Central Administrative Tribunal - Delhi
Khem Singh Bisht vs All India Institute Of Medical Sciences ... on 28 February, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
O.A.NO.943 of 2013
New Delhi, this the 28th day of February, 2014
CORAM:
HONBLE SHRI ASHOK KUMAR, ADMINISTRATIVE MEMBER
AND
HONBLE SHRI RAJ VIR SHARMA, JUDICIAL MEMBER
..
Khem Singh Bisht,
s/o Sh. Pratap Singh Bisht,
r/o Flat No.505, Type III,
Ayurvigyan Nagar,
New Delhi 49 Applicant
(By Advocate: Shri Yogesh Sharma)
Vrs
1. All India Institute of Medical Sciences (AIIMS),
Through its Director,
Ansari Nagar,
New Delhi 110029
2. The Administrative Officer (Rectt.),
Recruitment Cell,
All India Institute of Medical Sciences,
Ansari Nagar,
New Delhi 110029 Respondents
(By Advocate: Shri Sanjiv Joshi)
.
ORDER
Raj Vir Sharma, Member(J):
In this Original Application, the applicant has prayed for the following relief:
(i) That the Honble Tribunal may graciously be pleased to pass an order declaring to the effect that the whole action of the respondents not considering the case of the applicant and not calling the applicant in the interview for his appointment to the post of Senior Administrative Officer on deputation basis, is illegal, arbitrary and discriminatory in the eyes of law and consequently, pass an order directing the respondents to consider the applicant for his appointment to the post of Senior Administrative Officer on deputation basis with all the consequential benefits.
(ii) That the Honble Tribunal may graciously be pleased to pass an order of quashing the entire selection, as the same is in violation of Govt. of India O.M. dated 17.6.2010, with the direction to conduct fresh selection as per the O.M. dated 17.6.2010.
(iii) Any other relief which the Honble Tribunal deem fit and proper may also be granted to the applicant along with the costs of litigation.
2. Brief facts of the applicants case run thus: While working as Private Secretary in the All India Institute of Medical Sciences (AIIMS), New Delhi, with effect from 27.4.2001, the applicant made an application for selection and appointment to the post of Senior Administrative Officer in the AIIMS on deputation basis in response to the advertisement dated 31.7.2012 (Annexure A-1) issued by the respondents. In the said advertisement, the qualification and experiences, etc, for selection and appointment on deputation basis to the post of Senior Administrative Officer were mentioned as follows:
Essential Officers under the Central/State Governments/ U.T. Administration or the Central Statutory/Autonomous Bodies holding analogous posts on regular basis or with at least 5/8 years of regular service in a post in the Pay Band-3 of Rs.15600-39100 + Grade Pay of Rs.5400/Pay Band-2 of Rs.9300-34800 + Grade Pay of Rs.4600 respectively or equivalent and having a Degree and experience in administration and establishment matters and also preferably in accounts matters. Officers having MBA or Post Graduate Diploma in Personnel Management shall be given preference. (Period of deputation shall not ordinarily exceed 3 years). 2.1 According to the applicant, he possessed the necessary qualification and experience. He also possessed M.B.A. qualification, for which he was entitled to be given preference, as stipulated in the Recruitment Rules and the advertisement.
2.2 Along with his application for selection and appointment to the post of Senior Administrative Officer, the applicant enclosed a certificate issued by Dr.Rani Kumar, M.D., FAMS, Prof. & Head and Dean, on 30.4.2012, which is quoted below:
DEPARTMENT OF ANATOMY ALL INDIA INSTITUTE OF MEDICAL SCIENCES ANSARI NAGAR, NEW DELHI 110029 INDIA Dr.Rani Kumar MD, FAMS Dated: 30th April, 2012 Prof. & Head and Dean To Whom It May Concern This is certified that Mr.Khem Singh Bisht, Private Secretary, had been posted with me for last 6 years since May, 2006, in HoD office of Anatomy Deptt. till date.
During the tenure of his posting in Anatomy Department, he has worked very sincerely. He is an honest, punctual and hard-working worker. He manages the department staff very well. He possesses human skills like ability to work with good understanding of people as an individual or in groups, coupled with art of motivating them. This certainly makes him a good supervisor. He gets on well with his seniors, peers and subordinates. He has I.T. oriented attitude and good functional knowledge of computers. He possesses intelligent drafting skills of letters, memos, reports etc. and sound knowledge of Central Civil Services rules. The important assignments during his posting were as below:
- Supervision of time-keeping and attendance of Departmental employees about 70 to 80 members consisting of Sr. & Jr.Resident doctors, Ph.D students, Technical and Office staff since May 2006 along with their leave records. He discharged the duties and responsibilities very effectively and efficiently. During his supervision, the punctuality of staff members got improved.
- Handling of all correspondences of the Department related to general administration, academics, research, examinations of UGs, PGs and Ph.D. students, embalming, finance, budget and stores.
- Maintenance of records of service matters of departmental employees and faculty regarding their duties, leaves/vacations, ACRs, various kind of permissions, disciplinary cases etc.
- Attending day-to-days telephonic calls, national and international visitors including WHO fellows, short & long term trainees, various scientists/doctors etc. and giving appointments to them.
- Arranging and co-coordinating various departmental and other official meetings.
- Arranging national and international tours and travels for attending conferences and other meetings by HoD.
He has got very good managerial qualities. He tries to maintain the discipline and congenial working atmosphere in the department. Wherever he goes, he will be an asset to the department.
Sd/D.R.Rani Kumar. 2.3 The applicant states that a list of candidates to be called for interview was prepared by the Screening Committee. As his name was not included in the said list, the applicant approached the concerned officers who informed him that his candidature was rejected by the Screening Committee with the observation of his Not having experience in the relevant area of work prescribed for the post of Senior Administrative Officer. Being aggrieved, the applicant submitted representations dated 8.2.2013 to respondent no.1 and the Chief Vigilance Officer, AIIMS, for making necessary enquiry and for considering his candidature. In the said representations, the applicant, besides mentioning his experience, etc., brought to the notice of respondent no.1 that in the past many Private Secretaries working in AIIMS, namely, Mr.Puri, Mrs. Khilnani, Mr.Arora, Mr.Ajay and Mr.Chopra and others, were appointed as Administrative Officer, Senior Administrative Officer and Chief Administrative Officer in AIIMS. It was also pointed out that though S/Shri V.V.Mishra, and Razi Jawaid were already continuing as Administrative Officers on deputation basis in AIIMS and hence they were ineligible, yet the Screening Committee included them in the list. It was further pointed out by him that one Shri Lalit Kumar, who was working as Administrative Officer in the AIIMS on deputation basis and repatriated to his parent Department few months back, was also ineligible because of his having not completed the cooling off period of 3 years in his parent Department after repatriation from AIIMS, but he was included in the said list prepared by the Screening Committee.
2.4 The applicant states that he was not communicated any decision by respondent no.1 on his representation dated 8.2.2013, and the respondents conducted the interview on 18.2.2013 without calling the applicant to the interview. It is contended by the applicant that the illegal and arbitrary rejection of his candidature and consideration of ineligible persons by the respondents have vitiated the entire selection process and appointment made to the post.
3. In their counter reply, the respondents have resisted the claim of the applicant. It is stated that a Screening Committee consisting of S/Shri A.K.Kamra, Chief Procurement Officer; Attar Singh, Chief Administrative Officer; and Shri Ravi Chauhan, Administrative Officer was constituted for screening the applications for the post of Senior Administrative Officer (on deputation), vide Annexure II to the counter reply. The said Screening Committee, on scrutiny, found only 15 candidates, out of total 35 candidates, to have fulfilled the eligibility criteria and the other 20 candidates, which included the applicant, not to have fulfilled the eligibility criteria as laid down in the Recruitment Rules. Therefore, the said 20 candidates including the applicant were not called to the interview. As one of the 15 candidates, included in the said list, had already crossed the upper age limit of 56 years, he was also not called to the interview. Thus, the remaining 14 of the 15 candidates screened by the Screening Committee were interviewed by a Selection Committee under the Chairmanship of the Director, AIIMS, and on the basis of their performance in the interview and evaluation of their ACRs, two persons, namely, Shri Keshav Kumar Giridhari and Shri Lalit Kumar were recommended for appointment to the post of Senior Administrative Officer in AIIMS on deputation basis. The recommendation of the Selection Committee was approved by the President, AIIMS, who is the competent authority for making appointment to Group A posts in AIIMS.
3.1 It is stated by the respondents that the core duties and responsibilities of Stenographic cadre are different from those of the Administrative cadre. Stenographic staff, i.e., Steno/PA/PS in AIIMS work with faculty/Head of Departments by rendering secretarial assistance to them, whereas the responsibilities of Administrative Officer/Senior Administrative Officer require indepth knowledge of administration and establishment matters, which is acquired by actually doing those kinds of works. Getting some exposure to some administrative work while assisting the Head of Department/Faculty in their non-academic work cannot be treated as fulfilling the condition of having dealt with administration and establishment matters by any stretch of imagination. The Senior Administrative Officer at AIIMS is a post analogous to the post of Under Secretary in Central Secretariat, and various aspects of administration and establishment matters, like, Recruitment, Promotion, Financial Upgradation under MACP, legal matters, pay, pension, ACRs, vigilance, estates, procurement of goods and services, etc., are handled by a Senior Administrative Officer. Practical experience of working in these areas cannot be equated with some exposure gained through dealing with routine matters, like, forwarding of leave application, TA/DA claim, etc. otherwise. The AIIMS has its separate Administrative Wing in every Centre/Department where matters relating to administration, recruitment, promotion, financial upgradation under MACP, legal matters, pay, pension, ACRs, vigilance, estates, procurement of goods and services, etc., are being dealt and the individuals working in that Wing are having the vital and comparable experience in the requisite area.
3.2 It is stated by the respondents that the self-serving/procured document filed by the applicant showing his experience is of no avail to him as the same was procured from a particular person and the applicant failed to place any material as to what were his duties officially assigned to him or to other similar persons posted in the AIIMS.
3.3 As regards the ineligibility of Shri Lalit Kumar, as claimed by the applicant, the respondents have stated that his application having been forwarded by the parent Department without any condition, the issue of cooling off did not come in the way of his selection. Similarly, in the case of Shri V.V.Mishra, his application was forwarded by the parent Department mentioning that his deputation tenure would be counted from 29.4.2008, i.e., the day from which he was serving as Administrative Officer in AIIMS on deputation basis and, therefore, he was included in the list of candidates prepared by the Screening Committee.
3.4 As regards the instances of appointment of many Private Secretaries working in AIIMS being appointed as Administrative Officer and Senior Administrative Officer, the respondents have stated that those appointments were made in the past when the posts of Administrative Officer and Senior Administrative Officer were filled up under a different mode of recruitment as per the Recruitment Rules which were in vogue prior to the year 1991 and not under the amended Recruitment Rules.
4. The applicant in his rejoinder reply has refuted the averments made by the respondents in their counter reply. It is contended by the applicant that experience in administration means experience in general administration of various kinds of works in a supervisory capacity and/or experience in specific administration of any concerned organization in its various functional areas. The procedures to deal with matters relating to establishment are delineated in different rules and instructions issued by the Government from time to time, and any officer, either belonging to clerical or secretarial side of an organization, acquires knowledge and/or experience in such matters by dealing with the same if he/she is expected to do so in official capacity and no course is imparted to him/her by the organization or is undergone by him/her. Thus, it is contended by the applicant that the rejection of his candidature by the Screening Committee reflects the hostile attitude of the members of the Committee towards the applicant and officers of secretarial cadre.
4.1 It is also stated by the applicant that the three-member Screening Committee was not properly constituted in as much as an Administrative Officer was nominated as a member of the said Committee to scrutinize the applications for selection and appointment of Senior Administrative Officer. The applicant contends that all the members of the said Committee should have been at least one level above the post of Senior Administrative Officer.
4.2 As regards candidature of Shri Lalit Kumar, the applicant, refuting the stand of the respondents, has contended that in the absence of specific concurrence of the Department of Personnel & Training, either the Screening Committee or the Selection Committee should not have entertained the candidature of the said Shri Lalit Kumar who did not complete the cooling off period after repatriation from the AIIMS. The said Shri Lalit Kumar also did not have experience in general administration. His ACRs for 5 years and vigilance clearance were also not received by the AIIMS when the Screening Committee was scrutinizing his application. As regards candidature of Shri V.V.Mishra, it is stated by the applicant that the said Shri Mishra was about to complete 5 years deputation in the AIIMS and his parent organization had also mentioned that they would not extend his tenure of deputation beyond 5 years. He also did not fulfill the eligibility criteria of experience in accounts and general administration.
4.3 It is also stated by the applicant that the 15 out of 35 candidates, who were found eligible by the Screening Committee to be called for the interview, also did not fulfill both the eligibility criteria of experience in accounts and experience in general administration.
4.4 It is asserted by the applicant that in the recent past just 4 to 6 years back, Mr.Ajay, Private Secretary of AIIMS was appointed as Administrative Officer on deputation basis at AIIMS, and Shri Joshi, Private Secretary in Defence Ministry was appointed as Assistant Controller of Examination (which is Under Secretary level post) at AIIMS under the amended Recruitment Rules. Thus, the applicant has categorically refuted the statement made by the respondents that the Private Secretaries of AIIMS were considered and appointed on deputation basis as Administrative Officer or Senior Administrative Officer only in accordance with the Recruitment Rules as it stood prior to the amendment which took place in 1991. It is, thus, submitted by the applicant that declining the same treatment to him is a hostile discrimination on the part of the respondents.
5. No further counter reply to the applicants rejoinder reply has been filed by the respondents.
6. On the date of preliminary hearing on the question of admission and interim relief, the Tribunal, by order dated 18.3.2013, while directing issuance of notices to the respondents, directed that in the meantime, any appointment made by the respondents shall be subject to the final outcome of this O.A.
7. We have perused the pleadings and heard the learned counsel appearing for the parties.
8. From the pleadings, the following issues arise for our consideration:
(i) Whether the Screening Committee was properly constituted?
(ii) Whether the respondents were justified in rejecting the candidature of the applicant?
Whether the recommendation of the Selection Committee and consequential selection and appointment made to the post of Senior Administrative Officer are sustainable in the eye of law? And To what relief the applicant is entitled?
9. To answer the point in issue No.(i), we would like to reduce it into writing that there was an advertisement issued by the Respondent-Organization for selection and appointment to the post of Senior Administrative Officer. Indisputably, in the Screening Committee constituted by Respondent No.1 an Administrative Officer was one of the members of the said Committee. Prima facie, this gives a cue that there was laxity of administrative propriety in constituting such a Screening Committee comprising an officer lower in rank and status, viz., an Administrative Officer, to adjudge the eligibility of the candidates to be called to the interview for the post of Senior Administrative Officer, which is higher in rank and status than his/her. Respondent-Organization have not substantiated that the Screening Committee as constituted by Respondent No.1 was based on the rules and/or instructions issued by the Government from time to time. In the circumstances, the constitution of the Screening Committee is quixotic. Accordingly, we answer the point in issue No.(i) to the effect that the Screening Committee was not properly constituted.
10. As regards the point in issue No.(ii), having answered the point in issue No.(i) as above, the principle of sublato fundamento cadit opus, which means remove the foundation, the superstructure or work falls, would come into play. However, in the peculiar facts and circumstances of the case, we cannot but deprecate the manner in which the Respondent-Organization have made an attempt to stultify and abrogate the candidature of the applicant being a Private Secretary for being considered for the post of Senior Administrative Officer on deputation basis. The entire thrust of the Respondents in this regard is outlandish and expendable inasmuch as without comparative and objective assessment of performance of each of the candidates in the fray or without subjecting them to fair assessment through a common procedure or framework, the Respondents should not have held an opinion that an officer of particular grade to which the applicant belongs lacks requisite experience and is thus incapable of managing the affairs of Senior Administrative Officer, more particularly, when the Recruitment Rules do not prevent the applicant being a Private Secretary from applying for the post of Senior Administrative Officer, nor is it the case of the Respondents that the applicant is not at all eligible for the said post within the scope and extent of the Recruitment Rules. Therefore, the rejection of the candidature of the applicant was wholly unreasonable as his candidature has been left out of consideration by ignoring the experience certificate furnished by the applicant along with his application for the post in question. Viewed from the above, we answer the point in issue No.(ii) that the Respondents were not justified in rejecting the candidature of the applicant.
11. Having answered the points in issue Nos. (i) and (ii) as above, the corollary is that the recommendation of the Selection Committee and consequential selection and appointment to the post of Senior Administrative Officer is not sustainable in the eye of law. Moreover, though the applicant pointed out the illegalities committed by the Screening Committee in his representation made to respondent no.1 before the interview was conducted, yet no decision was taken by the said respondent no.1. The respondents have not refuted the assertion of the applicant that under the un-amended and amended Recruitment Rules, on several occasions in the past the Private Secretaries working in the AIIMS and other Departments were also considered and appointed as Administrative Officer and Senior Administrative Officer on deputation basis. In view of this admitted position, declining the same treatment to the applicant, without any justifiable reason, in our considered view, is a hostile discrimination on the part of the Respondents. Accordingly, the selection and appointment made to the post of Senior Administrative Officer become vulnerable. The point in issue No.(iii) is accordingly answered.
12. Having regard to what has been discussed above and in the interest of justice, equity and fair-play, we quash the entire process of selection and appointment made to the post of Senior Administrative Officer on deputation basis. In effect, we direct the Respondents to conduct a fresh selection for the post of Senior Administrative Officer on deputation basis, confining the consideration to all the 35 candidates, who had made applications for the post in question, strictly in accordance with the rules governing appointment on deputation basis to the post in question. The process of fresh selection, as directed hereunder, shall be completed within a period of three months from the date of receipt of copy of this order.
13. In the result, the O.A. is allowed as above. No costs.
(RAJ VIR SHARMA) (ASHOK KUMAR) JUDICIAL MEMBER ADMINISTRATIVE MEMBER AN