Ram Dayal Lodhi vs Laxmibai National Institute Of Physical Education And Others

This order shall lead to final disposal of Writ Petition No. 4758/2012 and W.P. No. 7976/2015.

These writ petitions are directed against the order dated 044/04/2012 passed by the Central Administrative Tribunal, Jabalpur Bench, Jabalpur in

Transfer Application No. 15/2009 and Transfer Application No. 17/2009. These applications were directed against the order dated 31/08/2005

whereby the services of petitioners as Senior Assistant and Lower Division Clerk in the UGC Academic Staff College of respondent University were

dispensed with. As the appointments were found to be inherently defective.

The order dated 31/08/2005 was in furtherance to an enquiry in respect of appointments in the University initiated on the basis of the order dated

19/04/2004 passed in Writ Petition No. 450/2002. On an enquiry, various illegalities were noted in the procedure adopted for appointment which were

found to be without adhering to rules.

In the enquiry by the Board of Management convened on 07/01/2005, the illegalities found were that:-

(i) there was a ban on recruitments;

(ii) the post of Senior Assistant was promotional but direct recruitment was resorted to

(iii) there was a change in the composition of Selection Committee at an incompetent level and as such it was initiated.

(iv) the age, qualifications, experience for the post of Section Officer was not prescribed.

(v) Petitioners did not deposit application fee and, therefore, the application was incomplete.

Show cause notice was issued on 14/03/2005, whereagainst replies were filed on 28/03/2005, 15/04/2005 and 10/06/2005. Impugned order was

passed on 31/08/2005. The order was challenged in the High Court. With the constitution of the Central Administrative Tribunal vide Administrative

Tribunal Act, 1985, the petitions were transferred to the Tribunal. The Tribunal upheld the termination. It observed:-

“18. The applicants of TA Nos. 15/2009, 17/2009, 23/2009 & 25/2009 have also been terminated on the ground that they did not deposit prescribed

fee of Rs.200/- along with their application form and as such, their applications were incomplete and could not be considered.

Indisputably, advertisement for filling up the aforesaid posts was issued on 19-3-2001 and the last date for submission of application form, as

mentioned in the aforesaid advertisement, was 16th April, 2001. By corrigendum of Annexure-P/13 filed in TA No. 15/2009, the last date for

submission of application form has been extended up to 7th May, 2001, in relation to the earlier advertisement issued in the University News,

November 13, 2000, Employment News, 18-24 November, 2000 and Dainik Bhaskar, November 3, 2000. However, it does not mention that the last

date was also extended in respect of advertisement of Annexure-P/6 published on 19th March, 2001 in 'Hindustan Times' and filed as Annexure-P/6.

The corrigendum also does not reveal that the same is in relation to the advertisement issued for filling up vacancies of the ASC.

Contention of the applicants that the applicants in TA Nos. 15/09 & 17/09 submitted the applications along with demand draft of Rs.200/- along

with their application form dated 2-4-2001, however, the same was returned on the ground that it was short by Rs.50/- and thereafter they deposited

cash of Rs. 250/- as demanded, however, receipt for the same was issued only on 4-5-2001, appears to be highly improbable as in the advertisement

itself prescribed fee is mentioned as Rs.200/- and not Rs.250/- and issuance of cash receipt cannot be deferred for a month after the payment was

made by the applicants. In TA No. 25/2009 and T.A. No. 23/09 also, on enquiry it was found that the applicants had not deposited the prescribed fee

and this fact was mentioned in the show cause notice, however, the applicant has claimed to have deposited the prescribed fee at the time of issuance

of application form, but he has not filed any receipt. In TA No.23/2009, the applicant, in his reply to the show cause notice, has also stated that he is

ready to deposit the application fee even now.

From the above fact, we observe that theentire selection process in the present case was conducted in a most casual manner. The application

forms of the candidates were accepted without requisite fee and in some cases, fee was accepted and receipt was issued even after last date of

submission of application, though fee was prescribed as Rs.200/- in the advertisement, two applicants have submitted receipt for Rs.250/- that too

issued after last date of submission of application forms.â€​

As to the petitioner in Writ Petition No. 4758/2012, the Tribunal found:-

“22. The applicant of TA No. 15/2009 (Senior Assistant) and the applicant of TA No.25/2009 (Section Officer) have been terminated also on the

ground that as per relevant rules, the above posts were to be filled through promotion whereas, the applicants were appointed through direct

recruitment in contravention of the Rules, 1992.

We have already held that as per para- 43 (e) of the scheme, the appointment of non teaching staff was to be made as prescribed for other posts

in the university. From perusal of the relevant rules applicable for appointment of the Section Officer and Senior Assistant, it is clear that both the

posts are promotional posts whereas, the Institute has appointed these applicants by direct recruitment, which is in infraction of the rules. So far as

argument of learned counsel for the applicant that the applicant has been appointed on the post of Senior Assistant and has been given pay scale of

Rs.5000-8000/-, which is the pay scale of the Senior Assistant under the UGC(ASC) whereas pay scale of the Assistant is Rs.4,500-7,000/- and the

same is not equivalent to the Senior Assistant is concerned, from bare perusal of the advertisement, it is clear that the eligibility criteria and pay scale

was to be as per the provisions of the Central Government and not as per UGC scale. The post of Assistant is promotional post under the rules

whereas,the applicant has been appointed by direct recruitment and thus, appointment of both the applicants on the post of Section Officer and Senior

Assistant by direct recruitment is against the Rules, 1992.

On the basis of above discussion, termination of the applicants on the ground that recruitment process was initiated curing the period when ban

imposed against recruitment was in force; changes in constitution of selection committee were made inappropriate level which was not in accordance

with the relevant provisions under the MOA; age, qualification and other eligibility criteria not specifically mentioned in the advertisement is established

from the documents available on record. There were gross irregularities and illegalities in the selection process as pointed out in the foregoing

paragraphs. Therefore, in our considered opinion, the applicants have been terminated from their services after enabling them opportunity of hearing

and the same does not call for any interference.â€​

The order is being challenged on the ground that the Tribunal has failed to appreciate that the petitioners were not afforded the opportunity of

hearing. That the termination was contrary to the provisions of Memorandum of Understanding. That the posts were not the institutional post but were

advertised under the University Grant Commission/Academic Staff College scheme. That the ban on appointment was lifted vide resolution by the

Board in its 7th meeting dated 24/01/2001. Even otherwise, it is urged that, the post being not Institutional post, the ban on recruitment was not an

impediment. That the posts being advertised under the scheme were rightly filled through direct recruitment. The findings that Rule of 1992 i.e. Sports

Authority of India (Misc. and Ancillary Grade C and D staff) Recruitment Rules 1992 are perverse being contrary to the stipulations in Clause 43 E of

the scheme. It is contended that the finding regarding composition of Selection Committee is also perverse. It is urged that Prof. P.K. Pandey was

duly authorized to be a member of Selection Committee. On these contentions, petitioners seek quashment of orders passed by the Tribunal and the

order of termination.

The respondents on their turn have supported the order. In respect of petitioner in W.P. No.4758/2012, Ramdayal Lodhi; it is contended that he was

appointed on the post of Senior Assistant in the Academic Staff College sponsored by the University Grants Commission for a period of 5 years and

as per appointment order dated 11/09/2001, there is no condition or liberty to continue after the said period of five years. It is urged that the

appointment was only for five years or till continuance of aid by the UGC, whichever is earlier. It is urged that the period of 5 years had came to an

end on 10/09/2006, therefore, there is no right in the petitioner to seek the direction for reinstatement. On merit, it is submitted that the last date for

submission of application was 16/04/2001 along-with the fee Rs.200/-; whereas, the petitioner applied on 04/05/2001 with fee of Rs.250/-; which was

after the cut off date. As such, it is urged that, there was no application in the eyes of law. It is further contended that the appointments were made

under the scheme, viz., “Academic Staff Orientation Schemeâ€; whereunder, Clause 43 made provision regarding “Staff Normsâ€; sub-clause

(e) whereof provided that, with regard to appointment of administrative staff, the mode of appointment will be the same as prescribed for the other

posts of University. It is contended that since the post of Senior Assistant is not in existence in the set-up of the Institute, but being equivalent to the

post of Assistant which filled by 100% through promotion. It is further contended that the Selection Committee, which was constituted by the

competent authority as per provisions of Memorandum of Association for the administrative posts, was unduly, unauthorizedly and without jurisdiction,

changed by the then officials of the respondent Institute by inducting Dr. P.K. Pande, Professor, who was not a Finance Officer nor was he Finance

Expert. It is urged that the change is tried to be justified on the ground that the Minister of Department had effected the change; however, it is

contended, it was beyond the powers of any individual authority to change the composition of Selection Committee contrary to the Memorandum of

Association. It is contended that replacement of Dr. P.K. Pandey, Professor, in place of Finance Officer being contrary to the terms in MoA, the

entire composition of Selection Committee was bad and the proceedings drawn by such Committee stood vitiated. It is further urged that the

appointment of administrative staff was made during the ban period which was imposed on 8.3.2000. Similar contentions are raised in respect of

Manoj Singh Tomar, petitioner in W.P. No.7976/2015. On these contentions, respondents support the order passed by the Tribunal and seek dismissal

of petition.

Considered the rival submission and perused the record.

Admittedly, the appointments were made in pursuance to the Academic Staff Orientation Scheme brought in vogue, by the University Grants

Commission in the year 1993, in furtherance to the National Policy on Education 1986, brought in vogue to organize especially designed orientation

programmes in teaching methodologies, pedagogy educational psychology etc. for all new entrants at the level of lecturers; to organize refresher

courses for serving teachers to cover every teachers at least once in five years. Clause 43 laid down Staffing Norm. That new Academic Staff

College was permitted to be established in the respondent-Institute from academic session 2000 by the University Grants

Commission vide its authorization dated 8.2.2000, categorically stipulating the status of the Academic Staff College being purely tenure based

temporary scheme, stipulating that at any moment of time the scheme may be closed. The Staff either teaching or non-teaching

administration/maintenance is always temporary and will have no claim of permanency at any stage. It was also the stipulation that the

University/Director of the UGC-ASC will also intimate the State Government decision of taking over the liability after the cessation of the UGC

support of the ASC Programme in the University continued for more than five years. Thus in principle the programme was for five years, the

appointments which were to be made were temporary for a period of five years.

That application were invited for temporary appointment for five years vide advertisement dated 19.3.2001 stipulating:

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(emphasis supplied)

The outer limit for applying was 16.4.2001. Though it is contended that the time was extended beyond 16.4.2001 and reliance is placed on Annexure

R/1 (a) and R/1 (b) which was filed by respondent with the return in Writ Petition No.3727/2005 (S) (which was later-on transferred to the Tribunal

as T.A.No.15/2009). The list however contains two sets of personnels 1 to 13 and 1 to 8. Whereas the personnels at 1 to 13 are shown to have

applied before the cut off date i.e. 16.4.2001. The personnels from 1 to 8 are shown to have applied after 16.4.2001. However, it could not be

established by the petitioner that these personnels from 1 to 8 were UGC/ASC appointee. The fact that the petitioner in W.P.No.4758/2012 did not

apply within time is also borne out from the scrutiny done by the Committee, brought on record with Annexure P/5 in W.P.No.4758/2012 which

categorically records that the application of S/Shri Anuj Narayan Singh and Prabhudayal Lodhi are available but no record of deposit of application

fee as prescribed by the Institute which made the application incomplete.

Besides, the selection of the petitioners were found to be inherently defective as the same were recommended by the Committee which was not

properly constituted. The constitution of initial committee by the Board of Management for selection of persons were nominated by name and the fifth

member was included by way of designation (Finance Officer). The change in selection committee was brought in vide letter dated 12.6.2001 issued

by the office of Ministry of Youth Affairs and Sports wherein it was mentioned that the Minister in her capacity as a chairperson of LNIPE has

nominated Shri P.K. Pande, Professor in place of Shri D.K. Shrivastava, Finance Officer in the selection committee for appointment of administrative

staff of the institution. Petitioners have failed to establish that the chairperson of the institution was individually authorized under the Memorandum of

Association to have caused change in the composition of selection committee by bringing any person who was not a specialist i.e. Finance Officer.

This inherent defect in composition of selection committee was rightly adjudged by the institution that the same vitiated the entire selection as would

create any right in favour of respective selectees for the post on which they were selected by such committee.

Thus, no right accrued in favour of the petitioner as the entire selection was vitiated because of the same.

Furthermore, the appointment were made during ban period. Dwelling on said aspect a Division Bench of this Court in W.A.No.617/2006: Ravi

Prakash Dixit Vs. Lakshmi Bai National Institute of Physical Education and others, decided on 2.9.2008 has held :

“20. So far as the question of lifting of ban is concerned, it as pointed out by the learned counsel for the appellant that said ban was lifted vide

Annexure P/8 with the record of writ petition. From perusal of the document Annexure P/8 which are the minutes of the 7th meeting of the Board of

Management of LNIPE held on 24th March, 2001, in which it was resolved to make a request to the Government to lift ban imposed on 8th March,

2000. Thus, this document shows that the Board has merely made a request to the Government to lift ban and it cannot be said from this document

that the ban was lifted by the Government. Infact, ban was in force at the time of issuance of advertisement in question and the appointment of the

appellant.

Lastly the contention raised by the learned counsel for the appellant is that the appellant was not afforded an opportunity of hearing before passing

the impugned order. The appointment of the appellant is per se contrary to the service rules. The appellant does not possess the requisite eligibility

criteria and was appointed during the period of ban.â€​

This order has been affirmed by the Supreme Court with the dismissal of SLP (C) CC No.1600/2009.

The last but not the least, the appointment being temporary for a period of five years no right accrued in favour of the petitioner to seek a

mandamus in the teeth of the irregularities committed while making appointment.

It is held in A. Umarani Vs. Registrar, Cooperative Societies and others, (2004) 7 SCC 112 :

“39............ It is also now well settled that an appointment made in violation of the mandatory provisions of the statue and in particular ignoring the

minimum educational qualification and other essential qualification would be wholly illegal.â€​

“49. It is trite that appointments cannot be made on political considerations and in violation of the government directions for reduction of

establishment expenditure or a prohibition on the filling up of vacant posts or creating new posts including regularisation of daily-waged employee.

(See Municipal Corporation, Bilaspur V. Veer Singh Rajput,(1998) 9 SCC 258).â€​

And in Harpal Kaur Chahal (Smt.) Vs. Director, Punjab Instructions, Punjab and another, 1995 Supp (4) SCC 706 it is held:

“3 It is next contended that along with the appellant two more candidates were selected and were appointed and their appointments were upheld by

the High Court. Denial to her is violative of Article 14 of the Constitution. We find no force in the contention. The view of the High Court is obviously

illegal and the judgment rendered would not form the ground for our holding that the others who got the benefit by illegal orders will be extended in

favour of other candidates though illegally appointed. Article 14 cannot be extended to legalise the illegal orders though others had wrongly got the

benefit of the orders. Under these circumstances, we find no ground to uphold the recruitment of the appellant as a Physical Training Instructor.

However, the fact remains that from 28-1-1971 the appellant has been continuing in service even till date, no doubt, by orders obtained from the Court

and pending litigation, we cannot give any specific direction as sought for to regularise her appointment.â€​

In view whereof we are not inclined to cause any indulgence.

Consequently, petitions fail and are dismissed. No costs.