PIL- Grounds

GROUNDS

1. BECAUSE, Shri Avinash Chander , DS was granted extension for two terms, 60 years to 62 years (01 Dec 2010 -30 Nov 2012) and 62 to 64 years(01 Dec 2012 to 30 Nov 2014). Extension in the service beyond the age of superannuation covered under the 2^nd and 3^rd proviso of FR 56(d) and various OMs issued by DOPT. The procedure for grant of extension to the Scientists is laid down in DOPT DO letter No. 28/19/2000-EO(SM-II) dated the 10th July, 2000, OM No.  26012/6/2002-Estt. (A) dated 9^th December 2002, OM No. 26012/8/2011-Estt. (A) dated 16 May 2011, OM No. 26012/12/2013-Estt.(A) dated 13 June, 2013 and OM No. 26012/7/2013-Estt.(A.IV) dated 26 Jun 2013.
2. BECAUSE, the second extension in service beyond the age of 62 years of Sri Avinash Chander was wholly illegal as it does not fulfil the provisions and conditions of FR 56(d) and various OMs of DOPT mentioned above. The first condition that was violated is “International Stature” of the Scientist. The second condition that was violated is “whether this extension will block promotion opportunities of others in the Department”. (Please refer to Para 3 DOPT OM No. 26012/8/2011-Estt. (A) dated 16 May 2011)
3. Because, Shri Avinash Chander is not having International Stature in field of Science & Technology and therefore ACC should not rant him extension beyond age of 62 years after superannuation upto 64 years under the gross violation of the third proviso to FR 56(d).
4. Because, the number of posts of Distinguished Scientists are fixed by Government under the provisions of DRDS Rules 1979 and it was 8-10 as in year 2012 when extension in service beyond 62 year to 64 year age was granted Sri Avinash Chander. All the Distinguished Scientists in the year 2012 were on extension so it blocked promotion opportunities of other senior scientists in the department as until they will not retire the Outstanding Scientists below the age of 60 years could not get promotion as vacancy of Distinguished Scientists have been fixed by the Government.
5. Because, the extension in service beyond the age of 62 years to Shri Avinash Chander was illegal, therefore his appointment to the post of Secretary, DRD is wholly illegal and unjustified.
6. Because, pay scale of Distinguished Scientist is Rs 75,500-80,000/- (HAG+ Scale) and pay scale of Secretary, DRD is Rs 80,000 (fixed).Therefore appointment from Distinguished Scientist to Secretary is promotion cum appointment as pay scales have been changed. No Government servant who is on extension of service after the prescribed date of retirement should be promoted to another post during the period of extension of service.(Please refer DOPT Handbook- Age of Retirement/Extension)
7. Because, the appointment of Sri Avinash Chander as Secretary, DRD was at the time when he was on extension in service 62-64 years so technically it was promotion cum appointment. Since no Government servant who is on extension of service after the prescribed date of retirement should be promoted to another post during the period of extension of service, hence appointment of Sri Avinash Chander as Secretary, DRD is illegal.
8. Because, in reply to Unstarred Question NO-2871 put by Sri E.M. Sudarsana Natchiappan, MP in Rajya Sabha on 06.09.2012 on Appointment of Secretaries on contract basis, it was informed by Hon’ble Shri V. Narayanasamy, Minister of State in the Ministry of Personnel, Public Grievances and Pensions and Minister of State in the Prime Minister’s Office that “there is no policy formulation for appointing the Secretaries in Union Ministries and Departments on contract”.
9. Because, The Department of Personnel and Training (DoPT), in its reply to Lok Sabha MP Asaduddin Owaisi, has stated that “Government servants are allowed to continue in service after 60 years in rare and exceptional cases.” It is relevant to mention here that the news was published on 28 May 2012 in Hindustan Times stating “Contractual appointment post-retirement not in rules” based on reply given by DOPT, Ministry of Personnel in 15^th Lok Sabha.
10. Because, there were several young and more qualified Scientist than Sri Avinash Chander in the list for consideration before ACC but they were ignored by ACC. The appointment of Shri Avinash Chander who was having just 1.5 year in his retirement even after second extension in service is wholly unjustified.
11. Because, orders for regular appointment and contractual appointment could not be clubbed in one order as both are totally distinct action as per recruitment rules. DOPT should initiate the case of contractual appointment separately when Shri Avinash Chander being at verge of his retirement and Government should feel his requirement in absence of suitable leadership in the existing Scientists in the department.
12. Because, an official appointed on contract after retirement cannot function as Head of Office for all administrative & financial matters in the department. Since it is apparent from his appointment letter that he will exercise all administrative and financial powers on contractual appointment as he was having in his regular appointment before retirement.
13. Because, presently there are more than a dozen Distinguished Scientists in DRDO from various disciplines like Missiles, Aeronautics, Combat Vehicle, Armament and Electronics & Computer Science. DRDO is having seven Director General and six Chief Controller R&D in HAG+ Scale, hence there was no need and necessity  to appoint Shri Avinash Chander on contract in advance prior to 1.5 year of his retirement on 31 May 2013 by ACC.
14. Because, decision of ACC to give appointment on contract to Shri Avinash Chander on 31 May 2013, i.e. 1.5 years prior to his retirement shows malafide intentions as on 31 May 2013, how can ACC decide that there will be no alternate to Shri Avinash Chander who can hold the position of Secretary, DRD, DGR&D and SA to RM after his retirement on 30 November 2014. While holding the position of Secretary, DRD, DGR&D and SA to RM, he was purely involved in Administrative work as he was not associated directly with any project/programme of DRDO. In present organisation structure of DRDO all seven Technological clusters are headed by seven Director Generals who are eminent Distinguished Scientists and  experts of their S&T discipline.
15. Because, the appointment is politically motivated, made with non-application of mind hence malicious and liable to be quashed.
16. Because, more qualified, having more technical contribution credential and young scientist having enough long tenure was in list but they were ignored by ACC.
17. Because, Government has not laid down any criteria for selection and appointment of Secretary, DRD till now in past several years and making appointment in arbitrary manner. Transparency is not being maintained in appointment of Sri Avinash Chander as Secretary, DRD and decision was taken by ACC in arbitrary manner.
18. Because, DRDO is having annual budget of Rs. 15283 crore and more than 30000 official working in the organisation then a person appointed on contract should not exercise the administrative and financial powers.
19. Because, true and proper facts about integrity of Sri Avinash Chander was not submitted by department to ACC hence the decision to appoint him as Secretary, DRD was not just & proper.
20. Because, performance of Sri Avinash Chander being Secretary, DRD from 31 May 2013 to 30 Nov 2014 should be re-assessed and should be considered by new ACC (after formation of new Government) keeping in view his integrity in administrative and financial matters at the time  of giving contractual appointment to him after his retirement on 30 November 2014. Hence issuing order for appointment on contract in advance on 31 May 2013 is wholly illegal & unjustified.
21. Because, there are half a dozen complaints on malpractices and corruption against Shri Avinash Chander are pending before Government. Therefore it was no appropriate to appoint him on contract without disposal of complaints and vigilance clearance.
22. Because, there is no the provision for appointment on contract of any scientist in HAG+ Scale s of DRDS Rules 1979 (R&P Rules of DRDO Scientists) , hence appointment on contract of Shri Avinash Chander  is illegal.
23. Because, under the provisions of  DOPT OMs No. AB.14017/34/2008-Estt. (RR) (Pt.) dated 17th June, 2013 and AB.14017/34/2008-Estt. (RR) (Pt.) dated 16th June, 2014 regarding need for contract appointment in the Ministry/Department, there is no provision for contract appointment in SAG/HAG Scale . These two OMs of DOPT clarified that till date Government has not finalised the policy/rules for appointment on contract in SAG/HAG scale. Hence post-retirement appointment on contract of Shri Avinash Chander  as Secretary, DRD cum DGR&D and SA to RM is totally illegal.

PRAYER

It is, therefore, most respect fully prayed that this Hon’ble Court may Graciously be pleased to:-

1. Issue a writ, order or direction in the nature of MANDAMUS commanding/directing the Respondent No. 1 & 2 to cancel the appointment on contract after retirement of Shri Avinash Chander as Secretary, DRD cum DGR&D and SA to RM.
2. Issue a writ, order or direction in the nature of MANDAMUS commanding  to  direct the Respondent No. 1 for investigation/probe in all the complaints cases of malpractices and corruption against Shri Avinash Chander by petitioner and other complainants.
3. Issue interim orders to respondent no. 1 to keep away Shri Avinash Chander from working as Secretary, DRD, DGR&D and SA to RM till the finalization of this PIL.
4. issue such other writ, order or directions as this Hon’ble Court may deem fit and proper having regard to the facts and circumstances of the case; AND

to award cost of the PIL to the Petitioner.

(…………………..)

    Advocate

Date:

IN THE HIGH COURT OF JUDICATURE AT DELHI

*****

ANNEXURE NO. -A1

IN

CIVIL MISC. WRIT PETITION (PIL) NO.                 OF 2014

(Under Article 226 of the Constitution of India)

(DISTRICT: DELHI)

Prabhu Dandriyal son of Late Shri  R N Dandriyal

Resident of 21, Sunderwala, Raipur Road, Dehradun-248008

…Petitioner

Versus

1. Union of India through the Cabinet Secretary, Government of India, Cabinet Secretariat, Rashtrapati Bhavan, New Delhi-110011.
2. Secretary, Min. of Personnel, Public Grievances & Pensions, Government of India, North Block , New Delhi-110011.
3. Secretary, Ministry of Defence, South Block, New Delhi-110011.
4. Shri Bhanu Pratap Sharma, Special Secretary and Establishment Officer, DOPT, Ministry of Personnel, Public Grievances & Pensions, Government of India, North Block , New Delhi-110011.

…Respondents