Central Administrative Tribunal - Hyderabad
Sreesalam Ramachandra Rao vs M/O Defence on 6 January, 2022
OA No.562/2015
CENTRAL ADMINISTRATIVE TRIBUNAL
HYDERABAD BENCH :: AT HYDERABAD
OA/020/00562/2015 with MA Nos.0978/2015 & 552/2015
Date of CAV : 29.11.2021
Date of Pronouncement: 06.01.2022
Hon'ble Mr. Ashish Kalia, Judl. Member
Hon'ble Mr.B.V.Sudhakar, Admn. Member
1.Sreesailam Ramachandra Rao
S/o Venkata Rao, Age Yrs, Occ: unemployed,
R/o D.No.58-30-13, Saketha Puram, NAD (Post),
Visakhapatnam-530009.
2.Janapareddy Koteswara Rao,
S/o Appa Rao, Age : yrs, Occ : Unemployed,
D.No.5-4-185, Bapuji Nagar, Lawsons Bay
Colony (Post), Visakhapatnam-530017. ...Applicants
(By Advocate: Mrs. Anita Swain)
Vs.
1.The Union of India,
Rep by its Secretary, Ministry of Defence,
South Block, New Delhi 110011.
2.The Chief of Naval Staff,
Integrated Head Quarters,
Ministry of Defence (Navy),
New Delhi 110011.
3. The Flag Officer Commanding in Chief,
Head quarter Eastern Naval Command,
Naval Base, Visakhapatnam 530014.
4.The Admiral Superintendent,
Naval Base, Naval Dockyard,
Visakhapatnam 530014. ....Respondents
(By Advocate: Mr. M. Brahma Reddy, Sr. PC for CG)
---
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OA No.562/2015
ORDER
(As per Hon'ble Mr. B.V.Sudhakar, Admin. Member) Through Video Conferencing:
2. The OA is filed in regard to the absorption of the applicants as welder in the respondents organization.
3. Brief facts are that the applicants are ex-naval apprentices of the respondents' organization in the welder trade belonging to the 1993-94 batch and have completed the requisite training in 1994. Applicants are to be absorbed on the basis of seniority in terms of recruitment rule 150/2000.
However when the applicants appeared in the written tests in 2011 & 2012 they were not absorbed and hence challenging the same OA 1377/2011 was filed which was allowed on 21.10.2013. Though 705 vacancies arose in 2013 applicants were not absorbed despite the cited tribunal order. Aggrieved the OA is filed.
4. The contentions of the applicant are that the OA 51/2008, where in the fixation of upper age limit was challenged with respect to the suitability tests of the years 2007 & 2009, was disposed by the Tribunal directing the respondents on 1.3.2010 to absorb the applicants therein if they are otherwise eligible irrespective of the age limit. The Tribunal order when challenged before the Hon'ble High Court it was dismissed and thereupon the applicants therein were absorbed. However the order of the Tribunal in OA 1377/2011 favouring the applicants was not challenged. Representations dated 24.1.2014 & 9.3.2015 filed were rejected on 7.7.2015 stating that the recruitment rules have been revised which is violative of the order of the Tribunal in OA 1377/2011. Page 2 of 13 OA No.562/2015
At the admission stage, after hearing both the sides, the Tribunal has directed the respondents on 30.4.2015 by passing an interim order to consider the case of the applicants for absorption pending disposal of the OA.
5. Respondents in their reply statement have stated that they issued a notification in Dec 2007 & Feb 2009 to absorb ex-naval apprentices of Dockyard Apprentice School, Vizag (for short DAS (V)) fixing the upper age limit as 25 years as on 31.12.2007 with relaxation of 3 years for OBC and 5 years for SC/ST candidates. Further, a general age relaxation of 1 to 2 years was allowed depending on the length of training in DAS (V). As per SRO 150/2000 which was later amended as SRO 262/2002, 60% of the tradesman skilled post in the designated trades are to be filled by absorption of ex-naval apprentices and 40% by promotion failing which by direct recruitment. By applying the age limit prescribed when some candidates were not allowed to appear at the exam, they have approached the tribunal by filing various OAs and one among them is OA 51/2008. The OAs were allowed on 01.03.2010 by a common order, by directing to consider the candidature of the applicants by setting aside the age condition. When the Tribunal orders were challenged before the Hon'ble High Court no stay was granted and in the meanwhile when contempt petitions were filed, the applicants were absorbed subject to the outcome of the pending writ petitions. The applicants in the instant OA are not the candidates against the Dec 2007 & Feb 2009 notifications nor were they applicants in the OAs filed by others. Hence they are not similarly situated. Further in the subsequent notifications of the years 2011 & 2012 no age limit was Page 3 of 13 OA No.562/2015 prescribed as per SRO 150/2000 and that the applicants applied but could not be selected though they passed the suitability test as seniors to the applicant had to be selected in accordance with inter-se seniority against the vacancies available. Applicants filed OA 1377 of 2011 seeking similar relief on par with those granted in OA 51 of 2008 and for the aforesaid reason applicants were not selected keeping in view the order of the Tribunal in the OA 1377 of 2011 and batch on 21.10.2013. In the meanwhile the SRO 43 of 2012 was issued superseding the SRO 150/2000 deleting the provision for absorption of Dockyard apprentices exclusively. Direct recruitment has to be undertaken on an All India basis from those candidates who possess the National Apprentice Certificate. The age limit prescribed is 18 to 25 years with age relaxation of 3 years for OBC and 5 years for SC/ST candidates. In the present OA tribunal has on an interim basis directed on 30.4.2015 to consider the case of the applicants pending disposal of the OA and the same cannot be implemented in view of the supersession of SRO 150/2000 by SRO 43/2012. Selections have to be made as per the prevalent SRO.
Respondents have filed an additional reply wherein they state that in response to the interim order of the Tribunal dated 30.4.2015 in the instant OA a speaking order was issued rejecting the request vide order dated 7.7.2015. Applicants filed contempt petition for non-implementation of the Interim order and MA 978/2015 has been filed to vacate the interim order. Orders of the Tribunal in OA 782/2013 & OA 350/2014 have been complied and that the Hon'ble High Court in WP 1942 of 2016 filed against OA 295 of 2014, wherein the applicants are the parties as well, has remitted Page 4 of 13 OA No.562/2015 the case back to the Tribunal for adjudication. The OA 295 of 2014 was heard and dismissed on 27.12.2018. The Contempt Petition No.107/2017 in OA 980 of 2011 was closed by the Tribunal on 1.1.2019 by directing the applicants there in to file representations which would be disposed of by the respondents. The applicants representations were accordingly disposed of in compliance with the tribunal order (R-4). Further, SRO 43/12 was amended as SRO 31/2017 by providing for 90% recruitment through direct recruitment and 10% by absorption failing which by direct recruitment. Applicants in para VII of the OA have stated that they did not file writ petition though they have filed WP No.17446 of 2018.
6. Heard both the counsel and perused the pleadings on record.
7. I. The dispute is in regard to absorption of the Naval ex- apprentice in the respondents organization as Welders. Applicants claim that they have to be absorbed as per SRO 150/2000 whereas respondents state that the said SRO - has been superseded and SRO 43/12 dated 18.5.2012 has been issued where in age restrictions for absorption have been brought into vogue. The rival contentions have been adjudicated by the Tribunal in several OAs and touching upon them in the succeeding paras would put a quietus to the dispute.
II. After going through the records on file, we find that the applicants have at para VII of the OA affirmed that they have not filed any WP before the Hon'ble High Court. This is incorrect since applicant No.2 along with another person filed WP No.17446/2018 aggrieved by the non consideration of his case for absorption by implementing the order of this Tribunal in OA 782/2013 before the Hon'ble High Court as claimed by the Page 5 of 13 OA No.562/2015 respondents and the Hon'ble High Court of Andhra Pradesh disposed of the said writ petition vide order dt. 16.03.2020, directing the respondents to consider the case of the petitioners for absorption into Naval Dockyard, Visakhapatnam in terms of the order of this Tribunal. Besides, applicants are parties in RAs filed in OAs 295/14, 1377/11 & 782/13 as claimed by the respondents. The same was not refuted by the applicants by way of a rejoinder. In other words the applicants have not come with clean hands to the Tribunal and therefore for their blameworthy conduct they are ineligible to seek any relief. We take support of the observations of the Hon'ble Supreme Court of India in Chennai Metropolitan Water ... vs T.T. Murali Babu on 10 February, 2014in Civil Appeal No.1941 of 2014 (Arising out of S.L.P. (C) No. 15530 of 2013), to state what we did.
14. In State of Maharashtra v. Digambar (1995) 4 SCC 683, while dealing with exercise of power of the High Court under Article 226 of the Constitution, the Court observed that power of the High Court to be exercised under Article 226 of the Constitution, if is discretionary, its exercise must be judicious and reasonable, admits of no controversy. It is for that reason, a person's entitlement for relief from a High Court under Article 226 of the Constitution, be it against the State or anybody else, even if is founded on the allegation of infringement of his legal right, has to necessarily depend upon unblameworthy conduct of the person seeking relief, and the court refuses to grant the discretionary relief to such person in exercise of such power, when he approaches it with unclean hands or blameworthy conduct.
Hence at the very outset, the OA needs to be dismissed for reason of approaching the Tribunal with unclean hands.
III. Moreover, it is seen that when the respondents introduced age specifications for absorption the same was challenged by filing 7 OAs and one among them was OA 51/2008. Additionally another 12 OAs were filed in 2009 by another set of aggrieved candidates. All the OAs were allowed by a common order on 1.3.2010 by setting aside the age restriction. The Page 6 of 13 OA No.562/2015 orders of the Tribunal were challenged before the Hon'ble High court by filing Writ Petitions and in the absence of any stay orders the applicants therein pressed for implementation of the orders of the Tribunal by filing Contempt petitions. To avoid contempt respondents implemented the orders of the Tribunal subject to the decision of the Hon'ble High Court in the matter. In the process, 118 of the 149 applicants in the said OAs who passed the suitability test were absorbed. The moot point to be considered in regard to the above Tribunal orders is that they relate to the notification issued in 2007/2009. The applicants have not applied against these notifications but they did against the notifications published in the Year 2011/2012.
IV. Nevertheless, applicants filed OA 1377/2011 wherein they sought absorption as Tradesman skilled based on the decision of the Tribunal in OA 51/2008. The Tribunal disposed the OA by observing as under:
"...the applicants are held to be eligible to be considered for appointment irrespective of their upper age. But they have not made any application for selection, as such, they cannot be straight away granted the relief of a direction for consideration for absorption.
In the circumstances, it is directed that whenever fresh recruitment process takes place, the cases of the applicants have to be considered for absorption if they are otherwise eligible irrespective of their crossing upper age limit."
Applicants have filed a review application RA 30/2013 contesting the fact that they did apply for selection against the vacancies of 2011/2012 but later withdrew it on their own volition. Indeed, to be exact the Tribunal allowed the various OAs by directing the respondents to consider the case of the applicants therein by ignoring the age restriction and similarly in OA Page 7 of 13 OA No.562/2015 1377/2011 as well. However, the applicants were not selected though they passed the suitability test, since seniors to the applicants had to be selected as per inter-se- seniority against the vacancies available. The principle of seniority has been admitted by the applicants in para 4 (a) of the OA. When the vacancies are not available the applicants cannot be expected to be absorbed. Therefore it cannot be gainsaid that the respondents have complied with the relevant orders of the Tribunal by ignoring the age restriction.
V. In addition when the orders of the Tribunal in OA 295/14 wherein applicants were also the parties, were challenged by filing WP 1942/2016, the Hon'ble High Court has remanded the matter back to the Tribunal for deciding the case on merits. The OA 295/14 was heard and dismissed on 27.12.2018 by the Tribunal making the following observation:
"15. "...in the counter affidavit filed OA 295/2014, it has been clearly mentioned that the vacancies that were in existence till the framing of 2012 Rules were segregated and all of them were filled by applying the procedure prescribed in SRO 150/2000. Quite a large number of apprentices got benefit out of the same. The relevant facts and figures are furnished in counter affidavit. If the applicants did not avail the benefit or were not successful therein, nobody can help the situation. Added to that, the SRO 31/2017 has reduced the hardship. The stipulation of age limit cannot be said to have resulted in violation of the rights of the applicants.
16. An important organization like the Naval Dockyard cannot be expected to remain static and it has to progress with the needs of the day. Howsoever, important the rights of the applicant may be, they cannot be placed above the technical requirements and job requirements of the Naval Dockyard. The various judgments relied upon by the applicants are of no direct relevance to the facts of the case. We do not find any merit in the OAs. They are accordingly dismissed."
The order of the Tribunal is clear and categorical that when the applicants are not successful and for not availing the benefit at the right interval of time, they cannot be helped. It was clearly declared that the stipulation of age limit cannot be said to have infringed the rights of the applicant. Page 8 of 13 OA No.562/2015 VI. Going a step further we also observe that the Tribunal by its order dated 1.1.2019 (R-3), did close contempt petitions in a similar issue filed for alleged non implementation of the Tribunal orders in various OAs, by holding as under:
"7. In case the applicants are of the view that any person who is junior to them in the seniority list was absorbed even while leaving them aside, a representation to that effect can be made. There is no reason to believe that the Respondents will not look into such representations. As of now, we do not find that the Respondents did not consider the specific directions. If any representations are made, they shall be disposed of preferably within a period of three months from the date of receipt of the same."
Applicants in the instant OA did represent and they were disposed (R-4). Thus, the applicants availed all the opportunities provided to them but they could not be selected for valid reasons.
VII. Applicants filed MA 552 of 2015 restating their claim that they were not absorbed as per orders of the Tribunal in OA 1377/2011 which is not true, as pointed out in the paras supra. The reason for their non-selection is lack of required seniority to be considered as per the availability of the vacancies. Further, the contention of the applicants that the respondents have not filed any review in respect of OA 1377/2011 nor did they challenge the OA by filing an appeal, lacks legal logic since the respondents implemented the orders of the Tribunal in respect of the applicants by considering seniority. Another plea of the applicants is that the respondents have withdrawn a number of RAs filed before the Tribunal on 14.7.2015 and are proceeding with the filling up of vacancies notified in 2013. The claim is that the vacancies come under the purview of SRO 150/2000. This aspect has been clarified in the MA 978/2015 filed by the respondents for vacation of the interim order dated 30.4.2015, by drawing Page 9 of 13 OA No.562/2015 our attention to the disposal of OAs 782/2013 & batch and OA 350/2014 & batch on the same issue by passing orders on 05.12.2014 and 31.1.2015 respectively, wherein the applicants are parties to the OA No. 782/2013. The relevant paras are extracted here under:
"...Accordingly, we direct the respondents to fill up the vacancies which are occurred prior to 2012 published in the Employment News dated 20-26 April by following the Integrated Headquarters (Tradesmen) Recruitment Rules, 2000 (SRO 150) as interpreted by the decision dated 01.03.2010 in OA No. 51/2008 and batch on the file of this Bench, if they are otherwise eligible."
The orders of the Tribunal are clear that the vacancies prior to 2012 are to be filled up as per SRO 150/2000. Vacancies arising from 2012 onwards are to be filled up by following SRO 43/2012 and hence there is no ambiguity on this count. Applicants expecting application of SRO 150/2000 for vacancies arising after issue of SRO 43/12 is unfair to say the least. VIII. Further amending the recruitment rule in the form of SRO 43/12 can be done by the respondents and the observations of the Tribunal in OA 295/14 wherein applicants are parties are apt and we respectfully endorse the same. Withdrawing the RAs by the respondents cannot be found fault with, since the Tribunal can in no way force them to continue to be litigative. It is also observed that RA No.18 of 2015 filed in OA 295 of 2014 was dismissed on 10.12.2015 and RA No. 11 of 2015 filed in OA 782 of 2013 was dismissed as withdrawn on 14.07.2015. Applicants filed RA 30 of 2013 in OA 1377 of 2011 but withdrew it later on 13.03.2014. Applicant No.2 has filed OA 121 of 2014 which was dismissed as withdrawn on 06.07.2016 Page 10 of 13 OA No.562/2015 IX. To reiterate, though repetitive, but to usher in clarity, it is evident from the preceding paras that the issue was examined by the Hon'ble High Court when orders in OA No.295 of 2014 were challenged and it was remanded to the Tribunal for disposing it on merits. Accordingly, it was examined and dismissed wherein the applicants were also the parties. Further, when OA No.1377 of 2011 was filed the applicants were considered for selection as per the orders of the Tribunal but since they could not make it on the basis of seniority they were not selected. Even when the contempt petitions were filed for non-implementation of the Tribunal orders, it was directed that the applicants therein can submit representations for redressal of their grievances. Accordingly, 2nd applicant filed representation, which was disposed by the respondents on 29.04.2019. Thus, on merits, there is nothing left for the Tribunal to intervene on behalf of the applicants. Above all, the applicants have not come with clean hands as observed at para II supra and therefore granting any relief is ruled out as per law. The Principle of Res judicata squarely applies to the case of the applicants, since they have been agitating on the same issue by being parties in different OAs, which have been decided by the Tribunal, as for instance, in OA 1377/2011 & OA 295/2014. It is a good case for imposing costs on the applicants but we desist to do so trusting that the applicants would realize that the judicial forum has to be approached for seeking justice but not otherwise.
X. Lastly, it is well settled in law that the recruitment rules prevailing shall be applied for filling up the vacancies of the years for which the recruitment rules are applicable. The same has been rightly observed in OA Page 11 of 13 OA No.562/2015 783 and batch. In the instant case, the vacancies of 2007/2008 were filled up in accordance with SRO 150 /2000 where there is no age specification, with the intervention of the Tribunal. Even for the vacancies for the years 2011/2012 as per Tribunal orders the age condition was relaxed but the applicants could not be selected for not being senior enough to be considered albeit they passed the suitability test. Relaxation of recruitment conditions/rules cannot be arbitrarily done as per the observation of the Hon'ble Supreme Court in Raj Kishore Vishwakarma v. Union of India, (1997) 11 SCC 619, as under:
22. Relaxation of Rules has to be applied after careful consideration and not in a cavalier manner as held by the Apex Court in the case of Union of India v.
Dharam Pal,(2009) 4 SCC 170, wherein it has been held, "it is now well settled that even power of relaxation even specifically provided in the appointing authority himself being created (sic by) a statute cannot be exercised in an arbitrary and cavalier fashion."
(ii) 'the eligibility criteria cannot be relaxed unless there exists a specific provision therefor. A person can avail the benefit of relaxation notification only when he satisfied the conditions specified therein.' See State of Maharashtra vs Shashikant S. Pujari (2006) 13 SCC 175.
Based on the above legal principle, respondents even on their own cannot relax the rules unless there is a specific provision in the recruitment rules. The respondents have therefore come up with SRO 43/2012 laying down the condition that the recruitment shall be on All India basis and this cannot be relaxed to grant relief as sought by the applicants. XI. The respondents have as a policy decided to throw open the selection on an all India basis by issuing SRO 43/12, instead of restricting to the naval apprentice of DAS (V). This is a policy matter of the respondents and it is well settled in law that the Tribunal has very narrow scope to intervene in policy matters unless the policy is demonstrated to be malafide. We do Page 12 of 13 OA No.562/2015 not find any malafide in the decision of the respondents to throw open selection on an All India basis from among those who possess the relevant trade certificate issued by the National Counsel of Vocational Training. This would attract better talent by facilitating intense competition. Respondents organization being in the domain of defense they need to have the best of talent possible. The latest SRO issued in regard to absorption is 31/2017 which rules the roost as of now. Any attempt to prevent the respondents to amend the recruitment rules is unlawful. Organizational Management is dynamic and it is the prerogative of the respondents to frame Recruitment Rules as per Organizational needs and changing times. Applicants request has been fairly examined by the respondents and decided. Respondents have pointed out that the applicants have been filing many OAs under one pretext or the other which has not been refuted. Filing OAs without valid grounds would not give way for any relief but on the contrary it may lead to be viewed as something amiss. Other contentions of both the parties have been gone through and only those which were relevant have been dealt with.
XII. Thus, viewed from any angle, as expounded above, the case of the applicants lacks merit and therefore, we dismiss the OA, with no order to costs. Pending MAs are accordingly disposed.
(B.V.SUDHAKAR) (ASHISH KALIA)
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
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