Central Administrative Tribunal - Allahabad
Smt. Vinita Bisht W/O Nandan Singh Negi ... vs Union Of India Through The Secretary ... on 26 November, 2010
Reserved
CENTRAL ADMINISTRATIVE TRIBUNAL,
ALLAHABAD BENCH ALLAHABAD
Dated: This the 26 day of November,2010
Original Application No. 764 of 2005
(U/S 19, Administrative Tribunal Act, 1985)
Honble Dr. K.B.S. Rajan, Member (J)
Honble Mr.D. C. Lakha, Member (A)
Smt. Vinita Bisht W/o Nandan Singh Negi R/o A-369/3 Rajendra Nagar, Bareilly (U.P.)
.. Applicant
By Adv. : Shri R.C. Pathak
V E R S U S
1. Union of India through the Secretary Ministry of Agriculture, Krishi Bhawan, New Delhi.
2. The Director General, Dr. Mangala Rai Indian Council of Agriculture Research (ICAR) Krishi Bhawan, New Delhi.
3. Smt. Shashi Mishra, Secretary and Chief Vigilance Officer Indian Council of Agriculture Research (ICAR) Krishi Bhawan, New Delhi.
4. Sri S.K. Bahera Under Secretary (Vig.) Indian Council of Agriculture Research (ICAR) Krishi Bhawan, New Delhi.
5. Dr. M.P. Yadav, Director Indian Veterinary research Institute (IVR) Izatnagar, Bareilly.
6. Dr. Nem Singh, Chairman (First Selection Committee), Joint Director (Research) (Pathology) Indian Veterinary Research Institute (IVRI) Izatnagar, Bareilly.
7. Dr. R.S. Chauhan, Member (Pathology) Joint Director (CAD RAD) Indian Veterinary Research Institute (IVRI) Izatnagar, Bareilly.
8. Dr. A.C. Goyal (Retired Scientist) Member (Pathology) Indian Veterinary Research Institute (IVRI) Izatnagar, Bareilly.
9. Dr. N. Koharwal, Medical Officer Member (Pathology) Indian Veterinary Research Institute (IVRI) Izatnagar, Bareilly.
10. Dr. Satyapal Principal Scientist L.E.S. (Member SC) Indian Veterinary Research Institute (IVRI) Izatnagar, Bareilly.
11. Shri S.P. Pandey, AAO Member Secretary IVRI Izatnagar, Bareilly.
12. Dr. M.P. Yadav, Director (Observer) with no nomination for Committee, Indian Veterinary Research Institute (IVR) Izatnagar, Bareilly.
13. Dr. M.P. Yadav Director (Chairman) 2nd Selection Committee Indian Veterinary Research Institute (IVRI) Izatnagar, Bareilly.
14. Dr. M.L. Mehratora (Retd.) (Member) with no Pathology Expert, Joint Director (CAD RAD) Indian Veterinary Research Institute (IVRI) Izatnagar, Bareilly.
15. Dr. M.K. Mondepy, Principal Scientist (Member) with Pathology expert. Extension and Development Deptt. Indian Veterinary Research Institute (IVRI) Izatnagar, Bareilly.
16. Dr. R.K. Singh (Sr. Scientist) (Member) with no Pathology Expert. Indian Veterinary Research Institute (IVRI) Mukteshwar (Uttranchal).
17. Sri R.N. Rai, S/o Shri R.G. Rai C/o Mohd. Akram Hostel No.1 Indian Veterinary Research Institute (IVRI) Izatnagar, Bareilly.
18. The Secretary and Chief Vigilance Officer, Indian Council of Agricultural Research, Krishi bhawan, New Delhi.
19. The Under Secretary (Vigilance), Indian Council of Agricultural Research, Krishi Bhawan, New Delhi.
20. The Director, Indian Veterinary Research Institute, Izatnagar, Bareilly U.P.
.... Respondents
By Adv. : Shri K.P. Singh
O R D E R
(Delivered by Honble Dr. K.B.S. Rajan, Member (J)) Case of the Applicant: The applicant has the requisite qualifications for selection to the post of T-3 (Lab Technician) for which, notification, vide order Annexure A-9, dated 20.02.2004 was issued. This post was in the Institute of Indian Veterinary Research Institute (IVRI), Izatnagar, Bareilly. The applicant applied for the same and appeared in the Test/Interview when respondent No.17 also was one of the aspirants. The said respondent No.17 does not hold graduation in the relevant field for T-3 post (Lab Technician). He has B.Sc. Biology i.e. not in the relevant field for Lab Technician and without any diploma or experience in Clinical Pathology. Also, he is aged 42 years as on 24.07.2004.
2. According to the reliable information, the applicant was selected and the Selection Committee recommended her name for the post of Lab Technician. As the result of selection was not published, the applicant enquired about the matter and even made complaint to the Director IVRI, Izzatnagar, Bareilly and also to the Director (Personnel) ICAR, Krishi Bhawan, New Delhi for declaration of the result. The applicant had apprehended certain foul play of favouritism sought to be shown to respondent No.17. According to the applicant, as the private respondent No.17 could not succeed, the department issued another advertisement vide Annexure A-15, dated 09.10.2004. The qualifications and age limit remained the same as per this advertisement as in the earlier advertisement. The applicant again submitted an application in response to the above advertisement and so did respondent No.17. Independent of the same, the applicant had moved this Tribunal in O.A. No.1482 of 2004 against the re-notification and for a direction to publish the result of the earlier selection. Vide order dated 17.01.2005 at Annexure A-17, the O.A. was dismissed. The applicant did attend the interview as per the revised notification on 18.01.2005. However, she had to submit a complaint/representation on 17.02.2005 with regard to certain irregularities in the selection to the post of T-3 Lab Technician, Annexure A-18 refers. Simultaneously, the applicant filed writ petition against the order of dismissal of her O.A. before the High Court vide Writ Petition No.19797 of 2005, which was however dismissed in-limine. The respondent No.5 had issued appointment order to private respondent No.17 vide order dated 01.06.2005. The applicant sent complaint against the illegal appointment of respondent No.17 to various authorities. Meanwhile, the respondent No.4 directed the applicant to confirm about her complaint made against the respondent No.17. The applicant filed reply on 16.06.2005. She has also submitted oral and documentary evidence as received by respondent no.4 in his latter dated 11.04.2005. The applicant has challenged the appointment of respondent No.17 for the post of T-3 on various grounds as contended in Para-5 of the O.A. One of the ground so raised is that the respondent No.17 is not eligible for appointment as Lab Technician since he has no qualification and is also overaged.
3. The official respondent has contested the O.A., In their preliminary objection, they have contended that the application is bad for non joinder of the necessary party inasmuch as, ICAR, being a Registered Society and can be issued in the name of its Secretary. As regards the merit of the matter by and large, the facts contained in the O.A. have not been denied save that respondent No.17 has been given the appointment after due consideration. The respondents have in the Counter Affidavit stated that the said respondent No.17 fulfilled the qualification and as regards the age relaxation, the same is on the basis of an order passed by this Tribunal vide order dated 10.12.1999 in O.A. No.1009 of 1992. Respondents have thus, justified selection of the respondent No.17.
4. In her Rejoinder Affidavit, the applicant has contended that the interview was done in bias manner with nepotism and favouritism.
5. Both the parties filed written submission. In her written submission, the applicant has reiterated all her contentions made in the O.A. and Rejoinder Affidavit. She has also added M.A.1, which contains the recommendation of the Selection Committee for the post of Lab Technician issued by earlier Selection Committee.
6. The respondents have reiterated their contentions raised in the Counter Affidavit. They have referred to the history of the applicants having filed the O.A., its dismissal and also dismissal of the Writ Petition at the High Court level and has further stated that respondent No.17 had earlier filed an O.A. wherein, age relaxation was provided in his case. It is, thus, taking into account the age relaxation granted by the Tribunal that the case of respondent No.17 was considered and he has been found suitable to the Job. The have also contended that candidates, who had taken part in the selection process knowing fully well the procedure laid down therein were not entitled to question the same. 2007 (8) SCC 100 refers.
7. Pleadings and the written submissions were considered. The grievance of the applicant, who initially was recommended for appointment to the post of T-3 (Lab Technician) in the Respondent No. 5 organization (Indian Veterinary Research Institute, Izatnagar, Bareilly, but whose selection was cancelled on technical reason is that in the subsequent selection, favour has been shown to the private respondent No. 17, who is over-aged and who, despite not fulfilling the qualifications required for the post was selected and the direction for age relaxation given by the Tribunal vide order dated 10-12-1999 in OA No. 1009 of 1992 has been used as a camouflage to grant the age relaxation beyond the permissible limit.
8. The private respondent did not respond to the notice sent by the Tribunal on 13-11-2006 which was not returned undelivered and thus service was deemed complete.
9. As regards preliminary objection is concerned, the same is too technical and in any event, the ICAR has been fully represented and hence the preliminary objection is rejected.
10. As regards the merits of the matter, the applicant cannot have any grievance over the cancellation of the earlier selection, which cancellation has been held to be just and proper by the Tribunal as well as the High Court, where the applicant who filed the earlier OA and W.P. in setting aside the cancellation order had been rejected.
11. The grievance of the applicant now is focused on the so called favourtism shown to the private respondent No. 17, who did not possess the qualification and who is over aged.
12. The qualification prescribed as per the notification at Annexure A-9 is as under:-
Bachelors Degree in Pathology/Clinical Bio Chemistry/Clinical Medicine/Clinical Diagnosis or B.S.C., (Biology). Desirable qualifications are Three years experience in the relevant fields as above.
13. Age limit for the said post as per the advertisement is 18-30 years.
14. The applicant has in Para 4(x) of the OA clearly mentioned that the respondent No.17 is a holder of B.Sc., (Biology) but contended that the same is not in relevant field. The advertisement published in February 2004 inter alia mentioned B.Sc., (Biology) as the essential qualifications. The same is not qualified by any term in the relevant field, though in respect of experience the phraseology relevant field has been used. Thus, in so far as qualification is concerned, respondent No. 17 does fulfill the essential qualifications.
15. As regards age relaxation given to the respondent is concerned, the applicant has challenged the same stating that the same was not as per the rules, while the official respondents have contended that the age relaxation granted is in compliance of the order of the Tribunal in OA No. 1009 of 1991. The said order reads as under:-
Shri A.V. Srivastava learned counsel for the applicant is preset. Shri R.K. Tiwari learned counsel for the respondents. At the request of counsel on both sides both the OAs are disposed of by a common order.
2. Heard counsel on both sides. That the applicant worked as a casual worker with the respondents institution is not disputed but he could not be continued in service for want of work or vacancy. The applicant is prepared to make an application in accordance with any notification to be issued, appointment on a par with others, and consideration may be given for his prior experience and also age relaxation as per rules. Considering the above submission we are inclined to dispose of both the OAs with a direction to the respondents to consider the case of the applicant for any appointment to be made consequent to any notification prescribing qualifications and prior experience etc. The respondents are also directed to consider age relaxation of the applicant in view of his prior experience as per rules.
3. The applicant will not be entitled to any post reserved for SC/ST.
4. With the above direction both the OAs are disposed of accordingly.
16. Respondents have stated vide Para 20 that the said respondent No. 17 had four years of experience as a casual labourer in IVRI. The latitude given by the Tribunal for relaxation of the age limit for the said private respondent is restricted. The words, consider age relaxation of the applicant in view of his prior experience as per rules would go to show that relaxation of age limit should correspond only to the experience and cannot be extended beyond. If four years were the experience, then the age limit in respect of respondent No. 17 should have been only 34 and not beyond. For the contention of the applicant that the age of the said private respondent as on the date of application was 42 years, vide para 4(x) of the OA there is no rebuttal to the same vide para 10 of the counter.
17. Power to relax is normally available with the rule making authority and it is settled law that this power has to be exercised judiciously and uniformly to all concerned. It has been held in the case of State of Karnataka v. R. Vivekananda Swamy (2008) 5 SCC 328:
18. A public authority may exercise its power of relaxation only where there exists a provision therefor. (See Kendriya Vidyalaya Sangathan v. Sajal Kumar Roy and Pitta Naveen Kumar v. Raja Narasaiah Zangiti .) It, however, goes without saying that while exercising such a power, the authority must act judiciously keeping in mind the purport and object thereof. Considerations therefor, although may not partake a mathematical exactable but should always be fair and reasonable.
19. When the Tribunal directed that age relaxation for the experience be given to the private respondent herein, all that the respondents should have done is to afford such relaxation to the extent of experience and not beyond. In the case of CSIR v. Ramesh Chandra Agrawal,(2009) 3 SCC 35, in the Apex Court referred to the following decisions, in which the Apex considered the extent of age relaxation that could be granted when rules provide for the same:-
45. However, in this case, Para 9 of the Scheme although does not contain any limitation in the matter of exercise of power, it was for the authority concerned to lay down a principle as to in which case the power of relaxation should be exercised and in which case it would not be. If sufficient number of candidates were available who had worked for more than 15 years, keeping in view the requirements of the appellant itself the Director could take a further policy decision that no relaxation shall be granted to an applicant who did not fulfil that criterion. Ordinarily, the Court, it is trite, would not interfere with such discretionary power in exercise of its jurisdiction of judicial review.
46. In Kendriya Vidyalaya Sangathan v. Sajal Kumar Roy this Court held:
11. ... The appointing authorities are required to apply their mind while exercising their discretionary jurisdiction to relax the age-limits. Discretion of the authorities is required to be exercised only for deserving candidates and upon recommendations of the Appointing Committee/Selection Committee. The requirements to comply with the rules, it is trite, were required to be complied with fairly and reasonably. They were bound by the rules. The discretionary jurisdiction could be exercised for relaxation of age provided for in the rules and within the four corners thereof. As the respondents do not come within the purview of the exception contained in Article 45 of the Education Code, in our opinion, the Tribunal and consequently, the High Court committed a manifest error in issuing the aforementioned directions.
47. In Union of India v. R.N. Hegde12 this Court held: (SCC p.732, para 6) 6. By the impugned judgment, the Tribunal has given direction for regularisation of the respondents by giving the relaxation in the upper age-limit by treating the minimum period of 40 days for the calendar year 1989 and no period for the calendar year 1990 for such of the Casual Staff Artistes who were recruited prior to 1988 and were not assigned work in the calendar years 1988 and 1989 in pursuance of the note dated 26-5-1989 (sic). The said direction of the Tribunal is not in consonance with the scheme as notified vide OM dated 9-6-1992 and it cannot be upheld. The matter of regularisation of the respondents, including the question whether they should be given relaxation in the matter of age, has to be considered only in accordance with the provisions contained in the scheme as notified vide OM dated 9-6-1992. Similar view has been taken by this Court in Doordarshan Kendra, Trivandrum v. S. Kuttan Pillai13.
48. For the reasons aforementioned, the impugned judgment cannot be sustained which is set aside accordingly. The appeals are allowed. However, in the facts and circumstances of this case, there shall be no order as to costs.
20. In yet another case of Ami Lal Bhat (Dr) v. State of Rajasthan, (1997) 6 SCC 614 : the Apex Court has held as under:-
10. It is next contended on behalf of the appellants/petitioners that under all the service rules concerned there is a provision for age relaxation. In Rule 11(A) of the Rajasthan Medical Services (Collegiate Branch) Rules, there is a provision for age relaxation by 5 years by the Government in consultation with the Commission. There is also Rule 35 in the said Rules which gives a general power to relax rules in exceptional cases where the Government is satisfied that it is necessary, inter alia, to relax any provision of these Rules with respect to age or experience of any person and this can be done with the concurrence of the Department of Personnel and Administrative Reforms and in consultation with the Rajasthan Public Service Commission. It is urged that in the case of all those persons who are adversely affected because the advertisement for recruitment is issued later than the occurrence of the vacancy, corresponding age relaxation should be given to all candidates. In other words, what is contended is that if on the date when the vacancy occurred, the candidates were within the maximum age prescribed by reference to the cut-off date, then if the advertisement is delayed, their age should be considered with reference to the cut-off date of 1st January following the date of occurrence of vacancy. For example, if the vacancy has occurred on 1st of April of a given year, and the applicant would be within the maximum age on the 1st of January of the following year, then such a candidate will be considered as eligible even if the advertisement is issued not in April of that year but say February of the following year. All the candidates will get age relaxation of one year.
11. In our view this kind of an interpretation cannot be given to a rule for relaxation of age. The power of relaxation is required to be exercised in public interest in a given case; as for example, if other suitable candidates are not available for the post, and the only candidate who is suitable has crossed the maximum age-limit; or to mitigate hardship in a given case. Such a relaxation in special circumstances of a given case is to be exercised by the administration after referring that case to the Rajasthan Public Service Commission. There cannot be any wholesale relaxation because the advertisement is delayed or because the vacancy occurred earlier especially when there is no allegation of any mala fides in connection with any delay in issuing an advertisement. This kind of power of wholesale relaxation would make for total uncertainty in determining the maximum age of a candidate. It might be unfair to a large number of candidates who might be similarly situated, but who may not apply, thinking that they are age-barred. We fail to see how the power of relaxation can be exercised in the manner contended.
21. The above decisions signal that age relaxation cannot be granted without due justification. In the instant case masquerading the relaxation given as in compliance of the Tribunals order, age relaxation of twelve years has been given to the private respondent, while the tribunal restricted it to the extent of experience, which was admittedly only for four years and also provided the same is within Rules. Thus, in so far as age relaxation is concerned the appointment granted to the private respondent cannot stand judicial scrutiny. Thus, order dated 01-06-2005 and 16-06-2005 are quashed and set aside. Respondents shall pass necessary orders in respect of cancellation of the appointment of private respondents, after due notice to him.
22. The above decision would thus make the appointment of the private respondent as illegal. However, the same cannot mean that the applicant should be through and she should be appointed. Though the applicant earlier had recommended for selection, it is to be seen whether she is immediately next to the private respondent in the subsequent selection held. It is only when the applicant is second in the panel (or waiting list No. 1), that the applicant can be appointed to the post. We are not provided with the materials in this regard. At one point of time, the respondents were directed to produce the relevant records, vide order dated 17-01-2007. However, the same has not been produced and only written arguments were submitted. As such, in so far as the relief claimed by the applicant vide para 8(iii) is concerned, no direction as prayed for could be given, save that the respondents are directed to verify the records and if the applicant stands at the selection for which test/interview was held on 18-01-2005 in the next position after the private respondent, then the appointment be given to the applicant. In that event, she would be deemed to have been appointed from the date of appointment of the private respondent, but she would not be granted any financial benefit save notional fixation of pay in the post of Lab. Technician and on her appointment, she would be fixed her pay by grant of increments for the period from the date of appointment of the private respondent till her taking over the post. If the applicant does not stand next to the private respondent, she be informed as to her position in the merit list and the respondents may consider the individual whoever is next to the private respondent. Till such time the above drill takes place, as a stop gap arrangement, respondents may allow the private respondent to continue. In other words, termination of the services of the private respondent and the appointment of the applicant or any other person in the place of the private respondents on the basis of the merit list prepared by the Selection Committee would be simultaneous.
23. The O.A. is disposed of on the above terms. This order be complied with, within a period of two months from the date of receipt of copy of the same.
24. Under the circumstances, there shall be no orders as to costs.
(D.C. Lakha ) (Dr. K.B.S. Rajan)
Member-A Member-J
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