Manjula Das, Judicial Member:
1. By this O.A., applicant makes a prayer for setting aside the order dated 28.11.2014 whereby the department sent a letter by email by terminating the service of the applicant.
2. Heard Mr. Mahanta, learned counsel appearing on behalf of the applicant submitted that the applicant was serving as Office Assistant in DOEACC, Centre, Guwahati. He was initially appointed on 09.06.1998 against a sanctioned post of Lower Division Clerk in the centre for Electronics Design and Technology of India (CEDTI for short) which was later merged with DOEACC Society w.e.f. and thereafter renamed as NIELIT w.e.f. 10.10.2011.
3. Mr. Mahanta further submitted that the said appointment was made as per the advertisement. Applicant did offer his candidature and after recommendation of Screening Committee, applicant was appointed. Applicant was thereafter promoted to the post of Office Assistant (E&A) vide order dated 24.07.2006. However after long service rendered by the applicant, the department has stopped the regular facilities as entitled. However the department has replied that due to non-clearance of probation period, his facilities were stopped.
4. Thereafter, the applicant approached before this Tribunal by filling O.A.No.365/2013 wherein this Tribunal vide order dated 07.08.2014 after hearing all the parties disposed of the said O.A. by directing the respondent authority to scrutinize once more as represented by the applicant and to take decision thereafter.
5. In compliance of this order of this Tribunal, the department thereafter, issued the office order dated 28.11.2014 by terminating the service of the applicant which was sent by email by holding that the applicant is holding the post of Non S&T staff which was a temporary post and not sanctioned post by the then CEDTI and staff was to be provided by the Tezpur University as per Standing Finance Committee (SFC) proposal. This was also opined in the minutes of the 3rd Executive Council meeting held on 10.03.1999 at agenda No.5.0.
6. Learned Counsel further submitted that in agenda No.7 in the said minutes of the 3rd Executive Council Meeting the view was taken for confirmation as being found him suitable. According to Mr. Mahanta, applicant is continuing for more than 16 years and also promoted as Official Assistant in the year 2006 as per the recommendation of the Screening Committee. As there is no question of confirmation as well as being the confirmed in service, applicant was promoted to the post of Office Assistant. However, the department by taking the point of Non S&T and not sanctioned post, terminated the applicant vide order dated 28.11.2014.
7. Mr. Mahanta forcefully argued that he did make various application under RTI Act seeking info regarding his appointment related document. However the Respondent Authority that his appointments file was not traceable. Further submitted that the brother of the applicant Mr. Bibodh Deka made several complaints before the Vigilance Officer, NEILIT, New Delhi against gross anomalies and corrupt practices by the Director (R-4) and for the complaint only the Respondent No.4 harassing the Applicant and after 16 years took the ground that the applicant was not a regular employee.
8. Learned counsel contended that the action taken by the respondent authorities by terminating the applicant vide order dated 28.11.2014 is not permissible under the law. To substantiate his argument Mr. Mahanta relied upon the decision of Wasim Beg of 1998 3 SCC 321.
9. Respondent Nos.1, 2, 3, 5 and 6 filed their Written Statement after accepting their notices on 03.12.2014 by the Ld. CGSC while notices was issued the Ld. Addl CGSC appearing on behalf of the Respondents accepted notices on behalf of all the Respondents. The Written statement filed by the Respondents No.1 to 6 where the Respondent No.4, Mr. K. Baruah, R-4 as authorized by the other Respondents filed the present WS on behalf of 1 to 6.
10. Mr. R. Hazarika, by referring the WS submitted that in erstwhile CEDTI, Tezpur no such provision for such post of non technical staff and such posts were to be provided by the Tezpur University itself. The applicant was appointed in 1998 on purely temporary basis and subject to probation clearance, even after clear rotation in the SFC proposal to the effect that Administrative and support staff would be provided by the Tezpur University out of their existing staff and strength. The CEDTI Tezpur has received sanction for post of LDC only in May 2002.
11. It was further submitted that the Applicant never cleared his probation and that the restructuring of post was communicated vide letter dated 10.05.2002 but the applicant was appointed in 1998. As such the applicant’s claim for adjustment against the post of an Office Assistant could also not be entertained.
12. It was submitted by the Ld. Counsel that the applicant was sole full time employee from 1998 to 2002 in Non S&T, Section at NIELIT, Guwahati and thereafter also under a full time Admin. Cum Finance Officer and he was handling his own service record and confidential files for quite some time to the exclusion of anyone else in the office and as such had ample scope to manipulate the record in his favour. It is a fact that the capacity for tampering with the record is one of the reasons for which the respondents have had to withhold probation clearance and have found difficulty in regularizing his services as he has done great harm to the institution in which he has been allegedly serving the past few years.
13. Ld. Counsel refer the Para 17 of the WS and submitted that the matter has been examined with the consultation with the Ministry of Law and Justice it has now been decide that wherever it is found that a govt. servant, who was not qualified or eligible in terms of the Recruitment rules for initial recruitment in service or has furnished false info or produced false certificate in order to secure appointment, he should not be retain in service. If he is a probationer or a temporary govt. servant, he should be discharged or his service should be terminated.
According to the Ld. Counsel the present application has no merit and liable to be dismissed.
14. Heard Mr. P. Mahanta Ld. Counsel for the applicant and Mr. R. Hazarika for the respondents perused the pleadings materials placed before us and decision relied upon. Vide letter dated 11.04.1998 Mr. M. R. Sharma, Registrar, Tezpur University issued a letter to Sri. J. Biswas, Dy. Dir. Of employment, Central Assam Zone, Tezpur on the subject of 'temporary appointment as L.D.C.' and intimated as follows:
'With reference to the above, I have the honour to inform you that we propose to appoint a qualified candidate against a temporary post of L.D.C. in the CEDT attached to the University in the pay the scale of Rs.950-20-1150-EB-25-1500/- p.m. The post is under the scheme of CEDTI.
Educational qualifications and age to the post are as follows:
(b) Knowledge of Computer is desirable
(c) Age- maximum 28 years on 1.5.98 (Relaxable by 5 years in case of SC/ST candidates)'
By the aforesaid letter, the Deputy Director of Employment, Central Assam Zone, Tezpur was requested to send a panel of candidates fulfilling the aforesaid qualifications for selection.
15. Interview was held on 31.05.1998 at 9 am at Tazpur Law College premises and applicant Sri Dhrubajyoti Deka was appointed as Lower Division Clerk in the office of the CEDTI Tezpur on a purely temporary basis vide order dated 09.06.1998. It was mentioned in the said order that applicant will be on probation initially for a period of twelve months which may be extended for a further period of twelve months as per rules of the CEDTI. From the perusal of records, it appears from the Annexure-D dated 17.01.2002 by which proposal for approval of increment due to the applicant was made and the approval of the Director was made on 31.01.2002 and the same is reproduced here as under:
'Please type the increment order for signature.'
16. Vide order dated 10.05.2002, the Registrar, Centre of Electronics Design & Technology of India (CEDTI for short) informed the Director-in-Charge, CEDTI, Tezpur that a proposal on the review of the management structure of CEDTI, Tezpur was placed before the Governing Council in its 18th meeting held on 28.09.2001. There are altogether 26 posts of Restructuring of Manpower for CEDTI, Tezpur. Out of 26 posts, office Assistant (Purchase & Stores) at Rs.3050-4590/- is also appeared. Admn-cum-Finance Officer in reference to the letter No.Doec/Tez/PF/02/13 dated 24.12.2002 asked the applicant to submit attestation form in triplicate after filling up the said form at an early date. In the meantime, office order dated 27.11.2002 was issued by A.C. De, Admn-cum-Finance Officer whereby the applicant was posted as Office Assistant (Establishment & Accounts) at CEDTI, NE(U), Guwahati with immediate effect. Said order contained that applicant will continue the services of CEDTI in the scale of Rs.3050-4590 as initially he was recruited. Applicant thereafter, submitted attestation form by duly filled up on 14.05.2003.
17. It also appeared from perusal of office order dated 24.07.2006 issued by K. Baruah, Director, where it is written as under:
'On recommendation of the Selection Committee constituted by the Competent Authority, Shri Dhrubajyoti Deka, Office Assistant, DOEACC Centre, Tezpur/Guwahati has been promoted to next higher scale of pay of Rs.4000-100-6000 with retrospective effect from 1st April, 2006 (Forenoon).
It further intimated that –
'He will be posted at DOEACC Centre, Guwahati with immediate effect until further order'.
18. In the office note addressed to the Director as appended as Annexure-K to this O.A., it is stated that 'Sri Deka being the senior most & oldest staff in A&F Section, his services is to be placed at Guwahati'.
19. From the perusal of the Minutes of the Selection Committee Meeting held on 22.06.2006 for the promotion of the applicant, the committee has held here as under:
'The Committee also noted that Dhrubajyoti Deka has been getting a Special Allowance for discharging the higher responsibility of the post of Office Assistant in the pay scale of Rs.4000-100-6000 since 27.11.2002 and hence the Committee has recommended to give 3 (three) advance annual increments on the date of promotion to protect his existing pay of Rs.4300/- as on 01.04.2006.'
20. Thereafter, vide letter dated 20.05.2013, Nilamani Biswal, AD(F), asked the applicant to submit a copy of regular offer of appointment/appointment letter of appointment on regular basis/5year’s contract. Further it was intimated that the applicants offer of appointment was purely on temporary basis. Applicant vide letter dated 29.05.2013 informed the Assistant Director (Finance), NIELIT, Guwahati, STPI Complex, Borjhar, Guwahati that he had misplaced his original documents and certificates.
21. It is noted that the applicant assigned his regions for not traceable the certificates as sought by the Respondents authorities because he was transferred 4 times and promoted once with transferred and after long 15 years somehow he could not locate the certificates at the same time, we are also not ignoring the submissions and pleadings made by the applicant the required documents more particularly the certificates asked by the authority ought to have been in their custody.
22. Vide impugned order dated 14.10.2013 Mr. N. Biswas, AD(F) again sent a letter to the applicant intimating that the benefits applicable to regular employees of NIELIT will be kept on hold in his case till the time evidence w.r.t. his regular appointment in the organization. Thereafter, applicant did make appeal before the Director, NIELIT, Guwahati, Borjhar, Guwahati on 24.10.2013 against the impugned order dated 14.10.2013 and requested to continue to allow the allowance and benefits as drawn by him for the last 15 years since 11.06.1998.
23. As there is no response from the respondent authority in regards to the representation dated 24.10.2013 the applicant approached before this Tribunal vide O.A. No.365/2013 by challenging the order dated 14.10.2013. This Tribunal vide judgment and order dated 07.08.2014 disposed of the matter by observing that the age of the applicant was within the age limit as per the advertisement however directed the respondent authority in regards to his regular appointment as per ratio laid down by the Hon’ble Apex Court in case of Wasim Beg.
24. Thereafter the respondent authority vide impugned office order dated 28.11.2014 terminated the service of the applicant on the grounds reads as hereunder:
'1) At the time of temporary engagement of Shri Dhruba Jyoti Deka by the then CEDTI, Tezpur in 1998, the centre didn’t have any non S&T post and his engagement was void ab-initio.
2) Shri Dhrubajyoti Deka who is holding the post of Non S&T staff was a temporary post which was not sanctioned by the then CEDTI and such staff was to be provided by Tezpur University as per the Standing Finance Committee (SFC) proposal. This was also opined in the minutes of 3rd Executive Council Meeting held on 10.03.1999 at agenda No.5.0.
3) The 3rd Executive Council Meeting held on 10.03.1999 vide agenda No.5.0 was also of the opinion that the appointment of Shri Dhrubajyoti Deka was not in order and his post is to be rescinded.'
25. The Center for Electronics Design and Technology of India, in short CEDTI under Tezpur University where the applicant was initially appointed as LDC, later on merged with DOEACC society w.e.f. December 2002, Guwahati which is an Autonomous body under the Department of Information and Technology registered under the Society registration Act, 1860 and that has recently been renamed as National Institute of Electronic and Information Technology (NIELIT, in short) w.e.f. 10.10.2011.
26. For logic and conclusion we are coming to the Annexure 1 Page 38 of the O.A. which are the minutes of the 11th Executive Committee resolution dated 12.06.2002 of the DOEACC where the minutes speaks at Sl.No.3 as hereunder:
'The Committee recommended engagement of Shri Dhrubajyoti Deka in his present scale with special allowances for acting as Office Assistant (Establishment and Accounts) maintaining the status of regular employee of CEDTI NE(U). The special pay may be worked out on the basis of the difference in pay drawn at present with the pay of Rs.4000-100-6000 against which he was selected for appointment of contractual basis'
27. Thereafter on 24.07.2006 Mr. K. Baruah Respondent No.4, issued an office order as hereunder:
'On recommendation of the Selection Committee constituted by the Competent Authority Shri Dhrubajyoti Deka Office Assistant, DOEACC Centre Tezpur/Guwahati has been promoted to the next higher scale of pay of Rs.4000-100-6000 with retrospective effect from 1st April, 2006 (Forenoon).
2. His pay his fixed at Rs.4300/- in the scale of Rs.4000-100-6000 as on 01.04.2006 and the next increment will due on 1st April, 2007.
3. He will be posted at DOEACC Centre, Guwahati with immediate effect until further order.
4. He is entitled to Transfer TA as per applicable rule of the DOEACC Society.'
28. We further noted that the minutes of the Selection committee held on 22.06.2006 for the promotional matter of the applicant, Office Assistant where the resolution taken as hereunder consisting by chairman and 2 members i.e. Director STPI Guwahati, Assistant Registrar, IIT, Guwahati and AFO, DOEACC Center, Guwahati which reads as hereunder 'On the basis of interview of Shri Dhrubajyoti Deka and considering recommendation of the Screening Committee on 30.3.2006, Selection Committee has found the candidate fit for promotion and recommended to promote Sri D. Deka from the existing scale of Rs.3050-75-3950-80-4590 to the next higher scale of Rs.4000-100-6000 with retrospective effect from 01.04.2006. The Committee also noted that Sri Dhrubajyoti Deka has been getting a Special Allowance for discharging the higher responsibility of the of the post of Office Assistant in the pay scale of Rs.4000-100-6000 since 27.11.2007 and hence the Committee has recommended to give 3 (three) advance annual increment on the date of promotion to protect his existing pay of Rs.4300/- as on 01.04.2006.'
29. Coming to the back of the 3rd Executive Council meeting held on 10.03.1999 Agenda No.7 wherein it was discussed as hereunder:
'It was further informed that Sri Deka has already crossed on year probation period as per the terms of appointment letter. Executive Committee advised that in case the performance of Shri Deka is not satisfactory, the probation period may be extended and if the performance is found satisfactory during extended period, his services may be confirmed.'
30. We noted that the question regarding doubting the regular appointment of the applicant at the initial date at CEDTI was arisen since early part of the 2013 and to substantiate the same Mr. Mahanta, Ld. Counsel for the applicant has drawn our attention to the letter dated 04.06.2013 (Annexure-O of O.A.) lodged by Sri Bibodh Deka, Tezpur, Elder brother of the applicant D. Deka. The said letter addressed to Chief Vigilance Officer NIELIT, New Delhi by narrating amongst other that his elder brother Bibodh Deka lodged several complaints against the various anomalies and corrupt practices of Sri. K. Baruah Respondent No.4 alleging that he has not only misused his official position but also misappropriated Govt. Funds including project Funds approved under various schemes. His first complaint dated 01.10.2010, case No 21 was against the R-4 towards the illegal appointment and protection of Sri Sajjad Zahir in the post of Assistant Engineer who finally was released from the services of the DOEACC Society, Guwahati/Tezpur Center vide order dated 01.09.2011.
Second Complaint was against illegal Appointment of Sri. Raju Sarma third Complaint dated 23.04.2012 was against Sri. K. Baruah, R-4 towards misappropriation of Govt. Fund and Position.
31. From the above episode it emerged some substantiated submission of the applicant counsel towards questioning the regular appointment of the applicant that to after long 15 years of services rendered in the Institution where the DOEACC Center even selected the applicant for promotion to the Office Assistant in higher scale with 3 advance increment. In this context we are also observing that there is no question of any adverse, inefficiency or incompetency into rendering their services by the applicant under the Respondent Authority till the Respondent No.4 was on notice of the complaint lodged by the applicant’s brother.
32. We further noted that if any circumstances the applicant services were not confirmed who was on probation, the recommendation for promotion by the Selection Committee on 24.07.2006 gives better existence of confirmation of the applicant. In Wasim Beg (supra) the Hon’ble Apex Court held that:-
'whether an employee at the end of the probationary period automatically gets confirmation in the post or whether an order of confirmation or any specific act on the part of employer confirming the employee is necessary, will depend upon the provisions in the relevant service rules relating to probation and confirmation.'
33. The either party failed to submit relevant certain rules relating to probation and confirmation.
34. To find out the area to that expect of the confirmation we peruse the office order dated 09.06.1998 (Annexure-C to O.A.) which contained that:-
'He will be on probation initially for a period of twelve (12) months for a further period of 12 months as per the rules of
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CEDTI'. 35. In the present case the applicant continued his services till merged with DOEACC Center in December 2002 and even renamed in NIELIT till passing the impugned order of termination letter dated 28.11.2014 i.e. rendered services more than 16 years. 36. We are in view that once applicant continued his services beyond probation without any objection from the Authority it amounts to be a deemed confirmation. 37. In the present case either the respondent or the counsel failed to produce materials and records to show that the applicant services was not confirmed or he was automatic terminated after confirmation of twelve months or twenty four (24) months. Evidently it reaches to the epic of confirmation while the DOEACC Center recommended for promotion and increments with due recommendation by Authentic Selection Committee which never disputed by the respondent. Thus, the action of the Respondent Authority more particularly the Respondent No.4 appears to be smacks of malafide towards the applicant for no fault of him but for complaint made by his elder brother. 38. The three (3) grounds taken by the respondent authority i.e. NIELIT vide termination order dated 28.11.2014 by taking note for the year 1998 and the meeting of 1999 of CEDTI, Tezpur, under Tezpur University whereas the DOEACC and renamed NIELIT allowed the applicant to continue and serve the Institution by giving promotion with due satisfaction towards the services of the applicant resulting recommendation for promotion with a satisfactory service of the applicant. Further we are in view that CEDTI lost its self existence after merging with DOEACC which is the Autonomous Scientific Society of Department of EIT, Ministry of C & IT, Govt. of India now renamed as NIELIT. We are of the opinion that 'what could not be done in a direct way, could not be done indirectly.' 39. After taking into entire conspectus of the case as discussed in the forgoing paragraphs, the present case having good grounds to interfere. Accordingly we have no hesitation to set aside the termination order dated 28.11.2014. Order accordingly. 40. O.A. stands Allowed. No order as to costs.