Central Administrative Tribunal - Kolkata
Bikash Thakur vs Staff Selection Commission on 26 May, 2023
1 0.a. 979/2020 with o.a. 980.2020 bf] CENTRAL ADMINISTRATIVE TRIBUNAL KOLKATA BENCH, KOLKATA Date of order: 26.0: 210, Present : Hon'ble Mr. Manish Garg, Judicial Member Hon'ble Mr. Anindo Majumder, Administrative Member No. O.A. 350/00979/2020 Bikash Thakur, . Son of Bihari Thakur, Aged about 27 years By Occupation -- Unemployed, Residing at E-1/101, K.P. Abasan, AF Block, Sector -- 1, Salt Lake, Kolkata -- 700 064. No. O.A. 350/00980/2020 Sourav Pal, Son of Late Asok Kumar Pal, Aged about 27 years, By Occupation - Unemployed, Residing at Rabindra Sarani Second Lane, P.O. & P.S. Bolpur, Dist. -- Birbhum, Pin --- 731204. beens Applicants 1. The Union of India, Service through the Secretary, To the Government of India, Ministry of Commerce & Industry, Department of Commerce, South Block, New Delhi - 110 O01. 2. The Secretary to the Government of India, Department of Personnel & Training, Pi North Block, New Delhi - 110 001. 3. Directorate General of Commercial Intelligence & Statistics, Ministry of Commerce & Industry, 7 "i 2 0.a. 979/2020 with 0.a. 980.2020 565, Anandapur, Ward No. 108, Plot No. 22, Sector -- I, Kolkata -- 700 107. 4. Regional Director (ER), Staff Selection Commission, 1st MSO Building (8 Floor), 234/4, Acharya Jagadish Chandra Bose Road, Kolkata -- 700 020. 5. Joint Director, Ministry of Commerce and Industry, Department of Commerce, Directorate General of Commercial Intelligence & Statistics, 565, Anandapur, Ward No. 108, Plot No. 22, Sector -- I, Kolkata -- 700 107. 6. Deputy Director/CPIO, Ministry of Commerce & Industry, _ Directorate General of Commercial Intelligence -& Statistics, 565, Anandapur, Ward No. 108, Plot No. 22, Secior -- I, Kolkata -- 700 107. bees Respondents For the Applicants ot Mr. B. Chatterjee, Counsel For the Respondents Mr. S. Paul, Counsel ORDER
Per Mr. Anindo Majumdar, Administrative Member:
Since both the matters are analogous in nature and share common facts, they are disposed o7 analogously. For the sake of brevity, facts are delineated from O.A. No. 350/00979/2020.
2. The applicant in O.A. No. 250/00979/2020 has approached this Tribunal under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief:-
tal)
3 0.a. 979/2020 with 0.a. 980.2020 "(a) An order setting aside the Order dated 10.2.2020 (Annexure "A-4"), Letter dated 13.3.2020 and 09.06.2020 (Annexure "A-7") and further directing the respondents to complete the selection process and to provide appointment to the applicant if the applicant come within the zone of consideration as per their respective merit.
(b) An order directing the respondents to produce the relevant records.
(c) Any such other order or orders as to this Hon'ble Tribunal may deem fit and proper."
The facts of the case are summarized as under:-
3.1. The Staff Selection Commission, vide Notification No. Phase-
V1I/2018/Selection Posts, dated 5.09.2018 had | advertised for . selection of various posts.
3.2. The applicant has applied for the post of Data Processing Assistant in the Directorate General of Commercial Intelligence and Statistics (DGCIS) (Category ER 10518) under Ministry of Commerce, Govt. of India. The essential educational qualifications for the said post as mentioned in the Notification No. 15/7/2017- RHO dated 30.9.2018 are:
"(i) Degree of a recognized University with Science /Mathematics/Economics/Commerce/Statistics or equivalent;
(ii) Diploma or certificate in Computer Application from a Government recognized institution or knowledge of programming, system operations and system analysis to be judged through suitable tests.
"Note 1. Qualifications are relaxable at the discretion of Staff Selection Commission or competent authority in case of candidates otherwise well qualified.
2. The qualification (s) regarding experience is/are relaxable at the discretion of the Staff Selection Commission or Competent Authority in case of candidates belonging to Lat
4 0.a. 979/2020 with 0.a. 980.2020 Scheduled Castes or Scheduled Tribes if at any stage of selection the Staff Selection Commission or Competent Authority is of the opinion in that sufficient number of candidates from these communities possessing the requisite experience are not likely to be available to fill up the vacancies reserved for them."
3.3. Staff Selection Commission, Easte:1 Region conducted an examination of the eligible candidates and the applicant participated in the same.
3.4. A tentative merit list of over 600 candidates was published on 17.5.2019. The shortlisted candidates were directed to participate in the next stage of recruitment process i.e. scrutiny of documents and were asked to submit hard copies of all supporting documents in respect of educational qualification, experience, category, age etc. along with the print out of their online application form within three weeks i.e. upto 14.6.2019.
3.5. Meanwhile, Staff Selection Commission (Eastern Region), vide letter dated 12.7.2019 requested the user Department i.e. DGCIS to clarify as to whether the candidates having B. Tech Degree in any Engineering subjects/disciplines with Engineering Mathematics or equivalent subject can be considered to be suitable in respect to the Essential Qualification attached to the post of Data Processing Assistant (DPA).
3.6. DGCIS, vide its letter dated 16.7.2019 referred the matter to
- Directorate General of Foreign Trade (DGFT) seeking clarification from DoPT/Competent Authority regarding the eligibility or suitability of candidates having B.E or B. Tech Degree in any Engineering subject/discipline with Engineering Mathematics or Va 5 2.4. 979/2020 with 0.a. 980.2020 equivalent for appointment to the post of Data Processing Assistant.
3.7. SSC (ER) issued a notice dated 31.7.2019 declaring that scrutiny process of documents submitted by provisionally shortlisted candidates had been kept on hold for want of certain clarifications relating to the Essential Qualifications for the post. 3.8. SSC (ER) vide letter dated 23.8.2019 sought further comments/inputs from DGCIS on "knowledge of Programming, System Operations and System Analysis to be judged through suitable test", which is stipulated in the Essential Qualifications II. 3.9. On 17.10.2019, DGCIS informed SSC that in terms of provisions of Note (1) under Column 7 of the Schedule Part of the Recruitment Rules for the post of Data Processing Assistant (DPA) in DGCIS, qualifications for the post are relaxable at the discretion of SSC in case the candidates are otherwise well qualified and therefore, it is also within their (i.e. of SSC) competence to consider the eligibility of B.Tech/B.E. degree holders for the post of DPA in DGCIS, Kolkata.
3.10. SSC, vide their letter File No. | 5/1/ER10518/2018- Rectt./2326 dated 23.10.2019 informed that the question of eligibility of B.Tech/B.E. Degree holders for the post of DPA is related to the question of equivalence. DGCIS, as the User Department, is the competent authority to take a call on this issue as amounts to interpretation of Recruitment Rules. Recruitment Rules are formulated by the Administrative Ministry of the User Department and hence interpretation of the Recruitment Rules is to be done by the User Department or the Ministry concerned. SSC has further submitted that Essential Qualification II of the post of ViD 6 o.a. 979/2020 with o.a. 980.2020 DPA has a provision for suitable test for judging knowledge of Programming, System Operations and System Analysis and that it does not have expertise or infrastructure to arrange such tests. 3.11. DGCIS. vide their F. No. 48(1)/2015-Estt-I(Part-I]}/16 dated 9.6.2020 inter alia, informed that "Thereafter, the entire selection procedure has been managed by the Staff Selection Commission (SSC). During the course of the said selection procedure, SSC sought the observation of DGCIS on certain issues with regard to the Essential Qualification criteria for the post in question. Necessary clarification in this regard has been forwarded to SSC after due consultation with the appropriate authority. In this regard, SSC has unilaterally cancelled the ongoing recruitment process and DGCIS has not issued any instruction to cancel the same."
3.12. SSC (HQ) vide their letter dated 4.2.2020 conveyed their decision to cancel the recruitment for the post of Data Processing Assistant and asked the Eastern Regional Office to inform the User Department. The said letter is reproduced below:-
"2. The matter has been examined in the Commission and it is found that for EQ (i), as Recruitment Rules (RR) of the said post of Data Processing Assistant, the User Department has only mentioned the provision of Nete-1 under Col. 7 of Schedule of RRS regarding relaxation of qualification at the discretion of SSC and not furnished any clear clarification regarding the eligibility of BLE/B. Tech Degree holder for the said post. Further, EQ(ii) also, has the provision for conducting of a suitable test for assessing knowledge of Programming, System Operations and Systems Analysis which does not fall under the purview of recruitment procedure of Selection Posts due to non-availability of resources personnel/expertise in the relevant field. Moreover, there are possibilities that some candidate possess no certificate of Computer Application, may have applied on the basis of the said provision of suitable test which is not conducted by the Commission.
3. In view of the circumstances, it is not feasible to proceed further with the recruitment process for the post of Data Processing Assistant, Post Category No. ER1O518. Hence, the Commission has decided to cancel the recruitment for the post of Data Processing Assistant and the User Department may be informed accordingly.
WA 7 0.a, 979/2020 with 0.a. 980.2020
4. You, are therefore, requested to upload a Notice regarding cancellation of the above vacancies for the post of Data Processing Assistant in the O/o Directorate General of Commercial Intelligence & Statistics, M/o Commerce & Industry, Kolkata-700 107. A copy of the said Notice may be sent to the Commission (HQs.)} for uploading on its website also."
3.13. Staff Selection Commission (ER) vide Notification No. 5/1/ER10518/2018-Rectt. dated 10.2.2020 announced that the recruitment process for the post of Data Processing Assistant stand cancelled.
Aggrieved by the cancellation of the recruitment process, the applicant has filed the present O.A.
4. In support of their claim the applicant has contended as under:-
4.1. He satisfies the essential qualifications for appointment to the post of Data Processing Assistant.
4.2. SSC does not have the right to raise any other question, particularly, with regard to academic qualification. 4.3. The cancellation of the examination for recruitment to the post of Data Processing Assistant was arbitrary and contravenes the principles of equality and natural justice. 4.4. During course of hearing, Ld. Counsel for the applicant also relied on the following judgments:-
{i) K. Manjushree v. State of Andhra Pradesh ®& anr. reported in (2008) 3 SCC 512.
(ii) East Coast Railway & anr. v. Mahadev Appa Rao & ors. reported in (2010) 7 SCC 678.
(iii) Tej Prakash Pathak & ors. v. Rajasthan High Court & "ors. reported in (2013) 4 SCC 540.
. 5. The respondents have defended their action and have mentioned as : under:
5.1. Staff Selection Commission (respondent No. 4) had sought clarification from the User Department on the question whether the LiA) 8 0.a. 979/2020 with o.a. 980.2020 candidature of those candidates having B. Tech in any Engineering Subject or equivalent subject can be considered to be suitable in respect of the essential qualification attached to the post in question.
5.2 Further, the essential qualification associated with the post of Data Processing Assistant requires candidates to have "diploma or certificate in computer application from a government recognized institution or knowledge of programming, system operation and system analysis to be judged through suitability test." However, since the Commission did not have the infrastructure in the relevant field to assess the knowledge of programming, system operations and system analysis, the Commission was unable to continue with the recruitment process.
9.3. The stand taken by the applicant that merely since they have succeeded in the written test given themselves the right to appointment is not correct. The judgment will help to disprove the demand of the applicant -
In CIVIL APPEAL NO. 136 OF 2020 (ARISING OUT OF SLP (CIVIL) NO. 7243 OF 2017) -MOHD. RASHID ..... APPELLANT(S) VERSUS THE DIRECTOR, LOCAL BODIES, NEW SECRETARIAT & ORS...... RESPONDENT(S) WITH CIVIL APPEAL NO. 137 OF 2020 (ARISING OUT OF SLP (CIVIL) NO. 19912 OF 2017) it has been stated that-
Even after completion of the selection process, the candidates even on the merit list do not have any vested right to seek appointment only for the reason that their names appear on the merit list. In Shankarsan Dash v. Union of Indie 6, a Constitution Bench of this Court held that a candidate seeking appointment to a civil post cannot be regarded to have acquired an indefeasible right to appointment in such post merely because of the appearance of his name in the merit list. This Court held as under-
"7, It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless Lib 9 0.a. 979/2020 with o.a. 980.2020 the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licerise of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in the State of Haryana v. Subhash Chander Marwaha [(1974) 3 SCC 220 : 1973 SCC (L&S) 488:
(1974) 1 SCR 165]: Neelima Shangla (Miss) v. State of Haryana [(1986) 4 SCC 268: 1986 SCC (L&S) 759] or Jitender Kumar v. State of Punjab (1985) 1 SCC 122: 1985 SCC (LAS) 174: (1985) 1 SCR 899]."6 (1991) 3 SCC 47 7 13.
6. We have heard the Ld. Counsels for both the parties and examined the material on record. During hearing, the Ld. Counsels have reiterated the arguments already made in their respective pleadings.
7. In the instant case, it is seen that the Staff Selection Commission had advertised the vacancies for the post of Date Processing Assistant along with other vacancies. The examination was conducted and subsequently on 17.5.2019 the result of the examination was also declared. The applicant, Shri Bikash Thakur, who was provisionally short-listed on the basis of this examination, was asked, along with similarly placed candidates, to submit documents pertaining to age, qualification etc. to the Regional Office for scrutiny which is the next stage of the recruitment process.
Meanwhile, the Regional Office of the Staff Selection Commission appeared to have had doubts regarding whether candidates possessing B. Tech, B.E, Engineering Mathematics should be considered eligible for the post of Data Processing Assistant. They had accordingly sought clarification from the User department i.e. the Department of Commercial Statistics & Intelligence (DCIS), who in turn sought the views of the DGFT/DoP&T/competent authority. The User department eventually informed SSC that the Note 1 under Column 7 of the schedule part of the recruitment rule for the post of Data Processing Assistant in DGCIS, Leb 10 0.a. 979/2020 with o.a. 980.2020 provides that qualifications for the post are relaxable at the discretion of SSC in case the candidates are otherwise well qualified. However, SSC did not use its discretion in this regard and instead took the view that it is the administrative Ministry/User Department who are competent to take a decision on the matter. In addition, SSC took the view that they do not have the resources and expertise in the relevant field for conducting a test to assess the knowledge of the candidates in programming, systems operation and systems analysis. Thereafter, Staff Selection Commission vide its letter dated 10.2.2020, decided to cancel the recruitment for the post of Data Processing Assistant and asked its Eastern Regional Office to communicate its decision in the matter to the User Department, i.e. DGCIS.
8. The Staff Selection Commission (SSC) should have advertised the vacancy of Data Processing Assistant after being satisfied with the eligibility conditions stipulated in the Recruitment Rule for the said post in all respects. If SSC had found the eligibility conditions pertaining to Educational Qualifications for the post of Data Processing Assistant to be ambiguous, it should have sought clarification from the User department on whose requisition the post had been advertised, before issuing the Notification No. 15/7/2017-RHQ dated 30.9.2018 wherein applications were invited from eligible candidates. Further, if SSC did not have the . requisite expertise or infrastructure to conduct a test for assessing the knowledge of programming it should have at the very outset intimated this to the user department before advertising this vacancy and inviting applications for filling up the same. After advertising the vacancy and after already conducting an examination on the basis of which the applicants were shortlisted, SSC cannot subsequently take the plea that since there was lack of clarity regarding the educational qualifications,
2) 11 0.a. 979/2020 with 0.4. 980.2020 and since they did not have the requisite expertise or infrastructure to assess the knowledge of programming of the shortlisted candidates, they had cancelled the recruitment process for the post of Data Processing Assistant. Hence, the decision to cancel the aforesaid recruitment process is highly arbitrary. The candidates who appeared in the test for filling up the aforesaid vacancy would have invested a lot of time and resources for appearing in the exam and it would be unfair if the recruitment process is cancelled for no fault of theirs. It would be relevant to note that the Hon'ble Supreme Court in the matter of Dinesh Kumar Kashyap & ors. v. South East Central Railway & ors. reported in (2019) 12 SCC 798 has observed as under:-
"6, Our country is governed by the rule of law. Arbitrariness is an anathema to the rule of law. When an employer invites applications for filling up a large number of posts, a large number of unemployed youth apply for the same. They spend time in filling the form and pay the application fees. Thereafter, they spend time to prepare for the examination. They spend time and money to travel to the place where written test is held. If they qualify the written test they have to again travel to appear for the interview and medical examination, etc. Those who are successful and declared to be passed have a reasonable expectation that they will be appointed. No doubt, as pointed out above, this is not a vested right. However, the State must give some justifiable, non-arbitrary reason for not filling up the post. When the employer is the State it is bound to act according to Article 14 of the Constitution. It cannot without any rhyme or reason decide not to fill up the post. It must give some plausible reason for not filling up the posts. The courts would normally not question the justification but the justification must
- be reasonable and should not be an arbitrary, capricious or whimsical exercise of discretion vested in the State. It is in the light of these principles that we need to examine the contentions of SECR."
9. We are of the view that the justification offered by the Staff Selection Commission is not reasonable and instead smacks of arbitrariness, callousness and indifference to 'the plight of the large number of candidates who have been shortlisted on the basis of the examination for recruitment to the post of Data Processing Assistant and can therefore not be accepted.
LO 12 0.a. 979/2020 with o.a. 980.2020
10. The impugned order dated 10.2.2020 cancelling the recruitment process for the post of Data Processing Assistant is hereby quashed. The respondents are directed to complete the recruitinent process for the post of Data Processing Assistant in terms of the above observations within a period of six months.
11. With the above directions, the O.A.s are disposed of accordingly.
There shall be no order as to costs.
(Anindo Majumdar) (Manish Garg) Administrative Member Judicial Member Sp