Central Administrative Tribunal - Delhi
Satish Chandra vs M/O Defence on 13 October, 2015
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
OA-3009/2014
Order Reserved on 17.07.2015
Order Pronounced on: 13.10.2015
Hon'ble Mr. Sudhir Kumar, Member (A)
Hon'ble Mr. Raj Vir Sharma, Member (J)
Satish Chandra,
Aged about 25 years,
S/o Shri Roop Kishor,
R/o 443-Sohalla, Post Pratappura,
Distt. Agra, UP-282001
Presently at New Delhi. -Applicant
(By Advocate: Shri M.K. Bhardwaj)
Versus
UOI & Ors: through:
1. The Secretary
Ministry of Defence
South Block, New Delhi.
2. The Director General
Ordnance Factories,
Kolkata.
3. The General Manager,
Govt. of India, Ministry of Defence,
Ordnance Factories,
Itarasi. -Respondents
(By Advocate: Shri Rajinder Nischal)
ORDER
Per Sudhir Kumar, Member (A):
The facts of this case lie in a very narrow compass. The applicant of this OA is aggrieved by the respondents not 2 OA-3009/2014 having provided him appointment to the post of Electrician, in spite of his having been included in the Select List as per his merit in the competitive examination held for selection to the post of Electrician.
2. The respondents had issued the vacancy Notification through Annexure A-1A produced by the applicant at pages 18 to 27, and its Corrigendum at page-28 of his OA. The applicant was issued a Call Letter-cum-Admit Card at Annexure A-2. After his name having been included in the Select List for the post of Electrician (Semi-Skilled) in Unreserved Category, the respondents sent him the necessary Verification Certificates through Annexure A-3 dated 09.07.2013. After he had appeared at the Interview, and produced the necessary documents for verification, they issued him the letter dated 08.09.2013 (Annexure A-4), which stated as follows:-
"Vide this factory letter dated 09/07/2013, you were directed to appear for documents verification. During the scrutiny of your documents, it has been observed that you were holder of a State Trade Certificate in Electrician trade issued by State Council of Vocational Training, U.P. at the time of applying for the post of Electrician (SS) at this factory vide your application dt. 15.09.2012.
02. However, under para 03 (A) of the OFI advertisement for the above post published in the Employment News dated 01-07 Sept. 2012, it was clearly mentioned that "The National Apprenticeship Certificate (NAC) and National Trade Certificate (NTC) issued by National Counsel for Vocational Training 3 OA-3009/2014 (NCVT) in the relevant trade will only be accepted as qualification.
03. Therefore, you are hereby directed to produce NAC or NTC certificates by NCVT issued before the date of applying for the post i.e. 15/09/2012. In the absence of the above certificates, please produce the confirmation issued by NCVT, that the STC certificate No.16348 produced by you and NTC certificate being issued by NCVT are the same.
04. If you fail to produce the required documents within one (1) month from the date of receipt of this letter, your candidature will be cancelled".
3. As is apparent from the contents of Annexure A-1 impugned Show Cause Notice, through his letter dated 15.10.2013, the applicant had submitted his reply, enclosing a National Council for Vocational Training (NCVT, in short) National Apprenticeship Certificate (NAC, in short) (produced by the applicant at page-38 of the OA) but the respondents did not accept the same. The impugned Show Cause Notice had, therefore, stated as follows:-
"An advertisement was published in the Employment News dated 01-07 Sep 2012 for the post of Electrician (SS) along with other posts. One Shri Satish Chandra S/o Shri Roop Kishor applied for the post of Electrician (SS) vide his application dated 15/09/2012.
02. That, the above Shri Satish Chandra S/o Shri Roop Kishor was selected for the post of Electrician (SS) on the basis of the written test held on 07/04/2013.
03. That, above Shri Satish Chandra reported to Ordance Factory, Itarsi for document verification on 4 OA-3009/2014 22/07/2013, during which it was observed that the individual possessed an SCVT certificate instead of NTC or NAC certificate issued by NCVT in Electrician trade, which is an essential technical qualification for the above post.
04. That, above Shri Satish Chandra was directed to produce an NTC or NAC certificate by NCVT in Electricain trade issued on or before the date of his application for the above post i.e. 15/09/2012.
05. That, above Shri Satish Chandra vide his application dated 15/10/2013 submitted an NTC Certificate by NCVT issued for the apprenticeship training period from 03/01/2011 to 02/01/2013. Since, the started certificate is issued after the date of application for the above post i.e. 15/09/2012, hence the above certificate is not acceptable.
6. Therefore, the said Shri Satish Chandra is hereby issued a show cause notice to state the reason in writing within 10 days from receipt of this notice that why his candidature and selection for the post of Electrician (SS) should not be cancelled as he did not possess the required essential technical qualification while applying for the above post on 15/09/2012 and was not eligible for the said post.
7. If, the said Shri Satish Chandra does not make any representation in writing within 10 days from receipt of this notice, it will be assumed that he has nothing to say and his candidature as well as his selection for the post of Electrician (SS) will be cancelled by taking ex parte decision."
4. The applicant replied to the impugned Show Cause Notice through his letter dated 04.03.2014 (Annexure A-6) stating, inter-alia, that he had duly applied after passing ITI/State Council for Vocational Training (SCVT, in short), and after undergoing Apprenticeship Training from 509 Army Base Workshop, Agra Cantt, and that the certificate issued by the State CVT is equivalent to NAC/NTC, and that there had 5 OA-3009/2014 been no mistake in his selection in the Unreserved Category through proper channel, and that he had completed his two years' Apprenticeship Training Programme prior to the conduct of the written test on 07.04.2013, which is also equivalent to NAC/NTC. The respondents, however, refused to accept that, and denied him appointment.
5. The applicant has, therefore, assailed the action of the respondents on the following grounds:-
i) That the respondents have acted in an arbitrary and unjustified manner by raising frivolous objections regarding his educational qualifications;
ii) That if he did not possess the educational qualifications, he should not have been allowed to appear in the written test/trade test, and even asked to submit all the documents regarding his educational qualifications, age etc. for verification before appearing in the interview;
iii) That he possessed the qualification in consonance with the required qualification, and, therefore, he had been rightly allowed to appear in the test;
iv) That the respondents have failed to consider the fact that when he possessed Xth class certificate
6 OA-3009/2014 as well as the State CVT Certificate, which is equivalent to the National CVT Certificate, and both are based on the same syllabus, he was fully entitled for appointment;
v) That the respondents have failed to consider that he had not only got the National CVT Certificate, but had also completed two years' Apprenticeship, which Apprenticeship is permitted only after completion of the Certificate course, either from National CVT, or from State CVT, and that the Ministry of Labour and Employment does not make any distinction between the Certificates issued by the State CVTs or the National CVT;
vi) That the respondents have acted in violation of his Constitutional rights, inasmuch as after his having been selected, they have ignored his candidature, though he had obtained more marks in the competitive examination, and also fulfilled all the eligibility conditions;
vii) That the respondents have acted in violation of Principles of Natural Justice, as they have not even considered his representation, and have acted in an arbitrary manner, as they have not even disclosed the reasons for not treating his 7 OA-3009/2014 qualifications as equivalent to the prescribed qualifications;
viii) That after their having allowed him to participate in the selection process, and after completion of the entire selection process, the respondents are estopped by their own conduct in raising any objection in regard to his qualifications;
ix) That the respondents have rejected his claim even without consulting the Competent Authority or expert in the field of assessing equivalence of courses, and
x) That the entire action of the respondents in denying him appointment, even though he possessed the required qualifications, is illegal, arbitrary and unjustified.
6. In the result, he has prayed for the following reliefs:-
"i) To declare the action of respondents in not giving appointment to the applicant to the post of Electrician in Ordnance Factory, Itarsi (M.P.) as illegal and arbitrary.
ii) To declare the applicants as selected candidates for appointment to the post of Electrician and direct the respondents to appoint the applicant as Electrician from due date with all consequential benefits including arrears of pay.
iii) To quash and set aside the impugned notice dated 19.02.2014 and declare the applicant eligible as per educational qualification 8 OA-3009/2014 possessed by him and issue directions for considering the applicant for appointment to the post of Electrician.
iv) To allow the OA with cost.
v) Any other orders may also be passed as this Hon'ble Tribunal may deem fit and proper in the existing facts and circumstances of the case".
7. The respondents filed their counter reply on 08.10.2014. In this they had taken the preliminary objection that at Para 3(a)(2) of the advertisement dated 01-07 September 2012 published in the Employment News itself, it was clearly mentioned that "The National Apprenticeship Certificate (NAC) and National Trade Certificate (NTC) issued by National Council of Vocational Training (NCVT) in the relevant trade will be accepted as qualification required for the above posts. Degree and Diploma in Engineering will not be accepted as required qualification for the above posts. Only when applications with NCVT certificates as mentioned above, will not be available, then only applicants with ITI or equivalent Diploma/Certificate holders will be considered".
8. It was submitted that it was in view of this specific requirement laid down in the advertisement itself that the applicant was directed to produce his having acquired NTC or 9 OA-3009/2014 NAC certificates issued by the NCVT in Electrician trade prior to the date of his application for the above post, last date for which was 15.09.2012. They pointed out that the NTC issued by the NCVT, as provided by the applicant on 15.10.2013, showed that he had undergone the said Apprenticeship Training during the period from 03.01.2011 to 02.01.2013, though the certificate did not bear any date of its issuance (page-38 of the OA). They submitted that this Certificate was issued, and the Apprenticeship Training of the applicant was completed after the last date of submission of applications for the post, i.e., after 15.09.2012, which was not acceptable.
9. It was further submitted that while the applicant possessed only State CVT certificate at the time of applying for the post, there were sufficient number of candidates with NAC/NTC certificates, issued by the National CVT, who were available for appointment, and as per the instructions, which were included in the advertisement Notification itself, he could not have been given appointment superseding those possessing National CVT Certificate, and, accordingly, his candidature had been cancelled vide order dated 14.05.2014 (Annexure R-3.
10 OA-3009/2014
10. It was further submitted in response to Para 4.2 of the OA that in the Call Letter-cum-Admit Card itself, at Para-11, it had been mentioned as follows:-
"This call letter is issued provisionally and issue of call letter to appear in the written examination does not automatically entitle you for appointment to the subject post. The appointment to the post will be strictly on the basis of your position in the merit list/select list and your meeting all the eligibility criteria as published in the advertisement after fulfilling other conditions of satisfactory character and antecedents reports from civil authority and verification of your documents i.e. educational qualification, date of birth, PHP certificate and caste certificate and other certificates from competent authority".
(Emphasis supplied).
11. The respondents had, therefore, submitted that liability lies with the respondents to offer an appointment to the subject post only if applicant had qualified all the prescribed criteria and conditions, as the Call Letter-cum-Admit Card was only provisional. Even in reply to the grounds taken by the applicant, it was reiterated by the respondents that although the applicant possessed State CVT certificate on the date of the application, on account of which he was issued Call Letter-cum-Admit Card, however, when it was found that there were enough candidates with National CVT qualifications who came to be included in the select list, the applicant could not have been offered appointment. They had 11 OA-3009/2014 also submitted that his candidature was rightly cancelled, after following due procedure, and complying with the demands of principles of natural justice by issuing him the Show Cause Notice for considering his reply, and the Competent Authority even issued a speaking order thereafter on 14.05.2014 (Annexure R-3).
12. It was further submitted that just because Selection Board had conducted the examination and prepared the Select List, it was not the task of the Selection Board to decide the eligibility criteria, which are the SRO published in the advertisement, and the applicant could not have been offered appointment in violation of the SRO provisions. Hence they had prayed that the OA has got no merit, and deserves to be dismissed.
13. The applicant filed his rejoinder in April 2015. He had reiterated his contentions as made in the OA that there is no distinction between the certificates issued by the State CVT or National CVT. He further submitted that in the advertisement it was nowhere mentioned that preference will be given to the candidates holding NAC/NTC Certificates issued by the National CVT, vis-à-vis those candidates holding Certificates from the State CVT, even by ignoring merit. He further submitted that the Select List prepared on the basis of marks 12 OA-3009/2014 obtained in the written test and Practical (Trade Test), could not have been ignored only on the basis of the issuing authority of the NAC/NTC Certificate. It was reiterated that the applicant is claiming the appointment on the basis of perfectly eligible equivalent qualifications, and the respondents have wrongly projected the case as if he was not in possession of the required equivalent qualifications.
14. It was further submitted that when the advertisement itself mentioned in the Note Below-5 (B) Mode of Selection, and stated that the final Select List would be based only on the basis of marks obtained in written test, a candidate who had secured more marks cannot be held to be entitled for appointment, irrespective of any other criteria. It was submitted that if the candidates who were possessing Vocational Training Certificates from the State CVTs were to be treated differently than the candidates possessing National CVT Certificates, the applicant ought not to have been called to appear in the Trade Test, and that it was called as the final merit list, as had been prepared on the basis of the written examination alone.
15. In regard to preferential clause, the applicant's submission was that this could have been resorted to only when there were two candidates having equal marks.
13 OA-3009/2014 Thereafter he had named the cases of certain selected candidates, who have not been made party-respondents in this OA. Reliance had been placed upon the Delhi High Court judgment in the case of Sanjay Kumar vs. Union of India & Ors. in WP (C) No.1666/2007 dated 18.08.2008, in which it was held that merit cannot be ignored, and preference is applicable only when the two candidates are having equal marks. It was, therefore, prayed that since there was no difference between the Certificates issued by the State CVTs and the National CVT, the respondents were not correct in stating that the applicant did not possess the required qualification, and the OA, therefore, deserves to be allowed.
16. Heard. During arguments, learned counsel for both the sides explained the above submissions in great detail, which we have already discussed while discussing their written pleadings and submissions above, and need not be repeated once again.
17. Learned counsel for the applicant also took us through the Delhi High Court's order in Sanjay Kumar vs. Union of India & Ors. (supra), in which, in the context of the Apprenticeship Act, the High Court had held as follows:-
14 OA-3009/2014 "The contention of learned counsel for the petitioner is that even though the advertisement mentions that preference will be given to Ex-
Trade Apprentices of Ordnance Factories, this preference is applicable only if the candidates have an equal number of marks. The Petitioner got the highest marks and, therefore, he should have normally been selected as against persons who have got lower marks.
Learned counsel for Respondents No. 1 to 3 submits that because Respondents No. 4 and 5 have got experience as Trade Apprentices of Ordnance Factory, they are entitled to preferential treatment and, therefore, were selected. There is no representation on behalf of Respondent No. 4 and 5 despite service.
We are not in agreement with learned counsel for Respondent No.1 to 3. Admittedly, no marks have been specified or designated for the purposes of experience as mentioned in the advertisement. Therefore, theoretically even if a candidate gets 0% marks in the Trade Test but has only one day's experience, then he can get selected as Fitter (Electronics) as submitted by learned counsel for Respondents No. 1 to 3. This is clearly irrational.
The only rational reading of the advertisement can be that where two candidates secure an equal number of marks in the Trade Test, the candidate having experience as a Trade Apprentice of Ordnance Factory would be given preference. A similar view was taken by the Supreme Court in U.P. State Road Transport Corporation and another vs. U.P. Parivahan Nigam Shishukhs Berpzgar Sangh and others (1995) 2 SCC 1. Any different view would render the discretion given to Respondents No.1 to 3 to select a candidate only on the basis of an interview completely uncanalized and arbitrary. Consequently, to save the advertisement, we have no option but to read it down to mean that preference will be given only to those persons who have an equal number of marks in the Trade Test.
15 OA-3009/2014 Learned counsel for Respondents No. 1 to 3 referred to University of Cochin vs. N.S. Kanjoonjamma and others, (1997) 4 SCC 426 to contend that the Petitioner ought to have challenged the advertisement before participating in the Trade Test. We do not think this judgment is apposite to the facts of the case. In terms of the advertisement, as soon as Respondents No. 1 to 3 received the applications and found that some Ex-Trade Apprentices of Ordnance Factory were available, they could have refused to permit the Petitioner from taking the Trade Test. But having permitted him to take the Trade Test, they ought to go strictly by the result of the Trade Test and give preference only to those Ex-Trade Apprentices of Ordnance Factory who have equal marks with others who do not have the experience. Respondents No. 1 to 3 having permitted the Petitioner to sit for the Trade Test cannot now interpret the terms of the advertisement to the disadvantage of the Petitioner".
18. To this, the learned counsel for the respondents submitted that this judgment was not at all on all fours with the facts of the present case, as it had been delivered in the context of Apprenticeship Act, and not in the context of the Certificates for Vocational Training. It was submitted that the advertisement, as had been issued by the respondents, in which in the prescribed educational and technical qualifications itself it had been mentioned that "only when applicants with NCVT certificates as mentioned above will not be available, then only applicants with ITI or equivalent Diploma/Certificate holders will be 16 OA-3009/2014 considered", there was no merit in the OA, and the same deserves to be dismissed.
19. We have given our anxious consideration to the facts of the case. The applicant has nowhere stated that he was not aware of this Note in Para-14 reproduced above, which was a part of the educational and technical qualifications prescribed, before he took the examination. Learned counsel for the respondents also emphasized on the other portions of the same advertisement, in which in the Note it was mentioned that the final select list shall be based on marks in written test only, and also the portion which stated that the qualifications prescribed included the equivalent Diploma/ Certificate holders. Learned counsel for the respondents also emphasized on the point that the basic qualification prescribed was the NCVT Certificate in the relevant trade, only failing which an ITI or equivalent Diploma/Certificate holder in the relevant trade was to be held to be entitled, and in order to remove the doubts, if any, regarding the sequencing and equivalence, it had been made clear that the applicants with ITI or equal Diploma Certificates will be considered only when applicants with National CVT certificates will not be available. His submission was that mere inclusion of his name in the select list on the basis of 17 OA-3009/2014 marks obtained in the written test, therefore, could not be the basis for the applicant to claim appointment, when he was himself not disputing that he possessed only an equivalent Certificate from the State CVT as on the date of his application. He submitted that the overriding preference mentioned for National CVT Certificate holders was sufficient ground for the respondents to consider the candidature of those holding the National CVT first, before starting to consider the case of the applicant. He also emphasized very much that though the applicant had obtained the NAC, but that course itself had run from 03.01.2011 to 02.01.2013, and the Trade Test thereafter had been conducted by the National CVT in April-May 2013, which was much beyond the last date for receipt of the applications under the said advertisement, which was 21 days from the date of publication of the advertisement in the Employment News and Rozgar Samachar, and the date of the written examination itself had been scheduled for 14.10.2012, much before the applicant had obtained his NACC Certificate.
20. Thus, though even the respondents have not disputed the fact that the applicant possessed an equivalent qualification, but the stipulation in the educational technical qualification in the Advertisement itself had provided that 18 OA-3009/2014 only when the applicants with National CVT Certificates will not be available, then only the applicants with ITI or equivalent Diploma/Certificates would be considered. This stipulation appears to have had over-riding effect in the instant case. It was not as if the applicant was unaware of this stipulation already contained in the advertisement Notification. Still he responded to the said advertisement, took his chance, appeared in the written test and the selection Trade Test, but ultimately it turned out that in the select list as prepared finally, the required number of National CVT holders were available, which had to be given preference, as per the prescription already given in the Recruitment Notification. It is not as if the respondents had changed the Rules of the game after the game had been started. Also, the respondents have correctly pointed out that the applicant had acquired the NAC after the last date of receipt of applications on 15.09.2012, since his Apprenticeship Training itself extended upto 02.02.2013, and the Trade Test thereafter had been held in April/May-2013.
21. We have also carefully examined the facts of the case in Sanjay Kumar vs. UOI & Ors. (supra) decided by the Delhi High Court in the context of Apprenticeship Act, and have found that the two cases are not at all on all fours with each 19 OA-3009/2014 other. In that case, the stipulation was that Trade Apprentices of Ordnance Factory will be entitled to preferential treatment, and the High Court had held that preference will be given only to those persons who have an equal number of marks in the Trade Test. Here, the respondents have not insisted upon Apprenticeship having been obtained in their Ordnance Factory alone, but have rather prescribed that first preference will be given to those who possess National CVT Certificates, and only when they are exhausted, and are not available, then only the other applicants with ITI Diploma/Certificates will be considered.
22. We are bound, therefore, in this case not by the Hon'ble Delhi High Court judgment in Sanjay Kumar vs. UOI & Ors (supra), as was tried to be made out by the learned counsel for the applicant, but the following plethora of judgments, in which it has been repeatedly held that after knowingly taking part in the examination/process of selection, the candidate cannot lay a challenge to that process itself, after he has been unsuccessful:-
i) Madan Lal vs. State of J&K: AIR 1995 SC 1088;
ii) Dhananjay Malik & Ors. vs. State of Uttaranchal & Ors.: AIR 2008 SC 1913: (2008) 4 SCC 171;
20 OA-3009/2014
iii) National Institute of Mental Health & Neuro Sciences vs. Dr. K.Kalyana Raman & Ors. AIR 1992 SC 1806;
iv) Osmania University Represented by its Registrar, Hyderabad, Andhra Pradesh vs. Abdul Rayees Khan: (1997) 3 SCC 124;
v) K.H. Siraj vs. High Court of Kerala & Ors.
(2006) 6 SCC 395;
vi) University of Cochin Rep., by its Registrar vs. N. S. Kanjoonjamma and Others, AIR 1997 SC 2083;
vii) K.A. Nagamani vs. Indian Airlines & Ors., (2009) 5 SCC 515;
viii) Amlan Jyoti Borooah vs. State of Assam & Ors., (2009) 3 SCC 227;
ix) Manish Kumar Shashi vs. State of Bihar & Ors.
(2010) 12 SCC 576;
x) Chandra Prakash Tiwari & Ors. vs. Shakuntala Shukla & Ors., (2002) 6 SCC 127: 2002 SCC (L&S) 830;
xi) Union of India & Another vs. N. Chandrasekharan & Ors. (1998) 3 SCC 694.
23. We hold accordingly that the applicant before us was also bound by the condition that only when the applicants with National CVT certificates are not available, then only equivalent applicants with ITI Diploma/Certificate holders will be considered.
24. An equal number of case law, or rather more, can be cited in which it has been held that the applicant should 21 OA-3009/2014 possess the required qualification on the last date of filing of an application, which was 15.09.2012 in this case, while the applicant came to acquire the NAC some time after the Trade Test had been conducted in April/May-2013, after he had attended the two years' course from 03.01.2011 to 02.01.2013.
25. Therefore, it is clear that there is no merit in the OA, and the same is, therefore, dismissed, but there shall be no order as to costs.
(Raj Vir Sharma) (Sudhir Kumar) Member (J) Member (A) cc.