Central Administrative Tribunal - Hyderabad
M Jeethender Reddy vs M/O Defence on 5 July, 2021
OA No.399/2015
CENTRAL ADMINISTRATIVE TRIBUNAL
HYDERABAD BENCH
HYDERABAD
OA/021/00399/2015
Reserved on: 24.06.2021
Pronounced on : 05.07.2021
Hon'ble Mr. Ashish Kalia, Judl. Member
Hon'ble Mr. B.V. Sudhakar, Admn. Member
M. Jeethender Reddy
S/o Late Sri M. Rajagopal Reddy,
Aged about 38 years,
Occ : Welder, P.No.2345-7, Sec.QA(FA),
Ordnance Factory Project,
Yeddumailaram, Dist: Medak. ...Applicant
(By Advocate :Mr. K. Phani Raju)
Vs.
1. The Union of India,
Rep by its Secretary, Ministry of Defence,
New Delhi.
2.The Director General,
Ordnance Factory Board,
Ministry of Defence, 10-A,
Saheed Khudiram Bose Road,
Kolkata-70001.
3.The General Manager,
Ordnance Factory Project,
Government of India,
Ministry of Defence,
Yeddumailaram, Medak Dist.
4.K.Heera Singh,
Chargemen-T/M P.No.919210,
Ordnance Factory Project,
Yeddumailaram, Dist: Medak. ....Respondents
(By Advocate: Mrs. K. Rajitha, Sr. CGSC
Mr. K. Rama Murthy for R-4)
---
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OA No.399/2015
ORDER
(As per Hon'ble Mr.B.V.Sudhakar, Administrative Member) Through Video Conferencing:
2. The OA is filed challenging the decision of the respondents in not promoting the applicant to the post of Chargemen-T/ Mechanical.
3. Brief facts are that the applicant, belonging to the UR category, while working in a Skilled post in the respondents organization, applied for the post of Chargemen in response to the notification issued by the respondents on 24.7.2014 to fill up 5 posts in the said cadre with the break-
up of the vacancies as UR-4, SC-1 & ST-0. Applicant appeared in the exam and stood 4th in the merit list with 135 marks to his credit. However, respondents amended the notification one day before the last date of submitting the application, by reducing the UR vacancies to 3 and including 1 ST vacancy. Consequently, applicant could not be selected due to the reduction of UR vacancies and contesting the same, the OA is filed.
4. The contentions of the applicant are that the respondents have made a mistake in not identifying a ST vacancy in 2011 notification which they corrected in the 2013 notification. However, when an ST candidate approached the Tribunal in OA 57/2013, it was allowed on 2.4.2013, by directing the respondents to show the applicant therein as the last candidate selected in the 2011 notification. The Tribunal order when challenged vide WP No.17264 of 2013, the Hon'ble High Court has directed the respondents to re-notify the ST vacancies and without bringing the correct facts to the notice of the Hon'ble High Court respondents amended the notification to reduce the number of UR vacancies to 3 and added 1 ST vacancy. Thus, the applicant contends that there was no proper Page 2 of 9 OA No.399/2015 application of mind in understanding the order of the Hon'ble High Court and in the process grave injustice was done to the applicant by violating Articles 14 & 16 of the Constitution.
5. Respondents while confirming the career details of the applicant, do confirm that the notification was issued on 24.7.2014 to fill up 5 vacancies of Chargemen with 4 of them identified for UR and 1 for SC category respectively. Respondents admit that in 2005 notification, an SC and an ST candidate, who qualified on merit were shown against reserved vacancies instead of UR vacancies. A similar mistake was repeated in 2008 notification when 2 SC candidates qualified on merit. This lapse was pointed by the SC/ST Association and the Liaison Cell, after the appointments i.r.o. 2011 notifications were finalized. However, the backlog vacancies of 3 SC and 1 ST were carried forward to 2013 notification and filled up, to rectify the mistake noticed. Nevertheless, based on the orders of the Hon'ble High Court in WP 17264/2013 dated 24.4.2014, the vacancies in 2014 notification were re-notified as 3 UR and 1 ST on 13.08.2014. The said amendment to the notification was not challenged by the applicant before the result of the examination was declared, as required under law. Applicant was not meritorious and no ST vacancy was filled up in excess. Applicant being an unsuccessful candidate cannot challenge a finalized selection. Hon'ble High Court order has been properly implemented. The applicant on getting equal marks of 135 as scored by the candidate at 3rd position, was shown at Sl. No.4 as per the criteria laid down to decide merit rank when equal marks are scored. Applicant name Page 3 of 9 OA No.399/2015 appearing in the select list would not create a right for employment as per law.
6. Heard both sides counsel and perused the pleadings on record. We have also gone through the written arguments filed on behalf of the respondents 1 to 3.
7. I. The dispute is about the non-selection of the applicant to the post of Chargeman-T/Mechanical against notification issued by the respondents in 2014. The facts of the case reveal that the applicant appeared in the exam held against the notification cited and scored 135 marks which were also scored by the candidate at 3rd position under UR category. However, based on the respondents evolved criteria in fixing the merit order when candidates score equal marks, as explained in the Reply statement, applicant was shown at Sl.4.
II. The breakup of the vacancies initially shown against the notification was UR-4, and SC-1. Respondents have admitted in the reply statement that they have made a mistake in not adjusting 3 SC candidates and 1 ST candidate against UR vacancies against the notifications of 2005 and 2008 respectively, albeit they qualified on merit. The mistake when pointed out by the SC/ST Association and the Liaison cell, respondents corrected the same by carrying forward the 3 SC and 1 ST vacancies to the 2013 notification and completed the recruitment. Thereby the mistake was rectified lock, stock and barrel.
III. However, aggrieved by the mistake committed by the respondents in not properly showing the SC/ST vacancies in 2011 Page 4 of 9 OA No.399/2015 notification, those effected filed OAs 57,506 & 507 of 2013 and the Tribunal in OA 57/2013 directed the respondents to show the applicant therein as the last candidate in the select list of 2011 notification. The Tribunal order when challenged in WP 17264/2013, Hon'ble High Court directed the respondents to re-notify the ST vacancies vide judgment dated 24.4.2014. Respondents, complying with the Hon'ble High Court order, have amended the 2014 notification by reducing the UR vacancies to 3 and added 1 ST vacancy, just one day before the last date for submission of the application against the said notification. As a result of the amendment, the applicant could not be selected since there were only 3 UR vacancies.
IV. The important aspect is that the applicant stood at Sl.4 on merit. Had the respondents not reduced the number of UR vacancies from 4 to 3, the applicant would have been selected. Hon'ble High Court order has only directed to re-notify the ST vacancies and it was the responsibility of the respondents to bring to the august notice of the Hon'ble High Court that the mistake in not indicating the SC/ST vacancies correctly in 2005 & 2008 was corrected in 2013, as admitted by them. They have failed to do so and hence, the Hon'ble High Court has directed to re-notify the ST vacancies in view of the error committed by them in not properly showing the ST vacancies, as per rules. The mistake of the respondents should not recoil on the applicant, as observed by the Hon'ble Supreme Court in a series of Judgments as under:
(i) The Apex Court in a case decided on 14.12.2007 (Union of India vs. Sadhana Khanna, C.A. No. 8208/01) held that the mistake of the department cannot recoil on employees.
(ii) In yet another recent case of M.V. Thimmaiah vs. UPSC, C.A. No. 5883-5991 of 2007 decided on 13.12.2007, it has been observed that if Page 5 of 9 OA No.399/2015 there is a failure on the part of the officers to discharge their duties the incumbent should not be allowed to suffer.
(iii) It has been held in the case of Nirmal Chandra Bhattacharjee v.
Union of India, 1991 Supp (2) SCC 363 wherein the Apex Court has held "The mistake or delay on the part of the department should not be permitted to recoil on the appellants."
In the instant case, respondents being aware that they have adjusted the 3 SC & 1 ST vacancy as required in 2013 notification, made a mistake by reducing the UR vacancies of 2014 and for this mistake, the applicant cannot be penalized, as per the above verdict. Besides, the Hon'ble High Court has directed to re-notify the ST vacancies and nowhere was it specified to reduce the UR vacancies. The order of the court has to be properly understood and if there is some difficulty in implementing the judgment, it is incumbent upon the respondents to approach the court to pray for clarification by providing the relevant details. Respondents have not done so and instead, amended the notification resulting in the arousal of the grievance of the applicant.
V. The argument of the respondents is that the applicant did not challenge the amendment of the notification and therefore, he cannot challenge the selection after the results are declared. True, it is settled law that an unsuccessful candidate cannot challenge a selection/examination after participating in it. However, in the instant case, the applicant was not unsuccessful but was made unsuccessful by the respondents due to their own mistake by not properly placing the facts before the Hon'ble High Court and reducing the UR vacancies of 2014 notification to 3, though they corrected the mistake of not properly showing the SC/ST vacancies in 2013 notification for the post of Chargemen, as per their own admission in the Page 6 of 9 OA No.399/2015 reply statement. The applicant stood at sl. 4 on merit and would have been selected but for the mistake of the respondents. Therefore, the stand of the respondents that the applicant was unsuccessful is incorrect and hence, the law concerning unsuccessful candidates would not come to the rescue of the respondents. Further, respondents asserted that the name of the applicant merely appearing in the select list does not create a right for promotion. The contention can be agreed to, provided respondents have not faltered in declaring the vacancies properly. Penalizing the applicant for respondents own mistake, is not permitted under law, as laid by the Hon'ble Supreme Court in the following judgments:
a. Rekha Mukherjee v. Ashis Kumar Das, (2005) 3 SCC 427:
36. The respondents herein cannot take advantage of their own mistake.
b. Further, it is settled law that no one should be penalized for no fault of his. (See Mohd. Ghazivs State of M.P. 2000(4) SCC 342). Moreover, it is well laid down in law that a model employer, like the respondents, should not jeopardize the career opportunities of the employees by taking decisions to frustrate their valid claims, as observed by the Hon'ble Supreme Court in Bhupendra Nath Hazarika &Anr. vs. State of Assam & Ors on 30 November, 2012 in CA Nos.8514-8515 of 2012, by referring to Uma Devi judgment, as under:
53. We have stated the role of the State as a model employer with the fond hope that in future a deliberate disregard is not taken recourse to and deviancy of such magnitude is not adopted to frustrate the claims of the employees. It should always be borne in mind that legitimate aspirations of the employees are not guillotined and a situation is not created where hopes end in despair. Hope for everyone is gloriously precious and a model employer should not convert it to be deceitful and treacherous by playing a game of chess with their seniority. A sense of calm sensibility and concerned sincerity should be reflected in every step. An atmosphere of trust has to prevail and when the employees are absolutely sure that their trust shall not be betrayed and they shall be treated with Page 7 of 9 OA No.399/2015 dignified fairness then only the concept of good governance can be concretized. We say no more.
VI. During the hearing, Ld. Counsel for the respondents has submitted that the promotions to the cadre of Chargemen had to be cancelled as the relevant Diploma certificates were obtained by employees from Universities not recognized by AICTE. The relevant portion of the written arguments in regard to the above contention is extracted hereunder:
"l. The applicant obtained his Diploma in Mechanical Engineering certificate from the Institute of Mechanical Engineers (lME), Mumbai. The Diploma certificate obtained from IME is challenged before different benches of Hon'ble Tribunals.
2. Hon'ble CAT., Madras Bench in its common order dated 08.08.2016 in OA No. 1327 of 2013 & batch allowed the original Application stating that the IME certificate valid. Aggrieved with the Hon'ble Tribunal orders, department decided to challenge the orders before the Hon'ble High court of Madras. Accordingly writ Petition Nos.3666, 1990, 2047, 2826, 2876, 6126, 6899 of 2017 were filed before the Hon'ble High Court of Madras. Hon'ble High Court vide its common order dated 30.08.2019 had allowed the appeal and remitted back, the case to Hon'ble CAT, Madras Bench for a fresh consideration for deciding the question as to whether the Diploma obtained from Institution of Mechanical Engineers through correspondence courses is equivalent qualification as per the SRO for the post of Chargeman (Tech/Mechanical) and in the light of the observation made by the Hon'ble Supreme Court in its judgment dated 13.08.2019 in Civil Appeal No. 17922 of 2017.
3. As ordered by the Hon'ble High court of Madras, Hon'ble CAT, Madras Bench has given reasonable opportunity to the Applicants therein and Respondents to file written statements. On perusing the written statements and hearing both sides, vide common order dated 19.03.2020 in OA Nos. 1943/2016, 169/2016, 1328/2013, 1234/2013, 1327/2013, 1909/2014, 1936/2014, 166/2016, 1408/2012 & 1665/2013 held that:
"..the Technicians Engineering Course (Diploma) from the Mechanical Engineers (lME) cannot be considered as equivalentqualification prescribed under the RR for the post of Chargeman under the OFB.
18. In the result, OA l234/l3 is allowed. OA Nos. 1943/2016, 169/2016, 1328/2013, 1327/2013, 1909/2014, 1936/2014, 166/2016, 1408/2012 & 1665/2013 will stand dismissed. Consequently, MA729113 also stands dismissed. No costs."
4. Accordingly the department had issued notices to the individuals who are promoted as Chargemen Mechanical and whose results are kept in sealed cover, with the qualification of Diploma from IME for reversion to the parent post. Challenging the notices the applicant in OA No. 399 of 2015 alongwith others, filed OA No. 264 of 2020 before the Hon'ble CAT., Hyderabad. Hon'ble Tribunal vide interim order dated 22.05.2020 observed that:
"the issue is as to whether the certificates obtained from the Institute can be treated as a valid qualification. By the time the Page 8 of 9 OA No.399/2015 DPC met, the issue was under consideration by the Madras Bench of this Tribunal and accordingly the sealed cover procedure was adopted. The Madras Bench of the Tribunal passed an order in O.A. 1943/2014 and batch dated 19.03.2020 holding that such certificates cannot be treated as valid. In the meanwhile the Hon'ble Supreme Court also rendered its judgment as regards the validity of the certificates obtained through Distance Mode.
In view of these developments, the persons, who are promoted by maintaining the sealed cover are sought to be reverted. We are not inclined to stay reversions, once the promotions were made conditional. However, such reversions shall be subject to further orders."
5. From the above, it is clear that the basic qualification of the applicant in OA No. 399 of 2015 is not an equivalent qualification for the post of Chargeman under Ordnance Factory Board. Hence the OA is liable to be dismissed on the qualification of Diploma also." Ld. Counsel for the applicant strongly refuted that no one was reverted after the promotion was granted as Chargemen.
VII. After hearing both the counsel, we felt it proper to direct the respondents to grant promotion to the applicant as Chargemen in any of the UR vacancy available after the year 2014 without backwages but granting notional seniority from the date of promotion, provided the diploma/certificate submitted by the applicant, is found to be valid in accordance with the relevant and applicable norms of the respondents organization as well as law. Accordingly, respondents are directed to take a decision and intimate the applicant by passing a speaking and reasoned order, within a period of 3 months from the date of receipt of this order.
VIII. With the above direction, the OA is disposed of with no order as to costs.
(B.V.SUDHAKAR) (ASHISH KALIA)
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
evr
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