Central Administrative Tribunal - Delhi
Anuj Singh Chaprana vs M/O Health And Family Welfare on 4 April, 2024
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Item No. 54 (C-4) O.A. No. 3011/2019
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No. 3011/2019
M.A. No. 3830/2022
M.A. no. 3939/2023
This the 04th day of April, 2024
Hon'ble Mr. Tarun Shridhar, Member (A)
Hon'ble Ms. Harvinder Kaur Oberoi, Member (J)
Anuj Singh Chaprana (Aged about 26 yrs.).
S/o Sh. Maharam Singh Chaprana (Care Taker),
Dr. Ram Manohar Lohia Hospital, New Delhi - 110001, R/o
H. No. 3195, Village Mewla, Maharajpur, Near D. K.
Godown,Sector -26, Faridabad, Haryana- 121010.
...Applicant
(By Advocates: Mr. Brijenra Chahar, Sr. Advocate assisted
by Mr. Tanmay Vashista and Mr. Lalta Prasad)
Versus
1. The Secretary,
Ministry of Health & Family,
Welfare, Govt. of India,
Nirman Bhawan, New Delhi - 110011.
2. The Medical Superintendent,
Dr. Ram Manohar Lohia Hospital, New Delhi - 1.
3. Dy. Director (Admin),
Dr. Ram Manohar Lohia Hospital, New Delhi - 1.
4. Raja Babu (Care Taker) through,
Medical Superintendent,
Dr. Ram Manohar Lohia Hospital, New Delhi - 1.
5. Hakikat Rai (Care Taker) through,
Medical Superintendent, Dr. Ram Manohar Lohia
Hospital, New Delhi - 110001.
...Respondents
By Advocates: Mr. Ranjan Tyagi, Mr. Shubham Tomar, Mr.
Ayush Tomar, Ms. Mehak Chaudhary, Ms. Butul Khan for
Mr. Hilal Haider)
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Item No. 54 (C-4) O.A. No. 3011/2019
ORDER (ORAL)
By Hon'ble Mr. Tarun Shridhar, Member (A):
The applicant participated in the selection for the post of caretaker in Post Graduate Institute of Medical Education & Research, Dr Ram Manohar Lohia Hospital New Delhi as an OBC candidate. The result of the selection examination which was held on 19.03.2019 declared him as selected as an OBC candidate having obtained 68 marks. Mr. Rajababu, the respondent No. 4 herein, was another candidate belonging to the OBC category, however since he has secured higher marks, i.e., 77 in the examination, he was selected against the vacancy meant for Unreserved category. The applicant joined as Caretaker on 27.05.2019, however, about two months later, specifically, on 18.07.2019, a show cause notice was notice was issued to him stating that Mr. Rajababu who had been selected under Unreserved category was to be adjusted against the post meant for OBC category, since he has availed the benefit of age relaxation available to the OBC candidates and accordingly, it was further mentioned that the post meant for Unreserved category would go to one, Mr Rohit Sharma who had secured 74 marks, later, on Mr 3 Item No. 54 (C-4) O.A. No. 3011/2019 Rohit Sharma's refusal to join one Mr. Hakikat Rai was adjusted in the post meant for Unreserved category.
2. The show cause notice asked the applicant to explain why his offer of appointment may not be cancelled. The applicant duly replied to the show cause notice stating that prior to his selection to the post of Caretaker, which he has already joined, he had been working on contract basis for four years as a Data Entry Operator and does posses the experience of requisite years for holding the post of Caretaker. He further submitted that this selection to the post of Caretaker was by way of an open competitive selection examination. In fact, if an explanation was to be called for it should have been from Mr. Rajababu, who had availed the benefit of age relaxation but occupied the post meant for Unreserved category, he added. The applicant in the reply to the show cause notice went on to state that this situation had arised out due to an administrative lapse and not on account of any mistake on his part. We Deem it appropriate to reproduce both the show Cause Notice dated 18.07.2019 and the reply furnished by the applicant to it on 22.07.2019.
"OM dated 18.07.2019 WHEREAS, Notice for Advertisement No. 9-111/2017- RMLJI/Tech-196 dated 16/04/2018 was issued on behalf of the Medical superintendent, Dr Ram Manohar 4 Item No. 54 (C-4) O.A. No. 3011/2019 Lohia Hospital, New Delhi for inviting applications from eligible candidates to fill up the post of Caretaker on regular basis against OZ (UR-01 and OBC-01) vacant posts in this Hospital.
2 AND WHEREAS, Sh Anuj Singh Chaprana, Caretaker was selected to the post of Caretaker in this Hospital against the vacancy for OBL candidate and joined the post w.ef. 27.05.2019 3 AND WHEREAS, DOPT OM No 36011/1/98-Estt (Res) dated 01.07.1998 stipulates that when a relaxed standard is applied in selecting an SC/ST/OBC candidates for example in the age limit experience, qualification, permitted number of chances in written examination, extended zone of consideration Larger than what is provided for general candidates etc. the SC/ST/OBC candidates are to be counted against reserved vacancies 4 AND WHEREAS. Sh Rajababu, Caretaker selected under UR category(as per merit) for the post of Caretaker was eligible after applying relaxed standard in the age limit against the post reserved for 0BC category only. Further, Sh. Rajababu has secured "77" marks in the written examination and Sh Anuj Singh Chaprana has secured '66' marks only 5 AND WHEREAS, Sh. Rohit Sharma, who has been placed at 1st waiting in the waiting list against UR candidate, has secured higher marks than Sh. Anuj Singh Chaprana Sh. Rohit Sharma has secured 74' marks in written examination whereas Sh. Anuj Singh Chaprana has secured '60 marks only.
6. AND WHEREAS, the undersigned an consideration of the circumstances of the case is of the view that the selection of Sh. Anuj Singh Chaprana to the post of Caretaker under OBC category is erroneous.
7 NOW THEREFORE, Sh. Anuj Singh Chaprana is hereby directed to explain as to why the offer of appointment given to him vide this Hospital's letter No 9- 111/2017/RMLH(Tech)/2860 dated 4/5/2019 and all the cause of action arisen subsequent to the aforesaid offer of appointment for his selection to the post of Caretaker in this Hospital under OBC category may not be cancelled. His explanation/representation, if any, should reach to the undersigned within 3 (Three) days from the date of receipt of this Memorandum, failing which, necessary action as deemed fit under the relevant rules, would be taken.
Reply of the applicant dated 22.07.2019
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Item No. 54 (C-4) O.A. No. 3011/2019
Sir,
With reference to above mentioned OM wherein my explanation is sought as to why the offer of appointment given to me vide hospital's letter dated 04.05.2019 on the strength of which I have already joined my duties w.e.f. 27.05.2019 and since then working as Care Taker, may not be | cancelled. In this connection' my humble submission is under:-
2. That I was working as Data Entry Operator in this Hospital for the last 04 years in National Surveillance Centre (NSIC) Injury Trauma. I applied against your advertisement for filing 02 posts care taker advertised in Navbharat Times dated 14.04.2018 being eligible in all respect against a reserved vacancy for OBC Category.
Neither I claimed/availed any concession whatsoever nor concealed any material facts for which I may render ineligible. I was declared successful in the merit list securing 68 marks and the hospital authority issued offer of appointment vide Hospital Letter dated 04.05.2019.
3. That on receiving offer of appointment of the post of care taker in the hospital, I resigned from my previous post of Data Entry Operator severing all my rights and claims on that post and not keeping any lien thereon. Thereafter I joined the post of care taker in the hospital w.e.f. 27.05.2019 for better prospectus and I am still working there.
4. That recruitment to the post of care taker has been monitored by a Selection Committee of most competent doctors assisted by administratively expert officers. The august Selection Committee ought to have prepared the select list in accordance with administrative instructions issued by DOP&T. Administration of the hospital did not scrutinize the dozier of Shri Rajababu properly who secured highest marks and was selected against un- reserved post despite the fact that he availed age relaxation. In this whole process appointment of Shri Rajababu is against the un-reserved vacancy of general category in violation of DOP&T. OM dated 01.07.1998 and not appointment is made erroneously my as alleged in office memorandum under reference. Administration instead of seeking explanation of Mr.Rajababu, my explanation is sought when I have not committed anything wrong.
5. That the legal preposition is obviously clear. The Hon'ble Supreme Court in "Rajendra Vs. State of Maharashtra" reported in (2008)11 SCC 90 has held that 6 Item No. 54 (C-4) O.A. No. 3011/2019 if the appointment is made by mistake, the 'abrupt withdrawal of the same after the employee has worked for substantial violation of period is principle amount of to natural justice. In Michale's Teacher's Training Institute Vs. V.N. Kurpuga Mary (2008) 11 SCC 703 Apex court has held that once the appointment has already made and appointees were found to possess the requisite qualification at the time of appointment, their services cannot be terminated by giving retrospective effect to a decision made. after such appointment. In the matter of "Labhuban Manu Bhai Gadhvi Vs. Gujrat SRTC" (2018) 12 SCC 508, the Hon'ble Supreme Court has held that appointment of appellant was fresh appointment and with regularization of his service, certain rights had accrued in his favour and his services could not have been terminated by relieving orders.
6. That un-precedent, situation is arisen due to administrative lapse and not on account of any mistake on my part. The administration can rectify the error by adopting equitable balance. A supernumerary post may be created underFR-9 (30-A) and addressed Shri Rajababu against the same without disturbing my position. This generous action on the part of administration can save the termination of my service and your goodself may save my bread and butter and also save me from starvation, otherwise I would be rendered jobless which will ruin my future and disturbed my domestic life as well.
7. In view of the foregoing I earnestly request to your goodself that re-look into the matter on humanitarian grounds and benevolently create supernumerary post and prevent the ugly situation of termination of my service which will render my jobless without any error or mistake on my part for which I shall ever be grateful for t his act of kindness.
Thanking you."
3. Vide another memorandum dated 13.09.2019, the applicant was again asked to explain his position by submitting the legal proposition and rules he had quoted in his reply. The applicant duly furnished his reply to the same by reiterating that he had not obtained the position of Caretaker by way of any mis-representation or misconduct. 7
Item No. 54 (C-4) O.A. No. 3011/2019 He has further submitted that, if there was any error, he could not be made to suffer the consequences for the same.
4. However, curiously, after issuing the office memorandum and show cause notice and after obtaining the reply of the applicant, the respondents vide a terse and cryptic order dated 07.10.2019 terminated his services resorting to the provisions of sub-rule (1) of Rule 5 of CCS (Temporary Service) Rules, 1965. It is against this background that the applicant ventilates his grievance in the present OA, seeking the following reliefs:
"(1) That this Hon'ble Tribunal may graciously be pleased to pass an order declaring the office Memorandum 111/2017-RMLH/ Tech/- F.No.9- 499 dated 18.07.2019 calling upon the applicant to explain as to why the offer of appointment of applicant stated to made erroneous be declared, as null and void and be set aside.
(ii) That this Hon'ble Tribunal may graciously be pleased to pass an order declaring the office Memorandum F.No.9-111/2017- RMLH/Tech/642 dated 13.09.2019 by which the explanation submitted by the applicant on 22.07.2019 in compliance of OM dated 18.07.2019 has been rejected and further asked the applicant to explain his position with documentary evidence be declared as null and void and be set aside.
(iii) Any other or further orders relief which this Hon'ble Tribunal may deem fit and proper may also be granted to the applicant."
5. Pursuant to notice the respondents have filed a detailed reply giving the entire factual matrix of the case and submitted that the applicant cannot hold the post which is meant for an OBC candidate as respondent No. 4, 8 Item No. 54 (C-4) O.A. No. 3011/2019 i.e., Mr. Rajababu, being an OBC candidate and having obtained higher marks than the applicant is the rightful claimant for the said post; an inadvertent error had occurred and when such an error was detected the respondents were duty bound to rectify it which they have done. Therefore, the present OA is misplaced it is argued. The selected person in the OBC category has obtained higher marks than the applicant and once the post meant for Unreserved category became vacant, the same was too filled by the person eligible for it.
6. We have gone through the pleadings on record and heard the learned counsel for the parties. There is no dispute with respect to the facts of the case. Since the facts in brief have already been outlined, we are refraining from repeating the same.
7. The applicant was duly appointed after his selection and after assuming the charge of his post he starting performing his duties. Prior to that he had been working in the respondents organization, albeit on contractual basis, for a good period of four years as a Data Entry Operator. His termination has been resorted to by a simple order in terms of the provisions of CCS (Temporary Service) Rules, 9 Item No. 54 (C-4) O.A. No. 3011/2019 1965. If these rules were to be resorted to where was the cause for issuing the show cause notice, the office memorandums and obtaining his reply. However, if in adherence to the principles of natural justice the said show cause notice was issued and the respondents have obtained his reply, the question before us is were not the respondents obliged to consider the contents of the show cause notice, the reply of the applicant and thereafter arrive at a conclusion. We would answer our question ourselves in an affirmative. To that extent, we cannot sustain the order of the respondents dated 07.10.2019 which has been passed with a mere statement terminating the services of the applicant by resorting to the provisions of sub-rule (1) of Rule 5 of CCS (Temporary Service) Rules, 1965.
8. We reiterate that once a reply to the above show cause notice had been obtained and there was voluminous material before the respondents in terms of their own office memorandums and the detailed replies submitted by the applicant, they had no option but to consider this material before passing an appropriate order. It is not the case of anyone that the applicant had either violated or failed to fulfil any of the terms and conditions of the offer of 10 Item No. 54 (C-4) O.A. No. 3011/2019 appointment. We do appreciate that in case an error or mistake had been committed, it was the duty of the respondents to take necessary corrective measures and rectify the same, but at the same time we have no doubt in holding that the consequences of such a mistake cannot be suffered by the applicant since there is not even a whisper that he had any role in his selection or in wrongful assignment of Unreserved category to Mr. Rajababu.
9. If anyone is to suffer the consequences, it should have been the person making such a mistake, but we do recognise that no malafide or motive needs to be attached to any person, who is a party to this OA or an employee in the organisation as it could have been a genuine mistake. The respondents had an option to rectify the said mistake without putting anybody to inconvenience as the applicant had been selected through a fair, transparent and open competitive examination on his own merit. Subsequent to his selection, the applicant had even joined the duties and performed the same. Therefore, a vested right has accrued to him and terminating him from service at this stage is punitive and stigmatic.
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Item No. 54 (C-4) O.A. No. 3011/2019
10. We have already held that by resorting to the provisions of the CCS (Temporary Service) Rules, 1965 the respondents have compounded their mistake as they have totally ignored the material which they themselves collected. The right course before the respondents, without causing injustice to anyone, was to adjust the applicant either against an available post or create a supernumerary post so that no one's rights are trampled with
11. Against the background of what has been elaborately outlined, we allow the present OA and quash the order dated 07.10.2019 vide which the services of the applicant have been terminated. As a sequel to quashing of this order the memorandum dated 18.07.2019 followed by office memorandum dated 13.09.2019 are also quashed. The purport of this order is that the applicant will be deemed to have been in continuous employment of the respondents from the date of his initial appointment, as if the order dated 07.10.2019 was never issued. However, he shall not be entitled to actual payment of salary and allowances for the period he has been out of service, but benefit of that period on notional basis shall be extended in his favour including seniority, promotion and fixation of pay and allowances. The respondents shall take necessary 12 Item No. 54 (C-4) O.A. No. 3011/2019 administrative measures to give effect to these directions including, creation of a supernumerary post, if required for such period as may be necessary. We are of the considered view that this would be a positive approach and perspective to rectify the mistake and also a good repentance for the injustice meted out to the applicant.
13. The direction contained hereinabove shall be complied with by the respondents within four weeks from the date of receipt of a certified copy of this order. No costs.
(Harvinder Kaur Oberoi) (Tarun Shridhar) Member (J) Member (A) /as/