Central Administrative Tribunal - Jaipur
Heera Lal vs Expenditure on 25 May, 2023
1
OA No. 588/2022 with MA No. 129/2023
CENTRAL ADMINISTRATIVE TRIBUNAL
JAIPUR BENCH, JAIPUR
ORIGINAL APPLICATION NO. 588/2022
with
MISC. APPLICATION NO. 129/2023
Order Reserved on: 22.05.2023
DATE OF ORDER: 25.05.2023
CORAM
HON'BLE MR. DINESH SHARMA, ADMINISTRATIVE MEMBER
HON'BLE MRS. HINA P. SHAH, JUDICIAL MEMBER
Heera Lal son of late Shri Shyam Kumar aged 55
years, resident of plot no. 40, Shiv Colony,
Vidhyadhar Nagar, Jaipur-302035, Rajasthan.
Presently working as Accountant in the office of Zonal
Accounts Officer, CBDT, Jaipur. Mob. 9799643324.
Applicant is not having mail ID. Counsel's mail ID is
[email protected] (Group 'C') Post.
....Applicant
Shri Amit Mathur, counsel for applicant.
VERSUS
1. Controller General of Accounts, Department of
Expenditure, Ministry of Finance, Mahalekha
Niyantrak Bhawan, GPO Complex, INA, New Delhi -
110023.
2. Zonal Accounts Officers, CBDT, Department of
Income Tax, NCR Building, Statue Circle, Jaipur-
302005, Rajasthan.
.... Respondents
Shri Anand Sharma, counsel for respondents.
ORDER
Per: Hina P. Shah, Judicial Member The present Original Application has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 seeking for the following reliefs:- 2
OA No. 588/2022 with MA No. 129/2023 "It is therefore prayed that the present original application made by the applicant may kindly be allowed. Impugned order Annexure-A/1 dated 30.11.2022 may kindly be quashed and set aside. Respondents may be directed to allow the applicant one more opportunity to participate in the Department Confirmatory Examination to be held after 03.12.2022.
Any other relief or direction which this learned tribunal deems fit in the facts and circumstances of the case may also be passed in favour of applicant.
Cost of the original application may kindly be granted in favour of the applicant."
2(a). Brief facts of the case, as stated by the applicant, is that he was initially appointed as Group 'D' employee on 29.01.1996 and was promoted on the post of LDC on 16.08.2010. Thereafter, he was promoted to the post of Accountant on 09.11.2016 after DPC and was required to qualify Departmental Confirmatory Examination in three years. As per Scheme, examination was required to be held twice a year and, thus, six opportunities will have to be availed by an employee to qualify the examination. The applicant first applied for the paper held in June, 2017 but did not appear in the said examination. Next chance available for the applicant was in January, 2018 wherein he appeared but failed to qualify the said examination. Then he was called in the examination scheduled to be held in June, 2018 3 OA No. 588/2022 with MA No. 129/2023 wherein he appeared but failed to qualify. Thereafter, the examination was scheduled to be held in December, 2018 but he was not called for the said examination. Thereafter, examination was scheduled to be held on 22.06.2019 but the applicant fell ill and, thus, he submitted medical certificate of his illness for leave from 17th to 21. His medical was accepted and leave was sanctioned. Considering his application for medical leave, on 03.09.2019, an order was passed by the respondents and it was decided that in view of application dated 07.08.2019, applicant may appear in next Departmental Confirmatory Examination. Thereafter, Departmental Confirmatory Examination was scheduled to be held in December, 2019 but the same was nullified. Till 2019, examinations were conducted twice every year but from 2020, examination was held once in a year. Thereafter, he appeared in the Departmental Confirmatory Examination held on 28.11.2020 and 26.12.2021 but he remained unsuccessful. According to the applicant, he participated in five examinations i.e. examinations held on 10.06.2017, 09.01.2018, 30.06.2018, 28.11.2020 and 26.12.2021. Therefore, as per the Scheme, he is entitled for six chances. 4 OA No. 588/2022 with MA No. 129/2023 2(b). The applicant further states that as per communication dated 14.09.2022, maximum number of chances admissible to clear Departmental Confirmatory Examination is six and it was mentioned that names of those candidates who have already availed six chances need not be forwarded. The respondents notified Departmental Confirmatory Examination list for 2022 vide notification dated 14.11.2022 (Annexure A/5) and in the list of eligible candidates, name of the applicant was not included. Since he has not availed sixth chance, he is entitled for the sixth chance for which he has submitted a representation dated 14.11.2022 (Annexure A/6) stating that he has not availed six chances, therefore, necessary action may be taken and his name may be included in the list of eligible candidates. His representation was forwarded by Jaipur Office to Delhi Office vide communication dated 14.11.2022 (Annexure A/7) wherein it was mentioned by the Jaipur Office that the applicant has availed only five attempts and "this is his sixth attempt". It was requested by the Jaipur Office to include name of the applicant in the list of eligible officials. Vide communication dated 02.12.2022 along with letter dated 30.11.2022, (Annexure A/1), it was informed 5 OA No. 588/2022 with MA No. 129/2023 that his case was considered but his case did not find favour of the competent authority. The grievance of the applicant is that examination was scheduled to be held on 03.12.2022 but he was not allowed to appear and, therefore, as per the scheme of the examination, next examination will be held in the year 2023. However, he was disallowed to participate in 2022 examination despite the fact that he has not availed six attempts/chances. Therefore, he is entitled to avail six attempts for the confirmation to the post of Accountant. There is no justification in disallowing the applicant sixth attempt. The applicant states that he has availed only five chances. He is entitled for sixth attempt/chance. It was positively recommended by the Jaipur Office but the same has not been taken into consideration. Because of his illness in 2019, he could not appear in the examination. His leave application was accepted and he was allowed opportunity to appear in subsequent examination but this fact has been ignored by the respondents while rejecting his payer for participation in Departmental Confirmatory Examination. The applicant also states that he is entitled for the sixth attempt and to continue on the post of Accountant till he availed sixth attempt. Thus, feeling aggrieved of denial of the sixth attempt in 6 OA No. 588/2022 with MA No. 129/2023 Departmental Confirmatory Examination for confirmation on the post of Accountant, the applicant has preferred the present Original Application for redressal of his grievance.
3(a). After issue of notices, respondents have filed their reply stating that applicant was appointed as Group 'D' employee on 29.01.1996 and was promoted to the post of Lower Division Clerk w.e.f. 16.08.2010. He was further promoted to the post of Accountant w.e.f. 09.11.2016 and joined in the office of Regional Pay & Accounts Office, Survey of India, Jaipur. Thereafter, he was transferred to the office of respondent no. 2 i.e. Zonal Accounts Office, CBDT, Jaipur on 21.08.2018. Respondents state that as per para 1 of Terms and Conditions for Departmental Confirmatory Examination, (DCE), "a person to appoint to the grade of accountant shall be required to pass a Departmental Confirmatory Exam in order to render him eligible for confirmation in the grade of Accountant". As per para 5 of the Terms and Conditions for DCE, a direct recruit to the grade of Accountant as well as Lower Division Clerk promoted as Accountant, will normally be allowed 06 chances in all, in consecutive examinations, to pass the examination. If direct recruit or promotee fails, for 7 OA No. 588/2022 with MA No. 129/2023 whatever reasons to appear at any these consecutive examination, he/she will be considered to have lost that chance and that chance will count against the number of six chances admissible." The details of number of chances available to the applicant to appear in Departmental Confirmatory Examinations are given below: -
Name & Exam Date Whether Remarks
Date of appeared
Joining or not
Sh. Heera Jun, 2017 Absent ---
Lal, December, Appeared ---
Accountant 2017
w.e.f. June, 2018 Appeared ---
9.11.2016 December, Count not Name forwarded
2018 appear by ZAO, CBDT,
Jaipur after due
date and hence not
included in the list
of candidates
June, 2019 Absent As per para 5
(Medical terms and
Grounds) conditions of DCE
any candidate for
whatever reason
fails to appear at
any of consecutive
examination,
he/she will be
considered to have
lost that chance
and that chance
will count against
the number of 6
chances admissible
December, Appeared Result Declared
2019 null and void by
O/o CGA
December, Appeared ---
2020
December, Appeared ---
2021
8
OA No. 588/2022 with MA No. 129/2023
3(b). The respondents further state that applicant had represented vide his representation dated 14.11.2022 stating that till date, he had availed five chances for appearing in DCE Examination and as per notification of DCE Examination, maximum six chances can be availed by an official and keeping in view of this, he had applied for DCE going to be held in December, 2022. The representation of the applicant was forwarded to the competent authority mentioning his request to add his name in the list of candidates for DCE 2022 so as to enable him to appear in the examination going to be held on 03.12.2022. His representation was placed before Oversight Committee in its meeting held on 25.11.2022 for its consideration wherein the said Committee examined the representation and recommended that as per Terms and Condition of DCE, Para 5, "A direct recruit to the grade of Accountant as well as Lower Division Clerk promoted as Accountant will normally be allowed 06 chances in all, in consecutive examination, to pass the examination. If Direct Recruit or Promottee fails, for whatever reasons to appear at any these consecutive examinations, he/she will be considered to have lost that chance and that chance will count against the number of six (6) chances admissible." In 9 OA No. 588/2022 with MA No. 129/2023 spite of these, the applicant still states that he should be allowed one more opportunity to participate in the Departmental Confirmatory Examination to be held after 03.12.2022. The respondents also state that DCE for Accountants could not be held in June-July, 2020, 2021 and 2022 due to COVIC-19 and one conducted in December, 2019 was declared null and void with the direction that the chance will not be counted in number of attempts by candidates. Therefore, the respondents state that since their action is just, proper and in accordance with the relevant rules and instructions on the subject, the Original Application filed by the applicant has no merit and deserves to be dismissed since the applicant has exhausted six chances as admissible and, thus, his request cannot be accepted.
4. The applicant has not filed any rejoinder rebutting the submissions of the respondents.
5. The applicant has also filed an MA No. 129/2023 seeking interim relief to the effect that he be permitted to participate in the Departmental Confirmatory Examination in pursuance to Annexure MA/1 dated 07th March, 2023. Besides reiterating the submissions made in the O.A., the applicant stated 10 OA No. 588/2022 with MA No. 129/2023 that he is entitled for 6th opportunity to appear in the Departmental Confirmatory Examination. Therefore, he prays that the said M.A. be allowed granting interim relief as prayed for.
6. The respondents have also filed reply to the said M.A. rebutting the submissions of the applicant and stated that as the applicant has already exhausted all six chances, he is not entitled for another opportunity to appear in Departmental Confirmatory Examination, therefore, the said M.A. filed by the applicant deserves to be dismissed as he is not entitled for any interim relief.
7. Heard learned counsels for the parties and examined the material available on record.
8. The applicant as well as the respondents have reiterated their submissions as made earlier.
9. The crux of the case is that the applicant was initially appointed as Group 'D' employee on 29.01.1996 and was promoted to the post of Lower Division Clerk on 16.08.2010. He was further promoted to the post of Accountant on 09.11.2016 after DPC and he was required to qualify Departmental Confirmatory Examination as per the terms and 11 OA No. 588/2022 with MA No. 129/2023 conditions mentioned for said the examination. It is noted that as per applicable service condition, this examination was required to be qualified in three years and the said examination was to be held twice a year and, accordingly, six opportunities were to be granted to the applicant / candidate to qualify the said examination. It is noted that since 2020, this examination is held once in a year, which can be seen from the record. The Examination held in December, 2019 has been declared null and void by the Office of CGA. It is seen that as per submissions of the respondents, DCE for Accountants could not be held in June-July, 2020, 2021 and 2022 due to COVID, 2019.
10. Now coming to the case of the applicant, we find that the applicant has participated in the Departmental Confirmatory Examination for confirmation in the grade of Accountant for five attempts/chances only. As per the details given by the respondents themselves in their reply, as quoted above, the applicant did not participate in the examination held in June, 2017, which is treated as first chance as the applicant himself did not participate. Second chance for the examination was given in December, 2017 in which he appeared. Third chance was given for the said examination to appear 12 OA No. 588/2022 with MA No. 129/2023 in June, 2018 in which also the applicant appeared. Fourth chance was given in December, 2020 and fifth chance was given in December, 2021, in which the applicant appeared. But it appears that the applicant could not qualify the said examinations in which he participated. However, we are of the view that the chances/attempts given by the respondents to the applicant in December, 2018, June, 2019 and December, 2019 are not treated as chances availed by the applicant. From the reply of the respondents, it is seen that in December, 2018, the applicant could not appear in the said examination as his name was forwarded by ZAO, CBDT, Jaipur after due date and, hence, his name was not included in the list of eligible candidates, for which he is not at all responsible. In June, 2019, the applicant remained absent on medical grounds for which he submitted application for medical leave, which was accepted and sanctioned by the competent authority. In this respect, it is also noted that on 07.08.2019, the Sr. Account Officer (Admn) O/o the PCCA, Zonal Accounts Office, CBDT, Jaipur sent a letter to the Sr. Accounts Officer (Estt.) O/o PCCA, CBDT, New Delhi intimating that the applicant was eligible for DCE for Accountant that was held on 22.06.2019 but he had submitted medical 13 OA No. 588/2022 with MA No. 129/2023 certificate for two days on 21.06.2019 and 22.06.2019 (the days of confirmatory exam) and requested for exemption for exam as he was not able to take part in exam. Therefore, the matter was sent for consideration and further necessary action. Thereafter, with reference to the said letter dated 07.08.2019, the Sr. Accounts Officer (Estt.II) O/o the PCCA, CBDT, New Delhi vide his letter dated 03.09.2019, (Annexure A/3), addressed to Zonal Accounts Officer, ZAO, CBDT, Jaipur stated that the applicant may appear in the next departmental confirmatory examination being conducted by O/o CGA and it is also stated that this issues with the approval of the competent authority. Therefore, from the letter dated 03.09.2019, it is clear that the competent authority has permitted the applicant to appear in the next departmental confirmatory examination being conducted by the O/o CGA. Therefore, the examination held June, 2019, in which the applicant remained absent on medical grounds cannot be treated as the chance availed by the applicant. Further, the chance given to the applicant to appear in the examination held in December, 2019 has been declared as null and void by the office of CGA, therefore, this chance is also not treated as 14 OA No. 588/2022 with MA No. 129/2023 chance availed by the applicant. Therefore, we are of the considered view that overall, the applicant has availed only five chances/attempts for appearing in the Departmental Confirmatory Examination for confirmation in the grade of Accountant.
11. It is noted that thereafter, the Departmental Confirmatory Examination for Accountants was held on 03rd December, 2022 in which the applicant was not allowed by the competent authority to appear in the said examination and conveyed the order/letter dated 2nd December, 2022 along with order/letter dated 30th November, 2022, (Annexure A/1), stating that the matter was placed before the competent authority but the competent authority has not allowed the applicant to appear in the said examination. We are of the view that the respondents had wrongly denied the applicant to appear in the said examination despite the fact that the applicant has actually availed five chances to appear in the examination. Therefore, the impugned order/letter dated 30th November, 2022 along with order/letter dated 02.12.2022 (Annexure A/1) by which the said impugned order was conveyed to the applicant deserves to be quashed and set aside. 15 OA No. 588/2022 with MA No. 129/2023
12. In support of his contention, the applicant has relied upon the order of the Hon'ble Supreme Court rendered in the case of Abhijit vs. Dean, Government Medical College, Aurangabad and Anr., reported in (1987) 3 SCC 478 as well as the order dated 16.10.2018 passed by the Hon'ble High Court of Delhi at New Delhi in the case of Guru Gobind Singh Indraprastha University vs. Abhinav Pandey & Ors., (LPA No. 248/2018 & C.M. Nos. 18034-35/2018). In the case of Guru Gobind Singh Indraprastha University vs. Abhinav Pandey & Ors., (supra), the Hon'ble High Court of Delhi has observed that where a student due to medical reasons could not appear in an examination on the first available opportunity, cannot be used to his detriment or in any manner to penalize him. Further, the Hon'ble High Court has observed that they have no hesitation in arriving at the conclusion that the respondent no. 1 therein having been prevented due to unavoidable medical concerns from appearing in the subject papers in the first instance, during the Sixth End Semester Examinations, he ought not to be penalized or deprived of the fruits of his labour and well-deserved merit. In the case of Abhijit vs. Dean, Government Medical College, 16 OA No. 588/2022 with MA No. 129/2023 Aurangabad and Anr., (supra), the Hon'ble Apex Court has observed that if the rule has the effect of treating failure to appear at the examination because of serious illness as non-appearance at the examination so as to make the candidate liable to a deduction of 5 per cent of marks when seeking admission to a post-graduate course, the rule is indeed arbitrary.
13. Coming to the grounds raised by the applicant that the applicant because of his illness did not appear in the examination in June 2019 and his application was duly considered by the office and, therefore, he was permitted in the subsequent examination, appears to be sustainable as the respondents, while rejecting his representation, have ignored their earlier order dated 03.09.2019, Annexure A/3, whereby the competent authority has permitted the applicant to appear in the next departmental confirmatory examination being conducted by the O/o CGA. However, on the other hand, the respondents are trying to count the chance given in June, 2019, which is not sustainable in the eyes of law. The respondents are estopped from their decision dated 03.09.2019. Thus, it is clear that the applicant has availed only five opportunities / attempts to qualify the Departmental 17 OA No. 588/2022 with MA No. 129/2023 Confirmatory Examination and, if he is denied sixth attempt, he would be reverted from the post of Accountant, which will cause great injustice to the applicant. Therefore, the present Original Application deserves to be allowed.
14. We have also gone through the pleadings and material placed on record in said M.A. No. 129/2023. It is seen that the said M.A. has been filed by the applicant praying for interim relief to the effect that he may be permitted to participate in the Departmental Confirmatory Examination in pursuance to Annexure MA/1 dated 07th March, 2023 vide which the Departmental Confirmatory Examination for Accountants June 2023 is proposed to be held on 18.06.2023 (Sunday) at UPSC, New Delhi, RTCs at Mumbai, Chennai & Kolkata. Therefore, in view of the observations made in the aforesaid paras, we have noted that the applicant has been given only five chances/attempts in appearing the said examination, therefore, the applicant is entitled to appear in the said examination by way of sixth attempt/chance.
15. In view of the observations and discussions made hereinabove, the impugned order/letter dated 30.11.2022, qua the applicant, along with letter/order 18 OA No. 588/2022 with MA No. 129/2023 dated 02.12.2022, (Annexure A/1), is hereby quashed and set aside. The respondents are directed to allow the applicant to appear/participate in the Departmental Confirmatory Examination for Accountants June, 2023 proposed to be held on 18.06.2023 (Sunday) in pursuance to notification dated 07th March, 2023, Annexure MA/1, or on any other subsequent date, which may be fixed, in any circumstances, as a sixth chance.
16. Accordingly, the Original Application is allowed to the extent indicated hereinabove. No order as to costs.
17. In view of the order passed in the O.A., the said M.A. stands disposed of.
(HINA P. SHAH) (DINESH SHARMA) JUDICIAL MEMBER ADMINISTRATIVE MEMBER /nlk/