Central Administrative Tribunal - Mumbai
Samrudha Ananda Walave vs M/O Health And Family Welfare on 25 September, 2023
me:
OA. Nos. a7if2o2e with MA No. 385/000 aw OA Nas. 374, 375 & 3976/2080, CENTRAL ADMINISTRATIVE TRIBUNAL MUMBAI BENCH, MUMBAL ORIGINAL APPLICATION Nos. 371/2020 with MLA No. 385 afw C}4 Nas. 874, 375 & 378 of 2928. Hon'ble Justice Shri. MG. Sewllkar, Member G) Won' bls Dr. Bhagwan Sahai, Member (4) Mrs, Kavita Vilay Shelke, Nee Kavita Racharu Sanap, Age 29 years, Indian imhabi tant, residing at 202, asd Floor, C- Wing, Sid- dhivir inayak Darshan, JR. Bharacha Marg, Mahalaxou (East), Saat Rasta, Jacob Circle, Mumbal-40Go 1. SOS TSGSOS a.
-Appticant in OA Na. S728.
Mr. Prasad Eknath Ugale, Age 25 years, Indian inhabitant, resid- ing ai 312, 3 Floor, Karani Building, yahomandir, §.G. 'Mare, Tardea, Mumbai-400034.
Mob No. 8291191908.
x Beall Ids or asadugale(@ TALLCOMn
-Applicant in OA No. 374/2028. Mr. Sudarshan Namdeo Patil, Age 25 y years, Indian, inhabitant, residing at 42/1540, CGS Colony, Sector 7, Antoo Hill, Mum- bai-400037 Mob No. 8976210100, Email Id: [email protected]
-Applicant in QA No. 37. 5/2020. 2 OLA. Nas. g7i/2020-with MA No. 385/e000 a/w GA Nas. 374, 375 & 8376/2080. , y ge 23 years, Indian inhabitant, Sey residing at A/406 Gokuldham CHS, Sane Guruji Marg, Tardeo, Murmbai-400034.
Mobile No. 8424042464.
ney 23 Fe ' Say J eserey FS SP LT ae Sy Ne Small id: sam.walave! SO7i@omail com:
Mr. Samrudha Ananda Walave, Age 2:
~Applicant in OA No. 376/2020. (Vir. K.K. Holambe Patil, Advocate) VERSUS i. Union of India, through the Secretary, Ministry of Health and Family Welfare, A-Wing, Nirman Bhavan, Phase I, Near Udyog Bhawan Metro Station, Maulana Azad Road, New Delhi, Delhi-110011.
Email Id: secyhfwGenicin
2. Directorate General of Heath Services, A-Wing, Nirman Bhavan, Phase I, Near Udyog Bhawan Metro' Station, Maulana Azad Road, New Delhi, Dethi- 110011.
Email Id: [email protected] The Director, All India Institute of Physical Medicine and Rehabilitation, Keshav Khade Marg, Haji Ali, Mahalaxmi, Mumbai~400034.
Email Id: [email protected] tas ~Respondents in all the OAs.
(Mr. R.R, Shetty, Advocate) thas.
OA Nos 371/20a0 with MA No. 3835/2086 afw OA Nos. 374, 379 5 & g7G/208e.
t Per : Hon'ble Justice Shri VLG. Sewlikax, Wlember GH OROER precevereenneni sc LX, All these GAs are being dignosed of by a comimon orcer 4s the » subject matter involved in all these CyAs is the same. i4. Facts in OA No. 371/2020 sre that the respondent no. 3 adver- tsed Croup "C" posts ie. Driver G-UR), Nursing Orderly (1-UR and 1-SC}, Hamal @-UR), Ward Boy 1-UR), Work Shop Attendant (1- UE) and Stretcher Bearer (1-O8 by publ ishing it in Employment News dated 23°29" December, 2017 and invited applications from vible candidates for the said posts. The applicant applied far the post 60 beet ee OG af Stretcher Bearer under reserved category of POther Backward Classes fOBC). In OA374/2020, the app olicant applied for the post of W forkshop Attendant and in OA Nos. 375 & 376/2020, the applicants applied for he posto of Hamal.
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12. The Selection Commilice, cons stituled by respondent no. 3, based on marks scored im screening test, called upon candidates from reserved category to report at AUPME. Mumbai 34 Le. the office of cespondent no. 3 on 14% November, 2018 at 10.00 A.M for verification oftheic documents. Pursuant to the somumunication dated ag® October oa 4 GA. Nos, 371/200 with MA No, 9385/2020 a/sv OA Nos. 374, 375 & 976/2020.
2018, the applicants appeared before the Committee with all original sonst oe , eee 4 certificates. Those certificates were verified by the Selection Commit-
tee of respondent no. 3. All documents were found genuine and ful-
filling the criteria for the post of Stretcher Bearer, Hamal and Work Shop Attendant.
1.3. The respondent no, 3 did not take any action thereafter for com- pleting the recruitment process. Therefore, all the applicants ap- proached the office of sespondeint no. 3 and inquired about the stage of selection process. Finally on 15" March, 2019, respondent no. 3 up- loaded a notice on its website informing that once decision regarding screening test for selection of candidates to different posts of Group "C* is taken, the same will be uploaded on the website of the institu- tion. The respondents uploaded the order dated 6" March, 2020 on the website of the respondents informing that upon the instructions of re- spondent no. 2, the selection process fir Group "C" posts advertised has been cancelled, The applicants contend that the selection process was cancelled without assigning any reason. Therefore, the applicants have filed these OAs seeking the relief of quashing of the order/notice dated 6" March, 2020 and direction to the respondents that the selec-
tion process vide advertisement published in employment news dated iA GA. Nos. s7ifeoee with MA No. 9is/2026 afw OA Nas, 374, 975 & a76/ 2020, +38 December, 2017 be completed within 02 months under the super- vision of this Tribunal and restrain the respondents from undertaking the process of fresh recruitment on the same posts it the aforesaid ad-
62. The respondents filed their veply contending therein that screen- ing test held was not of 160 marks but of 30 marks. 7 'hey admit that the Ped candidates were called for verification of documents, However, calling the applicants for verification of documents does not tantamount to se-
eetion for the said pasts. They contend th ¢the institute completed the process of verification of certiicates and prepared a list of selected candidates but did not publish U as the respondent no. 3 reesived an anorrymious complaint reg garding the malpractices adopted in the selec- tion process. They contend t shat the allegations in the complaint were that only Maharashtrians and the: children. of employees of the institute had been selected for different posts. The Institute therealte sr started the process of Investigating the conyplaint and further process, of selection was deferred. The complaint was veferred to Director General, He ealith ofa eeviees (DGHS), New Delhi. Upon investigation { was found that some of these candidates were relatives af staff of AUPMR. The Vigi-
lance Officer was consulted, who after going tT through the case found 5 ?
O.A, Nos, s7i/2020 with MA No. 9385/2026 afw Od Nos, 974, 378 & 8756/2020, tn.
EON that the details of the complaint could not be verified and since it was SS is | S- an anonymous complaint, the Vigilance Officer recommended that no further action was required. The same was conveyed to the competent authority Le. DGHS, New Delhi by respondent no. 3 seeking opinion as to whether any further action was required before resuming the se- lection process. DGHS asked for further information in the matter as the allegations made in the complaint were verifiable. 2.1. Tt was found that 420 oaitididaties had appeared in the axeminadén across In- dia. 04 out ofthe 07 selected candidates were relatives of the employ- ees of the institute, After verifying these facts, DGHS directed cancel- lation of the selection process and further directed to get the posts filled by Government Examination Body to ensure free and fair selection to these posts and thereafter they displayed the notize on 6° March, 2020 on the website of the institute, cancelling the recruitment process. They, therefore, prayed for the dismissal of these OAs. -
03. We have heard Mr. K.K, Holambe Patil, learned counsel for the applicants in all the OAs and Mr. R.R. Shetty, learned counsel for the respondents in all the OAs.
DA Nos. o7t/2o20 with MA No. 385/zou0 a/w OA Nos. 374, 375 & ari/eoac.
34. Mr. KK. Holambe Patil, learned counsel for the applicant sub- | mitted that ihe respondents cancelled the recruitment process On the ground that children of the emplayees were selected. This cannot be a excelled in merit. Just because all the applic 'ants happen to be the de- pendenis of the employees of AUPMR, if cannot be a factor to be con- sidered against them. If this prop sosition is accepted, no dependent of any Govemmient employee would ever be selected for a Government fab.
39. Mr RR. Shetty, learned counsel for the respondents submitted that the malpractices adopted by the applicants are writ large. All the 07 candidates are from Maharashtra and 04 out of them are the children gs of the employees of the institute. This ttself is a factor indicative of the % malpractices being adopte ed in the selection process, It is dificult to fathorn this can happen without there being any malpractice.
44. We have carefully considered the submissions made by the teamed counsels for the respective parties and carefully perused the oy
4.i. itis a settled principle of law that employer can abandon/call off g OA, Nos. 71/2020 with MA No. 3859/2020 afw QA Nos. 974, 375 & 976/s080, selection process at any time, subject to the condition that there are justifiable and non-arbitrary reasons for doing so. If the selection pro-
cess is cancelled without assigning any justifiable reason, then it is an arbitrary decision which cannot be eounfenanced.
4.2. Law on this point has been settled by the Supreme Court in the case of Dinesh Kumar Kashyap and Others Vs. South Bast Central Railway and Others, 2012 (72) SCC 798. In para 6, the Supreme Court has held thus:- | | "6 Our country is governed by the rude of law. Arbifeariness isan anathema to the rule of law When aa employer inviles applications for filling up a large monber of pasts, a large number of unemployed youth apply for the same, They spend time in filling ihe forai and pay the ¢ plication fees. Thereafter, they spend time to prepare for the examination. They spend Nine and money to travel io the place where written fest is held. if they qualify the wriiten test they have te again travel fo appear for the interview and medical exonination, etc. Those who are suceessfidl and declared io be passed have a reasonable expectation that ihep will be appointed. Ne doubt, as pointed put above, this is not a vested right, However, the Stafe piast give some justifiable, non-arbitrary reasan jor not filling up the post. When the employer is Un state is bound to-act according to Article 14 of the Constitution. If cannot whheut any Payne ar reason decide not io fill up the post. ff nuist give sare plausible reason for not filling up the posts. The courts would normally not question the justification but the j usfifleation must he yeasdnable and shauld sot be an arbitrary capricious oF whimsical exercise of discretion vested in the State, Lf ts in ihe light of these principles thai we need fo exconine the contentions af SECR."
4.3, In the case of Rawnder Singh Vs. J&K State Sports y CA. Nas. 991/2020 with MA No. 3885/2020 afw OA Nos. 374: : cory & 9756/2026, + Council and Ors, SWP No,1015/2015, High Court of Jamu & shaitr and Ladakh af Srinagar decided on 05th June, 2023, i para * 6 it has been held thus:-
Fdaw thet z . . omen' aid yar an employer has a rigat ta ahandon the selection process az ' ? i iF afuny time, bud the question would be, can i be dene arbifrartl
7 o withoul any peasonable and just couse on the sweet Whi af ine employer and can an emplover be permuted fe resert to prexk anel choase method while making appointment front a selection list Ay appoinling o less meritorious candidate : and leave more ne lorious candidate. The answer hay to be emphatic " ne nat igpide on the praposil loft ai all hecause ours ig a couniry governed by vale af law anal arbinorinvess is an anathema in the rule af law, HF "hen ah employer drvites opplications for filing up a large mumber of PO posts, a large munber ay une amply ed youth apply for the same they spend Hime in SUR ing the fors: and pay! fhe application pre and thereafien spend Hniw to prepare 4 for the exayninaion, as also money io P evel i ro jhe place, where fests inj fertherance of t the selection process iy held. if they gual ife the written test, hey map fave agali fo appear for interview and medical esonunation and fravel again and those, who ure srecessfia and are dee slaved fo hove qualified, have a reasonable cxpectation 8 hei they will he appotivted and no doubt, as novice od above, this is not a vested right, vet the employer or the Siate hos po give justifiable norarbiirary reasons for not afferag such suecessdfxl qualified candidates spolndnient, prt jieulariy w hen the auplover by Stale. as as hound Pte act and follow the mandate of dedele 14. of the Consiinuan. ft f cannot without ay reason decline fo fl up @ post wHhout ani low justification, which jast Aeation mut mot only he reasonable, should as qwil as nor arblirary, capric ieip pus e and whimsical. Thiy proposition of law has been laid dow ay fey tite : on oF Apex Court In case ded as, Shankarsan Dash Pos. Uni India, reported in 1991 SOC G) 40 Af, In the case of Ajay Kianar and Another Vs. State of UE and 2 Others, Writ.d No. 77832022, Alahabad Hish Court, the 19 O.A. Nos. 371/2020 with MA No, 3835/2080 a/w OA Nos. 374: 975 & 9376/2020.
observations of Supreme Court in the case of High Court af Delhi Vs. Devina Sharma, 2022 (4) SCC 643, have been quoted thus "the examination cannot however be pasiponed indefinitely nor can the candidates whe have applied be leff in a state of uncertainty. The age bar which they would enceunter Is net oF their own volition.
4.5. In the light of the above, it is clear that the employer has right to abandon the selection process at any time. However, it cannot be done arbitrarily without any reasonable and just cause. 'The employer has to give justifiable, non-arbitrary reasons for cancellation _ of the advertisement. The justification must be lawful, must not onby be reasonable but also should not be arbitrary, capricious and whimsical.
4.6. In the case at hand the selection process was cancelled because of the anonymous complaint received. The al legations in the complaint are that the candidates across the nation had applied for the posts and only Maharashtrians were selected and out of 07 selected candidates, O04 candidates are the children of the employees of the institute. T he respondents made investigation and found that all the selected candidates were Maharashtrians and 04 candidates out of 07 selected candidates were the children of the employees of the institute. Sumply sei OA. Nos. g71/g0ge with MA No. 2355/2020 a/w OA Nos. 374; 375 S376/2020.
because they happen to be the children of the employees of the mstituie | and that they are all Maharashtrians cannot be a ground for cancellation of the selection process. It was the bounden duty of the complamant to furnish details of the malpractioes alleged to have been adopted during selection process. On this ground alone, if the selection process is sancelled 8 would be an arbitrary exercises of powers. The complainant must disclose the details of the malpractices that were adopted during the selection process such as the paper was leaked to the ch ildren of the employees, the applicants indulged in copying, the employees checked answer sheets etc. Unless these details are given and proved, only on the ground that the applicants are the children of the employees of the institute, selection process cannot be called off. If such type of complaint without proof is entertained, no dependent of a Government servant would ever get selected.
4.7, In the report of the Vistince Officer, if is stated that after nquiring with all the selection committee members and some relevant taf members, it was found that the selection procedure was carried Be wut as per rules & regulations and all the documents were inspected and no wrongdoings were found. The complaint is anonymous and even after sending a letter by the Director at the address given by the 12 0.4. Nos. 3714/2020 with MA No, 985/s080 a/w OA Nos. 374, 375 & 3976/2020.
complainant, the complainant did not contact the concerned officer.
The complaint was, therefore, closed as no substance was found in it.
4%, On the basis of this report, [Mrector of the institute informed POETS Peay Diietheee wept Tan aes inane os can teats . DOGHS thet no fiether action is necessary and sought permission to restart the selection process.
4.9, It is the case of the respondents that a decision was taken by DGHS to cancel the selection process and restart the process of selection through Government examination body to ensure fice and fair selection of the candidates. The respondents have not produced any decision to that effect. They have simply produced the office note to that effect which is not even signed by all the concerned officers. The note only bears the digital signature of the DGHS. From this note, if does not appear that he approved it or disapproved the note. Therefore, it cannot be said that there was any decision of the DGHS to cancel
- the entire selection process. Even otherwise as indicated above, simply because the candidates happen to be the children of the employees of the institute, it cannot be a ground to cancel the selection process uniess verifiable details of malpractices are mentioned in the complaint and proof is adduced to that effect.
as O.A. Nos, g7i/gogo with MA Nd. 3885/2080 a/w OA Nos, 374, 975 & 3756/2020.
The report of the Vigilance Officer shows that the allegations in cancelling the selection process.
§.1. We, therefore, deem it aperepriate tn set asid March, 2026 and direct the respondents to resume the selection process from the stage at which it was abandoned by the respondents and complete it. This exercise shall be completed within a period of six months from the date of receipt of copy of this order by the
-ospordents. No Costs, MA No. 3835/2020 stands closed.
(is Bhagin Saitiye'e (lustice MG. Sewlikar) Member CA} Member G2) Regret 1Bey