(Per : HONOURABLE MR.JUSTICE G.B.SHAH) 1. This Special Civil Application has been filed under Articles 14, 19, 21 and 226 of the Constitution of India challenging the order/judgment dated 21.6.2012 passed by the Central Administrative Tribunal, Ahmedabad Bench in O.A. No. 403 of 2011.
2. Petitioner No.2, Food & Safety Standards Authority of India (for short, FSSAI”) is a statutory authority under petitioner No.1 and has been established under the Food Safety and Standards Act, 2006 (hereinafter referred to as 'Act') with the objective of framing science based standards for the safety of food and enforcing the provisions of the Act to prevent adulteration of food items etc. Prior to the enactment of the Act, the Food Research Standardisation Laboratory (for short, FRSL'), Ghaziabad was under the direct administrative control of Directorate General of Health Services, Ministry of Health & Family Welfare. As per provisions of section 90 of the Act, the FRSL along with its posts, staff and administrative work was transferred to petitioner No.2 vide Offce Order No. 22017/1/2009-PH (Food) dated 12.1.2009. Pursuant to the notification dated 25.10.2008 issued by the Department of Health, Ministry of Health & Family Welfare published in the Employment News, respondent No.1 applied for the post of Director, FRSL, Ghaziabad while working as Chemical Examiner, Grade-I and Head of Customs House Laboratory, Department of Revenue at Kandla, Gujarat. He has been duly selected by the UPSC on merit for the solitary post of Director. Respondent No.3 Dr. Dhir Singh has not been selected for the said post in the same selection though he has been officiating as Director FRSL, Ghaziabad. When no action has been taken by the petitioner-respondents for about a period of one and half years on the recommendation of the UPSC, respondent No.1 filed Original Application No. 421/2009 before the General Administrative Tribunal, Ahmedabad Bench, Ahmedabad which was disposed of by order dated 6.12.2010 with a direction to the petitioner-original respondents to pass a reasoned order within two months. Pursuant thereto the petitioners have belatedly passed the impugned order dated 13.10.2011 which has been challenged by the respondent in Original Application No. 403/2011 which was allowed by the Central Administrative Tribunal, Ahmedabad Bench, Ahmedabad (for short, 'the Tribunal') with direction to the petitioners to issue formal offer of appointment to the respondent within two weeks from the date of receipt of the order. This order is under challenge in this Special Civil Application.
2. Learned counsel for the petitioners Mr M.K. Vakharia submitted that the Tribunal has passed the impugned judgment without jurisdiction inasmuch as the petitioners have not been notified under section 14 of the Administrative Tribunals Act, 1985. He submitted that the Tribunal has erred in allowing the Original Application which is contrary to the law settled by the Apex Court in Shankarshan Das vs. Union of India (1991 (3) SCC 47). He submitted that the Tribunal has failed to appreciate that vigilance clearance and antecedents check are essential ingredients of the recruitment process while making appointments to such a sensitive post of Director, FRSL. He submitted that the Tribunal has also failed to appreciate that the competent authority under the petitioners had considered the matter in its entirety in pursuance of the directions of the Tribunal in O.A. No. 421/2009 and a conscious decision was taken to reject the candidature of respondent No.1 for appointment to the post of Director, FRSL which was communicated to the respondent by order dated 13.10.2011. He further submitted that vide letter dated 25.3.2009 the petitioners have specifically mentioned that the respondent had not been medically examined for the post and no special enquiry of his antecedents had been made. He also submitted that the Tribubal ought to have appreciated that merely qualifying the selection process does not bind the authority to make appointment of such successful candidate inasmuch as the competent authority has to satisfy himself about the antecedents and integrity of such candidate before offering the appointment. In the instant case it is clearly noted by respondent No.2 i.e. Union Public Service Commission that it has not tested the antecedents and/or integrity of respondent No.1. He finally submitted that this petition be allowed the the impugned order dated 21.6.2012 passed by the Tribunal in O.A. No. 403 of 2011 be set aside.
3. Party-in-person Mr Gyan Prakash Sharma submitted that after his initial appointment as Laboratory Assistant in FRSL in the year 1984, he has been promoted and selected a number of times by the UPSC for various group 'A' posts till date. However, when the recommendations of UPSC were not acted upon by issuing formal appointment order to him for many months, he became suspicious in the matter. It is his contention that Dr. Dhir Singh respondent No.3 who was also officiating in the post of Director has vested interest in continuing the post and as such he is instrumental in the delay as well as the rejection in question. He contended that the order of rejection dated 13.10.2011 is illegal and arbitrary though the learned Tribunal vide order dated 6.12.2010 passed in O.A. No.421 of 2009 directed the petitioner/original respondent No.2 to take final view in the matter. However, with malafide intention the present petitioners delayed the matter beyond the period as directed by the Tribunal. The delay is intentional and at the behest of respondent No.3 Dr. Dhir Singh who is still continuing in the said post. He stated that Dr Dhir Singh has chequered history with regard to this posting at FRSL, Ghaziabad inasmuch as the Principal Bench of Central Administrative Tribunal, New Delhi in OA No.615/1993 directed the petitioners to refrain from reposting Dr. Dhir Singh at FRSL, Ghaziabad dehors the rules. He contended that with regard to the plea regarding the alleged misconduct has been for the first time raised by the petitioners for rejecting the appointment to the applicant as Director, FRSL whereas he has been selected thrice by UPSC and appointed from 1997 till the selection to the post in question. He submitted that in view of his repeated selections by UPSC and appointment by Government of India, the rejection order is not only malafide exercise to deprive the respondent No.1 of his legitimate claim but also violative of Articles 14 and 16 of the Constitution of India and even barred by the principles of estoppel and legitimate expectation. Lastly, the party-in-person submitted that the vagueness of the rejection grounds is fortified from the letter dated 4.12.2010 which is written to the original respondent No.3 in response to the D.O. letter dated 2.11.2010 in connection with the appointment process of the post in question at page 138 of the counter affidavit it is specifically informed that the Reporting Officer Shri Narendra Kumar had given adverse remarks in the ACRs of Dr. Sharma (present respondent No.1) for the year 2003-2004 and 2004- 2005, which were subsequently expunged by HOD, CRCL on the finding that the adverse remarks were unsubstantiated. He, therefore, submitted that this petition be dismissed.
4. We have heard learned counsel for the petitioners and the party-in-person Mr Gyan Prakash Sharma. So far as the main contention of the learned counsel for the petitioners on the point of jurisdiction is concerned, it is the say of the petitioners that when the post was advertised by UPSC, the petitioner was under respondent No.2 i.e. DGHS/Department of Health and Ministry of Health and Family Welfare but in January, 2009, FSSAI i.e. Food Safety & Standards Authority of India came into existence by way of statutory authority and the employees of FRSL along with the said post were transferred to FSSAI. It is not the say of the petitioners that the service conditions of the employees who have been transferred, have been changed or their pay have been changed. It appears that it was a simple transfer without any further effect on the cadre as well as the post and hence in our view if at all the post of Director, FRSL, Ghaziabad has now been transferred to Food Safety & Standards Authority of India, the Central Administrative Tribunal has jurisdiction because it has not been argued by learned counsel for the petitioner that Statutory Authority had framed its independent rules. Since the employee of FRSL, Ghaziabad had been transferred and no absorption rules have been framed, the said employee shall be covered and continued under the earlier rules which had been notified and covered under the Administrative Tribunals Act. Moreover, the present petitioners had not challenged this issue at the initial stage i.e. when the respondent No.1 had filed O.A. No. 421/2009 in which the order had been passed to the effect that a direction was given to the original respondent No.2 to pass a reasoned order in the matter within two months after examining the entire matter and including complaint of Narendra Kumar and also keeping in view relevancy of such materials brought on record. Thereafter in compliance of the same, the order dated 13.10.2011 was passed by petitioner No.2 which is under challenge. It is important to note that at that time the question of jurisdiction has not been raised by the petitioners and it has been argued by the learned counsel for the petitioners that they have complied with the order and hence the question of jurisdiction was not raised before the Tribunal. We find no merit in the said submissions made by the learned counsel for the petitioners because before complying with the order passed by the Tribunal as referred above, if the petitioners had any grievance, they could have agitated that issue relating to jurisdiction before the higher forum which the petitioners have not done and the said order had been complied with vide its order dated 13.10.2011 which is under challenge in this petition. In our view, now the petitioners cannot agitate the said issue more particularly because it has left the issue related to jurisdiction by its own sweet will. In our considered view, the petitioners have no case at all and they want to agitate this issue in order to prolong the matter at any cost. It is pertinent to note that after the pronouncement of the order dated 21.6.2012 in O.A. No. 403/2011, the petitioners have not filed any review application agitating the question of jurisdiction and now they want to agitate the said issue with a view to prolong the case which has no merit as discussed hereinabove and we do not find any merit in it more particularly because once the petitioners had complied with the directions given by the Tribunal vide its order dated 6.12.2010 and in compliance of the same the petitioners had passed further reasoned order dated 13.10.2011 which is under challenge in this petition.
5. Learned counsel for the petitioners has placed reliance on the decision of the Constitution Bench of the Apex Court in the case of Shankarsan Dash v. Union of India [(1991) 3 SCC 47] in which it has been held that the candidate included in merit list has no indefeasible right to appointment even if a vacancy exists, but State while filling up the vacancies has to act bona fide and not arbitrarily. In the case on hand, how the petitioners have acted mala fide, arbitrarily and not bonafide has been narrated at length by the Tribunal while passing the impugned order/judgment in O.A. No.
403 of 2011. The Tribunal has discussed this in clear terms in paragraphs No. 19 to 24 of the impugned order which is reproduced hereunder:
“19. First point needs the analysis of the documents relied upon for rejecting the name of applicant for appointment to the post in question. It is observed that Respondents have relied upon their decision on two kinds of documents i.e. one the past records from the FRSL, Ghaziabad and other the complaint of Sh. Narendra Kumar. Regarding the past records, it is noticed that the record pertain to year before 1997 which is part and parcel of the administrative machinery for increasing the efficiency of the office and improving the performance of the officials. No document is produced with regard to any disciplinary proceedings, charge sheet or penalty which could debar the Applicant from the new employment as per Rule 11(ix) of CCS(CCA) Rules.
20. Secondly, the Respondents have considered the dies-non as penalty, however, no documents is produced to show that alleged penalty of dies-non is consequent to any charge sheet or disciplinary proceedings. On the other hand, a perusal of documents reveals that before the Applicant was relieved, no dues clearance was taken vide letter dated 11-3-1997 whereas the order of dies-non is dated 15-9-1998 after a lapse of 18 months when the Applicant had already been relieved. Moreover, it is noted from the pleadings that the matter of alleged penalty is sub judice before appropriate forum. Even otherwise as per rules, dies non without the break in service is not a penalty covered under Rule 11 which debars the Applicant from the future employment. The repeated selections and appointments of the Applicant on the recommendation of UPSC and the latest selection by UPSC and appointment of applicant on the recommendation of UPSC to post of Director in the Central Agmark Laboratory, Nagpur under the Department of Agriculture and Cooperation, Ministry of Agriculture on 14-2-2012 during the pendency of present OA in which UPSC is a contesting party, leaves no room for doubt in prima facie concluding that the impugned action of the Respondents suffers from arbitrariness and is also motivated to favour the Respondent No. 4.
21. The next point which needs thorough examination is the complaint of Sh. Narendra Kumar. The allegation against the Applicant mentioned in the complaint were once the adverse entries in the ACR of the applicant during the year 2003-04 and 2004-05, once those adverse entries found unsubstantiated by the superior authority and expunged from the ACRs of the Applicant as noticed from the letter dated 25-2-2010 (Annexure A- 5), we fail to understand the logic for rejecting the Applicant for appointment to the post particularly when the certificate of character antecedent / vigilance clearance from the Cadre Controlling Authority i.e. CBEC, Department of Revenue, Ministry of Finance, is categorical and fully positive. The Respondents cannot choose to ignore the certificate of competent authority unless other material is sufficient to debar employment / appointment. In the present case, the respondents have taken a peculiar stand which is not only contradictory, but also arbitrary on the face of record. It appears from the Counter Affidavit and submissions of learned counsel for the Respondents that the specific allegation of the Applicant about the Respondent No. 4 being a candidate for the same post and having a role in processing the appointment of the Applicant to the post in question and also about his interest in continuing in the post in question is neither disputed nor even attempted to the explained.
22. One more criterion chosen by the Respondent Nos. 2 & 3 for rejecting the name of Applicant is as the post in question is critically sensitive and they require a person of proven technical capabilities, impeccable integrity and unblemished antecedents which subjectively do not find in the Applicant. The learned counsel for the Applicant put forth the counter arguments and adduced documentary records of the Applicant proving technical capabilities, impeccable integrity, unblemished antecedents against their contentions like the applicant is already discharging the critically sensitive duties of Chemical Examiner, Grade-I, as a Head of the Laboratory a number of the duties of the Chemical Examiner are prescribed by and evidenced from the Section 510 of Code of Criminal Procedure, 1898 as amended by Section 293 of Cr. P. C. of 1973 which involve the statutory responsibilities and the same are delegated vide Gazette Notification S./ No. 74, F. No. 50/53/76-AD.II dated 17-7- 1976 / 2-2-1977. In addition to this, the learned counsel submitted a number of appreciation / commendation certificates awarded by the Head of the Department to the Applicant while discharging duties as Chemical Examiner in his Parent Department and in other previous departments. Those documents were not disputed by the learned counsel for the Respondents. It appears that the respondents have not taken a note of the good records and favourable documents of the Applicant while rejecting the selection of the Applicant and have intentionally chosen few disputed records in order to reject the appointment and solely to benefit Respondent No. 4. This action of the Respondent Nos. 2 and 3 clearly proves the mala fide in as much as in spite of specific and substantiated allegation of favouring the Respondent No.
4 in previous OA No. 421/2009 filed by the Applicant before this Tribunal, the Respondents allowed the Respondent No. 4 Dr. Dhir Singh to remain continuing in the questioned post despite knowing that the Respondent No. 4 has not been found suitable for the said post by UPSC.
23. Besides, the respondents could not give any explanation for a very long and inordinate delay in taking the decision of rejection / appointment of the Applicant inspite of the directions issued to them by this Tribunal vide judgment in the OA No. 421/2009 dated 6-12-2010 to complete this exercise within a period of two months. This unexplained delay amounts to be a deliberate delay for favouring the Respondent No. 4 once again proving the mala fide of the respondents. The delay which is unexplained causes a prejudice to the Applicant and undoubtedly favours the Respondent No. 4. We agree with the submission of learned counsel for the Applicant that if the process of appointment in Ministry of Agriculture can be completed after recommendation of UPSC to the similar post of Director, Central Agmark Laboratory within three months, then inordinate delay for the same process of decision of appointment to the post in question in spite of specific court directions clearly demonstrates arbitrariness and in this case, intentional mala fide.
24. All the aforementioned facts emerging from the pleadings and documents submitted by the Applicant the Respondents, clearly demonstrate beyond the limits of any doubt that mala fides have been indulged blatantly by the respondent Nos. 2 & 3 to favour the Respondent No. 4 by giving him all undue favours by extending the charge of post in question in spite of non suitability of his candidature declared by UPSC, getting unexplainable delay of decision of appointment to the post by involving him i.e. Respondent No. 4 in the appointment file of the said post, the delay of three years in taking decision on appointment to the questioned post favoured the Respondent No. 4 in utter disregard to the directions of this Court”.
6. We have also carefully gone through the impugned order/judgment dated 21.6.2012 passed by the Central Administrative Tribunal, Ahmedabad Bench in O.A. No. 403 of 2011. We are in complete agreement with the findings and conclusion arrived at by the Tribunal and we do not find any infirmity or illegality in the said order dated 21.6.2012.
7. In view of the aforesaid, this petition is devoid of any merit and it is accordingly dismissed. No order as to costs.
[V.M. SAHAI, J.]
[G. B. SHAH, J.]
FURTHER ORDER 6. After the writ petition was dismissed Mr Vakharia prayed that the dismissal order as well as the order passed by the Central Administrative Tribunal be stayed for a period of four weeks. We do not find any reason to stay our order passed today. The oral prayer made by the learned counsel for the petitioners is rejected.
[V.M. SAHAI, J.]
[G. B. SHAH, J.]
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