Union of India v. Umakant Dubey & Ors.

1. The Union ofIndia has preferred the presenttwo Letters Patent Appeals to assail the common order dated 30.04.2013 passed by learned Single Judge,disposing ofthe writpetitions preferred byMr.UmaKantDubey[W. P.(C)4239/2012]and Mr.AjayKumar Singh and Anr[W.P.(C)4257/2012].

2. The respondents had preferred the aforesaid writ petitions to assail the Office Memo dated 15.06.2012 /18.06.2012 issued to them by respondent No.2. whereby the petitioners named above were asked to show cause as to whytheir services should notbe terminatedforthwith onthe ground thatthe posts held by them, of Senior Scientific Officer and Deputy Registrar respectively, respondents are not included in the IV Schedule of the Protection of Plant Varieties and Farmers' Right Act, 2001. It was thus contended that their recruitment and appointment by the respondent No.2/authority was in contravention of Protection of Plant Varieties and Farmers'RightAct,2001 andtherulesframed thereunder.

3. The respondent No.2 had issued an advertisement in employment news on 15.09.2007/21.09.2007 inviting applications for filling up the post of DeputyRegistrarinthe payscale ofRs.10,000-15,200/-.Theadvertisement prescribedthe eligibility,qualifications and experience requiredforthe said post. Mr. Uma Kant Dubey,being qualified for the said post, applied in response to said advertisement. On his selection, he was accordingly appointedtothepostofDeputyRegistrar.Subsequently,theimpugnedshow cause notice/OM was issued claiming thatthe post ofDeputy Registrar was not one ofthe posts, enumerated in the schedule to the aforesaid Act to which the authority could make appointments. LPA 63/2020&LPA 64/2020 ^ ^

4. Similarly,in respect ofMr. Ajay Kumar Singh,the advertisement issued on 17.02.2007/23.02.2007 invited applications for the posts of Senior Technical Officer in the pay scale of Rs.6500-10,500/-. Mr. Ajay Kumar Singh being qualified in the terms of the advertisement applied and was called by the selection committee and was eventually appointed on the said post on 12.10.2007. He too was visited with a similar memorandum on the same premise as aforesaid.

5. The leamed Single Judge, after notice to respondent No.2/authority, disposed of the two writ petitions by common impugned order. The operative partofthe saidimpugned orderreads asfollows: "5. In my opinion, unless there is a specific express bar to recruit officers and employees by the respondent-Authority by direct recruitment, Rule 20 cannot be read so as to prevent creation of sanctioned posts, provided the sanctioned, posts, are created by following the due process including obtaining approval of the Central Government who has control ofthe Authorityfunctioning under the Act.

6. 1 may state that aforesaid are only prima facie observations inasmuch aswritpetition can bepresentlydisposedofin view ofthe decision taken by the Authorityin its 1?"'Meetingdated19.10.2012 and which read as under.

16 Consideration ofrequest of incumbents to the posts ofJoint Registrar, [Deputy Registrar and Senior Technical Officers for substantive Considering the circumstances ofthe case and also in view of the fact that Sh. Dipal Roy Choudhury, Joint Registrar, Sh. Umakant.dubey. Deputy Page 3of[7] A appointments Dr. Susheel Kumar, Senior Technical Officers have been working resigning their previous posts in response to the advertisement given by the Authority and have been selected in a proper manner, the Authority resolved to allow them to continue on their respective posts andstatus quo may be maintained. The member secretary informed one of the employee (Dr.Susheel Kumar, STO) has already resigned on being selected for the post of Assistant Professor in the University. It was also recommended that the case for inclusion ofthese posts in the fourth schedule should be done with retrospective dates. Further the Authority desired that the Recruitment Rules framed in accordance with FFV&FR Rules 2003 already approved by the Authority should be expedited by the Authority with the Govt., in order to avoid such complications infuture.

7. In my opinion, in view ofthepeculiarfactsandcircumstances of the case it would be advisable for the concerned Authority to examine the impactofsub rule 3ofRule 20andalso as to whether the same can in any manner constrict the operation ofSection 6of the impugnedparentActinasmuch as the saidprovision ofSection 6 does not bar appointments by direct recruitment on and after Page4of[7] s creation ofposts, in terms of the necessary approvalfrom the Central Government.

8. This writpetition is, therefore, disposed ofin view ofitem 16of the 17"" Meeting of the Authority dated 19.10.2010 and the petitioners will not be removedfrom their services and will be regularizedfrom the date oftheir originalappointmentsasstatedin item 16ofthe IVth Meeting ofthe Authority dated 19.10.2012. The Authority underthe Actmayfollow wheneverprocedure isjequired in accordance with lawfor acting upon item 16ofthe if Meeting ofthe Authority-dated 19.10.2012. It is clarified that in case the petitioners are aggrieved as in future, ofany action seeking to V remove themfrom services or not regularizing their servicesfrom the original date of appointment or their confirmations, then petitionersare atlibertyto approach the Courtatthatstage.

9. It is clarified that petitioner No.2 in W.P.(C) 4257/2012 has already lefttheservicesofrespondent-Authority and, therefore, the writpetitions stand allowed and disposed; ofwith respect to^^ the remainingpetitionersin termsofthe observations made above.

6. The submissionofMr.Sinha,leamed counselforthe appellantisthatthe Union ofIndia was not made a party to the writ proceedings and that the impugned order has been passed behind its back. The appellant has disclosedthatitlearntabouttheimpugned orderin May2016.Onperusalof ^ the averments madeintheir applicationfor seeking condonation ofdelay,it is revealed that even after allegedly leaming ofthe impugned order in May 2016, it was only on 08.05.2019, that the appellant ultimately decided to direct respondent No.2/Authority to fix the responsibility for the alleged lapsein making appointmentoftherespondents,contrarytothe Actandthe rules,and directedthe authoritytotake disciplinary action. LPA 63/2020&LPA 64/2020 Page5of?

7. Pertinently, this deeision was taken only after three years oflearning of the impugned order. It is also evidentthatthe respondent No.2/authority had been seeking the ex post faeto approval ofthe appellant i.e. the Ministry of Agriculture and Farmers Welfare,Department of Agriculture, Co-operation and Farmers Welfare for regularization of the appointment of the respondents ever since they were appointed. Therefore,for the appellant to claim that it was not aware of the appointments of the respondents since 2007 does not appear to be correct. It is pertinent to note that, even in May 2016, the appellant did not choose to take any action against the appointment of the respondents and all that it did was to decide to take disciplinary action against the concerned officers of respondent No.2/authority. It is equally pertinent to note thatin the year 2015,the IV"" Schedule to the Protection of Plant Varieties and Farmers' Right Rules, 2003 was amended and several other posts were included therein,for which the authority was authorized to make appointment on its own which includedto the postofSenior Technical Officer as well.

8. It was also significant to note that under the amended Schedule,though the nomenclature ofDeputy Registrar has not been used,one post ofSenior Technical Officer has been created in the same pay band III (Rs. 15600- 39100)with grade pay ofRs.6600.Thus,the respondentNo.2/authority has been empowered to make appointmentofqualified personnelin the said pay band and the said grade pay.

9. The counselfor the respondents who appear on advance notice points out that the appointments of respondents were made only after the concerned LPA 63/2020& LPA 64/2020 6of[7] ministry had approved the rules for such appointments.

10. In these circumstances, looking at the conduct ofthe appellant and the immense delay under which the present appeal has been preferred, we are notinclined to interfere with the impugned order.