Samir Kumar Das v. Union of India and Ors.

14. According to the petitioner,respondent Nos. 1 & 2 cannot, by any stretch of their imagination be permitted to say that it is optional for them to follow the CVC procedureas mentioned above. In this regard, the petitioner has placed relianceupon thejudgement of the Supreme Court in Union of India and Anr. vs. Vineet Ohri, 2009 SCC OnLine Del 1881. It was furtherstated by the petitioner that it is apparent from the pleadings that respondent Nos. 1 & 2 have at one end chosen not to follow the prescribed procedure of sending the complaint back to the complainant owning/disowning in the case of M/s Raj Gypsum Udyog, whereas in the complaint of one Harish, respondent Nos. 1 & 2 did follow the procedure, seeking confirmation from the so-called complainant.Thepetitioner further stated that thevindictive, mala fide approach of the then Secretary (Fertilizer),namely Sh. Vijay Shanker Pandey is exposed from thevery action that despite theabove complaint W.P.(C) 2209/2017 Page 8 being treated pseudonymous, he,in gross violation of the mandatory guidelines of the CVC,went ahead beyond the limit permissible in law.

15. That apart, the petitioner stated that Rakesh Sharma, owner of M/s Raj Gypsum Udyog had also filed four writ petitions before the High Court of Rajasthan,regardingnon-opening of the price bid, but they were subsequently withdrawn. The petitioner also stated that Mr. Kumar of M/s. Raj Gypsum Udyog had threatened him with dire consequences if his technical bid was not approved by him in his capacity as the approvingauthority.The same had been brought to the knowledge of the Department of Fertilizers and was recorded in the counter affidavits filed by respondent No. 4 in all four writ petitions mentioned above. It is the case of the petitioner that since the Writ Petitions filed by M/s Raj Gypsum Udyog were discontinued, their complaint on the same matter is infructuous and without substance. In support of his argument,the petitioner has referred to thejudgement of the Supreme Court in Kalabharati Advertising vs. Hemant Vimalnath Narichania and Ors., AIR 2010 SC 3745.

16. The petitioner submitted that there is no vigilance case against the petitioner as the vigilance case for a Board level executiveshall only be from the date of CVC order the initiation of vigilance case and there is no such order against the petitioner.

17. It was the contendedby the petitionerthat the ACC, vide letter dated March 31, 2011 stated that all proposals wherein the incumbents meet the benchmark and theministry decides to recommend extension, shall be referred to the ACC for approval at least 2 months before the scheduled expiry of the tenure of the incumbents.It was also submitted by the petitioner that the circular dated March 31, 2011 further speaks of W.P.(C) 2209/2017 Page 9 the cases wherein the incumbents meet thebenchmark, but have some other issues such as vigilance etc., for which the Ministry/Department is not inclined to recommend extension,the same shallbe referred to the ACC for consideration six months before the scheduled expiry of the tenure of theincumbents.

18. The petitioner hasfurthersubmitted that, as per the circular of the ACC dated October 30, 2014, the services of a Board level employee cannot be terminated on completion of his final term if he/she is due for extension,without specific orders of the ACC, subject to him/her being free from thevigilance angle and meeting the prescribed performance parameters.It was also contended by thepetitioner that as per point (ii) of the said letter, thedepartmentwas to take a conscious decision on whetherto extendthe term of a Board level appointee at least one year in advance of completion of his initial term, so that adequate time is available for the department to obtain CVC clearance. It is also stated therein that takinginto account thevigilance status as on the date six months before theterminal date of initial appointment, the CVC may give its clearancewithin two months of receiving thereference from the administrative ministry.The limit of two months will include time taken for back references,CBI reference/enquiry etc.

19. It was also stated by the petitioner that as per Point V (a) of the aforementioned letter dated October 30, 2014, in cases where CVC clearance has been delayed beyond the prescribed timeline, merely on account of procedural reasonsand where there is no denial of clearance, the case of extension could be processed without waiting any further. It was the contention of the petitionerthat from the reading of the said circular, it is evident that there was a responsibility cast upon the W.P.(C) 2209/2017 Page 10 administrative ministry for processing the case at least one year in advance and to communicate it to the incumbent. In support of his argument,the petitioner hasreferred to the judgement of this Court in A.K. Verma vs. Union of India and Ors., 2004 SCC OnLine Del 282 where it was held that,the right to be considered for appointment would include the right of continuation or reappointment.

20. According to the petitioner,the impugned order dated December 01, 2016 could be looked, at as one of compulsory retirement, as the respondent Nos. 1 & 2 with an intent to scuttle down the mandatory guideline statedin circular datedOctober 30, 2014, have used the term "relieved upon of completion of 5 years of tenure". It was stated by the petitioner that thesaid order is prima facie mala fide for the reason that the petitioner hadalready completed histenureof five years on March 07, 2016. He also stated that his lien in PDIL, issued March 07, 2011 in consonance with DPE OM No.23/19/98/GL-014/DPE expired on March 6, 2016 leaving him without a parent cadre to return to on non-extension of tenure of thepost of CMD, FAGMIL.It was his contention that if the respondent No. 1 was not consideringthe extension of service of the petitioner beyond March 07, 2016, they ought to have relieved the petitioner so that he could have served for three more years until his superannuation as the GeneralManager,PDIL.

21. It was further contended by the petitioner that despite his tenure as CMD of respondent No. 4 having expired on March 07, 2016, he was not relieved of his charge andby way of implied conduct on the part of respondent Nos. 1 and 2, the petitioner was permitted to continue in his post for a further period of nine months,and that it was only when the petitioner had sought redressal of his grievance by way of this writ W.P.(C) 2209/2017 Page 11 petition, the respondent Nos. 1 & 2 maliciously passed the order dated December 01, 2016 which was communicated to the petitioner only during the course of hearing of the petition. According to him, the implied conduct on the part of respondent Nos. 1 and 2 gave rise to a legitimate expectation that histenure would be extended.In this regard, he has placed reliance upon the judgement of the Supreme Court in H.M. Singh vs. Union of India and Ors., AIR 2014 SC 1128.

22. It was the case of the petitioner that in light of admitted fact of there being no CVC recommendation till date given to respondent No. 1 for initiating departmental/penalty proceeding, the impugned order arbitrarily relieving thepetitioner is bad in law and further the extract note datedNovember 25, 2016 is also bad in law when the same is read along with letter dated January 27, 2016.

23. It was also stated by the petitioner that in the absence of any communication from the CVC that the petitioner is not clear from vigilance angle, it was not within the scope and jurisdiction of respondent Nos. 1 & 2 to say the petitioner is not clear from vigilance angle. In support of this argument, hehas relied upon to the judgement of the Supreme Court in Educ. Cons.

(I) Ltd. SC/ST Empl. Wel. Asso. Vs. Union of India and Ors., (2016) 8 SCC 271.

24. The petitioner placed reliance upon a report by the Parliamentary Committee on Pensions dated February 06, 2015, wherein, according to the petitioner, in respect to a similar fact, it was observed and emphasized that in a situation where a board level appointee has been removed maliciously without following due procedure of law, the aggrieved is entitled to compensation for the loss suffered mentally and socially. The Committee recommended the W.P.(C) 2209/2017 Page 12 concerned ministry to release full pay and allowances along with interest considering thepetitioner as on duty, from the date of illegal removal till the date when one would havesuperannuated/retiredin normal course.

25. A counter affidavit to the petition has been duly filed by the respondent Nos. 1,2,4, 5 and 6. It is the case of the respondents that the tenure of thepetitioner was not extended beyond December 01, 2016 due to a lack of vigilance clearance andhe was relieved from the post of CMD, FAGMIL on December 01, 2016 with the approval of the competent authority(Minister-in-Charge),and that the Department of Fertilizers has taken up the matter for ex-post facto approval of the ACC vide O.M. dated December 15, 2016, which was granted on July 30,

2017.

26. Mr. Rakesh Kumar,learned counsel appearing on behalf of the respondents submitted that FAGMIL is a schedule ‘C’ Central Public Sector Enterprise (“CPSE”,for short) under the administrativecontrol of the Department of Fertilizers.The competent authorityto approve board level appointments in schedule ‘C’ and ‘D’ CPSEs is the Minister-in- Charge, provided the Ministry does not deviate from PESB’s recommendation.It was further submitted by Mr. Kumar that, in terms of para 3 (ii) of ACC's instructions dated April 03, 2001 read with para 5 of ACC's instruction dated March 31, 2011, proposals for extension/non-extension in tenure of Board level appointees in Schedule 'C and 'D' CPSEs are required to be referred to the ACC only in cases where the concerned department proposes to deviate from PESB's recommendations.

27. Mr. Kumar further stated that thethen Secretary (Fertilizers) had advised that the proposal for non-extension of the tenure of the W.P.(C) 2209/2017 Page 13 petitioner may be processed in anticipation of ACC approval. Accordingly, the matter was forwarded to the ACC for ex-post facto approval and the same was received on July 13, 2017.

28. It was submitted by Mr. Kumar that, in relation to the matter of extension/non-extension of the petitioner, views of the ACC had been obtainedwherethe ACC had referred to para (3)(d) of its circular dated March 31, 2011 which reads as under: - "All proposals, wherein the incumbents meet the benchmark, but have some other issue such as vigilance etc for which the Ministry/ Department is not inclined to recommend extension, shall be referred to the ACC for consideration six months before the scheduled expiry of tenure of the incumbent.”

29. Mr. Kumar then referred to para (5) of the above said circular with respect to scope of the circular.Para (5) reads as under: - "While these guidelines relate to appointment/confirmation and extension of CMD/ MD/ Functional Directors of schedule A and B PSEs, the same would apply to those belonging to schedule C and D except that the final decision would be taken by the Ministry, as present, and no reference to the ACC would be needed.”

30. It was submitted by Mr. Kumar that a complaint was received in Department of Fertilizers on February16, 2015 from M/s Raj Gypsum Udyog, Jaipur, Rajasthan,alleging corruption and irregularity by the managementof FAGMIL in the tendering process for mining gypsum. Subsequently, CVO,FAGMIL was advised to send a detailed report on the complaint vide the Department of Fertilizers’ letterdated March 03,

2015. A detailed report was sent by the CVO, FAGMIL vide his letter dated June23, 2015. Mr. Kumarstated that the complaint of M/s Raj Gypsum Udyog dated February 16, 2015 was forwarded by Vigilance Division, Department of Fertilizers,to the CVO, FAGMIL vide letter W.P.(C) 2209/2017 Page 14 No.1/3/2015-VIG dated March 03, 2015 with the request to conduct an inquiry in thematterand submit the preliminary report at an early date to take further necessary action. He also stated that with regard to the CVC circulars dated November 25, 2014, January 23, 2015 and March 07, 2016, the complaint was lodged by M/s Raj Gypsum Udyog, who was an existing contractor of FAGMIL, on their letterhead. They had lodged complaints in the past and therefore, it was not a case of anonymous/pseudonymous complaint.

31. Mr. Kumar submitted that after consideration of the matter, lapses had been found on the part of Tender Committee which recommended non-admission of bids of M/s Raj Gypsum Udyog on the groundsof not having the relevant experience certificate required for the tender andnon-execution of previouswork assignedin another matter. The GM, FAGMIL and the CMD, FAGMIL had also been found responsible for approving the recommendations of the Tender Committee andthat a report in the prescribedproforma vide letter dated July 01, 2016 had been sent to CVC to seek its first stage advice in the matter.Mr. Kumar further statedthat the matter hadbeen considered in consultation with CVC, and the Secretary (Fertilizers) vide his note dated November 25, 2016 had recommended for theimposition of major penalty on the petitioner and other officers involved in the matter. Secretary (Fertilizers) had also recommended for issuance of chargesheet to the petitioner and other officers asking them to explain their conduct. According to Mr. Kumar, the recommendations of the Secretary (Fertilizers) havebeen approvedby the disciplinary authority i.e., the Minister (Chemicals & Fertilizers). It was furthersubmitted that an interim communication was also sent to the CVC vide letter dated W.P.(C) 2209/2017 Page 15 December 01, 2016 with regards to the imposition of major penalty on officers of FAGMIL.

32. Mr. Kumar also statedthat on August 05, 2015, the Department of Fertilizers initiated theproposal for extension/non-extension of the petitioner.In this regard, HR-I Section of FAGMIL,vide its O.M. dated November 19, 2015 solicited CVC clearance in respect of the petitioner, for extension/non-extension of his service beyond March 07, 2016. In response to HR-I Section's O.M. dated November 19, 2015, Department of Fertilizers vide letter dated November 26, 2015 had sent the particulars to the CVC, seeking clearance. Mr. Kumar stated, that included the particulars of two cases, one wherein the CVC had recommended closure and another case regarding the complaint from M/s. Raj Gypsum Udyog to the Department of Fertilizers wherein the CVO, FAGMIL in his later report dated June 23, 2015 has fixed responsibilityon the petitioner. Accordingto Mr. Kumar, the Secretary (Fertilizers) vide his notedated November 25, 2016 proposed that the tenure of thepetitioner should not be extended and that he should be relieved of his duties with immediate effect, in anticipation of ACC approval. The proposal of the Secretary (Fertilizers) was approved by the Cabinet Minister on November 28, 2016. Mr. Kumar contendedthat it was absolutely baselessto say that theapproval of Cabinet Minister was taken at his back date.

33. It was also stated by Mr. Kumar that theCVC vide O.M dated March 14, 2017 had advised for initiation of major penalty proceedings against the officers below board level and while considering the relieving of the petitioner on December 01, 2016, had advised the Department of Fertilizers to takeappropriate action under the extant W.P.(C) 2209/2017 Page 16 rules against the petitioner. It was further submitted that the advice of the CVC has been acceptedby the Disciplinary Authority.

34. Mr. Kumar further stated that guidelines of the CVC for handling anonymous/pseudonymous complaintswere strictly followed. The complaint of M/s. Raj Gypsum Udyog was neitheranonymous nor pseudonymous.Mr. Kumarfurthersubmitted that as per CVC circular dated March 07, 2016 theopinion of the learned Attorney General was sought andthe sameis furnished as under: "Material/evidence gathered during the investigation/verification of anonymous complaint when the action was prohibited on such complaints or where such enquiry was initiated without the approval of CVC, can be utilized for further initiation of disciplinary proceedings on misconducts noticed in such verifications/enquiry" It was contended by Mr. Kumar that therefore, there is no violation of the mandatory guidelinesof the CVC.

35. Mr. Kumar further stated that in regard to theWrit Petitionsfiled by M/s Raj Gypsum Udyog in the High Court of Rajasthan, thepetitions were dismissed as withdrawn,on request by thepetitioner therein, with liberty to avail appropriate remedy,if any, under general law and that they continued to seek remedy from the Department of Fertilizers. It was further stated by Mr. Kumar that therefore it is not true that the complaint was infructuous.

36. It was submitted by Mr. Kumar that the case referred to in the Parliamentary CommitteeReport dated February 06, 2015 (of one Ms. Rita Kunur) is entirely different from the present case.Ms. Rita Kunur was granted extension in service of one year from November 03, 2000 to November 02, 2001 and her services were terminated on June 22¸ 2001 i.e., four months and ten days before the scheduled expiry of her W.P.(C) 2209/2017 Page 17 tenure.It was stated that in thepresent case no extension was accorded to the petitioner beyond March 07, 2016 and his matter was pending for want of vigilanceclearance and therefore,opinion of the Parliamentary Committee providedin the Report is not applicable in the instant case.

37. Mr. Kumar further stated that thepetitioner had not submitted any request for relieving him to join his parent Department before the expiry of his lien and that he was not forciblymade to serve FAGMIL beyond March 07, 2016.

38. Mr. Kumar also submitted that the petitioner was relieved in terms of Presidential Order No. 90/2/2010-HR-I dated March 03, 2011 on completion of five years term and that further extension is not a right. According to Mr. Kumar,the Department may or may not extend the services as per applicable guidelines.He further stated that per circular dated October 30, 2014 of ACC, the Department is not bound to extend the services,if the incumbent is not free from vigilance angle.

39. It was submitted by Mr. Kumar that, as per ACC circular dated March 31, 2011, the final decision for extension of CMD/MD/Functional Director belonging to schedule C & D CPSE would be taken by the Ministry and no reference to the ACC would be needed, and therefore the non-extension of the petitioner was approved by the competent authority, i.e., the Minister-in-Charge of the administrative ministry on November 28, 2016 and no approval of ACC was needed. He also submitted that the proposal for extension/nonextension of the tenure of the petitioner was in consideration in the Ministryseven monthsbefore the scheduled expiry of his tenure. W.P.(C) 2209/2017 Page 18

40. It was also contended by Mr. Kumar that there is no difference between approval and ex-post facto approval which may affect the legality of the decision.

41. Mr. Kumar stated that there is no reference in any circular that board level appointees involved in vigilance cases should be given extension automatically,till theyget final advice from CVC. Mr. Kumar also submitted that, giving extension beyond normal tenure to board level appointees and taking action in vigilance cases are two different issues and it is not obligatory on the part of the Government to give further extension if it is not inclined to do so. It was further stated by Mr. Kumar that however,action in vigilance cases is to be taken as per the advice of CVC, and that in the instant case, the CVC vide its OM dated March 14, 2017 had furnished the advice for major penalty proceedings against officers below board level and while considering the reliving of the petitioneron December01, 2016 had advised to take appropriate action against the petitioner. It is the contention of Mr. Kumar that, had it been mandatory on the part of the organization to seek CVC advice before terminating theservices of the petitioner, the CVC would have raised that issue in thecommunication dated March 14, 2017.

42. Mr. Kumar submitted that yet anothercomplaint dated June 30, 2016 with regard to recruitment of officers in FAGMIL is also pending, in which the name of thepetitioner has also been mentioned. It was contended by Mr. Kumar that two complaints were pendingagainst the petitioner and the disciplinary authority had approved major penalty proceedings and the issuance of charge sheet against him. It was contended by Mr. Kumar that vigilance clearanceis one of the primary W.P.(C) 2209/2017 Page 19 requirements for extension of tenure of a Board level employee, and since the petitioner was not clear from vigilance angle,the Ministry had decided not to extend the petitioner’s tenure. The matter was communicated to the CVC and the ACC and ex post facto approval of the ACC was sought. The ACC vide its letter dated July 3, 2017 has grantedex-post facto approval to the order relieving the petitioner from his post as CMD, FAGMIL.

43. Mr. Kumar submitted that advice was sought from the Department of Legal Affairs (‘DOLA’, for short) whether charge sheet can be issued against the petitioner for initiation of major penalty proceedings, as he had already been relieved from his post. On November 16, 2017, DOLA tenderedtheir advice recommending the initiation of departmental proceedings as per Rule 9(2)(b) of the CCS (Pension) Rules, and accordingly charge sheet was issued to the petitioner on November 27, 2017. The petitioner filed a writ petition W.P.(C) 407/2018 in this Court challenging the issuance of charge sheet.The court inter-alia stated that the Union of India to come to a conclusion whether the petitioner can be proceeded against, under CCS(Pension) Rules, 1972 and if not, to also consider whether the petitioner can be proceeded against, under the CCS(Conduct) Rules,

1964. It was stated by Mr. Kumar that as per the advice of DOLA received vide letter datedMarch 05, 2018, the matter had been referred to DoP&T and DPPW. He further submitted that it was evident from these factsthat as on the date of relieving,the petitioner was not free from vigilance angle.

44. A rejoinder was duly filed by the petitioner to the counter affidavit filed by the respondents. In addition to reiterating his W.P.(C) 2209/2017 Page 20 contentions from the writ petition, the petitioner has placed reliance upon the Annual Report of theCentral Vigilance Commission, placed before the President of India, therelevant part of which reads as under: - "The advisory role of the Commission extends to all the matters on vigilance administrationreferred to it by any Department/Organisation of the Central Government. It is mandatory on the part of the organisation to seek Commission advice before proceeding further in a matter where earlier a report was called for by the organisation"

45. He contended that when mandatory instructions or guidelines have been issued by the CVC to the extent that a department or an organization ought not to proceed further unless the CVC has tendered its advice, the duplicityof Respondent No. 1 & 2 is reflected from their own admission that the first stage advice from the CVC was sought for vide letterdated July01, 2016, to which the CVC replied, calling upon the respondent Nos. 1 and 2 to place before it, the proposed action/report, which it intends to takeagainst the petitioner and other officials. It was furtherstated by the petitioner that respondent Nos. 1 and 2 have admittedthat they have forwarded the proposed action/report which theyintended to takeagainst the petitioner and other officials on December 01, 2016, therefore, without having awaited the decision of the CVC on thefirst stage advice, it was not open/permissible for/to the respondent Nos. 1 and 2 to pass the illegal order dated December 01,

2016.

46. It was submitted by thepetitioner that the prior approval of ACC was required for thenon-extension of the petitioner’s tenure. However, against prescribed rules, ex-post facto approval of ACC has been obtained. The petitioner contended that it is a settled legal preposition W.P.(C) 2209/2017 Page 21 that if an order is bad in its inception,it does not get sanctifiedat a later stage, that is subsequent action/development cannot validate an action which was not lawful at inception,for the reason that illegality strikes at the root of that order,and that it would be beyond the competence of any authority to validate such an order. To buttress his arguments, the petitioner relied upon thejudgement of this Court in Ajay Kumar Joshi and Ors. vs. Union of India and Ors., MANU/DE/3081/2011 wherein it was inter alia held that a post facto concurrence would not validate a promotion.

47. The petitioner stated that, post facto approval given by the ACC after seven months of an illegal order will have no effect as the order itself is ab initio void. In this regard he placed reliance upon the judgement of the Supreme Court in State of Orissa and Ors. vs. Mamata Mohanty, (2011) SCC 436.

48. It was further submitted by thepetitioner that the Minister had not passed any order and had just put his signaturewithout applying his independent mind and withoutverification of the facts. In support of his argument,the petitioner referredto the judgementof the Supreme Court in Chairman-cum-M.D., Coal India Ltd. and Ors. vs. Ananta Saha and Ors. (2011) 5 SCC 142. He also relied upon the judgment of the Supreme Court in State of Maharashtra v. Sanjay Thakre 1995 Supp. 2 SCC 407 and the judgment of this Court in the case titled Dr. Sahadeva Singh v. Union of India, W.P.(C) 2623/2010, decided on April 20, 2010, in support of his contention that there should be strict compliance of executive orders / rules / circulars.

49. On the aspect of stigmatic termination without holding inquiry or even by serving the charge sheet / show cause notice,he relied upon W.P.(C) 2209/2017 Page 22 the judgment reported as Surinder Pal Kaul v. State of Punjab, (2005) 1 LLN 954 and State Bank of India v. Palak Modi, (2013) 3 SCC 607. On the aspect of evasive and non-specific denial in written statement he relied upon the judgment of this Court in the case of Anant Construction v. Ram Niwas, ILR 1995 II Delhi 76.

50. Having heard the petitioner and the learned counsel for the respondents and perused the record, the issue which arises for consideration in this petition is whether theimpugned order relieving the petitioner as CMD of FAGMIL and not extending / renewing his appointmenton the said post is justified.

51. The submissions madeby the petitioner can be summed up as under:

(i) That he is entitled to extension as CMD FAGMIL beyond theperiod of five years post March 07, 2016 as his date of superannuation was October 31, 2019.

(ii) As per letter of PESB June 28, 2011 the overall performanceby securing 80 out of maximum marks of 100 is the benchmark to be achieved for extension and the petitioner has achieved 95 marks.

(iii) The petitioner is fit from Vigilanceangle,inasmuch as even the complaint of M/s Raj Gypsum Udyog has already been examinedby Director (Vigilance),who vide his letter dated January27, 2016 directed closure of thecase and the case was closed with the approval of CVC.

(iv) As per CVC circulars datedJanuary 01, 2015 and

January 23, 2015, if a complaint is received with specific allegations, then the same needs to be sent back to the W.P.(C) 2209/2017 Page 23 complainant for owning / disowning and in this case no confirmation was received before initiation of investigation.

(v) The writ petitionsfiled by M/s Raj Gypsum Udyog have been withdrawn and as such all the complaints have become infructuous and without any substance. In terms of circular dated March 31, 2011, all proposals wherein the incumbents meet the benchmark but have someother issue such as vigilance etc. for which the Ministry/Department is not inclinedto recommendextension,sameshall be referred to ACC for consideration six months before the schedule expiry of the tenure.

(vi) As per the circular dated October 30, 2014 the services of a Board level employee cannot be terminated on completion of his initial term, if he / she is due for extension withoutspecific orders of ACC.

(vii) The impugned order dated December01, 2016 is an order of compulsory retirement as the services of the petitioner have been scuttled prematurely,otherwise thepetitioner would have superannuated in the year 2019.

(viii) Despite the first term expiring on March 07, 2016, the petitioner was continued on the post of CMD for nine months and it is only when the petitioner sought redressal of his grievance in this Court that the respondents have passed the impugned order.

(ix) Till such time, there is a communication from the

CVC that thepetitioner is not clear from the vigilance angle it was not within the scope and jurisdiction of the respondent W.P.(C) 2209/2017 Page 24 Nos.[1] and 2 to say that the petitioner is not clear from vigilance angle.

(x) The prior approval and not post facto approval of

52. Having noted the submissionsmade by thepetitioner, I may at the outset state that theappointment letter of the petitioner as CMD FAGMIL dated March 03, 2011 clearly stipulatedthat the appointment is for a period of five years or till the date of superannuation or until further orders, which ever event occurs earlier. The said stipulation contemplatesthat the tenure of the petitioner may not necessarily be continued till superannuation, as sought to be contended. It can be either for five years or even for a lesser period.

53. Having said that,I may also state,the submissions made by the petitioner as notedabove are primarily on the premise that there was only one complaint filed against him by M/s Raj Gypsum Udyog which having been closed,and no othercomplaint being pending which can be an impediment for the petitioner to continue on the post of CMD FAGMIL, is fallacious. As has been contended by Mr. Rakesh Kumar, and also stated in the affidavit filed by the respondentsto the rejoinder affidavit filed by the petitioner that there were two more complaints filed against the petitioner, viz.

(i) complaint dated February 16, 2015 by the same company M/s Raj Gypsum Udyog; and (ii) complaint dated June 30, 2016 by one Harish with respect to recruitment of officers made in FAGMIL, post 2010 and manipulations of TA Rules, which show that thepetitioner was not free from vigilance angle,is appealing. The matter regarding M/s Raj Gypsum Udyog was sent to CVC vide W.P.(C) 2209/2017 Page 25 letter dated July 01, 2016 to seek first stage advice in the matter. The CVC vide its letter dated July 19, 2016 had stated that in order to examinethe matter,proposed penalty proceedings against each Officer and bio-data of all accused Officers may be furnished to the Commission. On November 25, 2016, recommendation was made for initiating major penalty proceedings against the petitioner and other Officers of FAGMIL which was approved by the Minister In-charge, i.e., Disciplinary Authority on November 28, 2016. The matter was again sent to the CVC with the draft charge sheet. It transpired that the CVC vide its OM dated March 14, 2017 had furnished its advice for taking action against the petitioner under the extent rules. In the meantime,on December 01, 2016 with theapproval of the Minister, the petitioner stoodrelieved from FAGMIL.

54. Suffice to state, on November 27, 2017 a charge sheet under Rule 9(2)(b) of the CCS Pension Rules 1972 was issued to the petitioner. It appears that the said charge sheet was challenged by the petitioner in this Court by filing writ petition being W.P.(C) 407/2018. The writ petition was disposed of on February 07, 2018 directingUnion of India to consider whether the petitionercan be proceeded under the Conduct rules.It is not known as to what decision has been taken by the Union of India.

55. Be that as it may, the aforesaid reveals that on December 01, 2016 the petitioner was not free from vigilance angle as a decision was already taken by theDisciplinaryAuthority to initiate major penalty proceedings against the petitioner andas such his tenure could not have been extended further. The plea of the petitioner was that till such time, the CVC takes a decision on anycomplaint made against the petitioner, W.P.(C) 2209/2017 Page 26 the petitioner cannot be said to be unfit from vigilance angle, though sounds appealing on a first blush but on a deeper consideration the fact that a decision is taken to initiatemajor penalty proceedings and the CVC vide its O.M. dated February 07, 2017 did recommend action against thepetitioner as per rules and the fact that a charge sheet was issued to thepetitioner under Rule 9 of the CCS Pension Rules 1972, though later, cannot be overlooked and the same suggest that the petitioner was not fit from vigilance angle.

56. The plea of the petitioner was that the complaint datedFebruary 16, 2015 being pseudonymous and noconfirmation has been received from the complainant before acting on the same could not have been acted upon is unmerited.This plea is contested by the respondents by stating that the complaint being of M/s Raj Gypsum Udyog, it was neither anonymous norpseudonymous as thesaid entity is a registered contractor in FAGMIL. Further,M/s Raj Gypsum Udyog had filed four petitions challengingthe action of FAGMIL on the tender, as such its identity is known and the genuineness of the complaint cannot be doubted.

57. Insofar as the plea of the petitioner that theservices of the Board level employee cannot be terminated if he / she is due to extension withoutspecific order of ACC is concerned, in this regard I may state, though thepetitioner was relieved from hisdutiesas the CMD FAGMIL on December 01, 2016, the approval of the ACC was sought only on December 15, 2016 after the impugned relieving order was issued and the petitioner hadfiled a petition before this Court which was pending. The ACC vide communication dated July 13, 2017 gave its approval for non renewal of tenure of the petitioner and had regularised the period W.P.(C) 2209/2017 Page 27 between March 08, 2016 and December 01, 2016 during which period the petitioner continued to discharge theduties of CMD FAGMIL.

58. The submission of Mr. Kumar on this plea is that there is no difference between approval and ex-post-facto approval and the same shall not affect the legality of thedecision.

59. The petitioner hadrelied upon the OM’s dated March 31, 2011 and October 30, 2014, whereas therespondents apart from the above circulars have also referred to OM dated April 03, 2001. A reading of the above OMs, the followingposition is noted:

(i) In the eventuality, the recommendation of PESB for continuance is not accepted,then the approval of the Competent Authority / ACC is to be sought.

(ii) All proposals wherein the incumbents meet the benchmark,but on some otherissue such as vigilance etc., the Ministry/ Department is not inclined to recommend extension, the proposal shallbe referred to the ACC for consideration six months before schedule of expiry of tenureof the incumbent.

(iii) The circular datedOctober 30, 2014 only records in the first paragraph,the position under theextant policy,inasmuch as in case the initial term of five years of a Board level appointee comes to an end prior to his / her date of superannuation, extension of his / her tenure up to thedate of superannuation is considered with the approval of the ACC subject to his / her being free from vigilance angle and meeting the prescribed performanceand parameters. In terms of the instructions, the services of any Board level appointee cannot be terminated on W.P.(C) 2209/2017 Page 28 completion of his initial term, if he / she is due for extension withoutspecific orders of the ACC.

60. I may state here that OM’s of 2001 / 2011 / 2014 contemplates the non-renewal of the tenure of the Board level appointee shall be upon consideration and with the approval / specific orders of ACC.

61. The plea of the petitioner was that prior approval of the ACC is required, before relievingthe petitioner from duties as CMD, FAGMIL.

62. I am of the view, the said requirement has been met. This I say so for the following reasons: (1) the effect of theinstructions/ OM’s is that the appointee shall not be relieved till such time approval / specific orders of the ACC are sought. (2) the petitioner was relieved, only after taking approval / orders of the ACC. (3) the delayed consideration enured to the benefit of the petitioner as he continuedto work as CMD, till such time, the ACC approved, the decision of the Ministry / Department,not to extend the tenure, and the said period of nine months was regularised in favour of thepetitioner.

63. The plea of the petitioner that the order dated December 01, 2016 is an order of compulsory retirement as the petitioner still had service till 2019, is not appealing. This, I say so, on demittingthe office of CMD, FAGMIL, the petitioner should have reverted back to his parent organisation PDIL providedhe had maintained his lien there.The lien of the petitioneron his appointment was maintained for five years. There is nothing on record to show that hislien beyond five years was also maintainedin PDIL. Even if he has applied, thesame hasnot been W.P.(C) 2209/2017 Page 29 maintained.The remedy for the petitioner was to seek an order against PDIL in that regard. No such prayer has been made in this petition nor has PDIL been made a party. Hence,the non renewal of the tenure of the petitioner cannot be construed as compulsory retirement. It is a simple case where the tenure has not been extended beyond five years and nine months,which is permissibleunder theterms of appointment and also as per the decision of the ACC.

64. Insofar as the plea of the petitioner by placing reliance on the Parliamentary Committee report dated February 06, 2015 to claim compensation is concerned,the same is without merit in view of my above conclusion justifying the non-renewal of tenure. Even the compensation granted in favour of Ms. Rita Kunur was because her tenure was terminated despiteextension,which is not the case here. The petitioner cannot seek any parityqua Ms. Rita Kunur.

65. The petitioner has relied upon the judgment of the Division Bench of thisCourt in thecase of Ajay Kumar Joshi and Ors. (supra) to contendthat the prior approval of ACC is required before he could be relieved. I have already said prior approval of ACC was taken before the petitioner was relieved. In any case, the said judgment has no applicability in the facts of this case, inasmuch as the relevant rule which was interpreted by the Division Bench to holdthat obtainingprior concurrencefrom the Central Governmentis mandatory and post fact concurrence would not validate the promotion is the following “appointment of a member of the service in the case of selection grade and above shall be subject to availability of vacancies in these grades and for this purpose it shall be mandatory upon the said cadres or the joint cadres authorities as the case may be to seek prior concurrence of W.P.(C) 2209/2017 Page 30 the Central Government on the number of available vacancies in each grade”. The Division Bench hasheld that the word “prior” occurring in the rule suggest the prior approval of theCentral Government and not post facto concurrence. In fact, the reliance on the judgment is misplaced.

66. The petitioner hasalso relied upon the judgment in the case of Union of India (supra) in support of his contention that pseudonymous complaint cannot be taken into consideration in terms of the circular issued by the CVC. Suffice to state that I have already held that the complaint datedFebruary 16, 2016 was not a pseudonymous complaint, but a complaint made by M/s Raj Gypsum Udyog whose identity is known as it had filed four petitions before the High Court and there was no requirementto refer the complaint to the said Company for owning it.

67. The judgment in thecase of H.M. Singh (supra) relied upon by the petitioner has noapplicability in the factsof this case inasmuch as the terms of appointmentas noted above,stipulate that the appointment is for five years or for a lesser period or till superannuation.Such terms cannot give rise to legitimate expectation to the petitionerthat his tenure shall be extended. Even the circulars/orders issued by the respondents which contemplate non-renewalof tenure but with the approval of the ACC, suggest there cannot be any legitimateexpectation for extension of tenure.The relianceon the judgmentin the case of Educ. Cons.

(I) Ltd. SC/ST Empl. Wel. Asso. (Supra) is misplaced, in as much as the decision of the Disciplinary Authority to initiate major penalty proceedings and a charge sheet having been issued, it is clear the petitioner was not clear from vigilance angle. W.P.(C) 2209/2017 Page 31

68. The plea of the petitioner that the Minister had not passed any order and had just put hissignature without applying his independent mind and withoutverification of the facts is also not appealing. This submission of the petitioner is in view of the extract note dated November 25, 2016 reproduced in para 7 above. The note was approved by the Minister pursuant to which the petitioner was relieved. The decision to relieve the petitionerfrom the post of CMD, FAGMIL is an administrative act which does not require a detailed order by the Minister unlikethe quasijudicial decision.Further the plea has no basis as a physical copy of the note has not been placed on record. The petitioner has placed reliance on the judgment of theSupreme Court in Chairman-cum-MD, Coal India Ltd. (supra) is misplaced. As the order with which the Supreme Court was concerned was an order reviving the disciplinary proceedings which are quasi judicial proceedings obligating the authority to pass a reasoned order unlike the decision in this case relieving the petitioner of his duties being a purely administrative decision.

69. The petitioner who has also relied upon the judgment of the Supreme Court in Kalabharati Advertising (supra) in support of his submission that with the withdrawal of thewrit petitions on February 16, 2016, the complaints of M/s Raj Gypsum Udyog have lost their relevance is concerned, suffice to state the writ petitions were withdrawn with libertyto avail remedy if any under general law. I find M/s Raj Gypsum Udyog had already availed the remedy of filing the complaint on February15, 2016, one day before the withdrawal of the Writ Petitions,on which a decision was taken by theMinister In-charge, the DisciplinaryAuthority to initiate penalty proceedings. So, despite W.P.(C) 2209/2017 Page 32 withdrawal of thewrit petition,there is a decision against the petitioner which shows there is a justifiable ground to relieve thepetitioner. The judgment for the proposition advanced has no applicability.

70. The judgment in thecase of State of Maharashtra (supra) and Dr. Sahadeva (supra) relied upon by the petitioner in support of his submission that executive orders / rules / circulars need to be strictly complied with have no applicability in thefacts of this case and also in view of my conclusion above.

71. The reliance placed by the petitioner in the case of Surender Pal Kaul (supra) and State Bank of India (supra) in support of his contention that termination withoutan inquiry / show cause notice is stigmatic in nature is concerned, the said judgments have no applicabilityin the facts of this case wherein the terms of appointment as noted above are very clear, inasmuch as that the appointment of the petitioner as CMD, FAGMIL was for a period of five years or till the age of superannuation or even for a lesser period and also in view of my conclusion above justifyingnon-renewal of tenureof the petitioner on the groundthat he is not clear from vigilance angle. Even the order of relieving the petitioner is an order simpliciter without detailing the reasons for not renewingthe tenure/appointment.

72. Insofar as the judgment in the case of Anant Construction (supra) and A.K. Verma (supra) are concerned, they have no applicabilityin the facts of this case.

73. In view of my discussion above,I find no merit in this petition, the same is dismissed. No costs. W.P.(C) 2209/2017 Page 33 C.M. APPL. 9667/2017 In view of my conclusion in the writ petition, the present application is dismissed.

V. KAMESWARRAO, J

JUNE 23, 2021