Central Administrative Tribunal - Delhi
R.S. Jamwal vs Union Of India on 21 April, 2009
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
OA No.2410/2007
MA No.271/2008
MA No.1208/2008
MA No.264/209
With
OA No.53/2008
MA No.777/2008
New Delhi, this the 21st day of April, 2009
Honble Mr. Justice V.K. Bali, Chairman
Honble Mr. L.K.Joshi, Vice Chairman (A)
OA No.2410/2007
R.S. Jamwal,
Aged about 49 years,
S/o Shri B.S. Jamwal,
R/o D-15/A, MIG Flats,
Mayapuri, New Delhi-110064 Applicant
(By Advocate: Shri S.K. Gupta)
V E R S U S
1. Union of India
Through Secretary,
Ministry of Culture,
Shastri Bhawan, New Delhi.
2. Director General,
Archaeological Survey of India,
Janpath, New Delhi.
3. Secretary, UPSC,
Dholpur House,
Shahjahan Road,
New Delhi.
4. Shri Janhwij Sharma,
C/o Director General,
Archaeological Survey of India,
Janpath, New Delhi. Respondents
(By Advocate: Ms. Rekha Palli, for respondents 1&2
Sh.Naveen R. Nath and Mrs.Alka Sharma, for respondent 3
Sh.B.Balasubramanian, for respondent 4)
OA No.53/2008
Shri M.M. Kanade,
S/o Shri M.S. Kanade,
Aged about 55 years,
R/o 5-G, M.S.D. Flats,
Minto Road Quarters,
New Delhi-110002 Applicant
(By Advocate: Shri Sumant Bhardwaj)
V E R S U S
1. Union of India
Through Secretary,
Ministry of Culture,
Shastri Bhawan, New Delhi.
2. Secretary,
Ministry of Personnel & Training,
Department of Personnel & Training
and Public Grievance, Govt. of India,
North Block, New Delhi
3. Director General,
Archaeological Survey of India,
Janpath, New Delhi.
4. Secretary,
Union Public Service Commission,
Dholpur House, Shahjahan Road,
New Delhi-110003 Respondents
(By Advocate: Ms. Rekha Palli, Shri Naveen R. Nath and Mrs.Alka
Sharma, for respondents)
ORDER
Mr. L.K.Joshi, Vice Chairman (A) The applicants (in two Original Applications) have lost the race in the matter of selection on the post of Director (Conservation) in the Archaeological Survey of India (ASI), to Shri Janhwij Sharma, fourth respondent in OA No.2410/2007. The applicants have come to this Tribunal complaining about selection of fourth respondent on the ground that he does not possess the qualifications prescribed in the recruitment rules for the said post. Claiming themselves to be equipped with all the qualifications and yet not selected, they complain of similar heart burning as is caused to a person in the matter of supersession. Whether the plea raised by them with regard to fourth respondent not having the requisite criteria for appointment on the post of Director (Conservation) ASI is genuine, and they have been actually aggrieved, is the question that needs adjudication by this Tribunal in these Original Applications filed under Section 19 of the Administrative Tribunals Act, 1985. Prayer has been made to quash and set aside the appointment of the fourth Respondent on the post of Director (Conservation) in the ASI and to direct the Respondents to conduct a fresh selection for the aforesaid post. Since both the OAs are founded on the basis of same facts and law, we are dealing with both the OAs in a common order, with the consent of counsel for both parties. We are, however, extracting the facts from OA No.2410/2007.
2. The relevant facts are delineated in the following paragraphs.
3. The Applicants in both the OAs are presently holding the post of Superintending Archaeological Engineer in ASI, the second Respondent herein. The UPSC, the third Respondent, issued an advertisement on behalf of the ASI, the second Respondent, for the post of Director (Conservation) through advertisement no.10 dated 28 May-3 June, 2005 published in the Employment News. The following qualifications for the post of Director (Conservation) were prescribed in the above mentioned advertisement:
Essential Qualifications:
Degree in Civil Engineering or in Architecture of a recognized university or equivalent.
Experience:
10 years experience in actual execution of civil work including maintenance of building under Govt. or Semi-Govt. Department or in a well established private firm.
Desirable:
Masters Degree in Civil Engineering or Architecture;
ii) Experience in preservation of ancient structures.
4. A number of individuals applied for the aforesaid post in response to the advertisement adverted to above. It was mentioned in Note-II of the aforesaid advertisement that the UPSC could take recourse to restricting the number of candidates to a reasonable number where the number of applications received in response to an advertisement was large and it would not be convenient or possible for the UPSC to interview all the candidates. It was mentioned in the advertisement that the UPSC could take recourse to the following methods:
(a) On the basis of either qualifications and experience higher than the minimum prescribed in the advertisement; or On the basis of experience in the relevant field; or ) By counting experience before or after the acquisition of essential qualifications; or By holding a screening test.
The candidates should, therefore, mention all the qualifications and experience in the relevant field over and above the minimum qualifications and should attach attested/self certified copies of the Certificates in support thereof.
5. The UPSC prepared a short-list by taking into account the essential qualification of degree in Civil Engineering or in Architecture of a recognized university or equivalent and essential qualification of experience, viz., ten years experience in actual execution of civil works including maintenance of buildings under Government or semi-Government department or in a well established private firm. It also included the desirable qualification of experience in preservation of ancient structures. The other alternative short-listing criteria adopted was the essential educational qualification combined with 16 years experience in actual execution of civil works including maintenance of buildings under Government or semi-Government department or in a well established private firm plus Masters degree in civil engineering or architecture. On the basis of the short listing, interviews were fixed for 30.11.2007. Both the Applicants in the OAs before us and the fourth Respondent i.e. Shri Janhwij Sharma were among those who were called for the interview. The UPSC issued its letter of recommendation with regard to selection on the post of Director (Conservation) in ASI on 11.12.2007. The Applicant in OA No.2410/2007 submitted a representation on 14.12.2007 (Annex A-6) raising the following issues:
a number of candidates invited for the interview had only essential qualifications but not the desirable qualification and experience;
some candidates did not have valid quality conservation experience of ten years; and there was some degree of bias, which the Applicant sensed in the Interview Board and the experts were not from the area of specialization required for selection to the post of Director(Conservation).
The OA No.2410/2007 was then filed on 28.12.2007 before any reply could be received from the third Respondent.
6. The only ground for challenge to the selection of the fourth Respondent to the post of Director (Conservation) in ASI is that he does not possess the essential experience as prescribed in the RRs i.e. ten years experience in actual execution of civil works including maintenance of buildings under Government or Semi-government Department or in a well established private firm. It is strongly urged that the fourth Respondent neither has ten years experience in actual execution of civil works nor has he worked under Government or Semi-government department/ well established private firm. Attention is drawn to Paragraph 7 (iv) and Note 1 (III) of the aforesaid advertisement, which are as follows:
7.(iv) Certificate(s) from the Head(s) of Organisation(s)/ Department(s) for the entire experience claimed, clearly mentioning the duration of employment (date, month & year) indicating the basic pay and consolidated pay. The certificate(s) should also mention the nature of duties performed/experience obtained in the post(s) with duration(s). NOTE: I: (III). If no copies of the above certificates are sent with the application, it is liable to be rejected and no appeal against its rejection will be entertained. It is pointed out that even the certificates given by the fourth Respondent about his experience, copies of which are placed at pages 308 to 310 of the paper book, are not in accordance with the prescribed form in which date, month and the year of starting and quitting the service under a particular employee had to be given. It is pointed out, by way of example, that the certificate given by Rajiv Khanna & Associates, placed at page 308 of the paper book, the period when the Applicant worked with this firm has been shown as from August 1991 to March 1993. It is urged that the third Respondent, UPSC, could not have worked out exact period for which the Applicant had worked under different employers. It would be difficult to work out whether the fourth Respondent had ten years experience, it is contended by the learned counsel for the Applicant.
7. It is strenuously urged that the fourth Respondent has no experience of Civil Works whatsoever. Reference has been made to General Financial Rules (GFRs).
Reference is made to Rule 129 (2) of the GFRs, which reads thus:
Rule 129 (2) for purposes of administration and control, central buildings and other works are broadly divided into the following classes:-
Public works, that is, Civil Works and Irrigation, Navigation, Embankment and Drainage Works under the administrative control of the Public Works Department; and Buildings and other works under the administrative control of civil departments using or requiring them. These comprise, inter alia, -
) archaeological works in connection with conservation of ancient monuments;.. Attention is also drawn to OM No.F.10(13)-E(Co-ord)/75 dated 10.04.1975 of the Ministry of Finance, reproduced in Swamys Compilation of GFRs. A note at the bottom of the OM defines Civil Works thus:
Note Civil Works would mean building works including electrical and plumbing work, compound walls, internal roads, new cross-drainage works on them, other miscellaneous structures etc. The argument derived from the above is that the fourth Respondent has no experience of civil works, as defined in the Note quoted above. It is further submitted that under Rule 129 (2) (i), Public Works comprise, among others, civil works and irrigation works whereas archaeological works in connection with conservation of ancient monuments are defined separately in Rule 129 (2) (ii) ). While the Applicant, by virtue of his working in the Central Public Works Department(CPWD), for nearly a decade, which fact is not in dispute and is borne out by the Applicants bio-data placed at page 33 of the paper book, has the experience of civil works as defined in the GFRs, the fourth Respondent has no such experience, as seen from his bio-data at page 36 of the paper book and his certificates of experience at pages 308 to 310 ibid. It is further pointed out that there is another certificate of experience given to the fourth Respondent by the Indian National Trust for Art and Cultural Heritage (INTACH), placed at pages 152-153 of the paper book. The learned counsel for the Applicant would contend that INTACH is neither in the category of Government or Semi-Government organization nor is it a well established private firm. It is pointed out, on the basis of the Memorandum of Association of INTACH (pages 258-261, Annex M-5) that it is a `Society registered under the Societies Registration Act, 1860. It cannot be equated to a private firm. If the experience in INTACH is not counted, the fourth Respondent would not meet the criterion of experience of 10 years, contends the learned counsel for the Applicant.
8. It has also been argued, with some degree of vehemence, that the interview board, which interviewed the candidates for the post of Director (Conservation), did not have the specialists in the subject matter of conservation. It is also alleged that the Applicant could feel that the interview board was biased against him. It is contended that it is for this reason that the Applicant gave a representation on 14.12.2007, immediately before the result of interview was declared.
9. The last argument, on behalf of the Applicant, is that the fourth Respondent does not have a Masters degree in Civil Engineering or architecture, which is a desirable qualification.
10. The Respondents have contested the cause of the Applicant. It was stated by the learned counsel for the third Respondent, UPSC that the prescribed experience of the candidates is counted up to the last date of submission of application. In the instant case, the last date of submission of applications was 16.06.2005. The fourth Respondent had submitted his application on 15.06.2005. The learned counsel for the Respondent has produced a calculation sheet in respect of the fourth Respondent, showing that he had actually the experience on the last date of submission of application of 10 years, 01 month and 16 days. The calculation sheet given by the Respondents is reproduced below:
Place of Working Post From To Yrs Mn Day RAJIV KHANNA & ASSOCIATES ARCHITECT AUG.91 MAR.93 1 8 -
SWADESH ANUJA & ASSOCIATES ASSO. ARCHITECT APR.93 MAR.94 1 - -
ROMI KHOSLA ARCHITECT APR.94 APR.96 2 - -
INTACH CONSERVATION ARCHITECT FEB.2000 16.06.05 5 5 16 10 1 16 Where the time spent in a firm has not been given in days, months and years, it is stated that full month has been taken as the period for which the fourth Respondent has worked in a firm.
11. It is further stated that there are no prescribed parameters or definition of a well established private firm. However, it is the contention of the third Respondent that it would be seen from the certificates of experience produced by the fourth Respondent that the firms of Rajiv Khanna & Associates and Swadesh Anuja & Associates had their offices in well known areas of Delhi. There would be no reason to doubt that these were well established firms. It is contended that the Applicant has not produced any document to corroborate his claim that these firms are not well established firms. It is further contended that the fourth Respondent had Masters degree in Conservation from the University of York, contrary to what was stated by the Applicants. It is pointed out that a copy of the degree of Master of Arts in Conservation Studies from the University of York is placed at page 90 of the paper book. However, it is stated that in the short-listing, the possession of Masters degree was not taken into consideration.
12. The third Respondent has produced a copy of Memorandum of Association and Rules and Regulations of INTACH, which is also on record, to show that important objective of the Society is to take up Conservation Projects. In this context, our attention has been drawn to the objectives of the Society as enunciated in the Memorandum of Association. The relevant part of clause 3 of the Memorandum of Association is reproduced below:
3. The objectives for which the Society is formed are:
to undertake measures for the preservation and conservation of natural resources and cultural property, including but not limited to places of scenic beauty and geological features, having a high archaeological, historical, artistic or scientific value, as are not protected by any of the Central or State Statutes;
to undertake appropriate measures for the preservation of not only historic buildings but also of historic quarters and towns and domestic architecture displaying artistic or skilled craftsmanship;
to acquire or to hold in lease any cultural property or part thereof which the Society may deem necessary in furtherance of its objectives;
to undertake documentation of the cultural and natural heritage;
.
to undertake pilot conservation projects.:
13. It is forcefully contended that the major objective of the INTACH is conservation of the archaeological monuments. It is urged that it came into existence on 27.01.1984 and has been working, inter alia, in the field of conservation of archaeological monuments for nearly 25 years. It is argued by the learned counsel for the third Respondent that the term well established private firm could be applied for the purpose of recruitment with full justification to the INTACH.
14. The contention of the Applicant that he had filed a representation challenging the procedure adopted by the Interview Board and its composition before the recommendations of the third Respondent has been strongly refuted by stating that the UPSC, the third Respondent, had issued its recommendation letter on 11.12.2007. The Applicant made his representation to the third Respondent on 14.12.2007, which was received in the Office of the third Respondent on 17.12.2007. It is stated that the Applicant filed the OA on 28.12.2007 before a reply could be given.
15. The argument regarding the composition of the Interview Board that it did not have the experts in the subject matter has also been repelled by stating that the Board was presided over by the Member of the UPSC, assisted by two eminent experts/ advisers not connected with the department to make an objective assessment of the candidates. It is strongly urged that the Applicant has laid no foundation for the claim that the Interview Board was biased. It is argued that the Applicant appeared in the interview and when he came to know after submission of the recommendations of the third Respondent regarding selection of the candidate on 11.12.2007, he, with malafide intentions, gave a representation on 14.12.2007.
16. It is strongly asserted in the counter reply of the UPSC that the fourth Respondent has desired experience in the preservation and conservation of ancient structures and he has been fairly selected by the Interview Board for the post of Director (Conservation) in the ASI.
17. The fourth Respondent has also filed a counter affidavit, in which he has mainly stated that he has done actual filed work and has gained vast experience in the preservation of ancient structures. The rest of the counter reply is regarding comparative merit of the fourth Respondent and the Applicant, which we need not consider as we cannot be a judge of such a matter.
18. We have given our anxious consideration to the rival contentions and have gone through the records with the assistance of counsel for both the parties. We have also perused file No.F.1/254(81)2004-R.VI dealing with the recruitment to the post of Director (Conservation) in ASI. We have seen the notings on pages 51 and 52 of the file of the third Respondent, UPSC, in which the experience of the candidates, including the fourth Respondent has been calculated. On 9.10.2007, the following note has been recorded regarding the fourth Respondents experience:
He has submitted experience certificate from Rajiv Khanna Associate as architect w.e.f. August, 1991 to March, 1993 (1 year and 8 months), from Swedesh Aneja and Associates as Architect w.e.f. April, 1993 to March, 1994 (1 year), from Romi Khosla as Architect w.e.f. April, 1994 to April, 1996 (2 years 1 month), from INTACH as Director, Programme w.e.f. February, 2000 to 16.06.2005 (5 years 4 months and 16 days) alongwith nature of duties. The total period of experience comes to 10 years 1 month and 16 days. Thus, the candidate fulfills the required period of experience of 10 years for shortlisting.
19. In so far as the contention of the Applicant regarding the lack of experience of the fourth Respondent in civil works is concerned, we are unable to agree with those contentions. The definition of civil works, which has been pointed out to us on the basis of GFRs is only for the purpose of administrative approvals and sanctions for the works of CPWD and other Public Works Departments (PWDs). Obviously, the definition of civil works adverted to above has to be in consonance with the work performed by the PWDs. However, only on the basis of this definition, it is not possible to restrict the meaning of civil works to such a narrow straitjacket. The Websters Revised Unabridged dictionary defines Engineering thus:
Engineering. originally an art of managing engines in its modern and extended sense, the art and science by which the mechanical properties of matter are made useful to man in structures and machines; the occupation and work of an engineer.
NOTE: In a comprehensive sense, engineering includes architecture as a mechanical art, in distinction from architecture as a fine art. It was formerly divided into military engineering, which is the art of designing and constructing offensive and defensive works and civil engineering, in a broad sense, as relating to other kinds of public works/machinery etc. Civil Engineering in modern usage is strictly the art of planning, laying out and constructing fixed public works, such as railroads, highways, canals, aqueducts, water works, bridges, light houses, docks, embankments, break waters, dams, tunnels etc.
20. The definition of civil engineering is also reproduced below:
A branch of engineering that encompasses the conception, design, construction and management of residential and commercial buildings and structures, water supply facilities and transportation systems for goods and people, as well as control of the environment for the maintenance and improvement of the quality of life. Civil Engineering includes planning and design professionals in both the public and private sectors, contractors, builders, educators and researchers.
The civil engineer holds the safety, health and welfare of the public paramount. Civil engineering projects and systems should conform to governmental regulations and statutes; should be built economically to function properly with a minimum of maintenance and repair while withstanding anticipated usage and weather; and should conserve energy and allow hazard-free construction while providing healthful, safe and environmentally sound utilization by society.
Civil engineers play a major role in developing workable solutions to construct, renovate, repair, maintain, and upgrade infrastructure. The infrastructure includes roads, mass transit, rail-roads, bridges, airports, storage buildings, terminals, communication and control towers, water supply and treatment systems, as well as living and working areas, recreational buildings and ancillary structures for civil and civic needs. Without a well-maintained and functioning infrastructure the urban area cannot stay healthy, grow and prosper.
Because the desired objectives are so broad and encompass an orderly progression of interrelated components and information to arrive at the visually pleasing, environmentally satisfactory and energy-frugal end point, civil engineering projects are actually systems requiring the skills and inputs of many diverse technical specialities, all of which are subsets of the overall civil engineering profession. (Source Sci-Tech Encyclopedia downloaded from Google).
21. The civil works are works for civil society as contrasted to the works for military. The archaeological monuments, when these were constructed, were also marvels of civil engineering. It would be ridiculous to deny that civil engineering did not play any role in the construction of the majestic temples at Khajuraho and at Madurai or the Red Fort in Delhi or the Qutub Minar etc. It would only be logical that the maintenance of such monuments would, of necessity, involve civil works. We are of the considered opinion that any work, which would involve repair, maintenance, conservation and preservation of archaeological monuments has to be in the nature of civil works. Various kinds of construction materials, bricks, mortar and chemicals etc. have to be used in such works. If the definition given in the GFRs were to be accepted as to be the exclusive definition of civil works, it would lead to a situation where any engineer directly recruited by the ASI would not be considered to have done any civil work and the field would only be open to those who have worked in the Public Works Department. The stand of the Applicants is hyper-technical and militates against common sense.
22. We are in agreement with the Respondents that there cannot be any definition of eminent private firm in the specific context in which we are considering the instant case, which would exclude INTACH from being an institution in which case the experience of work in INTACH should not be counted for the post of Director (Conservation). An institution which has been in existence for 25 years and which has the specific objective, inter alia, of preservation and conservation of monuments cannot be overlooked and the experience of work in that institution cannot be discounted for the post under consideration.
23. We cannot also accept the contention on behalf of the Applicants that the Interview Board did not include eminent experts. There is no rule or direction of the Government regarding the exact composition of the Interview Board. The third Respondent is an expert body constituted under Article 315 of the Constitution and its functions are defined under Article 320 of the Constitution of India. It has been constituted for the purpose of making selection to the posts under the Union Government. It has constituted a committee and has stated that it consisted of two eminent experts not connected with the department. The Applicants cannot challenge the competence of the experts. We reject this argument. It is also unfortunate that an allegation of bias has been made against the Interview Board without giving any argument to substantiate the allegation of bias. It is well established principle of administrative jurisprudence that the charge of bias against any authority should not be made lightly and that, in case such an allegation is made, it should be substantiated fully.
24. The learned counsel for the Applicant in OA No.53/2008 has adopted the arguments of the learned counsel in OA No.2410/2007.
25. On the basis of the above discussion, we find no merit in the OAs, which are dismissed. In the circumstances of the case there will be no order as to costs.
( L.K. Joshi ) ( V.K. Bali ) Vice Chairman (A) Chairman /dkm/