Central Administrative Tribunal - Chandigarh
Raj Kumar vs Cgst on 28 February, 2024
1- O.A. No. 236/2022
CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
Original Application No.060/236/2022
Pronounced on:28.02.2024
Reserved on: 14.02.2024
CORAM: HON'BLE MR. SURESH KUMAR BATRA, MEMBER (J)
Raj Kumar, aged 32 years, son of Late Sh. Swinder Pal, resident of
village Khanpur, Post Office Mahilpur, Tehsil Garhshankar, District
Hoshiarpur.
....Applicant
(By Advocate: Mr. Dilshad S. Gill for Mr Sewa Singh)
Versus
1. Union of India, Ministry of Finance, Department of Revenue, Central
Board of Excise and Customs, New Delhi through its Secretary -
110001.
2. The Principal Commissioner, Central GST Commissionerate,
Central Revenue Building, Plot No. 19, Sector 17-C, Chandigarh -
160017.
... .Respondents
(By Advocate: Mr. Piyush Khanna, Sr. Panel Counsel)
ORDER
Per: SURESH KUMAR BATRA MEMBER (J):-
1. The applicant has filed the present Original Application under Section 19 of the Administrative Tribunals Act 1985 seeking the following relief:-
(i) The impugned order dated 18.03.2021 (Annexure A-1) may be quashed and consequently a direction be issued to the respondents to immediately offer appointment to applicant against any available Class-III/Class-IV post commensurate to his qualification in view of the directive already issued by this Tribunal vide order Annexure A-5.2- O.A. No. 236/2022
2. The factual matrix of the case is that the applicant was appointed as Tax Assistant on compassionate grounds vide order dated 20.11.2014, after the death of his father on 07.08.2012. The UGC withdrew recognition from the Eastern Institute for Integrated Learning in Management (EIILM) University, Sikkim wherefrom the applicant was graduated. By virtue of such withdrawal of recognition by the UGC, it was held that the applicant is not a graduate, therefore, he could not be appointed as Tax Assistant. A show cause notice dated 25.10.2016 (Annexure A-4) was issued to the applicant to which he submitted reply dated 09.11.2016 (Annexure A-5). Vide order dated 25.07.2017 (Annexure A-6), the services of the applicant were terminated with immediate effect. The applicant filed O.A. No. 1428/2017 challenging the order of his termination, which was disposed of by this Tribunal vide order dated 15.12.2017 (Annexure A-7) with the direction to the respondents to consider the claim of the applicant against a lower post as per his qualification. The applicant made a representation dated 22.01.2018 (Annexure A-8). However, his claim has been rejected by the respondents vide order dated 18.03.2021 (Annexure A-1).
3. The applicant contended that the claim of the applicant for appointment on compassionate grounds has been rejected by passing a non-speaking order, which is illegal and deserves to be quashed.
4. The respondents filed written statement contesting the claim of the applicant. It has been stated that pursuant to the directions of this Tribunal, the claim of the applicant for appointment on compassionate grounds was considered by the Welfare Committee Meeting held on 11.06.2018, along with the cases of other applicants for compassionate 3- O.A. No. 236/2022 appointment, but the Welfare Committee did not recommend the name of the applicant to any post. Accordingly, the representation of the applicant dated 22.01.2018 has been rejected vide order dated 18.03.2021.
5. I have gone through the pleadings and considered the rival contentions of learned counsel for both sides.
6. This is the 3rd round of litigation, thereby the applicant has challenged the impugned order dated 18.03.2021 (Annexure A-1) whereby the respondent no. 2 has communicated a decision of Welfare Committee not to recommend his name for appointment on any post. The factual matrix of the case is that the father of the applicant late Sh. Swinder Pal died in harness on 07.08.2012 while working as LDC in the office of Customs Preventive, Amritsar. The applicant, who possessed the degree of B.A. from the Eastern Institute for Integrated Learning in Management (EIILM) University Sikkim, applied for appointment on compassionate grounds. The respondents vide order dated 20.11.2014 (Annexure A-2) issued offer of appointment to the post of Tax Assistant which was accepted by the applicant. During the verification of educational certificates of the applicant, it was found by the respondents that the UGC had already withdrawn the recognition granted to the said EIILM University, Sikkim and the University did not have power to open off-campus/Study Centres. On the basis of verification report, it was held by the respondents that the applicant not being a graduate could not be appointed as Tax Assistant and thereby a show cause notice dated 25.10.2016 (Annexure A-4) was issued to the applicant to which the applicant replied vide Annexure A-5 dated 09.11.2016. The 4- O.A. No. 236/2022 respondents vide Annexure A-6 dated 25.07.2017 terminated the services of the applicant on the basis of furnishing invalid degree to procure appointment to the post of Tax Assistant on compassionate grounds. The applicant challenged the show cause notice dated 25.10.2016 issued by the respondents by way of O.A. No. 1428/2017 before this Tribunal. This Tribunal vide order dated 15.12.2017 disposed of the O.A. in limine. The relevant observations of this Tribunal are as under:-
"5. Shri K.K.Thakur, Advocate, who is in receipt of advance notice does not object to the disposal of the OA in the above terms.
6. Considering ad-idem between the parties, we dispose of the present OA in limine with a direction to the applicant to make a representation to the respondents for considering him on the post of LDC/Hawaldar or any other equivalent lower post as per his qualification, within a period of fifteen days from the date of receipt of certified copy of this order. After receipt of the representation, the respondents shall consider the same and pass a reasoned and speaking order on the representation of the applicant within a period of two months from the date of receipt of representation. Order so passed be duly communicate to the applicant.
7. Disposal of the OA in the above terms shall not be construed as an opinion on the merit of this case."
7. The applicant in terms of the direction given by this Tribunal submitted a representation dated 22.01.2018 (Annexure A-8) to the respondents for consideration to the lower post according to his educational qualification. The respondents vide order dated 23.03.2018 and in terms of DoP&T OM dated 16.01.2023 on the subject 5- O.A. No. 236/2022 'Consolidated Instructions on Compassionate Appointment' constituted a committee vide order dated 14.03.2018 for consideration of case of applicant along with other applicants seeking appointment on compassionate ground. The said committee held meeting on 11.06.2018 to consider the request of 60 applicants including the applicant herein. From the perusal of minutes of meeting, it is seen that the committee recommended four names to the post of Tax Assistant on compassionate grounds and the name of one candidate Sh. Sandeep Singh was recommended to the post of Havaldar on compassionate grounds. Since no candidate was found eligible as per the Recruitment Rules of Steno Grade-II, therefore, the Committee did not recommend any candidate for appointment to the post of Steno Grade-II.
8. The applicant filed Execution Application No. 1179/2020 for execution of order dated 15.12.2017 of this Tribunal. During the pendency of the said M.A., the respondents placed on record an order dated 18.03.2021 (Annexure A-1) whereby the representation of the applicant was rejected and the same is under challenge before this Tribunal in the instant O.A.
9. I have carefully and meticulously examined the impugned order dated 18.03.2021 (Annexure A-1), minutes of meeting dated 11.06.2018 along with order dated 23.03.2018. From the perusal of order dated 18.03.2021 (Annexure A-1), I found that the said impugned order is a replica of order dated 23.03.2018 passed by respondent no.
2. The said impugned order has been drawn on the basis of minutes of meeting dated 11.06.2018. The said communication/order dated 18.03.2021 is issued beyond the time limit prescribed by this Tribunal 6- O.A. No. 236/2022 vide order dated 15.12.2017. The learned counsel for the respondents at the time of hearing and disposal of O.A. No. 1428/2017, has not objected to the disposal of the O.A. in terms of argument of learned counsel for the applicant that the case of the applicant for appointment to the post of LDC/Havaldar or any other equivalent lower post as per his qualification may be considered. Once the respondents have accepted the said contention of the applicant, the respondents, at this stage, cannot be allowed to take a U -turn from their earlier stand. The said O.A. was disposed of with the direction to the applicant as well as the respondents considering ad-idem between the parties. I find that the impugned order has not been issued in accordance with the spirit of the order dated 15.12.2017 passed by this Tribunal.
10. The respondents vide order dated 25.07.2017 has held that since the applicant does not fulfil the criteria of educational qualification, he is not eligible for the post of Tax Assistant. The conclusion drawn by the respondents does not mean that he is also not eligible for any lower post according to his qualification. After obtaining the B.A. degree from EIILM University Sikkim, the applicant did PGDCA diploma from Punjab State Board of Technical Education and Industrial Training, Chandigarh and M.Sc (IT) from Karnatka State Open University, Mysore. The essential parameters required to consider the case of appointment on compassionate grounds were found in favour of applicant at the time of initial stage i.e. at the time of consideration of applicant to the post of Tax Assistant. Once the respondents have found the applicant suitable to be appointed to the post of Tax Assistant on compassionate grounds in terms of the object of the Policy, the said 7- O.A. No. 236/2022 parameters cannot be re-examined in the subsequent meeting held on 11.06.2018 to consider the case of applicant along with other 60 candidates in terms of order of this Tribunal dated 15.12.2017. Due to de-categorization of EIILM University, Sikkim by the UGC, the applicant cannot be made to suffer. The claim of the applicant is also at higher pedestal since he has gained experience during the period 21.11.2014 to 25.07.2017 while working as Tax Assistant in the respondent department. From the perusal of minutes of meeting it is noticed that there is mention of regarding the inclusion of name of the applicant among 60 candidates for consideration in the minutes, but no deliberation, whatsoever, regarding his suitability to the lower post has been made in terms of the direction issued by this Tribunal vide order dated 15.12.2017. From the aforesaid, it can be inferred that the members of the Committee were not aware about the direction of this Tribunal issued vide order dated 15.12.2017 without any objection from the respondents in disposal of that O.A.
11. In view of the aforesaid, the impugned order dated 18.03.2021 (Annexure A-1) is held to be contrary to the direction issued by this Tribunal and, therefore, the same is hereby quashed and set aside. The Original Application is allowed. The respondents are directed to re-consider the case of the applicant for compassionate appointment against the post as per his educational qualifications, within a period of two months from the date of receipt of a certified copy of this order. No costs.
(SURESH KUMAR BATRA) MEMBER (J) 'mw'