ANAND DARBARI Vs. UNION OF INDIA

JUDGEMENT

(1.) in the Civil Writ Petition No. 3796/99 under Articles 226 & 227 of the Constitution of India, the petitioner has been praying for the writ of certiorari or any other appropriate writ or order quashing the non-acceptance of the recommendations dated 21.4.1999 of Public Enterprises Selection Board, (for short 'PESB'), and the consequent decision of the Appointment Committee of Cabinet, (for short 'ACC'),to ter- minate the tenure of the petitioner as Chairman-cum-Managing Director (for short 'CMD'), Cement Corporation of India (for short 'CCI') and to issue a writ of mandamus or any other appropriate writ or direction directing ACC to take appropriate decision regarding extension of the petitioner's tenure as CMD, CCI on the basis of the recommendations of the PESB without taking into account the extraneous and irrelevant facts pertaining to withdrawn proposal dated 3.2.1999 of respondent No. 1, as referred to in the note prepared by the Secretary, ACC and also for the issue of writ of prohibition or any other writ or order restraining respondents 1 & 2 from terminating the services of the petitioner pursuant to the impugned non-acceptance of the recommendations of PESB. In C.W.496/99, the petitioner prays for direction quashing/expunging the adverse observations/remarks contained in ACRs of the petitioner for the years 1995- 96 and 1996-97, as communicated to the petitioner vide two letters dated 18.12.1998 AND for the direction restraining the respondents from considering or taking into account the adverse remarks contained in the ACRs for the years 1995-96 and 1996-97 for any purpose while holding joint appraisal of the petitioner for considering the petitioner case for the extension of his tenure as CMD, CCI or for any other purpose and also directing respondent No. 1 to produce the relevant communications, letters and notes with regard to recommendations of respondent No. 1 during the year 1995-96 and 1996-97 for the extension of the petitioner's service tenure with effect from 2.1.1996 and upgradation of petitioner to Schedule 'A' scale of pay.

(2.) It is not in dispute that on 2.1.1989, the petitioner was appointed as CMD of CCI for a period of Five years; that on 18.10.1994, the petitioner was granted extension for two years as CMD, CCI with effect from 2.1.1994; that on 5.9.1995, the petitioner was granted vigilance clearance by Central Vigilance Commission, for short 'CVC. for proposed appointment of the petitioner as Chairman of Rashtriya Chemical & Fertilisers Limited; that the petitioner was granted three years extension with effect from 2.1.1996 as CMD, CCI; that in September 1996, the petitioner was considered by PESB for the post of Chairman, Airport Authority of India (AAI) and was placed at No. I in the panel prepared by PESB.

(3.) It is the case of the petitioner that in September 1996, a anonymous complaint was filed with respondent No. 1 containing various allegations which were examined by respondent No. 1 and having found no substance in the allegations contained in the complaint informed CVC accordingly and requested for vigilance clearance to the petitioner for his appointment as Chairman, AAI; that respondent No. 1 appointed a Committee consisting of two officers of rank of Director of Deputy Secretary (Defence) to took into the allegations appointed by C'VC; that the above Committee of respondent No. 1, after making an independent enquiry into those allegations, found no substance and cleared the petitioner of all the allegations; that respondent No. 1 while forwarding the report of the aforesaid Committee, categorically concluded "in view of the Findings of the independent inquiry, it has been decided to close the cases against the petitioner CMD, CCI" and asked for vigilance clearance. CVC, in spite of the above in-depth inquiry conducted by the Committee of respondent No. 1 and clarification submitted by the Committee, arbitrarily refused to grant vigilance clearance to the petitioner for his appointment as Chairman, AAI that respondent No. 1 informed Department of Personnel & Training, Government of India regarding the inquiry conducted by its Committee and non-substantiation of the allegations against the petitioner; that as a counter blast to C.W.4749/97 filed by the petitioner in the Delhi High Court against the refusal by CVC to grant vigilance clearance for appointment as Chairman, AAl, respondent No.1, under the instructions of CVC, initialed disciplinary action by serving memorandum and charge-sheet containing six charges relating to matters already gone into and investigated in detail by departmental committee of respondent No. 1 as well as Board of Directors, CCI from lime to time but nothing was found against the petitioner at any stage; that on recommendations of the CVC and at the instance of respondent No. 1, Central Bureau of Investigation (CBI) registered an FIR against the petitioners and eight other retired and serving officers of CCI containing identical allegations as contained in the memorandum charge-sheet dated 24.11.1997 issued by respondent No. 1; that till date no disciplinary action has been initialed against the remaining eight officers of CCI against whom identical allegations existed in the FIR dated 25.11.1997; that respondent No. 1 received CBI report to the effect that the allegations made against the petitioner and others remained unsubstantiated; that respondent No. 1, after receiving CBI report, appointed Inquiry Officer to hold the inquiry into all the charges without considering CBI report, in violation of the provisions of Vigilance Manual and Government of India instructions issued vide DOPT with the sole intention to keep the mailer of vigilance clearance pending against the petitioner; thal the disciplinary proceedings came to be stayed vide order passed in C.W. 3376 /98 filed by this petitioner; that respondent No. 1 initialed the mailer for Joint appraisal by apprising PESB about the expiry of the petitioner's tenure as CMD, CCI on 1.1.1999; that the reporting officer of respondent No. 1 raised two Annual Confidential Reports (ACRs) in respect of the pelilioner for the period 1995-96 and 1996-97 and made adverse remarks in the said reports alter a period of 31 days and 11 months respectively that the said remarks are contrary ana Inconsistent with the view expressed and stand of respondent No. 1 about the performance of the petitioner No. 1 during the relevant period indicated in several performance reports sent to PESB and the Appointment Committee of Cabinet i.e. ACC; that the petitioner came to know ahout the raising of such reports on 21.12.1998; that the ACRs containing adverse remarks were not communicated to the petitioner; that PESB advised/recommended continuance of the petitioner as CMD, CCI beyond 1.1.1999 in conformity with the Government of India's Policy and instructions contained In letters dated 12.12.1996 and 21,11.1998 so as to hold the joint appraisal meeting after giving reasonable opportunity to the petitioner to represent against the adverse remarks contained in the ACRs; that the petitioner received letter from Secretary, PESB informing ahoul the joint appraisal meeting and asked the petitioner to allend the same on 26. 12.1998; that the pelitioner attended the office of PESB for participating in the joinl appraisal meeting; that the petitioner learnt about the decision of respondent No. 1 taken on 30.12.1998 not to continue the term of the petitioner beyond 1.1.1999 notwithstanding the recommendations of PESB and in violation of the Cabinet ACC instructions contained in Cabinet Secretary's letter dated 12.12.1996 and in PESBs letter dated 21.11.1996; that the respondent No. 1 sent a proposal to ACC through Establishment Officer, DOPT, who also acts as Secretary to ACC, to terminate the tenure of the petitioner as CMD, CCI; that the CBI, who reinvestigated the.matter in response to CVC's letter dated 16.12.1998, submitted its report staling that the investigation has not found any violation in the purchase policy approved by the Board of Directors or delegation of powers on the part of any authority of CCI or violation of founding rules or procedure and that no malafides or irregularities could be established against any person during the course of investigation; that respondent No. 1 withdrew its proposal dated 3.2.1999 vide which respondent No. 1 had proposed to ACC to terminate the tenure of the petitioner as CMD. CCI, that the then Minister of State for Personnel. on perusing the proposal dated 3.2.1999 initialed by respondent No. 1 for termination of tenure of petitioner, observed that the facts regarding CBI's report in favour of the petitioner and recommendations of PESB for continuity of the petitioner beyond 1.1.1999 till the joint appraisal was done and a decision was taken by ACC as per existing Government instructions were not brought out in the proposal; that the petitioner submitted report against the adverse remarks for the years 1995-96 and 1996-97; that the PESB, after considering the report of the petitioner sent through respondent No. 1, was of the view that remarks in ACRs of the petitioner for the period 31.12.1997 to 31.3.1998 appear to be adverse which had not been communicated to the petitioner. In this regard, respondent No. 1 informed PESB that the relevant entries made in the above ACRs for three months we not adverse; that as regards ACRs from 31.12.1997 to 31.3.1998, respondent No. 1 informed PESB that relevant entries are not adverse in nature; that PESB, on considering the entire matter, reluctantly decided to carry out the joint appraisal of the petitioner and it was also decided not to take cognizance of ACRs for the years 1995-96 and 1996-97; that the PESB held joinl appraisal meeting in which the pelilioner appeared and joint appraisal of his performance was condueted by PESB; that PESB, after carrying out the critical evaluation of the performance of the petitioner and keeping in view overall performance of the pelilioner within the financial constraints and inherent problems in CCI formed the view that there was justification for further continuance of the petitioner as CMD, CCI and PESB, after consulting respondent No. 1, recommended extension of tenure of the petitioner from 1.1.1999 to 31.3.2001; that respondent No. 1 forwarded recommendations of PESB, Secretary to ACX", DOPT along with current status of vigilance clearance including second report of CBI counter in February 1999 which has reported its earlier conclusion that no malafide or irregularity could be established against the petilioner; that EO & Secretary to ACC, DOPT, submitted a note to ACC, on the recommendations of PESB, for extension of tenure of the petitioner beyond 1.1.1999 upto 31.3.2001 keeping in view the facls mentioned in the note. That in the said note, the facls with regards to the second report of CBI given in February 1999 which once again gave a clean chit to the petitioner has not been mentioned; that the Secretary, ACC referred to in detail earlier proposal dated 3.2.1999 put up by respondenl No. 1 proposing terminating the tenure of petitioner which had been withdrawn by respondent No. 1 in view of the Final order dated 26.3.1999 passed in that the reference to the same was to prejudice the mind of ACC and adversely influence the decision to be taken by ACC on the recommendations of PESB being only material which ACC is to consider for taking a decision on the issue of extension or otherwise of the petitioner as CMD, CCI: that the petitioner has learnt that ACC, inspite of the recommendations of PESB to extend the tenure of the petitioner upto 31.3.2001, has declined to accept the recommendations and has decided not to extend tenure of the petitioner any further; that the ACC, while taking the aforesaid decision, has not given any reason for any accepting the recommendations of PESB which have been made by PESB after considering the past performance reports of the petitioner and various other relevant factors relating to the interest and welfare of the organisation and the existing Financial constraints faced by CCI.