UNION OF INDIA Vs. GYAN PRAKASH SHARMA

JUDGEMENT

(1.) THIS Special Civil Application has been filed under Articles 14, 19, 21 and 226 of the Constitution of India challenging the order/judgment dated 21.6.2012 passed by the Central Administrative Tribunal, Ahmedabad Bench in O.A. No. 403 of 2011.

(2.) PETITIONER No.2, Food and Safety Standards Authority of India (for short, FSSAI") is a statutory authority under petitioner No.1 and has been established under the Food Safety and Standards Act, 2006 (hereinafter referred to as 'Act') with the objective of framing science based standards for the safety of food and enforcing the provisions of the Act to prevent adulteration of food items etc. Prior to the enactment of the Act, the Food Research Standardisation Laboratory (for short, FRSL'), Ghaziabad was under the direct administrative control of Directorate General of Health Services, Ministry of Health & Family Welfare. As per provisions of section 90 of the Act, the FRSL along with its posts, staff and administrative work was transferred to petitioner No.2 vide Offce Order No. 22017/1/2009-PH (Food) dated 12.1.2009. Pursuant to the notification dated 25.10.2008 issued by the Department of Health, Ministry of Health & Family Welfare published in the Employment News, respondent No.1 applied for the post of Director, FRSL, Ghaziabad while working as Chemical Examiner, Grade-I and Head of Customs House Laboratory, Department of Revenue at Kandla, Gujarat. He has been duly selected by the UPSC on merit for the solitary post of Director. Respondent No.3 Dr. Dhir Singh has not been selected for the said post in the same selection though he has been officiating as Director FRSL, Ghaziabad. When no action has been taken by the petitioner-respondents for about a period of one and half years on the recommendation of the UPSC, respondent No.1 filed Original Application No. 421/2009 before the General Administrative Tribunal, Ahmedabad Bench, Ahmedabad which was disposed of by order dated 6.12.2010 with a direction to the petitioner-original respondents to pass a reasoned order within two months. Pursuant thereto the petitioners have belatedly passed the impugned order dated 13.10.2011 which has been challenged by the respondent in Original Application No. 403/2011 which was allowed by the Central Administrative Tribunal, Ahmedabad Bench, Ahmedabad (for short, 'the Tribunal') with direction to the petitioners to issue formal offer of appointment to the respondent within two weeks from the date of receipt of the order. This order is under challenge in this Special Civil Application. 2. Learned counsel for the petitioners Mr M.K. Vakharia submitted that the Tribunal has passed the impugned judgment without jurisdiction inasmuch as the petitioners have not been notified under section 14 of the Administrative Tribunals Act, 1985. He submitted that the Tribunal has erred in allowing the Original Application which is contrary to the law settled by the Apex Court in Shankarshan Das vs. Union of India (1991 (3) SCC 47). He submitted that the Tribunal has failed to appreciate that vigilance clearance and antecedents check are essential ingredients of the recruitment process while making appointments to such a sensitive post of Director, FRSL. He submitted that the Tribunal has also failed to appreciate that the competent authority under the petitioners had considered the matter in its entirety in pursuance of the directions of the Tribunal in O.A. No. 421/2009 and a conscious decision was taken to reject the candidature of respondent No.1 for appointment to the post of Director, FRSL which was communicated to the respondent by order dated 13.10.2011. He further submitted that vide letter dated 25.3.2009 the petitioners have specifically mentioned that the respondent had not been medically examined for the post and no special enquiry of his antecedents had been made. He also submitted that the Tribubal ought to have appreciated that merely qualifying the selection process does not bind the authority to make appointment of such successful candidate inasmuch as the competent authority has to satisfy himself about the antecedents and integrity of such candidate before offering the appointment. In the instant case it is clearly noted by respondent No.2 i.e. Union Public Service Commission that it has not tested the antecedents and/or integrity of respondent No.1. He finally submitted that this petition be allowed the the impugned order dated 21.6.2012 passed by the Tribunal in O.A. No. 403 of 2011 be set aside.

(3.) AND the party-in-person Mr Gyan Prakash Sharma. So far as the main contention of the learned counsel for the petitioners on the point of jurisdiction is concerned, it is the say of the petitioners that when the post was advertised by UPSC, the petitioner was under respondent No.2 i.e. DGHS/Department of Health and Ministry of Health and Family Welfare but in January, 2009, FSSAI i.e. Food Safety & Standards Authority of India came into existence by way of statutory authority and the employees of FRSL along with the said post were transferred to FSSAI. It is not the say of the petitioners that the service conditions of the employees who have been transferred, have been changed or their pay have been changed. It appears that it was a simple transfer without any further effect on the cadre as well as the post and hence in our view if at all the post of Director, FRSL, Ghaziabad has now been transferred to Food Safety & Standards Authority of India, the Central Administrative Tribunal has jurisdiction because it has not been argued by learned counsel for the petitioner that Statutory Authority had framed its independent rules. Since the employee of FRSL, Ghaziabad had been transferred and no absorption rules have been framed, the said employee shall be covered and continued under the earlier rules which had been notified and covered under the Administrative Tribunals Act. Moreover, the present petitioners had not challenged this issue at the initial stage i.e. when the respondent No.1 had filed O.A. No. 421/2009 in which the order had been passed to the effect that a direction was given to the original respondent No.2 to pass a reasoned order in the matter within two months after examining the entire matter and including complaint of Narendra Kumar and also keeping in view relevancy of such materials brought on record. Thereafter in compliance of the same, the order dated 13.10.2011 was passed by petitioner No.2 which is under challenge. It is important to note that at that time the question of jurisdiction has not been raised by the petitioners and it has been argued by the learned counsel for the petitioners that they have complied with the order and hence the question of jurisdiction was not raised before the Tribunal. We find no merit in the said submissions made by the learned counsel for the petitioners because before complying with the order passed by the Tribunal as referred above, if the petitioners had any grievance, they could have agitated that issue relating to jurisdiction before the higher forum which the petitioners have not done and the said order had been complied with vide its order dated 13.10.2011 which is under challenge in this petition. In our view, now the petitioners cannot agitate the said issue more particularly because it has left the issue related to jurisdiction by its own sweet will. In our considered view, the petitioners have no case at all and they want to agitate this issue in order to prolong the matter at any cost. It is pertinent to note that after the pronouncement of the order dated 21.6.2012 in O.A. No. 403/2011, the petitioners have not filed any review application agitating the question of jurisdiction and now they want to agitate the said issue with a view to prolong the case which has no merit as discussed hereinabove and we do not find any merit in it more particularly because once the petitioners had complied with the directions given by the Tribunal vide its order dated 6.12.2010 and in compliance of the same the petitioners had passed further reasoned order dated 13.10.2011 which is under challenge in this petition.