Central Administrative Tribunal - Ernakulam
Able Tom George vs Union Of India Represented By Seretary ... on 9 October, 2023
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CENTRAL ADMINISTRATIVE TRIBUNAL,
ERNAKULAM BENCH,
ERNAKULAM
Original Application No. 180/00112/2019
Monday, this the 9th day of October, 2023
CORAM:
Hon'ble Mr. Justice Sunil Thomas, Member (J)
Hon'ble Mr. K.V. Eapen, Member (A)
Able Tom George, S/o. Georgekutty,
Aged 32, residing at Nelluvelil House,
Upputhara Village, Idukki District,
Pin - 685 505. ..... Applicant
(By Advocate : Ms. Sadhana Kumari E.)
Versus
1. Union of India, represented by Secretary,
Department of Science and Technology,
Technology Bhavan, New Delhi, Pin - 110 016.
2. Sree Chithira Thirunal Institute of Medical Science and
Technology, Trivandrum, Medical College PO,
Trivandrum, Pin - 695 011. ..... Respondents
[By Advocates : Mr. Sreedutt S, ACGSC (R1) and
Mr. V. Sajithkumar (R2)]
This Original Application having been heard on 26.09.2023, the
Tribunal on 09.10.2023 delivered the following:
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ORDER
Per: Justice Sunil Thomas, Judicial Member -
The applicant is a Post Graduate in Social Work. The 2nd respondent Sree Chithira Thirunal Institute of Medical Science and Technology issued Annexure A1 notification calling for applications to fill up 2-Unreserved and 1-Scheduled Caste vacancies of Junior Social Worker. Applicant responded to the said notification. He passed the written examination. In the rank list published, he was ranked 5th. Respondents Nos. 3, 4, 6 and 7 originally arrayed in the OA stood ranked as 1 to 4. Rank Nos. 1 and 2 were appointed to UR vacancy. The 5th respondent who was ranked 19 was appointed in the SC vacancy. While so, by Annexure A2, the 2nd respondent sanctioned new 3 posts of Medical Social Worker. Existing Junior Social Worker was promoted to the newly sanctioned post of Medical Social Worker. The 6th and 7th respondents who were ranked as 3rd and 4th rank respectively were posted from the rank list to vacancies of Junior Social Worker consequent to the vacancies created by promotion. The 3rd respondent who was originally ranked as first resigned on 22.10.2018. That post now remains vacant. The validity of rank list was from 20.2.2017 to 19.2.2019. The applicant 3 is the next candidate to be appointed. However, without appointing him Annexure A4 notice inviting applications to the post of Junior Social Worker (Temporary) to fill up 3-Unreserved and 1-Other Backward Community post was issued. Claiming that the applicant is entitled to be posted by the 2nd respondent and instead of doing it Annexure A4 notice has been issued, the OA has been filed. The reliefs sought in the OA are to quash Annexure A4, to declare that Annexure A4 notice as illegal and to direct the 2nd respondent to appoint the applicant as Junior Social Worker with immediate effect in compliance with Annexure A2 rank list, before the expiry of the rank list.
2. The respondents filed a detailed reply statement followed by an additional reply statement. The essential averments by the 2nd respondent was that during the currency of the rank list, all vacancies that arose out of promotions/retirements in the category were filled up from the existing rank list. The persons ranked as 1 to 4 in Annexure A2 rank list who were in UR category were already appointed. Rank No. 19 was appointed in SC vacancy. The job description for the newly created post and the vacancies for which the notification was issued were different and could not be equated. According to the respondent No. 2, post of Social Worker 4 created for the Department of Paediatric Neurology/Cardiology mandates post qualification experience in the concerned field, whereas the notification from which the rank list was published does not figure out any mandate of any experience other than essential qualification and hence not comparable. Since the essential qualification prescribed in the notification issued during the year 2015 cannot be equated with the requirement for the newly created posts, the applicant cannot be considered for the newly created posts vacancy due to the specific work nature of the post. The allegation that the Institute has promoted two existing employees to the newly sanctioned post of Medico Social Worker was factually incorrect. Promotion was against the retirement vacancy and not against the newly sanctioned post which demanded additional experience. The original applicant proceeded on a presumption that the newly created posts are filled up by promoting the Junior Social Workers and that when such posts are filled up there will be vacancies in the post of Junior Social Worker. Temporary recruitments were done to fill up the vacancies which arose between two recruitment cycles due to non-availability of suitable candidates for selection. The applicant was clubbing two separate recruitment channels to create confusion. It was 5 also contended that the averment that the Institute had promoted two existing employees as Medico Social Workers from the category of Junior Social Worker was incorrect. The last promotion made by the Institute from the category of Junior Social Worker was on 1.1.2018 and hence, the statement that two vacancies arose out of promotion on 24.10.2018 and 1.11.2018 was incorrect.
3. In reply to the rejoinder reiterating various allegations and producing the rank list and certificates in relation to the selection conducted pursuant to Annexure A4, an additional reply statement was filed by the respondents.
4. It was stated that the post of Junior Social Worker was the entry post and an employee, on getting financial upgradation of Modified Flexible Complementing Scheme for promotion will be placed in the category of Social Worker. The post of Junior Social Worker and Social Worker were in the same cadre and the Junior Social Worker on completing five years of service or a Social Worker in the cadre will be eligible to apply for the promotion post of Medico Social Worker. There were 4 posts of Medico Social Worker at the time of promulgation of Annexure A1 notification. 6 Out of 4 posts, 1 SC post was remaining unfilled on the relevant day for want of eligible candidate. The cadre strength of Junior Social Worker as on the date of Annexure A1, in the year 2015 was only 11. The working strength was 8 and hence notification was published for filing up 3 vacancies. The candidates ranked at 1 and 2 in the rank list were appointed against 2 UR vacancies and candidate ranked 19 was appointed against SC vacancy. Thereafter, candidate at rank No. 1 resigned and the resultant vacancy was offered to rank No. 3. Thus, all the notified vacancies got filled up with appointment of the 3rd rank.
5. One newly created post for UR turn was thus filled up from Annexure A2 by appointing the person at serial No. 4. It was stated that the applicant could not be considered against newly created post, mostly because 2 out of 3 vacancies were set apart as reserved vacancies as per the reservation roster. The Governing Body of the Institute created 3 posts of Junior Social Worker which was mistakenly recorded as Medico Social Worker in Annexure A3. On promotion of eligible Junior Social Worker to those promotional post, the applicant could be appointed in one of the resultant vacancies. The above contention is based on the contingent event which will arise only in case eligible employees get promoted. Out 7 of the 3 newly created posts, 1 post was allotted to Cardiology Department. They had requested to appoint a person having specific qualifications. It was further contended that one Rekha belonging to UR category was appointed against 8th OBC point and therefore, there was a dearth of 1 OBC candidate in the cadre of Junior Social Worker. On the merger from sleep unit, the 14th OBC point would also have gone to an OBC candidate to make up the shortfall. In view of the requirement to ensure representation of the PWD candidates, this vacancy was earmarked for PWD candidate and a separate notification was issued. Hence there existed only 1 vacancy and could not have been filled up from Annexure A2 rank list. The UR candidate Rekha was appointed against OBC quota pursuant to an interim order passed by the Hon'ble High Court in Writ Petition No. 15824/2014 which got regularised as per the judgment in that Writ Petition.
6. Admittedly, the validity of the rank list which is the subject matter of the O.A was till 19.02.2019. The O.A was presented only on 19.02.2019. Initially, respondents 3 to 7 were arrayed in the OA. However, by order of this Tribunal dated 19.02.2019, the applicant was directed to delete respondent Nos. 3 to 7. They stand deleted, though, 8 reference is made in the pleadings with reference to the above respondents. At the outset, it is to be noted that the applicant is seeking appointment against a notified vacancy/which occurred during the validity of the rank list on the strength of inclusion of him in the rank list. It is an established principle that candidates included in the rank list does not have an indefeasible right to be appointed against the vacancy notified/occurred during the validity of the rank list.
7. Admittedly, notification was for the filling up of 3 vacancies (2 unreserved and 1 SC vacancy). There is no dispute that the SC vacancy was filled up by appointing rank No. 19. It is also seen that the 2 unreserved vacancies were filled up by appointing rank Nos. 1 and 2. Thereafter, rank No. 1 resigned and the resultant vacancy was offered to rank No. 3. Thus, the entire vacancy got filled up. 1 newly created post was for UR turn which was filled up by appointing the person at serial No. 4. In the light of the above, it is clear that the applicant cannot claim any right against vacancies that arose pursuant to the notification and is now confining his claim to the vacancies that would have arisen during the currency of the rank list consequent to the claim of promotion to 3 newly created posts.
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8. The pleadings of the respondents clearly indicate that 3 posts of Junior Social Workers were created subsequent to Annexure A1 notification. It is also seen that out of 3 posts of Junior Social Worker, one post was allotted to Cardiology Department which insisted for appointment of persons with specific qualification and experience in Cardiology Department. The remaining two departments, i.e. Neuro Intervention Centre and Comprehensive Neuro Stroke Programme agreed to fill up vacancies from the cadre of Junior Social Workers. It seems that in the meanwhile the Social Worker cum Programme Co-ordinator post in the sleep unit got merged in the cadre of Junior Social Worker and thus the cadre strength was retained at 14.
9. One candidate belonging to UR category was appointed against the 8th OBC point. Hence there was a dearth of one OBC candidate in the cadre of Junior Social Worker. Due to the merger, the 14th point will also have to be allotted to OBC candidate to make up the shortfall. The necessity has also arisen for filling up the vacancies with PWD candidate. Hence, the only existing OBC vacancy could not be filled up from Annexure A2 rank list which consisted of UR and SC candidates. 10
10. These facts clearly indicate that the applicant has no sustainable claim. The notified vacancies stood filled up and the consequential vacancies which later came up have been filled up with candidates and the remaining only 1 vacancy is yet to be filled up with an OBC candidate. Having considered this, we are inclined to accept the contention taken up by the respondents and consequently the claim set up by the applicant is only to be rejected. O.A fails and is accordingly dismissed. No costs.
(K.V. EAPEN) (JUSTICE SUNIL THOMAS)
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
"SA"
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Original Application No. 180/00112/2019
APPLICANT'S ANNEXURES
Annexure A1 - True copy of notice bearing No.
P&A.II/21/JSSC/SCTIMST/2015 dt. 26.8.2015.
Annexure A2 - True copy of the rank list of selected candidates for the
post of Junior Social Worker bearing No.
P&AII/377/JSSC/SCTIMST/2015 dt. 20.2.17.
Annexure A3 - True copy of the relevant portion of minutes of the 97th
Governing body meeting held in 13.11.2016.
Annexure A4 - True copy of the order dated Advt. No.
P&AII/30/JSW-(T)/SCTIMST/2018 is dated
20.8.2018.
Annexure A5 - True copy of rank list of selected candidates for the
post of Junior Social Worker (Temporary)(Walk-in- interview held on 25.9.2018) published on 9.10.2018. Annexure A6 - True copy of one of the relieving certificates issued to one candidate namely Josna Antony (4th rank).
Annexure A7 - True copy of a list of all the Junior Social workers and Medico Social Workers, currently employed permanently by the respondent institution.
Annexure A8 - True copy of the advertisement notification dated 14.10.2019.
Annexure A9 - True copy of application for the post of junior social worker dated 26.8.2015.
Annexure A10 - True copy of appointment letter of the respondent No. 6 dt. 24.10.2018.
12Annexure A10(A)-Typed copy of appointment letter of the respondent No. 6.
Annexure A11 - True copy of appointment letter of the respondent No. 7 dt. 1.11.2018.
Annexure A11(A)-Typed copy of appointment letter of the respondent No. 7.
RESPONDENTS' ANNEXURES Nil
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