Central Administrative Tribunal - Delhi
Ms. Seema Dubey vs Union Of India Through on 3 December, 2009
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH : NEW DELHI O.A. NO.955/2009 New Delhi, this the 3rd day of December, 2009 CORAM: HONBLE MR. SHANKER RAJU, MEMBER (J) HONBLE DR. VEENA CHHOTRAY, MEMBER (A) Ms. Seema Dubey, W/o Shri Devender Dubey R/o G-105, Sarojini Nagar, New Delhi 110 023 Applicant (By Advocate: Shri S.K. Sinha) Versus 1. Union of India through The Secretary, Ministry of Health & Family Welfare, Nirman Bhawan, New Delhi 2. Medical Superintendent, Dr. Ram Manohar Lohia Hospital, New Delhi 3. Secretary, Union Public Service Commission, New Delhi Respondents (By Advocate: Shri Krishna Kumar for R-1 and R-2 Shri J.B. Mudgil for R-3) O R D E R By Dr. Veena Chhotray, Member (A):
The applicant, regularly appointed as a Junior Hindi Translator and subsequently appointed in ad hoc capacity as a Hindi Officer in Ram Monohar Lohia Hospital under the Ministry of Health & Family Welfare, seeks the following reliefs through this OA:-
i) Quash the selection process held vide advertisement dated 24.6.2005 and the DPC held consequent thereto on 5.12.2005 for the post of Hindi Officer in Dr. Ram Manohar Lohia Hospital.
Direct the respondents to consider the case of the applicant for regularization to the post of Hindi Officer as she already stood promoted to the post on 7.11.2003 under the draft Recruitment Rules/Rules for the post under Sister Organization by a duly constituted DPC; or In the alternative direct the respondents quash and set aside the Recruitment Rules for the post of Hindi Officer notified on 23.3.2004 in Dr. Ram Manohar Lohia Hospital inasmuch as it prescribes composite method of selection and prescribes deputation as first mode of selection; and Declare that the post of Hindi Officer in Dr. Ram Manohar Lohia Hospital shall first be filled up by way of promotion and only when the departmental candidates are not found suitable then only the other modes of recruitment can be adopted. Besides by way of interim relief a direction to maintain status quo as regards filling the post of Hindi Officer till the disposal of the present OA has also been sought. Considering the prayer, the Tribunal directed that reversion, if any, made subject to the final outcome of the OA.
Separate counter affidavits have been filed on behalf of the Union of India and the RML Hospital (Respondents 1 and 2) and the UPSC (Respondent no.3). Besides they would be represented by their respective counsels.
We have heard the learned counsels for the applicant, the respondents and also perused the material on record carefully.
2.1 In the year 1990 the applicant had been appointed as a Junior Hindi Translator in the Hindi Division of Dr. Ram Manohar Lohia Hospital under the Ministry of Health & Family Welfare. This was through the Staff Selection Commission. The next promotional post is that of Hindi Officer. As no Recruitment Rules had been formulated at that time, previously this post had been filled taking the recruitment rules of CRI, Kasauli a sister concern as the basis. The method of recruitment as per these rules was by promotion failing which by transfer on deputation and failing both by direct recruitment (Annexure A-3).
2.2 On the superannuation of the incumbent, the post of Hindi Officer fell vacant on 1.1.2003. It is submitted by the respondents that since the Recruitment Rules had still not been finalized, with a view to save the post from lapsing, the applicant was given ad hoc promotion to the post of Hindi Officer. This was done through a DPC. The Committee had recommended her promotion on ad hoc basis we.f. 7.11.2003 pending finalization of Recruitment Rules and filling up the post on regular basis. A copy of the relevant order dated 6.11.2003 (Annexure A/4) shows that the proposal had been approved by the Ministry of Health & Family Welfare and was for a period of six months. Further, the respondent-RML Hospital was directed to advertise the post in the meanwhile as per draft Recruitment Rules as approved by UPSC and regular selection finalized.
While as per the averment in the OA, the applicant has been working in this post ever since (para 1 (3)); as per the respondents she was given ad hoc promotion with technical break upto 19.11.2007 without financial benefit. It is further stated by the respondents that the applicant had been allowed first ACP in the pay scale of Rs.6500-200-10500 (same as that of Hindi Officer) w.e.f. 6.2.2002.
2.3 The Recruitment Rules were finally notified in 2004. As per these Rules, the method of recruitment for the post of Hindi Officer was prescribed as a composite method deputation plus promotion failing which by direct recruitment (Annexure R-V). Accordingly, the post was circulated by inviting applications on deputation and in response to the Departments Circulation/advertisement of the vacancy, 15 applications including one from the applicant as a departmental candidate were received. In response 14 applications received through various cadre controlling authorities and one of Smt. Seema Dubey, the sole departmental candidate were forwarded to the UPSC for consideration. The counter affidavit by the respondents 1 and 2 submits the following:-
xxxxx on 10.05.2008, M/o Health & Family Welfare sent a letter and informed that the UPSC has considered 4 candidates out of 15 candidates as eligible for consideration to fill up the post of Hindi Officer on the basis of deputation/promotion, in which Ms. Seema Dubey was also considered as eligible for consideration. On 12.01.09, a letter was received from M/o Health & Family Welfare with information that UPSC has selected Smt. Shashi Mehra on deputation for the post of Hindi Officer. (emphasis supplied) As per the submissions before us, the selected candidate has not joined despite the lapse of several months and the post has been lying vacant by way of a regular incumbent; the applicant has been continuing the post in an ad hoc capacity.
3.1 The case of the applicant is that qualification-wise she is a highly meritorious person fulfilling the eligibility conditions for the post of Hindi Officer. She is an MA in Hindi as well as in English, a B.Ed and besides a Gold Medalist in Translation Course in Service Training from CTB. Claiming to be an outstanding performer throughout her service career, it is submitted that she has never been communicated any adverse CR. Additionally the plea of practical experience for six years and placing an outsider over her ignoring the claims of the most eligible senior-most departmental candidate, have also been taken.
Her representation dated 13.1.2009 had been forwarded by the respondent no.2 for re-consideration to the Ministry. Their letter dated 17.2.2009 also mentioned that probably the candidature of the departmental candidate could not be given due consideration as no officer from the RML Hospital itself was present as departmental representative during the selection procedure (Annexure A/7).
4.1 The applicants grievance is that the post of Hindi Officer is a single post and could be the only promotional avenue for incumbents of the Junior Hindi Translator. While the applicant has been stagnating for want of any promotional avenues for nearly two decades, the respondents action by way of bringing an outsider on deputation is stated to mar her chances of career progression. In support, the applicant has evoked the decisions of the Apex Court in Council of Scientific and Industrial Research v. K.G.S. Bhatt {(1990) SCC (L&S) 45, O.Z. Hussain (Dr.) v. Union of India { (1991) SCC (L&S) 649 where the emphasis was placed by the Apex Court on ensuring promotional opportunities, both in the interest of the employees morale and to increase efficiency in public service.
4.2 While challenging even the validity of the DPC in question on the ground of non-representation of any member from the RML the case of the applicant virtually boils down to the argument that having been appointed earlier through a regularly constituted DPC under the Recruitment Rules of the sister concern, which as per the prevailing practice has been followed in the past too by RML for want of their own RR and satisfying all the eligibility conditions for the post even as per the RR of 2004, she should be treated as deemed to be a regular incumbent of the post of Hindi Officer.
4.3 In this background, the applicant also submitted that the newly formulated RR should be interpreted in a manner that the mode of promotion is to be exhausted first and only when the departmental candidate is not found suitable for want of prescribed grading, the other methods can be resorted to. In this context, the OA also adverts to the DOPT OM dated 8.2.2002 prescribing the guidelines with regard to the DPC assessing the suitability of the Departmental candidates with reference to the grading in the ACR and if the person under consideration qualifies the bench-mark, he/she has to be declared fit for promotion.
4.4 The OA has also taken the ground that there cannot be any comparison between a departmental candidate and a deputationist and if such be the view taken the Recruitment Rules prescribing for deputation/promotion as a composite method are liable to be struck down as violative of Articles 14 and 16 of the Constitution of India.
In support, the learned counsel for the applicant would rely upon the decision of the Apex Court in Union of India vs. O.N. Mathur, WP(C) No.6913/2007 decided on 11.1.2008. Besides, the recent decision of the Tribunal (Principal Bench) in Ashok Jailkhani v. Union of India & Ors (OA 24/2009 decided on 20.2.2009) would also be cited in support (Annexure Z-1).
5.1 In separate counter affidavits filed on behalf of the Ministry of Health & Family Welfare and the RML Hospital (Respondents 1 & 2) and the UPSC (respondent no.3) the factual background regarding the formulation of the Recruitment Rules, the provisions therein as well as the service history of the applicant have been submitted in detail. It is revealed that the department had taken inordinately long time i.e. more than 15 years to finalize the Recruitment Rules for the post of Hindi Officer. It also appears that while finalizing these Rules, the aspect of the promotion for the feeder cadre of Junior Hindi Translator had been taken duly into consideration. Taking into account that there were two feeder posts of Junior Hindi Translator being filled by method of absorption/deputation failing which by direct recruitment and one of the incumbents was a direct recruit and the other a deputationist, the relevant consideration was regarding the uncertainty of availability of any incumbent for promotion to the higher post of Hindi Officer. Under the circumstances, the Ministry had proposed to fill up the post of Hindi Officer by the method of deputation/promotion failing which by direct recruitment.
The counter affidavit by the UPSC also reveals that not only this methodology was a well considered decision but also in consonance with the guidelines on the subject by the DOP&T. The following averment from Para-7 of the counter affidavit is extracted as here under:
That considering the above facts, the composite method viz. deputation/promotion failing which by direct recruitment as proposed by the Ministry (Annnexure R-IV) was approved by the Commission as the method of recruitment for filling up the post of Hindi Officer in Dr. RML Hospital. According to guidelines issued by DoP&T regarding framing/amendment of RRs, it is laid down that where the field of promotion consists of only one post, the method of recruitment by deputation (ISTC)/promotion is prescribed so that the departmental officers are considered along with outsiders (Annexure R-VI). If the departmental candidate is selected for appointment to the post, it is to be treated as having been filled by promotion otherwise the post is to be filled by deputation (including short-term contract) for the prescribed period of deputation (including short term contract) at the end of which the departmental officer will again be afforded an opportunity to be considered for appointment to the post. Along with the counter affidavit, extracts of relevant guidelines by the DoPT in relation to the composite method of recruitment have also been enclosed as Annexure R-VI.
5.2 The UPSC, which is mandated to play the role of an impartial expert body in critical service matters, including the finalization of the Recruitment Rules, has also made the following definitive averments regarding the composite method of recruitment. The learned counsel for the respondents would specially draw our attention to pra-9 of the short reply which emphatically rejects the applicants claim for any exclusive right to be considered for promotion in this regard. Inview of the criticality of this aspect, the relevant extracts are being reproduced as below:
9. As regards the contention of the applicant that she is being denied regular promotion to the post of Hindi Officer on the basis of the present RRs, the answering respondent would respectfully submit that since the selection in the instant case was done on the basis of RRs notified in 2004 which prescribe composite method, i.e. deputation plus promotion, the applicant cannot claim an exclusive right to be considered for promotion to the post of Hindi Officer as she had to compete with three other outside candidates. As per the composite method, in case a departmental officer is selected for appointment to the post, the same shall be deemed to have been filled by promotion. In case an outside is selected, the post shall be deemed to have been filled by deputation. 5.3 The respondents 1 and 2 have endorsed the aforesaid view of the UPSC regarding the applicant claiming any exclusive consideration in the present Recruitment Rules as not being tenable. They have further averred that since her earlier promotion as Hindi Officer was ad hoc in nature and had been done pending finalization of the Recruitment Rules, with a clear stipulation to this effect in the order of appointment, she also did not have any right for regularization by that stretch of argument.
5.4 As per the respondents, the Recruitment Rules which are statutory in nature and have been framed keeping in view several aspects and instructions on the subject issued by the DOP&T and in consultation with several prescribed authorities, cannot be made to veer around the interests of a particular individual. Para 4.11 of the counter affidavit submits that the provisions of the composite method in the Recruitment Rules of a particular post are quite clear and there is no liberty to interpret the same to suit a particular employee or a group of employees. The learned counsel for the respondents Shri Krishna Kumar would also advert to the decision of the Apex Court in Pramod Kumar vs. U.P. secondary Board etc. [2009 (1) SLJ 2007] to contend that one must have a legal right to avail a legal remedy. As per the learned counsel, since in the instant case no legal right of the applicant could be construed to have been denied, the OA is fit to be dismissed.
6.1 In a catena of judgments, the legal position regarding the right of promotion of a public employee has come in for consideration of the Apex Court and several High courts. The view that emerges is that every public employee should have reasonable opportunity for carrier progression. In fact, in extreme cases of stagnation and non-availability of promotional avenues, special scheme of financial upgradation at fixed intervals under the Assured Career Progression adopted by the Government is a measure in this context only. However, having said that a distinction has been made between the legal enforceability of claims regarding chances of promotion as such and the right for fair consideration. The following dicta was observed by the Apex Court in Dwarka Prasad v. Union of India [2004 (1) ATJ SC 591 xxxx. It is well established in law that the right to be considered for promotion on fair and equal basis without discrimination may be claimed as a legal and fundamental right under Articles 14 and 16 of the Constitution of India but chances of promotion as such cannot be claimed as a right. Again the Apex Court had also took the view in S.B. Bhattacharjee vs. Majmudar (2007 (10) SCC 513) that such consideration must not only be without discrimination but also be effective and meaningful in accordance with the relevant rules and instructions.
6.2 In the instant case, the reliance placed by the applicant on the practice followed for the previous incumbent would not really be a relevant consideration to take a view with regard to the present claims; as at that point of time the respondent institute did not have its own Recruitment Rules. The Rules of CRI, Kasuali, the sister concern of RML Hospital, had envisaged an entirely different methodology (promotion failing which by transfer on deputation and failing both by direct recruitment) from the one prescribed in the Recruitment Rules finally notified for RML Hospital, (composite method Deputation plus Promotion failing which by direct recruitment).
7. Again, the ad hoc promotion given to the applicant from November 2003 would also not be a legitimate ground to reinforce her claim that even after the coming into force of the new Recruitment Rules of 2004, specifically applicable in this case, she should be deemed to have been promoted regularly. First of all it is settled law that ad hoc promotions, even when resorted to in administrative contingencies, do not confer any legally enforceable right for regularization. Besides, this had taken place before the coming into effect of new Recruitment Rules. Mere processing the case through DPC or even the approval of the administrative Ministry would not affect this basic proposition. We also note that this was clearly meant to be an interim arrangement (according to the respondents for avoiding the post in question from lapsing). The relevant communication dated 6.11.2003 (Annexure A/4) is reproduced as below:
Subject: Filling up the post of Hindi Officer on ad-hoc basis.
Sir, I am directed to refer to your letter No.6-5/02-RMLH(HA-I)/17270 dated 19.8.2003 on the subject mentioned above and to say that the Ministry of Health & Family Welfare has approved the proposal for ad-hoc appointment of Smt. Seema Dubey for six months. The Ministry has also directed that in the meantime the post may be advertised as per draft Recruitment Rules as approved by UPSC and regular selection finalized. Action in this regard may be taken within one month under intimation to this Directorate. Evidently, in the given situation the applicant also cannot take the protective shield of her ad hoc appointment having been done in accordance with the Recruitment Rules. When there were no Recruitment Rules of it own in 2003, such a contention would not be tenable. Also the additional plea in the Rejoinder that as per the Govt. of India instructions appointments made on ad hoc basis pending finalization of Recruitment Rules shall be treated as regular, does not fit the bill. Such a plea can validly be taken only when the draft Recruitment Rules remain the same on finalization. The respondent RML-Hospital had no draft Rules of its own and the finalized Recruitment Rules of the respondent-RML Hospital had embodied an entirely different methodology.
8.1 This now leads us to the point where the claims of the applicant have to be examined only within the purview of the specific Recruitment Regulations. Titled as Dr. Ram Manohar Lohia Hospital, New Delhi (Hindi Officer) (Group B post) Recruitment Rules, 2004 were notified on 23rd March, 2004 and duly published in the Gazettee (Annexure R-V). The post of Hindi Officer, only 1 in number, was classified a General Central Service (Group B Gazetted) Ministerial post with the pay scale of Rs.6500-10500 (pre-VI CPC) and treated as a Selection Post. Para 11 prescribed the method of recruitment as here under:
Column 11 Composite method - Deputation plus promotion failing which by Direct Recruitment.
The Departmental officer will also be considered along with outsiders and in case he/she is selected, the post shall be deemed to have been filled by promotion Column 12 elaborated the eligibility conditions for officers of the Central Govt. who could be considered under deputation. As point II the following provisions were prescribed in case of Departmental officers:
II. The departmental Junior Hindi Translator in the pay scale of Rs.5000-8000 with six years regular service in the grade shall also be considered along with outsiders. In case he or she is selected for appointment to the post, the same shall be deemed to have been filled by promotion.
The Departmental officers in the feeder category who are in the direct line of promotion will not be eligible for consideration for appointment on deputation.
Similarly deputationist shall not be eligible for consideration for appointment by promotion. 8.2 In the matter of interpretation of a statute, rule or regulation, the cardinal principle is to have a literal and grammatical interpretation and intention of legislature has to be gathered from the language used. Courts shall not read words into it as held by the Apex Court in V.K. Reddy vs. state of Andhra Pradesh [2006 (2) SCALE 34). It is also trite law that while interpreting the statute, which is clear, no words can be added or Court cannot make up any deficiency.
Applying the above doctrine of interpretation, the RR make it clear that the departmental candidate has only a right to be considered along with the other eligible candidates offering to come on deputation. As per the categorical averment in both the counter affidavits the case of the applicant had been considered and thus no infirmity on that score may be inferred.
9.1 However, there are two factual aspects that also deserve consideration. The first is a question mark regarding the composition of the DPC itself. While forwarding the representation of the applicant to the Ministry, the respondent 2 had made a clear mention of this fact. The translated version runs as follows (Annex. A-7):
Herein, it is essential to quote that probably the candidature of the department candidate could not be given due consideration as no officer from this Hospital was present as Departmental Representative during this selection procedure. Thus on the basis of above facts it is submitted that the candidature of Mrs. Seema Dubey, Jr. Hindi Translator, Dr. RML Hospital should be reconsidered for promotion and this office should also be informed for the same at the earliest so that the matter of filling up the post of Hindi Officer could be finalized.
This is sent with the approval of Medical Superintendent. In fact, the medical Superintendent of RML Hospital, had also recommended for reconsideration of the decision. This letter had been sent in response to the Ministrys intimation regarding the UPSCs recommendation for appointment of one Smt. Shashi Mehta for appointment in the post of Hindi Officer on deputation basis; and it had been directed that the post should be filled after the appointing authority of the Hospital satisfied itself for the same.
9.2 The questionability of the DPC due to non-representation of a departmental representative from the RML has been raised as one of the grounds to challenge the respondents impugned decision. The Ministry has, however, tended to brush it aside with the argument that the deputy secretary of the Ministry was present in the DPC. However, this is too a serious an objection to be taken casually considering the provisions regarding the composition of the DPC in the Recruitment Rule. Column 13 is reproduced below:-
Departmental Promotion Committee (for Confirmation)
1. Additional Medical Superintendent, Dr. Ram Manohar Lohia Hospital, New Delhi - Chairman
2. Director/Deputy Director Administration (concerned), Directorate General of Health Services - Member
3. Head of the Department concerned. Dr. Ram Manohar Lohia Hospital - Member
4. Deputy Director (Administration), Dr. Ram Manohar Lohia Hospital - Member 9.3 The other factual aspects extremely material to the issue in hand relate to the applicant having been short-listed as an eligible candidate by the DPC and the finally recommended candidate not having joined the post even after a lapse of several months.
Para-2 of the Counter Affidavit (Respondents 1 and 2) makes the averment that of the total 15 candidates the UPSC had found 4 candidates eligible and Mrs. Seema Dubey, the sole departmental candidate had also been considered as eligible for consideration.
As regards the non-joining of the finally selected candidate no change in status was reported by the respondents even till the time of the hearing by us. Thus the case remains in a limbo.
10.1 The learned counsel for the applicant has placed reliance on two judicial rulings to reinforce the claims in the OA. The first one is the decision of the Delhi High Court vide its order dated 11.1.2008 in Writ Petition (Civil) No.6913/2007 (Union of India & Anr vs. Shri O.N. Mathur). The second case relied upon is that of Ashok Jailkhani vs Union of India & Ors (OA No.24/2009) decided by the Principal Bench of the Tribunal vide its order dated 22.2.2009. Both these cases had dealt with the composite method of recruitment i.e. promotion/deputation failing which by direct recruitment. While the facts of both these cases are being mentioned a little in detail in the following paragraphs, we find that Shri O.N. Mathurs case is particularly relevant to the present OA.
10.2 In the case relating to Shri O.N. Mathur, the petitioner, who had been promoted as an Accounts Officer under the Central Pollution Control Board and had been given ad hoc promotion as Finance & Accounts Officer with several extensions, was agitating his claims for regular promotion under the composite method prescribed in the relevant Recruitment Rules. As in the present case, the relevant Recruitment Rules for promotion to the post of Finance & Accounts Officer had prescribed a composite method of transfer on deputation (including short-term Contract)/Promotion, the Department had been taking steps for a regular selection against this post by adopting the composite method of inviting applications from eligible outside candidates on deputation as well as by considering the departmental candidates on promotion. The case of the petitioner (Shri O.N. Mathur) was, however, that he was entitled to regularization in the post of Finance & Accounts Officer on the strength of his ad hoc promotion. Besides, the second argument was that the Department ought to have resorted to the mode of promotion first rather than carrying out recruitment by way of transfer on deputation/promotion. In the first round of litigation these claims of the applicant had been rejected both by the Tribunal as well as in appeal by the High Court.
Subsequently, however, on filing a fresh OA, the Tribunal too upheld the contentions of the applicant to the effect that the mode of promotion was to be adopted first and only after that method failed; the method of appointment by way of transfer on deputation was to be resorted. While doing so, the Tribunal had taken into consideration the DOP&T OM dated 3.10.1989. As per the Tribunal, while the Recruitment Rules under challenge did not need to be amended, however, the guidelines which were supplementing the Rules regarding the mode of filling up the posts needed to be altered in consonance with the guidelines.
The Union of India was contesting this decision of the Tribunal, which in a Review Petition was considered at length by the Delhi High Court and vide its final order dated 11.1.2008, the aforesaid order of the Tribunal had not been found to be tenable. In its order, the Delhi High Court had not only dealt with the Recruitment Rules prescribing the composite method of recruitment by transfer on deputation/promotion but also the DOP&T OM dated 3.10.1989 prescribing the guidelines on the subject. Discussing para-7 thereof, the Honble Court had taken note of two alternative scenarios. While in both these cases, the field of promotion consisted of only one post, the difference arose in the number of incumbents available in the department in the feeder cadre. As per the DOP&T guidelines, in the first case, the departmental candidate was to be treated along with outside ones; in the second one the departmental candidates were to be treated first and only in the event of their being found ineligible, the outside candidates were to be considered for deputation. The following dicta of the Honble High Court crystallized the issue:
xxxxx. The purpose is obvious, namely, to consider more than one person for the post in the higher category which is only one post. Therefore, if there are more than one person available in the Department the purpose is to have consideration by considering adequate number of person. If adequate number of persons available in the Department itself who are eligible for promotion then priority is to be given to departmental candidates. However, in case there is only one person available in the feeder cadre in the Department then the first alternative is to be preferred by having the names of outsiders for considering the outsider candidates as well along with the only candidate available in the Department. As in O.N. Mathurs case, the feeder cadre consisted of three posts of Accounts Officers, the second alternative was found to be applicable. On this ground the Honble High Court had decided that the Tribunal was in clear error in reading the aforesaid OM in its proper perspective.
To come to the facts of the present case, it is found that while the promotional post of Hindi Officer is only one, the departmental feeder category of Junior Hindi Translator has two posts. These have to be filled as per the method of absorption/deputation, failing which by direct recruitment. As per the averments of the respondents (counter affidavit filed by Respondent-3), one of the incumbents was a direct recruit and the other a deputationist. The OA also encloses a Circular dated 25.1.2007 showing the provisional seniority list of Junior Hindi Translators as on 1.1.2007. This shows two persons in the list, the applicant at number 1 as a direct recruit and another person, Smt. Kiran Kapoor, having brought on deputation but having been absorbed in the Hospital w.e.f. 12.7.2003. The post of Hindi Officer had fallen vacant on 1.1.2003. As per the Recruitment Rules, in the case of departmental Junior Hindi Translators, they should have completed six years of regular service in the grade. As per the respondents, out of the two departmental candidates, only the applicant No.1, Smt. Seema Dubey, had been considered along with the outside candidates and had been found eligible for the post. This would show that the other candidate who had been absorbed in the department w.e.f. 12.7.2003 was not considered so eligible. In such a situation, the scenario one, as envisaged by the Delhi High Court i.e. consideration of the sole departmental candidate along with outsider candidates, would seem to prevail.
10.3 In the other case, Ashok Jailkhani vs Union of India & Ors (OA No.24/2009 decided by the Principal Bench of the Tribunal vide the Order dated 20.2.2009) also had dealt with a claim arising out of composite method of recruitment (i.e. promotion/deputation failing which by direct recruitment on short contract basis). The relevant regulations in this case were Regulations 2001. As per the regulations, officers satisfying the norms of eligibility from the All India Services or Central Services Group A could be considered along with the departmental officers from the Indian Broadcasting Progeamme Service. Complications had arisen since the IB(P)S comprised of four streams Programme Management, Programme Production both under the AIR and the Doordarshan. The confusion had become further compounded because there was no consolidated seniority list of the eligible officers from these four different streams. Instead, as per the Rules, the inter-se seniority in respective cadres from the date of regular appointment only was the determining criteria. The respondents had also considered officers taking into account their ad hoc service in pursuance of the judicial directions. While doing so, they had further included some of the seniors of the beneficiaries of such judicial directions; but inadvertently had neglected the claim of the applicant. Considering the gamut of the facts, the Tribunal had not found the decision of the DPC selecting an officer of the IAS on deputation basis as valid and had quashed the same, with a direction to the respondents to hold the selection afresh after adhering to the judicial directions and considering all the eligible departmental candidates, including the applicant on the basis of his deemed eligibility and seniority.
As the above would show the facts of the present OA and issues raised are clearly distinguishable from the ones in Ashok Jailkhanis case.
11. To conclude, in the facts of the case in O.N. Mathurs case and adhering to the ratio decidendi, we do not find the challenge to the Recruitment Rules or the modus operandi adopted by the respondents i.e. considering the case of the applicant together with outside candidates as suffering from any infirmity. However, the present selection process is struck down as not in consonance with law on the ground of the composition of DPC not being as per the provisions in the Recruitment Rules. Considering the time factor involved in reinitiating the process afresh, we would instead direct the respondents to reconvene the DPC as per the statutory provisions and consider the case of the options received from outside candidates as also by the departmental candidates on merit. Needless to say , the case of the applicant, who claims to satisfy all the conditions of eligibility, besides has the experience of working in the same post for several years, should be given due consideration as per law and equity. The respondents are further directed to take the final decision in the matter within a period of three months from the date of receipt of a copy of this order. There shall be no order as to costs.
(VEENA CHHOTRAY) (SHANKER RAJU)
MEMBER (A) MEMBER (J)
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