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* IN THE HIGH COURT OF DELHI AT NEW DELHI

+ LPA 505/2018 & CM Appl.No. 35691/2018 (stay)

UNION OF INDIA & ANR ..... Appellants

Through: Mr. Manish Mohan, CGSC &
Ms. Manisha Saroha, Advocates
versus

VIDHI AWASTHI ..... Respondent

Through: Mr. Rana Ranjit Singh, Mr. Vivek
Kumar Singh, Mr. Awnish Kumar
Gupta & Mr. Ravish Singh,
Advocates

CORAM:
JUSTICE S.MURALIDHAR
JUSTICE I.S.MEHTA

ORDER
% 11.03.2019
Dr. S. Muralidhar, J.:
1. This appeal is directed against the order dated 13th April, 2018 passed by
the learned Single Judge disposing of the Writ Petition (C) No. 3652/2018
filed by the Respondent.

2. The background facts are that the husband of the Respondent late Shri
Vishal Awasthi was a Stenographer in the National Institute of Disaster
Management (NIDM), Appellant No.2 which is under the Ministry of Home
Affairs (MHA), Government of India (Appellant No.1) from 16th February,
2001 onwards. He expired in harness on 5th March, 2014.

LPA 505/2018 Page 1 of 8

3. The NIDM published an advertisement on 18th January, 2014 for one post
of Senior Consultant, one post of Junior Consultant and one post of
Stenographer on contractual basis. The Respondent applied for the said post
of stenographer and was selected by the Selection Committee. By letter
dated 9th April, 2014, the post of Stenographer was offered to the
Respondent on contractual basis for a period of one year. She accepted this
offer and joined NIDM on 11th April, 2014.

4. On 6th May, 2014 the Respondent submitted a request for being appointed
on compassionate basis in NIDM by submitting a proforma for appointment
of dependants. This request was placed before the Governing body (GB) of
the NIDM during his 8th Meeting held on 2nd July, 2014. The proposal was
that she should be considered for appointment as Stenographer in the pay
band-I of Rs. 5200-20200 plus 2400 grade pay (i.e. Group C post) in lieu of
one Group B post of Stenographer in the pay band of II (Rs.9300-34800 plus
4200) grade pay. The GB did not agree for the appointment of the
Respondent in the Group C post against available vacancy in Group B.
However, the GB gave its approval for appointment of the Respondent
against any vacancy in the Group C post. The GB further directed that in
order to adjust her if required, services of one of the contractual staff would
be discontinued on „last come - first go basis‟.

5. The matter was again taken up when the Executive Director (ED) on the
recommendation of the NIDM‟s administration issued an appointment letter
dated 1st September, 2014 to the Respondent as „Data Entry Operator‟
(„DEO‟) on regular basis in the pay band of Rs.5200-20200/- plus 2400

LPA 505/2018 Page 2 of 8

grade pay against another Group C post of Videographer-cum-Technical
Assistant.

6. From the notes of file which has been placed before the Court it appears
that this creation of substantive vacancy of DEO by conversion of post of
Videographer-cum-Technical Assistant was done by the ED in transgression
of the decision of the GB referred to hereinbefore. The subsisting
contractual appointment of the Respondent as Stenographer which was valid
till 10th April, 2015 was not terminated while making the above regular
appointment.

7. As far as the Respondent is concerned, she accepted this appointment

offer made by the letter dated 1st September, 2014 and joined in the Group C
post as DEO on the same date. Meanwhile, the ED who made the above
change relinquished charge on 26th December, 2014. At its 9th meeting held
on 19th May, 2015 the GB did not take any decision and therefore the status-
quo was maintained.

8. On 31st July, 2015 the issue of regularisation of the service of the

Respondent was forwarded to the MHA before her completion of one year‟s
probation. A meeting was held in the MHA on 12th November, 2016 to
discuss the matter regarding regularisation of the services of employees of
the NIDM. It was decided that the case of compassionate appointment as far
as the Respondent is concerned must be placed before the GB of the NIDM.

9. Accordingly on the 10th meeting of the GB held on 11th April, 2017 the

LPA 505/2018 Page 3 of 8

case of the Respondent was again considered. This time it was noticed that
there was no regular post of DEO existing in the NIDM. It was suggested
that the NIDM should submit a proposal to MHA surrendering the post of
Videographer-cum-Technical Assistant and for creation of one post of DEO
on regular pay scale in order to accommodate the Respondent against the
post of DEO. A proposal was accordingly sent to the MHA by the NIDM for
on 17th July, 2017.

10. By its letter dated 11th September, 2017 the MHA informed the NIDM
that the appointment of the Respondent on compassionate basis was in
violation of certain provisions of NIDM (Recruitment and Other Conditions
of Services) Rules, 2014 and this prima facie appeared to be the
administrative lapse on the part of the then ED. Consequent upon the above
observations of the MHA, the NIDM decided to rescind the offer of
appointment dated 1st September, 2014 issued to the Respondent on the
ground that it was “devoid of any legal basis.” NIDM decided to discontinue
the services of the Respondent with effect from. 5th October, 2017.

11. Aggrieved by the above decision, the Petitioner filed W.P.(C)

9496/2017 which was disposed of on 30th October 2017 by the learned
Single Judge permitting the Respondent to make a representation to the
NIDM. Further, the NIDM was directed to deal with the representation by
passing a speaking order. That representation was thereafter disposed of by
the NIDM by a letter dated 9th January 2018 in which it was stated as under:

“i. Your appointment as a Stenographer on contractual basis

LPA 505/2018 Page 4 of 8

 was approved in principle by the Competent Authority of
NIDM. However, you were appointed against a non-existent
post of 'Data Entry Operator'. Since your services on a non-
existent post were not tenable under the Rules, the same
were terminated.

ii. You have the option of accepting the offer of appointment

as Stenographer on contractual basis as per the decision of
the Governing Body dated 02/07/2014.

iii. Your present representation dated 06.11.2017 for regular

appointment will be given consideration at the appropriate
time as per prevailing recruitment policy of NIDM, subject to
criteria and seniority.”

12. Pursuant to the above letter, the Respondent on 21st February, 2018
wrote a letter stating that she is willing to rejoin the NIDM on
compassionate basis. In response, thereto, on 27th March 2018, the
Respondent was informed by NIDM that there was no post of stenographer
available in the NIDM “to be filled on compassionate grounds”. It was
stated that as and when recruitment is made in the NIDM, her application
would be considered as per the prevailing recruitment rules.

13. Thereafter the Respondent filed W.P. (C) 3652/2018 in this Court. By
the impugned order dated 13th April 2018, the learned Single Judge disposed
of the said petition holding that once an appointment had been made on
compassionate grounds then without a show cause notice (SCN) being
issued such appointment could not be discontinued. Accordingly, in W.P.(C)
3652/2018, the office order dated 5th October 2017 of NIDM, by which the
services of the Respondent was discontinued, was set aside with the

LPA 505/2018 Page 5 of 8

directions to the Appellants to offer any Group „C‟ post to the Respondent
on compassionate ground within a period of six weeks from that date.

14. During the hearing of the present appeal, an order was passed by this
Court on 4th September, 2018 noting the submission of counsel for the
Appellant that the Office Memorandum (OM) dated 16th January, 2013
relied upon by the learned Single Judge requiring an SCN to be issued
before termination of a person appointed on compassionate basis would not
apply to the Respondent “as in the present case, the appointment itself is
illegal as the Rule does not permit appointment on compassionate basis.”

15. At the hearing on 22nd October, 2018 this Court directed the parties to
make a joint request to the Bench hearing the contempt petition filed by the
Respondent for its deferral till the disposal of the present appeal. This Court
is informed that subsequently the Contempt Petition was closed on account
of the pendency of the present appeal.

16. On 23rd January, 2019 counsel for the Appellant had sought time to take
instructions whether the Respondent “can revert the contractual appointment
in a Group C post.” Today learned counsel for the Appellant has produced
written instructions dated 8th March, 2018 of the NIDM offering to take the
Respondent back as Stenographer on contractual basis.

17. Learned counsel for the Respondent on instructions from the Respondent
who is present in Court states that she is not willing to come back to NIDM
as Stenographer on contractual basis. She insists that she should be taken as

LPA 505/2018 Page 6 of 8

a DEO in a Group C post on regular basis as was offered to her on 1st
September, 2014.

18. The Court has perused the original file of the NIDM. It appears to the
Court that there is no policy for appointment on compassionate basis in the
NIDM. Consequently, the learned Single Judge appears to be in error in
seeking to apply the OM dated 16th January, 2013 which required a SCN to
be issued before terminating in a person appointed on compassionate basis,
when such appointment was ab initio void.

19. The next question to be considered is whether any direction could have
been issued by the learned Single Judge to the Appellants to appoint the
Respondent on compassionate basis against any Group C post? The answer
is obviously in the negative, since there is no policy of the NIDM to appoint
persons on compassionate basis. The post for which the Respondent was
appointed on regular basis viz., the post of DEO, was created by converting
an existing post of Videographer-cum-Technical Assistant. This was done
contrary to the Rules. Clearly such creation of post which was not
sanctioned by the MHA was without any valid legal basis.

20. Consequently, the discontinuation of the Respondent in the post of DEO

by the NIDM by order dated 5th October, 2017 cannot be faulted with.

21. The decision taken on the file as far as the Petitioner‟s representation
made to the Appellants pursuant to the order passed by the learned Single
Judge on 30th October, 2017 in WP(C) No. 9496/2017 appears to this Court

LPA 505/2018 Page 7 of 8

to be a reasonable one. The offer made to the Respondent that she would be
taken back as Stenographer on contractual basis and that her representation
for regular appointment would be given consideration “at the appropriate
time as per prevailing recruitment policy of NIDM subject to criteria and
seniority” appears to be the only possible way that the request of the
Respondent could have been accommodated given the present position.
Consequently, while keeping the offer made by the Appellant NIDM to the
Respondent to take her back on contractual basis as Stenographer in terms of
the letter issued to her on 9th January 2018, the Court sets aside the
impugned judgment of the learned Single Judge.

22. If the Respondent is still willing to join back NIDM as a Stenographer

on contractual basis, she should convey to the NIDM her acceptance of the
offer made to her by the letter dated 9th January, 2018 on or before 31st
March, 2019. The Court takes note of the submission of learned counsel for
the Appellants that the prevalent legal position is that one contractual
employee will not be substituted by another contractual employee. This will
govern the case of the Respondent as well.

23. The appeal and application are disposed of in the above terms.

S. MURALIDHAR, J.

I.S.MEHTA, J.
MARCH 11, 2019/mw

LPA 505/2018 Page 8 of 8