Central Administrative Tribunal - Delhi
Sh. Dharam Vir Singh vs Union Of India on 22 March, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA 3264/2010 New Delhi this the 22nd day of March, 2011 Honble Mr. Justice V.K.Bali, Chairman Honble Mr.L.K. Joshi, Vice Chairman Sh. Dharam Vir Singh, S/o Sh. Sardar Singh, H. No 298, Gali No. 8, West Kranti Nagar, Delhi-110051. Applicant. (By Advocate Ms. Pragnya Routray) VERSUS 1. Union of India Through Secretary, Ministry of Urban Development, Nirman Bhawan, New Delhi-110001. 2. Director of Printing, Directorate of Printing, Ministry of Urban Development, `B Wing, Nirman Bhawan, New Delhi-110001. 3. Manager, Govt. of India Press, ALIGARH (UP). ..Respondents. (By Advocate Shri Krishan Kumar) O R D E R
Mr.L.K.Joshi, Vice Chairman, (A) :
The grievance of the Applicant stems from the fact that in spite of being successful in the tests, conducted in January and February 2008, for the post of Assistant Binder, under the third Respondent, Manager, Government of India Press, Aligarh, and after being selected and offered the post, he has not been allowed to join the same on the pretext of irregularities in the selection process as a whole, without any specific allegation against him, although 48 out of 58 selected candidates were allowed to join on 27.03.2008. Pursuant to the directions of this Tribunal in OA number 377/2010, filed by the Applicant herein for the same cause of action, the Respondents considered the issue and decided by the impugned order dated 14.07.2010 not to appoint him to the post. The Applicant is seeking direction to the Respondents to allow him to join the post of Assistant Binder and quash the order dated 14.07.2010.
2. The facts, in a nutshell, are that the Respondents issued an advertisement in November 2007 for appointment to the post of Assistant Binder. The Applicant applied for the same. The tests, including the interview, were conducted in January and February 2008. The name of the Applicant was included in the list of successful candidates. He was informed by the letter dated 12.03.2008 (Annex A-3) that he had been selected for the post and should complete the formalities. He submitted all the relevant documents. There were 58 vacancies for the post of Assistant Binder, out of which 48 selected candidates were allowed to join on 27.03.2008. The Applicant was, however, not allowed to join. When the Applicant approached the office for joining the post, he was informed that the process of selection had been suspended. A notice to this effect was also displayed on the notice board stating that the process of recruitment/filling up of posts had been suspended forthwith as per the directions received from the Additional Director, Directorate of Printing. The Applicant approached this Tribunal in OA number 377/2010, which was disposed of by considering the judgement of this Tribunal in OA number 1194/2009 in the case of Shri Diwakar V. Government of India Press and others, decided on 07.12.2009 and the following directions were given:
"4. In view of the above facts in the present OA, we find that the issues involved in the current OA are fully covered by the above decision of this Tribunal in OA No.1194/2009 and we accordingly decide the same and direct the Respondents to take decision in the matter as per directions of the Tribunal in OA No. 1194/2009 decided on 7.12.2009. As noted above, the impugned order dated 14.07.2010 was passed following the above directions.
3. Before considering the issues in the instant case, it will be useful to consider the judgement in OA number 1194/2009, already adverted to above. The applicant therein, Shri Diwakar, had also been selected for the post of Assistant Binder in the same examination as the Applicant herein. He was allowed to join on 03.04.2008, but on the next date he was not allowed to perform his duties and was informed that the process of recruitment had been suspended forthwith pending investigations and appropriate decision would be taken as soon as the investigation had been completed. The Tribunal made the following observation in the OA:
"4.The question here is, even if some irregularities have been reported in the selection process and the matter is being investigated, the result would affect all the persons who have been selected in the said recruitment process. When all other 18 persons have been allowed to join, we do not understand, why applicant alone should be denied appointment on this ground. In any case, as on date the respondents have not recorded any specific findings on the irregularities alleged to have been committed in the recruitment process, therefore, there is no justification to deny appointment to the applicant alone. When the directions were not complied with, Shri Diwakar approached the Tribunal in Contempt Petition (CP) number 808/2010. The Tribunal, while deciding the CP, inter alia, made the following observations:
2.2 The first Contempt Petition (No.165/2010) filed by the applicant, alleging disobedience of the aforesaid order of the Tribunal, was disposed vide the order dated 4.5.2010. Taking note of the respondents submissions (supported by a formal order dated 27.4.2010) that before considering the case of the applicant for appointment it would be legally and administratively prudent to wait for the outcome of the reassessment of the vacancies that can be filled; the charge of contempt was not found to be made out. However, appreciating the concerns of the applicant that such an exercise could not be an open ended one and was required to be completed within a stipulated period; an assurance had been given by the respondents counsel that the final decision would be taken within two weeks from the date of passing the order in this CP. Accordingly, by the order dated 4.5.2010 the CP was closed.
2.3 By a subsequent order dated 10.8.2010, the MA 1580/2010 moved by the respondents seeking extension of time by three months to implement the orders in the OA and the CP was allowed. This view was taken despite opposition on behalf of the applicant, considering the respondents submission about some more time be required to reassess the vacancies, conclude the vigilance proceeding and get vigilance clearance in completion of the recruitment process. At this point, on behalf of the respondents, the learned counsel had again given an assurance about every thing being sorted within the extended time frame.
3. The present CP 808/2010, the second in the series, came to be filed by the applicant on 20.10.2010. By an affidavit supported averment, it was alleged that despite expiry of more than 7 weeks of time no steps had been taken by the respondents to comply with the Tribunals directions. It was further submitted that despite the Court orders, the respondents had neither passed any orders regarding the matter nor issued any order for appointment of the applicant for the post. Initiation of contempt proceedings was prayed for clear disregard and defiance to the authority in law, making the respondents liable to the offence of Contempt of Court.
4. x x x x
4.1 On 28.12.2010, the respondents produced before the Tribunal an order dated 7.12.2009, passed by them in which the same plea as there has been irregularities in the selection process, therefore, applicant cannot be selected had been reiterated. Observing that this point had already been dealt with in the judgment dated 7.12.2009, the Tribunal directed personal presence of Shri Vijay Kumar Sharma, Director, Govt. of India Press (Contemnor 1) on the next day of hearing to answer the charge of contempt.
4.2 x x x x x
5. In their additional affidavit filed on 19.1.2011, in pursuance of the aforesaid directions, the respondents have, inter alia, stated about submission of the report by the Chief Vigilance Officer of the Administrative Ministry i.e Urban Development) revealing several irregularities as well as the respondents having identified the delinquent officers and issued them charge sheets. It has further been submitted that the investigations have revealed about excess vacancies having been advertised and some more time needed to examine the matter as to whether the vacancies were available or not.
5.1 x x x x 5.2 However, the respondents have not rendered any factual explanation with regard to the basic premises of the Tribunals original order in the OA regarding the remaining 18 candidates from the same selection process having been allowed to join in March, 2008 itself; and only the applicant being singled out by denying such an opportunity to him. Even the learned counsel for the respondents, in course of the oral submissions, would not be able to throw any light with regard to the present status of such persons. On the contrary, counsel for the respondents submitted, in case positive directions are given, they would appoint the applicant also.
We fail to understand the reasoning given by respondents in not giving appointment to the applicant when all other persons selected with the applicant are being allowed to continue from same selection. If they have found out irregularities were indeed committed in the selections, then the selections should have been cancelled for all those, who were selected by following due process of law. Till date, in spite of several opportunities having been given, the respondents have not spelt out what irregularities were, in fact, committed in the selection and whether it was such in nature that the selections cannot be given effect to. They have also not been able to explain why those persons are still being allowed to continue, who had joined from the same selection prior to the applicant when as back as on 25.2.2009 the applicant was informed the process of recruitment is suspended pending investigation and appropriate decision would be taken as soon as investigation is completed. Respondents should have taken the investigation carried out by them to a logical conclusion. nets already. After all, if irregularities were committed in selection, it should affect one and all. They have also not explained the merit of applicant qua those persons who have already been allowed to join and why till date no final orders have been passed by them on this subject. Applicant has stated he belongs to the OBC category and was selected under the physically handicapped quota. Why that quota has not been filled is another question?
6. On a careful consideration of the entire gamut of facts, we are of the view that the respondents have not been able to satisfactorily explain as to why they should not be proceeded for contempt of court under the powers vested in this Tribunal as per Section 17 of the CAT Act read with the Contempt of Courts (C.A.T.) Rules, 1992. However, before taking further action in the matter, we give one last opportunity to the respondents to pass final orders on the basis of vigilance investigations carried out by them with regard to the selections. If respondents are not scrapping the selection, applicant should also be allowed to join because till date no action has been taken by them on the basis of over assessment of vacancies also. In any case nothing has been stated by respondents that the vacancy of physically handicapped was also wrongly advertised, therefore, applicant alone cannot be made to suffer. It is clear, therefore, that the case of the Applicant is of a piece with the case of Shri Diwakar, the applicant in OA number 114/2009. The learned counsel for the Applicant has rightly contended that the Applicant cannot be treated differently from the other candidates, who had been allowed to join the post of Assistant Binder. The Applicant too would sink or swim with them. But he could not be left in the lurch and singled out for discriminatory treatment by not allowing him to join the post on the ground of irregularities in the process of selection, while others had been allowed to join in the similar circumstances. The learned counsel for the Respondents would only contend that the inquiry into the matter had been completed and the report submitted by the inquiry authority, Chief Vigilance Officer of the Ministry of Urban Development, the first Respondent. An order dated 13.12.
2010 had been placed on record, which was issued following the report of inquiry. It is further stated in the said order that disciplinary enquiry has been initiated against the erring officers. It has further been observed that:
5. Some candidates who were selected and offered appointment but were not allowed to join after 3rd April, 2008 due to aforesaid suspension of recruitment process filed cases before various Central Administrative Tribunals and obtained directions for completion of investigations and for taking final decision in the matter.
6. It is well established principle that the candidates selected through the vitiated selection process have no vested right of appointment and this principle has been upheld by the Honble Supreme Court in following cases:-
Union of India Vs. Chakradhar 2002 (3) SCC 146 Dilbaghs case 1993 (1) SCC 154
7. This matter has been examined in entirety and was also discussed in a meeting taken by the Secretary to the Government of India, Ministry of Urban Development with official from Ministry of Law and it has been decided that the lists of selected candidates cannot be acted upon due to inherent defects.
4. The learned counsel for the Respondents relied on the judgement of the Honourable Supreme Court in Shanti Sports Club and another V. Union of India and others, 2009 (11) SCALE 731 and gave us a copy of the judgement in the above case. We are quite baffled as to why the Respondents would rely on this judgement in the instant case as the cited case deals with the issue of acquisition of land by the DDA and has nothing whatsoever to do with the issues with which we are concerned in the instant OA. The learned counsel also adverted to the judgement of the Honourable Supreme Court in Shankarsan Dash Vs. Union of India, AIR 1991 SC 1612 to contend that mere selection would not give any person an indefensible right for appointment. This too would not advance the cause of the Respondents because the issue here is regarding hostile discrimination meted out to the Applicant vis-`-vis the other selected candidates.
5. We put it to the learned counsel for the Respondents as to what action had been taken against the persons who were selected in the tests and allowed to join. He admitted that no action had so far been taken against those candidates.
6. In view of the discussion above, it is clear that the Applicant has been discriminated against inasmuch as 48 out of 58 candidates selected have been allowed to join and he has not been permitted to join on the ground that there were irregularities in the selection process. This is clearly in violation of Article 14 of the Constitution.
7. The OA, therefore, succeeds. We direct the Respondents to allow the Applicant to join in the post of Assistant Binder within 15 days from the date of receipt of a certified copy of this order. He would suffer the same fate as would be meted out to the rest of the candidates who had been allowed to join the post. There will be no orders as to costs.
( L.K.Joshi ) ( V.K.Bali ) Vice Chairman (A) Chairman sk