioner has laid challenge to the office order dated 3.5.2021 (Annexure P-6), whereby respondent No3. has been directed to take over as Officer-In-Charge, CRC Sundernagar, but no challenge has been laid to the policy dated 9.2.2021 (Annexure P-5), whereby competent Authority has approved the policy of rotation of officers and, pursuant to which, impugned office order dated 3.5.2021 (Annexure P-6) has been issued. 9. Mr. R.K. Gautam, Senior Advocate duly assisted by Mr. Gaurav Gautam, Advocate, vehemently argued that that the impugned office order dated 3.5.2021, cannot be made applicable in the of the petitioner, for the reason that the same has been issued in complete violation of the rotation policy formulated by respondent No.1, dated 9.2.2021 (Annexure P5). While referring to the aforesaid rotation policy, Mr. Gautam, learned senior counsel contended that the petitioner, who is the senior most Assistant Professor, ought to have been continued as Officer-In-Charge, CRC Sundernagar for next two years, after formulation of the rotation policy, which came into force with effect from 9.2.2021. While referring to the aforesaid rotation policy, Mr. Gautam, learned senior counsel contended that the petitioner, who is the senior most Assistant Professor, ought to have been continued as Officer-In-Charge, CRC Sundernagar for next two years, after formulation of the rotation policy, which came into force with effect from 9.2.2021. He further contended that since the aforesaid rotation policy has come into force on 9.2.2021, it cannot be applied retrospectively in case of the petitioner, who admittedly prior to issuance of aforesaid rotation policy, had been discharging the duties of Officer-InCharge, CRC Sundernagar for eighteen years. Lastly, Mr. Gautam, learned senior counsel contended that the petitioner has no quarrel /grouse, if any, against the formulation of the rotation policy, but benefit arising out of same cannot be denied to the petitioner, on the ground that he has already held the office of Officer-In-Charge, CRC Sundernagar, for 18 years, because roster, if any, qua post in question would commence from the date of issuance of communication dated 9.2.2021, wherein, admittedly, senior Assistant Professor ranking No.1 in seniority, has been held entitled to hold the office of Officer-In-Charge. 10. Mr. Balram Sharma, learned Assistant Solicitor General of India and Mr. Kush Sharma, Advocate, appearing for respondents Nos. 1 and 2 and respondent No.3, respectively , while refuting aforesaid submissions made on behalf of learned senior counsel appearing for the petitioner, contended that since the petitioner has already served as Officer-InCharge, CRC Sundernagar, for 18 years, he cannot claim any benefit under new policy of rotation formulated vide communication dated 9.2.021. Mr. Sharma, learned Assistant Solicitor General of India submitted that the rotation policy dated 9.2.2021 has been formulated to ensure that all the Assistant Professors working in CRC's are given a chance to discharge duties of Officer-In-Charge and one person may not hold the said office for an indefinite time. 11. Mr. Kush Sharma, learned counsel for respondent No.3, while referring to the reply filed on behalf of respondents Nos. 1 and 2 and respondent No.3 contended that since the petitioner already stands relieved from the post of Officer-InCharge, coupled with the fact that FIR has been registered against the petitioner under Ss. 11. Mr. Kush Sharma, learned counsel for respondent No.3, while referring to the reply filed on behalf of respondents Nos. 1 and 2 and respondent No.3 contended that since the petitioner already stands relieved from the post of Officer-InCharge, coupled with the fact that FIR has been registered against the petitioner under Ss. 354A, 355 and 34 IPC and S.3(1)(i) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 at Police Station Sundernagar, he is otherwise not eligible to be posted as Officer-In-Charge in view of policy formulated by the competent Authority. 12. Material available on record reveals that pursuant to office order dated 3.5.2021, handing/taking over of charge of the Officer-In-Charge was to be completed by 2.30 pm on 10.5.2021 but since the petitioner was not available at the station and was not coming forth to hand over charge, Director of respondent No.2 Institute, vide order dated 10.5.2021, having taken note of the fact that the petitioner is on medical leave, directed respondent No.3 to take over charge of the post for a term of two years. Vide aforesaid communication, Director, respondent No.1 institute also directed the petitioner to hand over charge, once he returns from medical leave (Annexure R-2 of the reply filed by respondent No.2). 13. On 11.5.2021, respondent No.3 took over the charge of the Officer-In-Charge, CRC Sundernagar and since then, he has been discharging duties of Officer-In-Charge, CRC Sundernagar. 14. Though, the petitioner filed the petition on 10.5.2021, but the same came to be listed on 13.5.2021. This court, while issuing notice to respondents, ordered that the petitioner would be permitted to hold the office of Officer-In-Charge of CRC Sundernagar till further orders, however, by that time, the petitioner stood relieved in absentia and in his place, respondent No.3 had already joined as Officer-In-Charge, CRC Sundernagar. Factum with regard to petitioner having been relieved on 11.5.2021, and taking over of charge by respondent No.3, was neither brought to the notice of the court at the time of passing of order dated 13.5.2021 nor the same have been disputed at the time of final hearing. 15. Similarly, there is no dispute inert se parties that impugned office order has been issued in compliance to policy decision of competent Authority, to post Assistant Professor against the post of Officer-In-Charge on rotation basis. 15. Similarly, there is no dispute inert se parties that impugned office order has been issued in compliance to policy decision of competent Authority, to post Assistant Professor against the post of Officer-In-Charge on rotation basis. Petitioner has not laid challenge to the aforesaid policy decision taken by the competent Authority vide communication dated 9.2.2021 and he has no quarrel/grouse against the same, as has been fairly submitted by learned senior counsel appearing for the petitioner. 16. The moot question, which needs determination in the instant case is, "whether the policy decision taken by the competent Authority on 9.2.2021 is prospective in nature or can be given retrospective effect? No doubt, by now it is well settled that any instruction be it statutory or administrative, have prospective operation unless otherwise provided but, having taken note of the background, in which rotation policy came to be formulated, this Court, before exploring answer to the aforesaid question, definitely needs to look into the object and the purpose of formulation of policy of rotation. 17. True it is that perusal of the aforesaid letter dated 9.2.2021, nowhere reveals that it shall be effected retrospectively but, as has been observed hereinabove, before deciding the date of applicability, this Court needs to understand the very object and the purpose of formulation of the policy of rotation. The very purpose and the object of this policy are to ensure that one person does not remain posted at one post/place for an indefinite period and, other persons, who are similarly situate, are not deprived of opportunity of being given the additional charge of the office of Officer In Charge. 18. Reply filed by respondents Nos. 1 and 2 clearly reveals that position of Officer-In-Charge in CRC is not designated post, rather it has been provided to look after routine work of CRC by such officer, who is given charge of this post in addition to his/her duties, and such arrangement has been made to ensure smooth functioning of the CRC's, which are otherwise under the administrative control of the National Institute or other Institutes. Since the petitioner being one of the Assistant Professors was given opportunity to work as Officer-In-Charge, CRC Sundernagar, he cannot claim any right to remain in such post for an indefinite period. 19. Since the petitioner being one of the Assistant Professors was given opportunity to work as Officer-In-Charge, CRC Sundernagar, he cannot claim any right to remain in such post for an indefinite period. 19. Learned senior counsel for the petitioner otherwise has not been able to point out any document available on record suggestive of the fact that the petitioner was in receipt of any financial benefits over and above salary draw by him as Assistant Professor. This count finds from the record that the rotation policy as referred to above, has been otherwise formulated in compliance to circular dated 11.9.2013 issued by the Central Vigilance Commission to various Ministries/Departments/Organisations for identification of sensitive posts for ensuring that the staff working on these posts are strictly transferred after 2-3 years, to avoid development of vested interests (Annexure R-1 of reply filed by respondent No.2). Communication dated 11.9.2013 issued by the Central Vigilance Commission reveals that the Commission having taken note of the fact that rotation/transfers are not being effected in many organisations and some officers continue to remain in same post for long periods, and in this process, have indulged in corrupt practices, advised the heads/CEO's of the Departments/Organizations to ensure that periodical rotation of officers holding sensitive posts/job is made. As per aforesaid advisory issued by the Central Vigilance Commission, officials should not be retained in same place/post for longer period in the Government departments/PSU's/Banks/Organisations etc. No doubt, as per rotation policy referred to above, senior most Assistant Professor is to be given charge of the office of Officer-InCharge, CRC's but, in the case at hand, petitioner has already served as Officer-In-Charge, CRC Sundernagar for more than 18 years, as such, he cannot be permitted to stake a claim that since aforesaid rotation policy came into operation with effect from 9.2.2021, it can have prospective effect and in that process, he being senior most Assistant Professor, is entitled to continue for another two years as Officer-In-Charge. 20. Since, very purpose and object of issuance of aforesaid rotation policy after issuance of advisory by the Central Vigilance Commission is to ensure that no officer/person is retained in same post for a long period so that he/she does not indulge in corrupt activities, plea raised on behalf of the petitioner with regard to date of application of the rotation policy, may not have much relevance. Though, this Court having taken note of the object and purpose of issuance of rotation policy by the competent Authority, finds no illegality or infirmity in the decision of the respondents, inasmuch as handing over of charge of the office of Officer-In-Charge to respondent No.3, who is next in seniority, is concerned, but even otherwise, replies filed by respondents suggest that the petitioner is not entitled to hold the post of Officer-In-Charge in terms of latest rotation policy formulated by the competent Authority. Respondents in their replies have categorically stated that one criminal case vide FIR No. 0071, dated 13.3.2021 stands already registered against the petitioner at Police Station Sundernagar under Ss. 354A, 355 and 34 IPC and S.3(1)(i) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (Annexure R-4). 21. Clause (iv) sub-clause (b)(c) of the rotation policy clearly suggests that the charge/rotation will not be given to those officers, against whom any vigilance case is pending or he/she is found to be involved in any sexual harassment case. 22. Factum with regard to lodging of FIR as detailed herein above, has not been denied by the petitioner in the rejoinder having been filed by him to the replies filed by respondent Nos. 2 and 3. No doubt, mere registration of a criminal case may not be sufficient to conclude/rule out complicity of a person named in the FIR but since it has been specifically provided in the rotation policy that the persons, against whom any vigilance case or sexual harassment case has been registered shall not be entitled to hold the post of Officer-In-Charge, petitioner cannot claim to continue as Officer-In-Charge, CRC Sundernagar being senior most Assistant Professor. Since no challenge has been laid to aforesaid rotation policy formulated by the competent Authority, there is no occasion for this court to comment qua the condition of registration of vigilance or sexual harassment case incorporated in the Policy. Since petitioner has already served for 18 years as Officer-In-Charge, CRC Sundernagar, he cannot claim fresh appointment in terms of rotation policy formulated on 9.2.2021, especially keeping in view the purpose and object, for which said rotation policy has been issued in terms of advisory of the Central Vigilance Commission. 23. Since petitioner has already served for 18 years as Officer-In-Charge, CRC Sundernagar, he cannot claim fresh appointment in terms of rotation policy formulated on 9.2.2021, especially keeping in view the purpose and object, for which said rotation policy has been issued in terms of advisory of the Central Vigilance Commission. 23. Otherwise, petitioner has failed to bring to the notice of this Court infringement of any fundamental right so as to enable him to invoke jurisdiction of this Court since neither this is a promotion nor any financial benefits are attached to such post. 24. The plea raised on behalf of the petitioner that mere registration of a case does not point out his guilty, does not have any relevance, as the only embargo provided in the policy dated 9.2.2021 is that no vigilance case should be pending against an officer and he should not be found trapped in sexual harassment case and there is no recital of person being convicted in such offence, as such, mere registration/pendency of such case(s) is enough to debar such person from holding the post of Officer-In-Charge, especially when no challenge has been laid to said clause of the policy or the entire policy for that matter. 25. In view of above, we find no merit in the present petition, which is accordingly dismissed, alongwith all the applications. Interim order(s), if any, stand vacated.