Madras High Court

B.Rajendran vs State Rep. By Principal Secretary ... on 28 February, 2014

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
CORAM
THE HONOURABLE MR.JUSTICE B.RAJENDRAN

W.P.(MD) No.15080 of 2014

and
W.P.(MD) Nos.19247 of 2013 and 3105 of 2014
and
M.P.(MD) Nos.1,1,2 and 2 of 2013 and 1 and 2 of 2014

W.P.(MD)No.15080 of 2013

B.Rajendran ... Petitioner

Vs.
1.State rep. by Principal Secretary to Government,
Government of Tamil Nadu,
Tourism, Culture and Religious Endowments Department,
Secretariat,
Chennai.

2.Mr.P.Dhanapal,
Commissioner,
HR & CE Department,
Nungambakkam,
Chennai - 600 034. ... Respondents

PRAYER

Writ Petition filed under Article 226 of the Constitution of India for-the issuance of
a Writ of Quo-Warranto to show cause under what authority the-second
respondent continues to hold the office of the Commissioner, HR and
CEDepartment and consequently declare G.O.Ms.No.133, Tourism, Culture and
Religious Endowments Department, dated 31.05.2013 as illegal.

!For Petitioner Mr.G.R.Swaminathan

^For Respondent 1 Mr.AL.Somayaji,
Advocate General,
assisted by Mr.VR.Shanmuganathan
Special Government Pleader
For Respondent 2 Mr.R.Muthukumarasamy,
Senior Counsel
for Mr.N.Anand Venkatesh
***

W.P.(MD)No.19247 of 2013 V.Maharajan, S/o. P.Veeranan, General Secretary,

Aanmeega Kalatcharamantam, 56, Alagar Koil Road, Tallakulam, Madurai - 625 002. ...
Petitioner Vs.
1.Mr.P.Dhanapal, At present the Commissioner, HR & CE Department, 119, Uthamar
Gandhi Salai, Nungambakkam, Chennai - 600 034.

2.State rep. by Principal Secretary, Government of Tamil Nadu, Tourism, Culture and
Religious Endowments Department, Secretariat, Chennai - 600 009. ... Respondents
PRAYER Writ Petition filed under Article 226 of the Constitution of India for the
issuance of a Writ of Quo-Warranto directing the first respondent to explain how and
under what authority or power he is holding at present the office of the Commissioner,
HR and CE Department under the provisions of Act 22/1959.

For Petitioner ... Mr.Balasubramania Iyer

For Respondent 1 ... Mr.R.Muthukumarasamy,
Senior Counsel
for Mr.N.Anand Venkatesh
For Respondent 2 ... Mr.AL.Somayaji,
Advocate General,
assisted by Mr.VR.Shanmuganathan
Special Government Pleader
***

W.P.(MD)No.3105 of 2014

R.Sudarshan ... Petitioner

Vs.

1.State rep. by Principal Secretary to Government, Government of Tamil Nadu, Tourism,

Culture and Religious Endowments Department, Secretariat, Chennai.

2.Mr.P.Dhanapal, Commissioner, HR & CE Department, Nungambakkam, Chennai - 600

034. ... Respondents PRAYER Writ Petition filed under Article 226 of the Constitution of
India for the issuance of a Writ of Certiorari to call for the records relating to the
impugned G.O.Ms.No.133, Tourism, Culture and Religious Endowments Department,
dated 31.05.2013 passed by the first respondent and quash the same.

!For Petitioner ... Mr.G.R.Swaminathan

^For Respondent 1 ... Mr.AL.Somayaji,
Advocate General,
assisted by Mr.VR.Shanmuganathan
Special Government Pleader
For Respondent 2 ... Mr.R.Muthukumarasamy,
Senior Counsel
for Mr.N.Anand Venkatesh
***

:COMMON ORDER

The petitions in W.P.(MD)Nos.15080 and 19247 of 2013 have been filed seeking for
issuance of Writ of Quo-Warranto and W.P.(MD)No.3105 of 2014 has been filed
seeking issuance of a Writ of Certiorari to call for the records relating to the
impugned G.O.Ms.No.133, Tourism, Culture and Religious Endowments
Department, dated 31.05.2013 by which Mr.P.Dhanapal, the second respondent was
reemployed as Commissioner by the Principal Secretary to Government, Tourism,
Culture and Religious Endowments Department, is sought to be quashed. By
consent, all the Writ Petitions are taken up together for final disposal.

2. Insofar as two quo-warranto petitions viz., W.P.(MD) No.15080 of 2013 and 19247 of
2013 are concerned, W.P.(MD) No.15080 of 2013 is filed by a retired officer of the
Hindu Religious and Charitable Endowment Department and W.P.(MD) No.19247 of
2013 is filed by a person interested in the worship of various temples. The main
contention of the petitioner in both these writ petitions is that under Section 9 of the
Tamil Nadu Hindu Religious and Charitable Endowments Act, 1951 (hereinafter referred
to as 'the Act') alone the Commissioner can be appointed. Therefore, the method of
reemployment after retirement is not permitted and hence, the appointment of
Mr.P.Dhanapal is not valid. In this connection, the petitioners would contend
that Section 6(6) of the said Act defines a Commissioner which specifically says who
is to be appointed under Section 9 of the Act. Therefore, there is a violation in
respect of the appointment of Mr.P.Dhanapal and the appointment other than
under Section 9 is invalid. According to the petitioners, under Section 9(2)(a)(ii) of the
Act, there are only three methods of appointment viz., (i) by transfer from among the
members of the [Tamil Nadu] State Higher Judicial Service or of the [Tamil Nadu] State
Judicial Service or of any other service; or (ii) by promotion from Additional
Commissioner; or (iii) by direct recruitment. When this has not been done, the
Commissioner cannot be a person as appointed under the Act. They would also contend
that when the entire Act, as per the preamble, is a consolidated in nature and it is
exhaustive one, the defense taken by the authorities concerned that they had power under
Rule 45 of the Tamil Nadu State and Subordinate Services Rules, cannot be applicable.
Therefore, the appointment of Mr.P.Dhanapal is illegal. They would also rely upon a
Division Bench decision of this Hon'ble Court in the case of State Government of Tamil
Nadu and another v. K.Vijayakumar and another reported in 2006 (3) L.W. 133 for the
proposition that when there is a specific power in the Act, recourse to another rule is not
permissible. They would also contend that even if it is a re-employment, the appointing
authority should give reason and that reason should be only on the basis of where there is
dearth of qualified candidates and where a person is of outstanding ability, cases may be
considered on merits for extension or re-employment. It is to be specifically noted that in
this case, such a thing has not been done. Therefore, the order is illegal. They would lastly
contend that even assuming for a moment but not admitted, a Government servant as
contemplated under Section 12 of the Act that the appointment for such period or any
earlier period it is taking away the right. Therefore, also they cannot appoint. This was the
main contention raised by Mr.G.R.Swaminathan, learned counsel for the petitioner.

3. For better understanding the relevant Sections 6(6), 8 and 9 of the Act are extracted
hereunder:

6. Commissioner means the Commissioner appointed under Section 9.

8. Authorities under the Act: There shall be the following classes of authorities under this
Act, namely,

(a) the Commissioner, (aa) Additional Commissioner,

(b) Joint Commissioner,

(c) Deputy Commissioner,

(d) Assistant Commissioners

9. Government to appoint Commissioner, etc., (1) The Government shall appoint the
Commissioner [the Additional Commissioner] and [such number of Joint, Deputy and
Assistant Commissioners] as it may think fit. (2)(a) Appointment to the post of
Commissioner shall be:

(i)by transfer from among the members of the [Tamil Nadu] State Higher Judicial
Services or of the [Tamil Nadu] State Judicial Service or of any other service; or [(ii) by
promotion from Additional Commissioner]; or

(iii) by direct recruitment [(aa) Appointment to the post of Additional Commissioner shall
be by promotion from Joint Commissioner;

(aaa) Appointment to the post of Deputy Commissioner shall be -

(i) by transfer from among the members of the [Tamil Nadu] State Judicial service or of
any other service; or

(ii) by promotion from Assistant Commissioner; or

(iii) by direct recruitment; or

(iv) by agreement or contract

4. Mr.Balasubramania Iyer, learned counsel appearing for the petitioner in

W.P.(MD)No.19247 of 2013, had gone one step further to state that the Hindu Religious
and Charitable Endowment Department staff are not Government servants. Even as per
the Act, the employees are only paid initially from the Consolidated Fund and thereafter,
it is reimbursed by the department from out of the funds or hundial collections raised
from various temples. Therefore, they cannot be construed as Government servants. The
Writ Petition is filed by one of the former employee who has retired long back seeking for
issuance of Writ of Certiorari to cancel the very order of extension. Again mainly on the
ground that the appointment is against the provisions of Sections 9 and 12 when there is a
Government servant the restrictions is an embargo. He would mainly contend that no
locus standi will arise even though the petitioner is a former employee. In fact, he had
also filed a Public Interest Litigation and permitted to withdraw. Thereafter, he has filed
the present Writ Petition.

5. In W.P.(MD) No.15080 of 2013, the first respondent has filed a consolidated counter
affidavit stating that the Writ Petitions are not maintainable as the petitioners have no
locus standi because two of them are former employees of the Hindu Religious and
Charitable Endowment Department. The main argument was that in none of the cases
they have not even averred whether the appointment is against the statutory rules. When
the appointment is within the statutory rules, the Writ of Quo-warranto cannot be
maintainable. Further, they would argue that the possessor of the office does not suffer
from any disqualification which debars the person to hold such office. It is also made
clear that since he had already employed as a Commissioner, the question of
disqualification does not arise. Their main defense was originally the special rules were
issued in the Madras Service Manual with reference to Section 8 of the Madras Hindu
Religious and Charitable Endowments Act, 1951, thereafter, after the repeal, of the old
Act, special rules have been reissued under the proviso to Article 309 of the Constitution
of India and under G.O.Ms.No.1948, Revenue Department, dated 27.07.1968 read
with Section 9 of the present Act. Since the post mentioned in the impugned order is
under the Special Rules for the State services, all the employees will be the servants of
the Government of Tamil Nadu. The second respondent right from the year 1985
appointed and promoted to the posts of Deputy Commissioner, Joint Commissioner and
Additional Commissioner in the Tamil Nadu Hindu Religious and Charitable
Endowments Administration Department, there is no question of qualification and ability
arise. Relying upon the decision of the Hon'ble Supreme Court in the case of B.Srinivasa
Reddy v. Karnataka Urban Water Supply Drainage Board Employees'
Association reported in (2006) 11 Supreme Court Cases 731, they would only contend
that Quo-Warranto can be issued only when the appointment is contrary to the statutory
rules. In fact, in the Act, there is no details regarding qualification for appointment.
Whereas the Special Rules and in G.O.Ms.No.1498, Revenue Department, dated
27.07.1968, only specifies the qualification for appointment of a Commissioner.
Therefore, he can only be construed as a Government servant. In fact, Section 12 clearly
states that the Government servants payment is made from the consolidated fund and they
place their right to Rule 45 of the Tamil Nadu State and Subordinate Service Rules which
specifically provides for the reemployment of retired persons. The said rule traces out the
power to Article 309 of the Constitution of India. Therefore, they would contend that
there is no prohibition or bar to appoint a person for reemployment in the Hindu
Religious and Charitable Endowment Department.

6. The second respondent also filed independent counter reiterating his right to continue
his office. He also specifically stated that the two petitioners are the former employees are
debarred, locus standi is not there. The petitioner in W.P.(MD) No.3105 of 2014 had filed
with malice against him as he come forward with an application for reemployment after a
lapse of 11 years which was negatived by him. In any view of the matter, he would only
contend that the power is vested with the Government under Rule 45 is exhaustive one on
reemployment. Therefore, the order is valid. In this connection, he would also contend
that Entry 28 of List III of the Constitution of India deals with Charities and charitable
institutions, charitable and religious endowments and religious institutions. But, whereas
Entry 41 of the List II deals with State public services and State Public Service
Commission. Therefore, when the person is appointed and when he is a Government
servant his statutory rights given under Entry 41 of List II when the Act does not specify
the rules conditions service matters definitely it will be governed under the List II.
Therefore, they are all Government servants. Hence, the reemployment power is vested
under Rule 45 which traces the right under Article 309 of the Constitution of India.
Therefore, the Act only deals with the charitable endowments and specifically Section
12 mentions all of them are Government servants. As the Government servants are
governed by the State Service conditions. Therefore, the rules are within the frame work
of law. Similarly, Fundamental Rule 56 prescribes for extension of service.

7. Heard all the parties.

8. The main contention of all the petitioners in the cases is that Mr.P.Dhanapal was
originally employed as Commissioner of Hindu Religious and Charitable Endowment
Department and he retired on 31.05.2013. He was appointed as Assistant Commissioner
in the year 1985 which is a feeder post. According to the Government, he has got
unblemished records and retired on 31.05.2013 and based on application made by him,
the Government thought it fit to reappoint him for a period of three years. The
Government Order reappointing him for a period of three years is questioned.

9. First, let us deal with W.P.(MD) No.3105 of 2014 seeking issuance of Writ of
Certiorari. The Writ of Certiorari will not be granted and simply it has got to be dismissed
for the simple reason that it is filed by an employee who was appointed as Assistant
Commissioner originally and promoted as Deputy Commissioner in 2002 and Joint
Commissioner in the year 2007 then his next line of promotion is Additional
Commissioner. But that was not given because of some departmental proceedings against
him. In any way, he added that he is not a person seeking equally to be appointed as
Commissioner. Therefore, certiorari can not be issued. In this context, he also says that as
a result of the reemployment of the second respondent, one B.Raja, who was holding the
post of Additional Commissioner could not be promoted. Placing the case of another who
is due to retire, the petitioner cannot seek for the relief. Therefore, certiorari will not lie.
In this connection, the learned Advocate General relies upon a decision of the Hon'ble
Supreme Court in the case of B.Srinivasa Reddy v. Karnataka Urban Water Supply and
Drainage Board Employees' Association and others reported in (2006) 11 Supreme Court
Cases 731. The relevant portion of the judgment is extracted as under:
'78.The High Court, in the instant case, was not exercising certiorari jurisdiction.
Certiorari jurisdiction can be exercised only at the instance of a person who is qualified to
the post and who is a candidate for the post. This Court in Umakant Saran (Dr.) V. State
of Bihar (1973) 1 SCC 485 held that the appointment cannot be challenged by one who
himself is not qualified to be appointed.

10. Now, we can take up the two petitions for Quo-Warranto. Again one application is
filed by a retired employee. Though there was a heated argument in regard to the locus
standi. Even locus standi, if it is not taken into consideration, the only point is to be seen
that whether they have raised any points to seek for quo-warranto. For seeking quo-
warranto, the basic principle is that the appointment should have been in violation of
some statutory rules. In fact, the Hon'ble Supreme Court time and again stated that the
quo-warranto does not lie if the alleged violation is not a statutory provision. With this
background, we have to analyse the grounds raised by the petitioners. The only ground
which has been raised by Mr.G.R.Swaminathan, learned counsel appearing for the
petitioner is that the Tamil Nadu Hindu Religious and Charitable Endowments Act is a
code by itself. Section 6(6) defines the Commissioner and Section 9 defines method of
appointment which includes transfer from judicial service or any other service by
promotion or by direct recruitment. Therefore, if an appointment is made under Section 9,
the reemployment made by the Government which is not provided for under the Act is in
total violation. In this connection, he would only contend that when the Act is defined by
itself, the Government cannot look into any other provision or rule to substantiate such
appointment. But, when we consider Section 12 of the Act it clearly says that the
expenditure including audit fees of the Department would be initially paid from out of
consolidated fund but later on, it is reimbursed from out of the funds of the temple.
Therefore, it is a clear case even as per the Act, all these people would be a Government
servant. Once they are Government servant, they will be governed by the Tamil Nadu
State and Subordinate Service Rules. Rule 45 of the Tamil Nadu State and Subordinate
Service Rules clearly empowers reemployment. The Rule 45 is extracted hereunder:

'45. Re-employment of pensioners-Nothing in these rules or the Special Rules shall

be construed to limit or abridge the powers of the Sate Government and of
subordinate authorities to reemploy persons who have retired on a civil pension or
gratuity or who while in service were subscribers to a Contributory Provident Fund,
in any service in accordance with the provisions contained in the Tamil Nadu
Pension Rules, 1978. The re-employment of such a person in any service shall not be
regarded as a first appointment to that service.'

11. The above rule also clearly says the reemployment of such a person for any
service shall not be regarded as first appointment to that service. In this case, the
second respondent was already appointed. In fact, as per the Act, the feeder post is
the Assistant Commissioner. He was appointed and he was given the post of
Commissioner. Therefore, the qualification and his incumbency in the office was
clearly proved. Therefore, his appointment is not a first appointment and it will not
be construed as a first appointment. Therefore, the Government Order specifies that
he is eligible for reemployment for three years. This has been interpreted by
Mr.Balasubramania Iyer, learned counsel for the petitioner and
Mr.G.R.Swaminathan that there is restriction in respect of the period of service of
the Government servant. It is not a restriction on the Government servant. In fact, it
is only a reemployment on the basis of the rule making power which power
conferred under Article 309 of the Constitution of India. In fact, this has been
explained by the learned Advocate General. Further, by bringing to the notice of the
Court, the Madras Service Manual Vol.III State Service Special Rules Section
18 which deals with the Madras Hindu Religious and Charitable Endowments
(Administration) Service. This has been made as per the old Act, 1951. That rule
came into force from 1955. As per the rules, the qualification for appointment of
Commissioner, Deputy Commissioner, Assistant Commissioners has been mentioned
and appointment to various categories is also mentioned. After the repealing of the
old Act by virtue of G.O.Ms.No.1498, Revenue Department, dated 27.07.1968, the
Special Rules for the Madras Hindu Religious and Charitable Endowments
(Administration) Services have been amended with reference to Section 9 of the new
Act, relating to the appointment of Commissioner, Deputy Commissioners and the
Assistant Commissioners and pursuant to that, in exercise of powers conferred by
the proviso to Article 309 of the Constitution of India, read with Section 9 of the
Madras Hindu Religious and Charitable Endowments Act, 1959 (Madras Act 22 of
1959) and in suppression of the rules on the subject, the Governor of Madras had
made the rules. Section 2, Rule 2 refers to the appointment, the qualification for
appointment. Then, under the Tamil Nadu State and Subordinate Services Rules,
under Rule 45, when they are governed as Government servants, they are also
equally governed as reemployment as a pensioner. Therefore, according to the
learned Advocate General, the power is vested with the Government to appoint a
retired employee and hence, he would only contend that the petitioners have not
pointed out contravention of any rules. Contra, since the qualifications are all made
out in the service rules and the appointment is made under the rules the argument
that they cannot be treated as government servants because the expenditure is
reimbursed to the Government from the department cannot be accepted. In this
connection, he would rely upon a decision of the Hon'ble Supreme Court in the case
of Central Electricity Supply Utility of Odisha v. Dhobei Sahoo (2014 (1) Supreme
Court Cases, 161). The relevant portions of the judgment is extracted as under:

'40. .... To understand the said facet, we have to refer to certain provisions of the Act
which encapsulate the basic map of the functions of the licensees and the utility
service.

47.The whole thing has to be scrutinised from the point of view of power. Suitability
or eligibility of a candidate for appointment to a post is within the domain of the
appointing authority. The only thing that can be scrutinised by the Court is whether
the appointment is contrary to the statutory provisions/rules.'
12. In fact, in the above judgment, the Hon'ble Supreme Court has very
categorically held that suitability or eligibility of a candidate for appointment is
within the domain of the appointing authorities. Similarly, the Court can only
scrutinise whether appointment is contrary to the statutory provision or Rules.
Beyond that in writ of Quo-Warranto, the court cannot interfere with. In fact, the
learned Advocate General also relies upon a decision of the Hon'ble Supreme Court
in the case of B.Srinivasa Reddy (cited supra) for the proposition that a Writ of quo
warranto does not lie if the alleged violation is not of a statutory provision. In the
above case, the Supreme Court also held that the High Court in a quo warranto
proceedings should be slow to pronounce upon the matter unless there is a clear
infringement of the law.

13. When we analyse Section 6(6) which defines a Commissioner and Section 9 defines
the method of appointment. As earlier stated, under the said Act, no qualification is
stated. The qualification comes only under the rules. Further, in this connection, when the
section itself is exhaustive and when, the rule comes which is traced under Article 309 of
the Constitution of India definitely Rule 45 to reappoint can be looked into and availed by
the government. In this connection, the learned Advocate General distinguishes the case
cited by the petitioner in State Government of Tamil Nadu v. K.Vijayakumar and
another reported in 2006 (3) LW 133 : (2006) 2 MLJ 465. This case was mainly relied
upon by the petitioner for the proposition that the Government in respect of granting of
extension of service or reemployment of retired employees should specify the need
for such reemployment. In that case, the Government circular specifically stated
that for reemployment it should be specified where there is dearth of qualified
candidates and where a person is of outstanding ability, cases may be considered on
merits for extension or re-employment. That extension was put to challenge on the
ground that his promotion will affect the next person and hence, sought certiorari. When a
person who is next in line to the promotion, when his promotion is affected, he is
competent person to question the extension by way of certiorari it is not so in a quo
warranto. Therefore, under the certiorari a different yardstick has to be applied and that
yardstick is applied in the particular case and having found that extended person did not
have any special qualification and as per the circular when they did not posses additional
ability that was questioned by this Court. That case does not arise under a quo warranto.
But here the rule specifically empowers the Government which is derived under Article
309 of the Constitution of India seeking for extension. In this rule, there is no specific
direction that there should be any dearth of qualified candidates and outstanding ability, is
not in their consideration. But, here is the case for quo warranto, we have to see only the
violation of statutory rule. As pointed out by the learned Advocate General, the
petitioners have not pointed out a single rule which has been violated. Therefore, the facts
of the above case will not be applicable to the facts of the present case and it is totally
different. In this connection, an argument advanced by Mr.R.Muthukumarasamy, learned
Senior Counsel has to be taken note of. He would contend that the Act deals with
charities, charitable institutions, charitable and religious endowments. But the service
conditions of the parties are not enumerated. Therefore, he would point out that source is
Constitution of India under list III concurrent list under Entry 28 which is extracted as
under:

'28.Charities and charitable institutions, charitable and religious endowments and

religious institutions.' Whereas insofar as governing the service conditions it is governed
by List II which is a State List under Entry 41 which specifically states regarding State
Public Services and State Public Service Commission. That is why, they have relied upon
the Tamil Nadu State and Subordinate Service Rules which governs all the employees
which is all the more enunciated under Section 12. Under Section 12 the payment is
originally made from consolidated fund and later on it is reimbursed it take away the
rights of the Government servant as argued by Mr.Balasubramania Iyer, it is not correct
because as stated supra, right from the original Act and later on by the amended Act, the
rules have been framed, the qualifications have been fixed and thereafter, the selection
has been made even from the feeder category. Section 12 embodies that they are only a
Government servant. Therefore, when there is a specific service conditions under the
Rules and there is no violation of the service rules, the Writ of Quo Warranto cannot be
granted. In fact, Section 9(2) deals with the method of appointment. Again it is not argued
or brought to the notice of the Court that the rule is against the Constitution or violation
of the Act. In this connection, Mr.R.Muthukumarasamy, learned Senior Counsel relies
upon the judgment of the Hon'ble Supreme Court in the case of High Court of Gujarat
and another v. Gujarat Kishan Mazdoor Panchayat and another reported in (2003) 4 SCC
712 at paragraphs 22 and 23 for the proposition that the reemployment can be questioned
only if it is against the statutory rules and the case of quo warranto is different from writ
of certiorari. Again an unreported judgment of the Single Judge of this Court passed in
W.P.No.15927 of 2012, dated 28.08.2012 it is clearly spelled out regarding the scope of
quo warranto. In fact, he would also rely upon a decision of the Hon'ble Supreme Court in
the case of Hari Bansh Lal v. Sahodar Prasad Mahto reported in (2010) 9 SCC 655, for
the proposition that PIL is not maintainable in service matters. Therefore, the Writ of
Certiorari is not maintainable as he is not the competent person. Lastly it is also argued
that the petitioner who have got ill-will or malice against the second respondent. As
discussed earlier, even if we do not go into the question of locus standi, since we have
come to the conclusion that the petitioners in none of the cases has ever been proved
beyond reasonable doubt that the appointment violates any statutory rules, the question of
quo warranto will not arise. Therefore, all the Writ Petitions are dismissed. No costs.
Consequently, connected miscellaneous petitions are closed.

srm To

1.The Principal Secretary to Government, Government of Tamil Nadu, Tourism, Culture

and Religious Endowments Department, Secretariat, Chennai.

2.Mr.P.Dhanapal, Commissioner, HR & CE Department, Nungambakkam, Chennai - 600

034.
 N THE HIGH COURT OF DELHI AT NEW DELHI

W.P.(C) No. 6498 of 2013

Date of Judgment: 10.12.2015

GOVT. OF NCT OF DELHI & ORS. .....Petitioners

Through : Mr. Satyakam, ASC and Mr. Nikhil Bhardwaj, Advocate for the petitioners.

versus

DR. V.K. VERMA .....Respondent

Through : Mr. Sagar Saxena, Md. Aquil Minhaj and Mohd. Tabrez Mallik, Advs.

CORAM: HON'BLE MR. JUSTICE G.S.SISTANI HON'BLE MS. JUSTICE SANGITA

DHINGRA SEHGAL

G.S.SISTANI, J.

Present writ petition has been filed by the petitioner under Article226 and 227 of the Constitution

of India challenging the correctness of the order dated 01.02.2013 passed by the Central

Administrative Tribunal (hereinafter referred to as Tribunal ) in O.A. No. 4173 of 2011 whereby

the Tribunal allowed the said O.A. filed by the respondent herein.

2. The facts of the present writ petition enumerated in brief is as follows:

"The respondent joined A&U Tibbia College in the post of Demonstrator. He was promoted to

the post of Jr.

Lecturer on 19.06.1978 and promoted to the post of Reader w.e.f. 01.06.1996. The respondent

superannuated as Reader from A & U Tibbia College, Govt. of NCT of Delhi on 30.06.2001. He

was in the scale of pay of`12000-18000. Before his retirement, the Special Secretary, Health and

Family Welfare, Govt. of NCT of W.P. (C) 6498/2013

Delhi, vide order dated 09.06.2001 conveyed him the decision of the Lt. Governor of Delhi "to

provide him extension of service of one year on normal terms and conditions" after his retirement

on superannuation on30.06.2001. Again, vide order dated 09.07.2002, the Joint Director/Head of

Office, A&U Tibbia College conveyed the decision of the Lt. Governor to re-employ him as

Lecturer in the scale of pay of `8000-13500 plus allowances as admissible under the rules for a

period of six months from his date of joining or till the post is filled up on regular basis,

whichever is earlier.

As the petitioners have not been finalizing his pension case, even after the extension of his

service for one year and further re-employment for another six months, he had earlier approached

the Tribunal vide OA 3132/2003 and it was disposed of on 30.12.2003 with a direction to the

petitioners to decide his claim within 45 days. Pursuant to the aforesaid directions, petitioners

passed the Office Order dated 08.09.2004 stating that the various retirement benefits like gratuity,

leave encashment, GPF, UTGEJIS etc. have been paid to him but he was not entitled for any

pension.

Later on, in terms of the Corrigendum dated 25.07.2006 issued by the Govt. of NCT of Delhi, the

respondent and other similarly placed persons were declared as employees of the Govt. of NCT

of Delhi and ordered for payment of pension also. Accordingly, the respondent was granted the

basic pension of Rs.6339/-

w.e.f.01.07.2001 vide Pension Payment Authority s letter dated 10.03.2009. However, he found

that he was not given the pensionary benefits for the one year s extension of service in the scale

of pay of Rs.12000-18000 already granted to him vide order dated 09.06.2001. Infact, the

petitioners issued the impugned Corrigendum dated25.11.2008 in supersession of their earlier

order dated09.06.2001 wherein the respondent was granted extension of service of one year

beyond 30.06.2001 by the Lt.

Governor stating that the word extension appearing in the said order shall be read as retention/re-

employment in service for one year in the pay scale of `8000-13500 plus usual allowance as

admissible under the rules including NPA. They have also issued order dated 02.01.2009 re-

fixing his pay, accordingly."

W.P. (C) 6498/2013

3. In this background, Mr. Satyakam, learned Additional Standing Counsel for the petitioner

submits that once a Government Servant superannuates, his/her service can only be retained on

re- employment and no further extension in service can be granted to such employees. He further

submits that in the present case, the respondent was to superannuate on 30.06.2001 and a

proposal was put up by the competent authority through a communication dated22.05.2001

seeking approval from the Lieutenant Governor for re- employment of the respondent as Lecturer

on a minimum scale of Rs.8,000- Rs.13,500 for a period of two years or till the post is filled up

on regular basis, whichever is earlier. Learned counsel further contended that the proposal was

approved by the Administrative and Special Secretary, Ministry of Health, &

Family Welfare, whereafter the same was placed before the Lieutenant Governor, who approved

the proposal in the following words :

"I agree to extension by one year, later secure a regular placement within that time".
4. Mr. Satyakam further contended that though the words "Extension of service" were used, it

was infact for re-employment which is evident from the fact that when the second proposal for re-

employment for the next year was put up before the Lieutenant Governor, the initial order was

also sought to be rectified. It is further contended that the College Authority has wrongly

interpreted the order of the Lieutenant Governor as an order of Extension and fixed the pay of the

respondent accordingly, which is bad in law.

W.P. (C) 6498/2013

5. It is further contended that no doubt, the Lieutenant Governor passed the order of extension on

25.05.2001 but the same was infact that of re-employment as once a Government Servant

superannuates, his/her services can only be retained on re- employment.

6. Mr. Satyakam further contended that merely because the office misinterpreted the order of re-

employment, there was no bar in rectifying the same, more so when the respondent had given an

undertaking at the time of his superannuation that he would refund the excess payment, if any. He

further contended that in supersession of the order dated 09.06.2001 whereby the respondent was

granted extension of service for one year, a Corrigendum dated 25.11.2008 was issued that the

extension of service had been revised to re-employment in service and recovery of pay and

allowances be made from the official.

7. Per Contra, Mr. Sagar Saxena, learned counsel for the respondent argued that the respondent

was to superannuate on 30.06.2001 and he made a representation for extending the term of his

service. On considering his request, Lieutenant Governor accorded sanction for extension of his

services by one year and he was conveyed the same on 09.06.2001 in terms of which the

extension for one year, would have to be counted to his service and his pensionary benefits were

to be affixed including the extended period of service of one year. He further contended that

pensionary benefits of the respondent were granted to him vide Pension Payment Authority Letter

dated 10.03.2009 in the pay scale of Rs.12,000 Rs.18,000 and was not given benefit for one year
of extension of service as per the Corrigendum dated 25.11.2008 in supersession of earlier W.P.

(C) 6498/2013 order dated 09.06.2001. The respondent herein filed an OA before the Central

Administrative Tribunal (CAT) which was allowed.

8. The petitioner herein is aggrieved by the directions contained in the order dated 01.02.2013

passed by the Tribunal, which reads as under:

"13.In view of the above position, we allow this OA.

Consequently, the corrigendum dated 25.11.2008 and the impugned order dated 17.08.2011 are

quashed and set aside. We also direct the respondents to count the one year extension in service

granted to the applicant to his total service and restore his basic pay to Rs.13875/-

(pre-revised) which he was drawing at the end of his extension of service on 30.06.2001 with

consequential service benefits including revised encashment of leave by including the leave

earned during the extension of service, revised computation of the retiral benefits and payment of

arrears accruing from such revision. We also direct the respondents to refund the entire amount

recovered from the applicants gratuity on account of reducing his basic pay unilaterally from

Rs.13875/- per month to Rs.13500/- per month due to arbitrarily treating one year extension

granted by order dated09.06.2001 with the approval of the Lt. Governor, as re- employment. We

further direct the respondents to refund the entire amount wrongly deducted towards commuted

value of pension from pension arrears w.e.f. 01.07.2001

(date of superannuation) in the face of the commutation paid to him on 29.04.2009 as admissible

under the rules.

In the above facts and circumstances of the case and in the interest of justice, the applicant will

also be entitled for 9% interest for the delayed payment on all retirement benefits which
otherwise attracts interest on delayed payment. However, we do not order for grant of any cost of

litigation as prayed for by the applicant in this OA.

14. The aforesaid directions shall be complied with within a period of two months from the date

of receipt of a copy of this order."

W.P. (C) 6498/2013

9. We have heard learned counsel for the parties and considered their rival submissions. We have

also carefully perused the impugned order passed by the Central Administrative Tribunal.

10. The entire controversy revolves around the proposal for re- employment of the respondent

which was placed before the Lieutenant Governor who gave the approval in the following terms.

"I agree to extension by one year, later secure a regular placement within that time".

11. The case of the petitioner is that a Government Official can only be re-employed and his

services cannot be extended beyond his period of superannuation. Re-employment and Extension

are distinguishable as the purpose and nature of appointment has to be taken into account in

conferring benefits. Where the services of a Government servant, beyond the age of his

superannuation are required in the same cadre post which he is holding at the time of

superannuation, then such retention is to be treated as Extension of service. On the contrary,

where the services of a Government servant on deputation to an ex-cadre post or holding an ex

cadre post are required by the competent authority beyond the date of his superannuation in his

parent service, then such retention, be it on the post he was holding at the time of superannuation

or in any other post shall for all purposes be treated as Re-employment. In the present case the

Lieutenant Governor of Delhi had agreed for extension for a period of one year with the

following observations:
"I agree to the extension for a period of one year, let us secure a regular replacement within that

time"

W.P. (C) 6498/2013

Pursuant to the aforesaid order, the respondent was granted extension for a period of one year

vide Order No. F.13/(146)/76-

IC/Vol-II/909 dated 09.06.2001, the relevant portion of which is as under:

"Lt Governor of Delhi is pleased to provide him extension in service for a period of one year on

normal terms & conditions"

12. It is pertinent to note that petitioner moved an application for extension of his service on

attaining the age of superannuation.

When the matter was put up before Dr. J. V. K. Taneja, I/C Principal, on 14.05.2001, he

recommended that "In the light of the above position, it is recommended that extension in his

services may be granted so that his services may be utilized for teaching the students." On the

said note, Mr. M. S. Lari, MS recommended re- employment for a period of two years or till

further order, whichever is earlier. On this office note, Mr. T. C. Nakh, Joint Director

(ISM&H)/H.O.O. requested the Lieutenant Governor that"We may request the Lt. Governor to

approve the re-employment of Dr. V. K. Verma as Lecturer at the minimum pay in the scale of

Rs.8000-13500 for a period of two years or till the post is filled up on regular basis, whichever is

earlier." Considering the said request, Lieutenant Governor granted extension with following

directions.

"I agree to extension by one year. Let us secure a regular replacement within that time."
13. The Tribunal placed reliance upon the judgment of Shyam Babu Verma versus Union of

India (1994) 2 SCC 521 wherein it has been held that:-

W.P. (C) 6498/2013

"10.Although we have held that the petitioners were entitled only to the pay scale of Rs. 330-480

in terms of the recommendations of the Third Pay Commission w.e.f.

1.1.1973 and only after the period of 10 years, they became entitled to the pay scale of Rs. 330-

560, but as they have received the scale of Rs. 330-560 since 1973, due to no fault of theirs, and

that scale is being reduced in the year 1984 with effect from 1.1.1973. it shall only be just and

proper not to recover any excess amount which has already been paid to them. Accordingly we

direct that no steps should be taken to recover or to adjust any excess amount paid to the

petitioners due to the fault of the respondents, the petitioners being in no way responsible for the

same.

11.The petitions are allowed in part. There will be no order as to costs."

14. In Sahib Ram versus State of Haryana and Ors., 1995 Supp (1) SCC18 the Apex Court

held that the employee cannot be held responsible for a wrong construction made by the

Principal. The relevant para of the judgment is reproduced as under:

"5. Admittedly the appellant does not possess the required educational qualifications. Under the

circumstances the appellant would not be entitled to the relaxation. The Principle erred in

granting him the relaxation. Since the date of relaxation the appellant had been paid his salary on

revised scale. However, it is not on account of any mis- representation made by the appellant that

the benefit of higher pay-scale was given to him but by wrong construction made by the Principal

for which the appellant cannot be held to be at fault. Under the circumstances the amount paid till

date may not be recovered for the appellant..."

15. Returning to the case in hand, the Lieutenant Governor had explicitly and specifically ordered

the extension of service to the respondent. The service of a Government employee or a class of

Government employees may be extended beyond the date of W.P. (C) 6498/2013 superannuation

after obtaining the approval from the competent authority which in the present case was granted

by the Lieutenant Governor. It is not in dispute that the Special Secretary, Health and Family

Welfare, Govt. of NCT of Delhi, vide order dated09.06.2001 prior to the date of superannuation

conveyed the respondent the decision of the Lieutenant Governor of Delhi "To provide him

extension of service of one year on normal terms and conditions" after his retirement on

superannuation on 30.06.2001.

The extended service of one year rendered by the respondent qualifies for the purpose of granting

him the consequential benefits on retirement and therefore, the extended period be reckoned for

the purpose of computing pension and other retiral benefits.

16. We are, therefore, in consonance with the view taken by the Tribunal that the one year period

of extension granted to the respondent is to be counted to his total service and restore his basic

pay to Rs.13,875/- (pre-revised) which he was drawing at the end of his extension of service

along with consequential service benefits.

17. By issuance of Corrigendum dated 25.11.2008 after seven years of passing the order for

extension, modifying the earlier order of Lieutenant Governor and the impugned order dated

17.08.2011 that the original proposal was to grant him reemployment for one year and it was by

mistake that the respondent had been granted extension, is inappropriate and cannot be sustained

under any circumstances. The act on the part of the petitioners cannot be said to be analogous

with equity, good conscience and justice. The concept of fairness has been given a go-by. In the

light of the settled legal position noticed above, we are of the view that it shall W.P. (C)

6498/2013 not be just and proper for the petitioners herein to withhold the payment to be made to

the respondent for no fault of his.

18. For the reasons stated hereinabove, we do not find any infirmity in the order of the Tribunal

impugned before us and accordingly, the present writ petition being devoid of any merit is

dismissed. No order as to costs.

G. S. SISTANI, J SANGITA DHINGRA SEHGAL, J

DECEMBER 10, 2015

gr W.P. (C) 6498/2013