W.P.(C)/4003/2014 of DK RANGRA Vs UNION OF INDIA & ORS.

* IN THE HIGH COURT OF DELHI AT NEW DELHI

Decided on: 17.11.2014

+W.P.(C) 4003/2014D.K. RANGRA..... PetitionerThrough : Sh. U. Srivastava, Advocate.

Versus

UNION OF INDIA & ORS...... RespondentsThrough : Ms. Shalini Aggarwal, Advocate,for Resp. No.1.Sh. S. Shantanu, Advocate, for Resp. Nos. 2and 3.

CORAM:HON'BLE MR. JUSTICE S. RAVINDRA BHATHON'BLE MR. JUSTICE VIPIN SANGHI

MR. JUSTICE S. RAVINDRA BHAT (OPEN COURT)

1.The petitioner’s grievance is in respect of the order dated19.02.2014 of the Central Administrative Tribunal (CAT) rejecting hisapplication, O.A. No.1955/2013. The issue involved is the claim forconsideration for appointment to the post of Director in the NationalInstitute of Fashion Technology (NIFT), Kangra.

2.The NIFT – an institute of national importance, was set-up andlater became subject to an Act of Parliament – National Institute ofFashion Technology Act, 2005 (hereafter called “the Act”). It has itsheadquarters in New Delhi and various Regional Centres. In one of itscentres – at Kangra, it offers various courses.

3.The admitted facts are that the petitioner was initially appointedas Deputy Registrar on 24.11.1992 and later promoted as Registraron ad-hoc basis and subsequently confirmed against that post.

4.He responded to an advertisement issued in 2008 by the CentralGovernment, seeking applications from eligible candidates for the postof Director. The advertisement clearly stated that the tenure of theincumbent to the post of Director would be by way of deputation for aperiod of about five years, subject to review. The petitioner wasselected and appointed as Director of NIFT on 17.06.2008 for periodof five years. His tenure ended on 16.06.2013. Initially his tenure wascurtailed by an order made some time in 2012. He approached theCAT by filing O.A. No.4327/2012 which was allowed on 04.03.2013.

5.The operative portion of the order of CAT reads as follows:

“8.In our opinion, if the respondents intended toterminate the contract for violation of Clauses-12 & 15of the contract the proper course of action would havebeen to issue detailed and speaking order giving thelapses committed by the applicant, the show causenotice issued to him, his reply thereto and the reasonswhy his reply was found to be unsatisfactory. By notdoing so, the respondents have held the chargesagainst the applicant as proved without considering hisdefence which is clear violation of the principles ofnatural justice.Moreover, Clause-16 of the contractwhich provides for termination of the contract in caseof violation of any of the conditions of the contractshouldhavebeeninvokedforterminatingtheDirector’s contract.9.However, this was not done and in fact thecontract of the applicant has been terminated byinvokingClause-14.Thisclauseprovidesfor

termination of contract without assigning any reasonsafter giving three months notice.However, in theinstant case this clause has been invoked after givingin details the reasons for terminating the appointmenti.e. violation of Clauses 12 and 15 of the contract.Thus the very terms of the clause have been violated.In fact, in our opinion, Clause-14 should not have beenused at all when termination was being done ongrounds of misconduct. This clause could have beenused if the services of the applicant to be terminated onthe grounds that the post was no longer required or theworkload did not exist etc.

10.The impugned termination order issued by therespondents is, therefore, not sustainable in the eyes oflaw and we quash the same.As consequence ofquashing of the order, the applicant will have to bereinstated on the post of Director for the remainingperiod of his contract.This shall be done within aperiod of six weeks from the date of receipt of acertified copy of the order. However, the respondentswill be at liberty to proceed afresh against theapplicant in accordance with law.The O.A. isaccordingly disposed of. No costs.”

6.Thepetitionercomplainedofnon-implementationandapproached the CAT in contempt proceedings. Subsequently, on16.06.2013, his tenure period ended. He then approached the CATwith O.A. No.1955/2013, contending that his non-selection to the postof Director, pursuant to the vacancy which occurred after the initialterm, was arbitrary. He also stated that the respondents acted illegallyin not considering him for appointment as Director to other centresalong with other eligible applicants. The CAT rejected all hiscontentions.

7.It was urged by the petitioner that even though the originaltenure of appointment was five years, and had ended, there was noimpediment in his applying afresh to the post of Director and that therespondents were duty-bound to consider his application or at least hiscandidature once the vacancy arose on 16.03.2013. It was also urgedin addition that the CAT failed to address vital aspect, i.e. that onecontractual employee ought not to be ordinarily be replaced byanother. Reliance in this regard is placed on decision of the SupremeCourt in State of Haryana and Ors. v. Piara Singh and Ors. 1992 (4)

SCC 118.

8.This Court has considered the submissions. The advertisementissued in 2008 clearly stated that the post of Director, NIFT is atenured one and that the successful incumbent would be entitled tocontinue in it for five years subject to earlier termination after duenotice. The previous proceedings initiated by the applicant were in thecontext of limited factual matrix, i.e. his discontinuance before theperiod of five years ended. The discontinuance or termination was onaccount of alleged misconduct which had not been probed. That iswhat impelled the CAT to set aside the impugned order and take himback. By the time that process would be completed, his tenure of fiveyearsendedon16.06.2013.Ordinarily,acandidatewouldundoubtedly have the right to contend that his application should beconsidered fairly in accordance with law other things being equal. Inthe present case, however, the vacancy which occurred on account ofthe petitioner’s initial termination was filled by deputation of someone else. Thereafter, his tenure ended. In these circumstances, itcannot be said that the respondents were duty-bound to consider the

extension of the tenure, especially when there is nothing on the recordto suggest that an advertisement was issued to fill the vacancy. So faras the second contention is concerned, i.e. that one contractualappointee cannot replace another, apart from the fact that theadvertisement itself clarified that the tenure of Director was for aperiod of five years, we also notice that the judgment in Piara Singh(supra) and other cases pertained to regular sanctioned posts and theSupreme Court was considering the case of regularization oftemporary or ad-hoc workmen. That is not the case in the presentcircumstance. The post of Director is always, ordinarily, accepted tobe filled by deputationists on tenure of five years.

9.In view of the above discussion, there is no merit in the petition;it is accordingly dismissed without any order as to costs.

S. RAVINDRA BHAT(JUDGE)

NOVEMBER 17, 2014‘ajk’

VIPIN SANGHI(JUDGE)