Priyanka Chauhan vs Union of India and Others

Sujoy Paul, J.—By filing this petition under Article 226 of the Constitution, the petitioner has prayed for a direction to the respondents to consider her case for regularization on the post of Administrative Officer. Subsequently, the amendment was made in the petition and the advertisement dated 03-09-2011, whereby the post of Administrative Officer was advertised, is also called in question. The relevant facts necessary for adjudication of this matter are as under:-

The petitioner is daughter of late Shri P.S. Chauhan, who sacrificed his life in a militant attack at Kashmir Border. The petitioner could have got compassionate appointment on a Class-III post, but she wanted to occupy a post commensurate to her educational qualification. The petitioner preferred her candidature for the post of Administrative Officer in the respondent-institute pursuant to the advertisement-Annexure P-6. The respondents by issuing the advertisement-Annexure P-6 intended to fill up the post of Administrative Officer [Rs. 6,500-200-10,500] and the petitioner along-with other candidates submitted their candidatures. It is not in dispute between the parties that one post of Administrative Officer was lying vacant when such advertisement was issued. The petitioner and other candidates were considered by the Selection Committee and thereafter the petitioner was initially appointed on contract basis for a period of two years. It is the case of the petitioner that the Selection Committee opined that after two years, petitioner''s case will be considered for regularization. The petitioner submits that her services were found to be satisfactory and because of that she was given extension of one year on contract basis. The grievance of the petitioner is that various similarly situated persons have been considered for regularization but she has not so far been considered. It is further argued that the petitioner''s appointment on contract basis was against a clear and vacant post and was in accordance with statutory recruitment rules. It is submitted that the petitioner''s case was not properly handled and she was subjected to discrimination. The persons, who have not been appointed in accordance with the rules, were also considered and regularized but petitioner was given a discriminatory and step-motherly treatment by the respondents. By filing rejoinder, the petitioner submits that in fact a policy-decision was already taken to regularize the persons who were working against 68 identified posts. Those 68 posts include the post of Administrative Officer. However, the respondents have given half-hearted and incomplete information by communication dated 1st July, 2011 (Annexure P-15) to the apex authorities because of which petitioner''s case was not considered.

Shri MPS Raghuvanshi, learned counsel for the petitioner by taking this Court to document Annexure P-5, submits that the finding of Selection Committee is not reproduced in toto in the said letter written by Director which resulted into miscarriage of justice. He submits that only first portion of the recommendation of the Selection Committee is reproduced in the said letter and second portion was not. The Selection Committee''s opinion that the petitioner''s case would be considered for regularization on satisfactory performance, has not been communicated to the higher authorities. Had it been done, the petitioner would have been considered for regularization. By placing reliance on other documents filed along-with rejoinder, it is stated that the respondents even regularized those persons, who were not recruited in accordance with law but left out the petitioner for no justifiable reason.

Per contra, Shri Tapan Trivedi and Shri Prashant Sharma, learned counsel for the respondents no. 2 to 4 supported the action and submits that petition is bereft of merits and substance and, therefore, deserves to be dismissed. Shri Tapan Trivedi, learned counsel submits that the petitioner''s application form and details mentioned therein itself show that she did not have five years experience of working on administrative post. By relying on the recruitment rules, it is argued that five years experience in suitable administrative capacity was the minimum eligibility condition/qualification. The petitioner''s application shows that she worked as Administrative Officer only from July, 2007 to 14-06-2008. The other posts on which she had worked as Lecturer and Instructor, did not have any administrative duties and responsibilities. By taking this Court to Annexure R-3 the Minutes of Selection Committee, it is argued that the Committee had taken into account the administrative experience and performance of the candidates, including petitioner and opined that she is not suitable for the position. It is further submitted that if the petitioner was lacking minimum eligibility condition, there was no question of her appointment. In any case, the petitioner was offered a contractual appointment which she readily accepted without any protest or demur. It is further submitted that neither the proceeding of Selection Committee (Annexure R-3) nor the appointment on contract basis was called in question by the petitioner before any adjudicatory forum. It is further argued that the Selection Committee had overstepped its jurisdiction while opining that the petitioner''s case would be considered for regularization on satisfactory performance during contractual appointment. It is argued that during her contractual tenure, the petitioner remained absent for which she was warned. She through her mother and husband invited political interference/recommendation which is in violation of provisions of Central Civil Services (Conduct) Rules, 1964. It is further submitted that the petitioner wanted to remain at Gwalior and for that, she used to take leave in whimsical fashion. It is further argued that the petitioner did not fill up the relevant self-appraisal portion of ACR which shows her improper conduct.

Learned counsel for the respondents further submit that a decision was taken in 31st Meeting of BOG to regularize certain employees. For the purpose of regularization, 31st December, 2007 was treated as a cut off date for counting 10 years of service and since petitioner was not on the rolls of the Department on 31st December, 2007 nor had completed 10 years of service, there was no question of considering her case for regularization. Apart from this, in page 11 paragraph 15 of the return, it is stated that the conduct of the petitioner shows that she could not pass the test of satisfactory performance so that her case could be considered for regularization. By placing reliance on Annexure R-14, it is stated in the return that "on overall examination of representation submitted by the petitioner and after going through the service records of the petitioner, the case of regularization of the petitioner was rejected and accordingly, decision to initiate fresh process of requirement to the post currently held by the petitioner was taken". In support of this decision, Annexure R-15 has been filed. The respondents have taken a stand that the petitioner''s services were not satisfactory during contract period, she was not working on the said cut off date nor had completed 10 years of service and, therefore, she does not deserve consideration for regularization.

I have bestowed my anxious consideration on rival contentions advanced at bar and perused on record.

It is not in dispute between the parties that the advertisement-Annexure P-6 was issued to fill up the posts on regular basis. The post of Administrative Officer [Rs. 6,500-200-10,500] was lying vacant. The Constitution of Selection Committee was proper, is also not in dispute. The petitioner was said to be not suitable only because she did not have five years administrative experience.

Shri Tapan Trivedi, fairly admits that the petitioner do possess the relevant educational qualification/degree, etc. as per the recruitment rules. In my opinion, it is apt to quote relevant portion of the Minutes of Selection Committee:

The following members were present:-

Prof. Dr. Sitikantha Mishra, Director, IITTM-Chairman

Dr. Suresh Kumar, Professor, H.P. University, Shimla-Member (SC/ST)

Dr. Nimit Chowdhary, Professor, IITTM

Dr. Pawan Gupta, Sr. Lecturer, IITTM

15 candidates short listed by the Scrutiny Committee were invited for interview. Seven candidates appeared for interview before the Selection Committee.

Keeping in view their administrative, experience and performance at the interview, the selection committee had a unanimous opinion that none of the candidates was suitable for position.

However, the committee recommended that Mrs. Priyanka Chauhan may be offered appointment as Administrative Officer on purely temporary basis on contract for two years in the pay scale of Rs. 6500-200-10500. Subsequently, on the basis of satisfactory performance her case may be considered for regularization.

In the opinion of this Court, the Selection Committee opined that none of the candidates was suitable for the position. Yet the Committee recommended the case of the petitioner for appointment as Administrative Officer on contract basis for two years. It is further opined that subsequently on the basis of satisfactory performance, her case may be considered for regularization.

This finding of Selection Committee was partially acted upon. Accordingly, the petitioner was given appointment by order dated 1st September, 2008 (Annexure R-4). I found nothing in Annexure R-4 which shows that recommendation of Selection Committee for considering the case of the petitioner for regularization is expressly or impliedly overruled. The petitioner accepted the offer of contractual appointment. In my opinion, the argument of learned counsel for the respondents that the petitioner did not challenge the appointment order or conditions mentioned therein and therefore, she does not deserve any relief, is misconceived. The petitioner has prayed for consideration of her case for regularization. For that, it was not necessary for her to challenge the appointment on contractual basis. In absence of challenge to those orders also, the petitioner can claim consideration for regularization if she is otherwise eligible, the aspect which will be dealt with hereinafter.

It is true that the petitioner was served with Annexures R-7 and R-8 regarding her absence. However, by Annexure R-9 dated 08-03-2010, the petitioner informed that on one occasion she had rushed to Gwalior on 21-11-2009 because her daughter met with an accident. Because of aforesaid emergency, she had to leave for Gwalior. It was duly intimated to the Director and the Nodal Officer and respondents had granted leave for the said period. In my opinion, this is not sufficient ground to deprive the petitioner from consideration for regularization nor this makes her unsuitable. This kind of emergency may occur for any human being while working in the establishment. The respondents have already sanctioned the leave and thereafter it is not open for the respondents to take the said objection. The respondents are "State" within the meaning of Article 12 of the Constitution and they are bound to act in humanitarian and just manner and this objection regarding leave is without any substance and merits.

So far contention of the respondents about not submitting self-appraisal of ACR is concerned, the relevant documents filed along-with return show that despite the aforesaid fact, the reporting officer had graded the petitioner as "satisfactory" and the reviewing and accepting officer have not chosen to reverse the said finding. Thus, despite the fact that the petitioner had not filled up the relevant columns, she was graded as "satisfactory" and the higher authorities have not chosen to reverse the said finding.

On the contrary, the columns which were required to be filled up by reviewing and accepting officer, are also lying vacant and, therefore, in my opinion, this cannot be a reason to deprive the petitioner from consideration for regularization, if she is otherwise eligible. It is also noteworthy that Nodal Officer after grading the petitioner''s services as "satisfactory", recommended for extension of her services on contract basis vide Annexure R-27. In turn, the competent authority i.e. Chairman (A & F)/Director opined that on report and recommendation of Nodal Officer, Bhubaneswar contract of petitioner may be extended for a period of one year or until further order, whichever is earlier, w.e.f. 27-09-2010 on existing terms and conditions. Thus, report and grading with regard to the petitioner as "satisfactory" is accepted and acted upon by the respondents. After this, by no stretch of imagination it can be said that the petitioner''s services were not satisfactory during her first term of contractual appointment. Thus, in my opinion, the petitioner''s services were found to be satisfactory and, therefore, only she was given another chance of one year on contract basis to serve the Department. Annexure R-14 dated 30th September, 2011 does not support the averments made in this regard. In para 9 of the return of respondents no. 1 to 3, it is stated that the case of regularization of the petitioner was rejected. When this pleading is examined in juxtaposition to contents of Annexure R-14, it became clear like noon day that there was no consideration of her for regularization. In other words, the said order does not indicate that the petitioner''s case was considered and she was not found fit. No other material is placed on record to show that the petitioner was actually considered for regularization. In that event, the respondents should have filed the Minutes of Screening Committee to show that petitioner was actually considered and was not found fit for regularization. Thus, in my opinion, the respondents have not considered the case of the petitioner for regularization at all.

The pivotal question is now whether the petitioner was entitled to be considered for regularization. The argument of the respondents is that such right accrues only to such employees who have completed 10 years of service uninterruptedly or those who were working on 31st December, 2007 [cut off date].

I have examined this aspect carefully. On perusal of the record, it appears that a decision was taken to regularize the persons working against 68 posts in Gwalior and Bhubaneswar. This was done pursuant to the recommendation of Staff Inspection Unit (SIU) vide Ministry''s letter No. 7(2)/2002-IITTM/Part II dated 31st Oct, 2006. On a specific question from the Bench, Shri Trivedi fairly admits that those 68 posts includes the post of Administrative Officer which was occupied by the petitioner on contract basis.

The respondents have also relied on Minutes of 31st Meeting of BOG of IITTM. Opinion was sought for from Shri R.D. Jain, learned Senior Advocate about regularization of contractual employees. In turn, learned Senior Advocate opined that a cut off date may be fixed by the employer and in turn, the cut off date on 31st December, 2007 was fixed since the petitioner was not working on the said cut off date nor she had completed 10 years of service, she deserves no consideration pursuant to decision of BOG.

I have examined the said contention in depth. The agenda of Meeting dated 19th March, 2007 shows that the proposal was made to prescribe 31st December, 2007 as "the cut off date for counting 10 years of the service for such employees who were not recruited through proper procedure".

(emphasis supplied)

In the present case, the petitioner was recruited by following the due process. Thus, the said decision and the cut off date which were made for those employees who were not recruited in accordance with rules, is not applicable. Apart from this, the document Annexure P-16 [with rejoinder] shows that the decision was taken to regularize the employees who have been appointed by following recruitment procedure and are working on contract/temporary basis. Page 24 Annexure P-16 shows that for such employees no cut off date is prescribed. The decision was taken to regularize those employees also who have not been appointed by following recruitment procedure. The document [Page 27] filed along-with the rejoinder contains following averments:-

the existing incumbents who have been appointed against the posts (68) recommended by the SIU, following proper procedure of recruitment may be regularized from the date of their joining. Other appointees, who are working for a long time though not recruited through proper procedure, may also be considered for regularization on the recommendation of the DPC/Selection Committee (as per the RRs) on humanitarian ground.

Apart from this, the petitioner has given example of two employees, namely, Shri Dhan Bahadur Koon and Ms. Divya Kujur who were recruited on contract basis like the petitioner after decision of 31st Meeting of BOG, but the said employees were regularized. It is interesting to note that in their appointment order also there was no clause of regularization.

The relevant Agenda of BOG makes it clear that for the petitioner who was recruited after following due procedure, there was no requirement of completion of 10 years of service nor there was any requirement to be on the rolls of the Department on the cut off date. Thus, the contention of the respondents that the petitioner was not eligible for consideration because of aforesaid two reasons, is devoid of merits and substance. The petitioner''s services were found to be satisfactory and for this reason also, her contractual appointment was extended for one year. Thus, this cannot be held that petitioner''s services were not satisfactory. Another contention of respondents is that petitioner was lacking the experience of five years at the time of her initial appointment. In my opinion, that was the reason, she was not given regular appointment by the Selection Committee and found to be not suitable. However, fact remains that the petitioner had worked on contract basis on administrative post from 01-09-2008 to 16-02-2012. Before that, she had experience of an administrative post from July 2007 to 14-06-2008. Thus, the experience which was lacking at the time of initial appointment is acquired by the petitioner during her service with the respondents-Department. Thus, this also not to be a ground for non-consideration of the petitioner. The respondents have completely failed to show any valid reason which justifies their action in putting the petitioner to comparatively disadvantageous position qua the other employees who have been considered and regularized. In the case of the petitioner, it may be noted that the stand of the respondents that the petitioner does not have experience, cannot be approved at this stage for the purpose of considering her case for regularization. She cannot be treated to be having unsatisfactory record in view of acceptance of recommendation of Nodal Officer of Bhubaneswar and continuance of her service on such acceptance. The requirement of 10 years continuous service or to be on the rolls of the Department on the cut off date is also not applicable to the petitioner and, therefore, there remains no reason to deprive the petitioner from right of consideration. More so, when SIU had already decided to regularize the employees on certain posts including the post of Administrative Officer.

Apart from this, it is gathered that a sizable number of employees who have worked for less than 10 years, are considered and regularized by the respondents. It is clear from the documents filed with rejoinder. For example, Mrs. Divya Kujur was appointed on 04-12-2006 and was regularized on 21-07-2010, Shri Dhan Bahadur Koon was appointed on 09-12-2006 and was regularized on 22-07-2010, similarly, Shri Arvindam Chakrawarti was appointed on 29-09-2006 and was regularized on 30-05-2008. Thus, there is no justifiable reason for not considering the case of the petitioner for regularization. In the aforesaid backdrop, in my opinion, the action of the respondents in advertising the post of Administrative Officer without considering the case of the petitioner for regularization, is arbitrary, discriminatory and bad in law.

So far other contentions of the respondents are considered, in my opinion, those contentions have no force and cannot be a reason to deprive the petitioner from right of consideration. No other arguments advanced or pressed by the parties. Resultantly, in my opinion, the respondents have erred in not considering the case of the petitioner for regularization.

Accordingly, this petition deserves to be allowed. The respondents are directed to consider the case of the petitioner for regularization from the due date. The respondents shall complete the exercise of consideration of the petitioner within a period of two months and pass order thereupon. For the reasons stated above, impugned advertisement is quashed. The petition is allowed to the extent indicated above. No costs.