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CASE NO.: Appeal (civil)  1053 of 2004

PETITIONER: Union of India & Anr.                                    

RESPONDENT: Malti Sharma                                             

DATE OF JUDGMENT: 24/02/2006

BENCH: S.B. Sinha & P.P. Naolekar

JUDGMENT: J U D G M E N T

S.B. SINHA, J :

                                                The Appellant No. 2 herein is a statutory body constituted under the  Nursing Council Act (for short "the Act").  It exercises  statutory powers.   Section 13 of the Act reads as under: "13. Inspections :- (1) The Executive Committee  may appoint such number of inspectors whether  from among members of the Council or otherwise,  as it deems necessary to inspect any institution  recognised as a training institution, and to attend  examinations held for the purpose of granting any  recognised qualification or recognised higher  qualification. (2) Inspectors appointed under this section shall  report to the Executive Committee on the  suitability of the institution for the purposes of  training and on the adequacy of the training  therein, or as the case may be on the sufficiency of  the examinations. (3) The Executive Committee shall forward a copy  of such report to the authority or institution  concerned, and shall also forward copies with the  remarks, if any, of the authority or institution  concerned thereon to the Central Government and  to the State Government and State Council of the  State in which the authority or institution is  situated."

       Five posts of Zonal Inspector were created by the Executive Council  in terms of a Resolution dated 22.2.1965.  The Appellant No. 1 herein was  approached by the Appellant No. 2 for creation of five permanent posts of  Inspector but only one regular post of Inspector was sanctioned. The  Respondent herein was appointed as an Inspector on an adhoc basis on  1.6.1992.  He was later on selected on a regular basis.  His selection was  approved by the General Body of the Council in the year 1994.  She was put  on probation for a period of two years.  On 3.4.1996, she was asked to  submit a self-appraisal report.  However, without waiting for the receipt  thereof, recommendation was made on or about 8.4.1996 by the  Departmental Promotion Committee that her services might not be  confirmed.  On 9.4.1996, the Respondent submitted her self-appraisal report.   On the same day, her services were terminated with immediate effect by an  order of the President of the Council although admittedly the Executive  Council alone had jurisdiction in relation thereto.  A writ petition was filed  by the Respondent questioning the said order of termination dated 9.4.1996.   Only during pendency of the said writ petition, the Executive Committee  ratified the order passed by the President of the Council dated 8.5.1996

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which was in turn ratified by the General Body on 5.7.1996.  An affidavit  was filed by the Appellant herein stating:

(i)     the post of Inspector to which the respondent was appointed was  created not under S. 13 but under S. 8(2) (d) of the INC Act, 1947; (ii)    on 08.04.96 the said post was proposed to be abolished by the EC.   However, the post has not been abolished but has been converted  into post of Assistant Secretary (Nursing) in the same pay scale as  Inspector (Rs. 2000-3500); and (iii)   the necessary sanction/ approval from GOI is awaited for filling  the said post of Assistant Secretary (Nursing).

       From the said affidavit, therefore, it would appear that merely  nomenclature of the post of Inspector had been changed to that of Assistant  Secretary.  In support of the said allegation, no record was produced.  The  learned Single Judge of Delhi High Court upon hearing the parties reserved  its judgment on 16.2.1998.   

       Before the judgment could be pronounced, the Government of India  issued a letter dated 17th June, 1999 directing the Council to issue order of  abolition of the post of inspector in the following terms:

"The undersigned is directed to enclose a copy of  the statement regarding vacant posts in your  organization.  The posts mentioned in the  statement were lying vacant for more than one year  as per communication received from your office  and as such are deemed abolished as per  instructions of Ministry of Finance.

It is requested that formal orders of abolition may  be issued in respect of the vacant posts which are  deemed abolished and a report sent to this  Ministry, urgently."

       The Government of India purported to be on the basis of a  communication sent by the Council to it in terms of its letter dated 17.6.1999  declaring the post of Inspector could have been abolished in terms of Office  Memorandum bearing No. 7(1)-E.(Coord)/93 dated 3rd May, 1993 the  relevant clause whereof is as under:

"Points Clarifications b. If a post is vacant or held in  abeyance for some time, whether the  post can be filled up or revived as the  case may be, by the administrative  Department/ Ministry. If a post is held in abeyance or  remains unfilled for a period of one  year or more, it would be deemed to  be abolished.  Integrated Finance of  each Ministry/ Department may  monitor abolition of such posts and  ensure that abolition orders are  issued within one month of the post  remaining unfilled/ held in abeyance  for the period of one year.  If the post  is required subsequently, the  prescribed procedure for creation of  new posts will have to be followed,

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i.e., as briefly set out below"

       The learned Single Judge by a well considered judgment held :

(i)     "In the light of the facts as stated in the writ petition, the motive  of the respondent, however, becomes apparent from the fact  that the memorandum dated 22nd May 1995 rejecting the  application for ex post facto sanction of leave sent by the  petitioner on 26th April 1994 was issued almost one year after  the petitioner’s application."

(ii)    "The approval of the DPC is of no material significance in view  of the hasty action taken by the DPC even without waiting for  the self appraisal report of the petitioner."

(iii)   "No dates were given to the petitioner’s absence nor any  unsatisfactory nature of the petitioner’s misconduct or  misbehaviour has been set out. Thus this makes it clear that in  the guise of simple termination of the services of the petitioner,  in fact punitive action has been taken against the petitioner.  Significantly even the General Body Meeting of 5th July 1996  was apprised of the filing of the writ petition by the petitioner  and that the same meeting sought to affirm the termination of  services of the petitioner by the President. The meeting could as  well have deferred this issue in view of the pendency of the writ  petition."

(iv)    "This order has obviously been passed without taking note of  the fact that the writ petition was pending in this Court  challenging the order of termination dated 9th April 1996  subsequent to which the post is said to have been lying vacant."                  The learned Judge also opined that in view of the findings recorded  therein, the Respondent would have been entitled to consequent relief of  reinstatement but having regard to the fact that the post of Inspector which  was a statutory post was abolished, directed:

"As the position stands today, the post has been  abolished and the consequent relief of  reinstatement cannot be granted. However, it  would be open to the petitioner to take such steps  in law in respect of abolition of the post by the  order dated 17th June 1999 as she may be advised.  Nothing stated in this judgment would have any  bearing on the legality and validity of the aforesaid  abolition of the said post of the Inspector by the  order dated 17th June 1999."

       No appeal having been preferred thereagainst by the Appellant herein,  the same attained finality.  The Respondent filed a Letters Patent Appeal  against the said judgment and order which was dismissed by an order dated  14.09.2000 holding that it would be open for her to file a fresh petition  challenging the order of abolition dated 17.6.1999.   

In view of the aforementioned observations, another writ petition  marked as CW 1162 of 2002 was filed by the Respondent before the Delhi  High Court.  The said writ petition was allowed by a learned Single Judge  inter alia opining that the post of Inspector is a statutory post.  It was further  observed that the judgment and order dated 22nd November, 1999 passed in  CWP No. 1582 of 1996 attained finality stating :  

"\005Therefore, the said post is statutory and could  not have been abolished by the respondents.

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Knowing fully well that the challenge to the  termination of the services from the said statutory  post was pending disposal before this Court, a  wrong statement was made to respondent no.1 by  respondent no.2 that the post is lying vacant, the  same was not a proper representation of the  statement of fact by respondent no.2 to respondent  no.1. Mr. Bhushan had clearly stated that it was  not brought to the notice of Union of India that any  petition by the holder of said post was pending in  the High Court. For the simple reason that the post  was a statutory post, the same was not lying vacant  as the vacancy was created by respondent no.2 and  was being challenged by the petitioner who got her  writ petition allowed but for the said abolition of  the post, got the prayer of the re-instatement but  could not be reinstated. I do not find any merit in  the contention of respondent no.2 that the post was  not statutory. As respondents have not challenged  the findings of CWP No.1582/96, that has become  final. Respondents cannot be permitted to  challenge the same. The whole exercise was mala  fide and to deprive the petitioner of her rightful re- instatement."

       In the Letters Patent Appeal filed by the Appellant, the main  contention raised on behalf of the Appellant was that it had wrongly been  held that the post of an Inspector is a statutory post.  The Division Bench,  however, without going into the aforementioned question dismissed the  appeal having regard to the finding of fact arrived at by the learned Single  Judge.

       Mr. V.S.R. Krishna, learned counsel appearing on behalf of the  Appellant would contend that a statutory post carries a distinct meaning as it  must be a post which the statute itself provides for by laying down the  conditions of service as also qualification, duties and functions attached  thereto.  Thus, only because Section 13 speaks of posts of Inspector and  provides for certain duties, the post shall not become a statutory one.  It was  urged that there was no reason for the Appellant to question the earlier  decision as it was not only held that the post had been abolished, no opinion  was expressed as regard the legality or validity of the direction of the Central  Government.  It was further submitted that the Appellant declared the post  having been abolished in view of the legal fiction created under the Office  Memorandum dated 3rd May, 1993 and in view of the admitted fact that the  post had been lying vacant for more than one year, the abolition took place  of its own.

       Mr. Sunil Gupta, learned senior counsel appearing on behalf of the  Respondent, on the other hand, would submit that the fact of the matter is  replete with unreasonable attitude and malafide act on the part of the  authorities of the Respondent.  In particular, the learned counsel drew our  attention to the following statements made in the writ petition  :

"The grievance of the petitioner arises on account  of her plea that the action against the petitioner is  mala fide and has been taken at the behest of one  Shri R.N. Singh, who was at one time the member  of the Executive Committee and who was inimical  to the petitioner because of the adverse entries  made by the petitioner during an inspection of an  institute at Madhurai in January 1995, which  institute was sponsored by the said Shri R.N.  Singh.  It is the petitioner’s case that due to the  adverse reports by her in respect of the said  Institute sponsored by Shri Singh, he started

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creating trouble for the petitioner in the Nursing  Council and started entertaining frivolous  complaint against the petitioner.  In this view of  the matter the petitioner contended that the  termination of her services were punitive in nature  and the President of the Council could not have  taken the impugned action and the subsequent  ratification by the Executive Council, particularly,  when Shri R.N. Singh was associated with the  Executive Council’s decision could not have been  upheld and was tainted with ulterior motives and  malafide."

       We agree with the Division Bench of the High Court that in the facts  and circumstances of this case it was not necessary for it to go into the  question as to whether the post of Inspector carries a statutory status or not.

It has been found by the learned Single Judge of the Delhi High Court  that the service of the Respondent was terminated mala fide.  The learned  Single Judge also commented upon the conduct of the authorities of the  Appellant Council.  It was observed therein that the post was declared to be  abolished mala fide.  Apart from that, as noticed hereinbefore, the  nomenclature of the post was changed during pendency of the writ petition.

       The learned counsel appearing on behalf of the Union of India, as  noticed hereinbefore, categorically stated that it was not apprised that a writ  petition was pending.  An Officer of the Appellant No. 2- Council merely  brought it to the notice of the Government that the post was lying vacant for  more than one year.  It might not have even been disclosed to the competent  authority of the Central Government that name of the post had been changed  and the said post had been filled up.  It has also not been shown before us  that in relation to day to day affairs of the Council, the Union of India had a  statutory power to intervene.  It may be that it has the power of granting  approval as regard creation of post by the Executive Committee but in  absence of any statutory power in this behalf, evidently it could not issue a  direction which would be binding upon the Council.  Nothing has been  brought on records to show as to how the said Office Memorandum dated 3rd  May, 1993 would apply in the case of the officers of the Council.  

In any event, out of five posts only one post was sanctioned by the  Government of India.  It is neither denied nor disputed that the post of  Inspector is an essential one so as to enable the Council to carry out its  statutory function.  The learned Single Judge has clearly indicated that the  Inspector plays an important role in the Council.  He inspects the colleges  only for the purpose of grant of recognition and on the basis of the report of  the Inspector alone, the  Executive Council considers the proposal for grant  of recognition of such institution.  The main purpose of the Council,  therefore, cannot be performed in absence of an Inspector or a person  authorised to perform the said duties.  In any event, the aforementioned  Office Memorandum dated 3rd May, 1993 will have no application in the  instant case as the post was not held in abeyance.  It was filled but the  services of the Respondent were terminated which was questioned by her by  filing a writ petition before the High Court.  The said writ petition was  admittedly pending.  In fact, the judgment was reserved.  Despite the fact  that the writ petition was pending for a period of three years, as to why the  Government of India was approached for the purpose of obtaining a  direction that the post stood abolished is not known.  Even in view of the  findings of fact recorded by the High Court, the concerned authority took  recourse to suppressio veri and suggestio falsi.  It had not been disclosed  that a writ petition was pending.   

       It is furthermore not in dispute that after the judgment of the High  Court pronouncement the Respondent has been reinstated.  Whether the post  had been revived before such reinstatement again has not been disclosed.

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       It is, therefore, evident that the Appellant No. 2 tried to overreach the  court.  Its action was plainly mala fide both on facts as well as in law.            In Union of India Through Govt. of Pondicherry and Another v. V.  Ramakrishnan and Others [(2005) 8 SCC 394], this Court observed:

"But, even where the tenure is not specified, an  order of reversion can be questioned when the  same is mala fide.  An action taken in a post haste  manner also indicates malice.  [See Bahadursinh  Lakhubhai Gohil Vs. Jagdishbhai M. Kamalia and  Others, (2004) 2 SCC 65, para 25]"

       For the foregoing reasons, we are of the opinion that no case has been  made out for our interference with the impugned judgment.  The appeal is  dismissed with costs.  The Counsel’s fee assessed at Rs. 5000.00.