Deepak Panghal v. Union of India and Ors

1. In the instant writ petition, the petitioner before this court was el declared successful in the result declared on 22nd July, 2010 for appointment to the post of Assistant Executive Engineering (E & M) in the General Reserve Engineer Force in the Border Roads Engineering Service (BRES). It is an admitted position that the preappointment formalities in respect of the petitioner in terms of the verification of character and antecedents, medical examination; verification of documents etc. was completed by September, 2010. A provisional offer of appointment was issued to the petitioner on WP(C) No.354712012 Page 1 o18 2013:DHC:7734-DB 13" October, 2011 subject to the police verification report of his character and antecedent from District Magistrate, District North 24 Parganas, Kolkatta and the petitioner was directed to communicate his acceptance to the offer of appointment within fifteen days and report for duty within thirty days of his acceptance.

2. The petitioner thereafter addressed a letter dated 4th November, 2011 requesting the respondents to delete the clause with regard to his appointment being offered provisionally inasmuch as he was working as a permanent Assistant Professor in the National Institute of Fashion Technology ('NIFT'), an autonomous body under the Ministry of Textiles, so that there could be no difficulty for his resigning from the said post. The petitioner also submitted that he accepted the other terms and conditions of the offer of appointment. By a letter dated 15th November, 2011, the respondents informed the petitioner that his provisional candidature would be immediately cleared on receipt of police verification report and he was required to join by 4th December, 2011.

3. The petitioner thereafter addressed a letter dated 30th November, 2011 informing the respondents that he was pursuing a Ph.D. programme and required only four months time to complete the work which he had already started. The petitioner also informed the respondents that he was required to serve the notice period WP(C) No.354712012 Page 2 of[8] IF with his current employer.

4. It is an admitted position before us that the respondents had the power to extend the joining period for a period of six months in terms of OM No.35015/2/93-Estt.(D) dated 9th August, 1995 upto a maximum of six months from the date of issue of the original offer of appointment. The clause 2 of the afore-noticed office memorandum stipulated that "offer of appointment would lapse 4 automatically after the expiry of six months from the date of issue of the original offer of appointment". In these circumstances, the offer of appointment having been made on 13th October, 2011, the period of six months therefrom would come to an end on or about 12th April, 2012 and the offer would lapse automatically thereafter.

5. In the instant case, the respondents chose not to respond promptly to the petitioner's communication of the 30th November, 2011 whereby he had sought extension of joining time by four months. The period of four months would have lapsed only in the NOW early part of the first week of April, 2012, which was within six months' period envisaged under the Office Memorandum dated 9th August, 1995.

6. Instead, to the prejudice of the petitioner, the respondents unfairly issued a letter dated 8th December, 2011 rejecting the petitioner's request for extension of time and at the same time, WP(C) No.35471'2012 Page 3 of[8] informed him that on account of his failure to report for duty upto the 4th December, 2011, the offer of appointment issued to him for the post of Assistant Executive Engineer (E & M) in the BRES stood cancelled. The petitioner had made a representation dated 26th December, 2011 against the action of the respondents which was rejected by the respondents by an order passed only on 16th January, 2012. A further representation dated 1st February, 2012 A thereafter was rejected by the respondents by a communication dated 24th February, 2012.

7. We may note the respondents give no reason at all for rejection of the petitioner's request for extension of joining time even though the power to do so was vested in them. To say the least, refusal to grant the joining time to the petitioner and also directing that the offer of appointment stood cancelled was high handed, arbitrary and inappropriate given the facts and circumstances in which the petitioner had sought extension of time.

8. It appears that during the course of hearing before this court, the respondents have reconsidered the matter and have issued a communication dated 8 th April, 2013. We find that the illegality of the action undertaken in the case of the petitioner is largely accepted by the respondents. WP(C) No.334712012 Page 4 (#'8

9. We find that in para 6 of the letter dated 8th April, 2013, the respondents have relied on the DOPT guidelines/rules bearing OM No.9/23/71-Estt.(D) dated 6th June, 1978 which reads as follows:- "6..... an offer of appointment should clearly specify the period (which shall not normally exceed one or two months) after which the offer would lapse automatically if the candidate did not join within the specified period. If however within the specified period, a request is received from the candidate for extension of time, it may be considered by the Ministries/Deptts. But extension beyond three months should not be granted liberally and it may be granted only as an exception where facts and circumstances so warrant and in any case only upto a maximum of six months from the date of issue of the original offer of appointment. An offer of appointment would lapse automatically after the expiry of six months from the date of issue of the original offer of appointment". (emphasis supplied) WP(() i\/o.3547/2012 Page 5 a! 8 I ^

10. Given the facts and circumstances noticed by us heretofore, we are of the view that it is an admitted position that the request for extension of time had been validly made by the petitioner during the currency of the offer of appointment. It was the respondents who delayed consideration thereof. Not only were the requests for extension by the petitioner made within the permissible period, but also the respondents had the jurisdiction to grant extension of the joining time to the petitioner in the given circumstances. We find that the rejection of the petitioner's prayer for extension of joining time was arbitrary and illegal.

2011. The request was made but was unfairly neither considered within the period nor the decision communicated within the period. In this background, the stand taken by the respondents in their communication dated 8th April, 2013 is contrary to the position clearly set out in the office memorandum and is unfair to the T 4 petitioner.

11. Aggrieved by the afore-noticed order passed by the respondents, the petitioner approached the Armed Forces Tribunal which by an order passed on 21st May, 2012 rejected the petitioner's challenge. The petitioner has challenged the orders dated 8th December, 2011, 16th January, 2012, 24th February, 2012 of the respondents and the order dated 215t May, 2012 passed by the Armed Forces Tribunal, before us by way of the present petition.

12. In view of the above, we hereby set aside and quash the order dated 8th December, 2011, 16th January, 2012, 24th February, 2012 of the respondents as well as the order dated 21st May, 2012 passed by the Armed Forces Tribunal.