Central Administrative Tribunal - Kolkata
Arfan Ali vs Andaman & Nicobar Admn on 29 March, 2022
1 0.a, 351.01012,2020 with o.a. 351.1088.2020 with 0,a.351. 1319.2020 CENTRAL ADMINISTRATIVE TRIBUNAL KOLKATA BENCH, KOLKATA Date of order: 28-3 Qa Present. ; Hon'ble Ms. Bidisha Banerjee, Judicial Member. Hon'ble Dr. Nandita Chatterjee, Administrative Member 1, O.A. No. 351/1012/2020 Arfan Ali & 20 ors. 2. O.A. No. 351/1088/2020 Manohar Prasad 3, O.A. No. 351/1319/2020 Smt. Darsana Devi S.G .... Applicants - VERSUS- 1. Union of India, © . Service through the Secretary, Government of India, Ministry of Human Resource Development, Shastri Bhawan, New Delhi- 110 001. 2. Union of India, Service through the Secretary, Government of India, Ministry of Home Affairs, Central Secretariat, North Block, New Delhi - 110 O01. 3. The Lieutenant Governor, Andaman & Nicobar Islands, Raj Niwas, _ . 'Port Blair -- 744 101. 4, The Andaman & Nicobar Administration, Service through the Chief Secretary, 'Andaman & Nicobar Administration, Secretariat Complex, Port Blair -- 744 101. 0.4. 351.01012.2020 with 0.8. 351.1088.2020 with 0.a.351. 1319.2020 5. The Chief Secretary, Andaman & Nicobar Administration, Secretariat, Port Blair - 744 101. 6. The Secretary (Personnel), Andaman & Nicobar Administration, Secretariat, ) Port Blair - 744 101. 7. The Secretary (Recruitment & Examination), Andaman & 'Nicobar Administration, . Secretariat, Port Blair - 744 101. 8: The Deputy Commissioner, | South Andaman District, Port Blair -- 744 101. 9. The Deputy Secretary, R & E Cell, Secretariat Establishment, A & N Administration, Port Blair, Pin -- 744 101. , .... Respondents For the Applicant . : Mr. P.C. Das, Counsel Ms. T. Maity, Counsel For the Respondents : Mr. P.K. Das, Counsel Mr. R. Halder, Counsel ORDER (Oral)
Per Ms. Bidisha Banerjee, Judicial Member:
Aggrieved with rejection of their prayer for appointment to the post 'of MTS & Revenue Field Assistance against unfilled vacancies under Notification dated 14.4.2017, the applicants, -in OA. No. 3 0.a. 351.01012.2020 with ua. 351.1088.2020 with 0.a.351. 1319.2020 351/01012/2020, -O.A. No. 351/01088/2020 & OA. No. 351/1319/2020, have approached this Tribunal under Section 19 of the Administrative Tribunals Act, 1985. The relief sought for in O.A. No. 351/01012/2020 is as under:-.;
"(a) Leave may be granted to the applicants to file this application jointly under Rule 4(5)(a) of the Central Administrative Tribunal (Procedure) Rules, 1987 as the applicants have a common grievance and all of them aggrieved against non-getting the appointment against 10% vacant posts that will be filled up from the Waiting List candidates which' has been specified in the Vacancy Notice.
{b} To quash and/or set aside the impugned Order No. 1971 dated 28th September, 2020 issued by the Secretary (Personnel), Andaman & Nicobar © Administration by which after receipt of this Hon'ble Tribunal's order without issuing appointment orders in favour of the applicants those who are admittedly selected candidates, the administration has taken a decision not to engage/appointment the wait-listed candidates for the vacant posts as of now being Annexure A-8 of this original application.
(c) . To declare that the impugned order No. 1971 dated 28th September, 2020 is Bad in law and illegal and the respondents be directed to issue the appointment orders in favour of the present applicants to the post of MTS against -300 vacancies as per the RTI information received by the applicants. being Annexure A-5 of this original application along with all consequential benefits. .
(d) . To pass an appropriate order directing upon the respondents to issue the offer of appointment in favour of the applicants from the panel, of waiting list candidates in terms of Annexure A-2 of this original application those who are 'successful candidates although their names appeared in the panel of waiting list candidates, they are entitled for the post of MTS in terms of the Vacancy Notice dated 14.4.2017 because large number of candidates from the main. list did' not join in the various departments of the Andaman and Nicobar Administration in terms of the offer of appointment issued by the various department in favour of them in terms of the Vacancy Notice dated 14.4.2017 therefore in terms of the said notice dated 14.4.2017 against the posts those who are not joined, all the applicants are entitled to join to the post of MTS.
(e) To pass an appropriate order directing upon the respondents to take immediate action for filling up the vacancies to the post of MTS from the panel' of waiting list candidates in terms of the Vacancy Notice dated 14.4.2017 and in terms of the panel published on 2Ȣ March, 2019 being Annexure A-1 and A-2 of this original application so that being the selected candidates from the panel of waiting list candidates, your applicant will get the appointment to the post of MTS since they are waiting for such appointment and all of them has already been overage and they will not get'any job.in the government department if they do not get the same in terms of the panel published on 24 March, 2019 and in terms of vacancy notice dated 14.4.2017 being Annexure A-1 and A-2 of this original.
(f) To pass an appropriate order directing upon the respondents to issue the offer of appointment in favour of present applicants in terms of Annexure A-2 of this original application along with all consequential benefits."
4 0.8. 351.01012.2020 with 0.a. 351.1088.2020 with 0.a.351, 1319.2020
2. | Heard both Ld. Counsel, examined documents on record. For the sake of convenience, the facts are delineated from O.A. No. 351/01012/2020.
3. Ld. Counsel for the applicants would submit that the Andaman and | Nicobar Administration / Secretariat had published a vacancy notice on 14.4.2017 for recruitment to various Group 'C' category posts. The total number of vacancies proposed to be filled up in the administration was -- 1009, which was to be filled up through Open, Competitive and Common Recruitment Examination . under assistance of Staff Selection
-Commission, New: Delhi.
That, the present applicants, being eligible for the said posts, applied through on-line as stipulated in vacaticy notice dated 14.4.2017.
After due scrutiny of all the documents and particulars as submitted by the applicants in this O.A., they were called to appear in the selection test and all of them weré declared successful in the said selection process. The Andaman and Nicobar Administration vide Press Release dated 2.3.20 19 published a list of successful candidates who are entitled for appointment to the post of MTS department-wise. The names of the present applicants appeared in the panel of wait listed candidates. Ld. Counsel for the applicants states that as per the notice if any candidate does not accept the offer of appointment and do not join the post within a stipulated time then the Administration shall issue offer of appointment to the waiting candidates from the panel of wait listed candidates. Thus, a panel was prepared and name of 185 candidates appeared in the said panel. The name of all the applicants appeared in the said panel but no appointment order was issued in favour of the 5 0.8. 351.01012.2020 with 0.a. 351.1088.2020 with 0.a.351.. 1319.2020 applicants despite the fact that a'large number of candidates did not join against the total vacancies of 1009. The applicant No. 1 of this O.A. sought information under RTI Act regarding details of the vacant posts of MTS which remained unfilled after issuance of appointment orders. It "was revealed from the certified copies received from various departments , that. nearly 300 'candidates did not join their. service and, therefore, the Ld. Counsel submits that the applicants could have been: easily appointed against such vacant posts since their names appeared in the panel | of wait listed candidates. The present applicants made representations individually on 13.3.2020 before the Chief Secretary, A&N Administration for issuing offer of appointment to the post of MTS in various departments of A&N Administration under 10% quota in terms of vacancy notice dated 14.4.2017. The. applicants also approached the Tribunal by filing O.A. No. 351/00393/2020 along with M.A. No. 351/00226/2020 for considering their cases for appointment to the post of MTS against 300 vacant posts under A&N Administration and this Tribunal was pleased to direct the respondent authorities to consider their representation within a period of 12 weeks. Thereafter, the . . respondents vide impugned Order No. 1971 dated 28th September 2020 rejected the claim of the applicants. Being aggrieved with the said order of rejection, the applicants have approached this Tribunal.
4. Per contra, the Ld. Counsel for the respondents would argue that the administration had notified 1009 vacancies in 41 different categories of posts vide notification dated 14.4.2017. After scrutiny of documents and after completion of Paper -- I, Paper - II and the 'Skill & Trade test i . ;
final results were published and as per clause 10 of the vacancy notice a 6 0.a. 351.01012.2020 with 0.a. 351.1088.2020 with 0.a.351. 1319.2020 waiting list of 185 candidates was prepared and published on 2.3.2019. 'The Ld. Counsel would further aver that appointment orders to the selected candidates were issued and they joined their respective departments. Some of the catididates who had joined the posts earlier had resigned from their posts for which the posts became vacant and , now the applicants are claiming that the applicants be appointed against those posts. The respondents would argue that the recruitment examination was conducted for different categories of posts and the . applicants were given liberty to opt for a particular category of posts in case of selection/appointment. Therefore, the merit list of the waitlisted candidates varies on. taking into account their options. They would also state that the life of a select list prepared under Recruitment Rules is only one year from the date of preparation/selection of such list and expires thereafter. Since the selection list was published on 2.3.2019 and the applicants had submitted their representation on 13.3.2020 before the respondents i.e. after expiry of a period of one year, the respondents have taken a decision not to engage/appoint the wait listed candidates . for the vacant posts.
| 5. The respondents have also referred to.a circular dated 8.3.2013 to justify their contention, which reads as under:
| "No: 47-1(1)/2013-PW Hoga Ae AHN Wee -
ANDAMAN AND NICOBAR ADMINISTRATION Ufarera / SECRETARIAT Port Blair, dated the 8th March, 2013.
CIRCULAR 'Sub: Preparation of panel/merit list while filling up the vacancies to be filled by direct recruitment - Regarding .
Instructions were issued from time to time to avoid undue inflation of panel/wait list relating to direct recruitment vacancies and to restrict the same to the minimum vide Secretary (Perl's Circular letter No:45/91-PW dated 26.06.1992, which was further emphasized vide Secretary (Law)'s circular vem
7 0.4, 351.01012.2020 with o.a. 351.1088.2020 with 0.a.351. 1319.2020 letter 'No:8-2401/2003 Legal (Part-II) dated 22.02.2007 and advising therein that the panel/wait list shall be utilized for appointment, if any selected candidates does not accept the offer of appointment.
In spite of the above instructions which were issued on the basis of observations made in Hon'ble Supreme Court's judgement dated 49.10.2006 while disposing Civil Appeal No:4554 of 2006 arising out of SLP(C) No:7903 of 2006- UOI -vs- B Valtuvan & Others, it has been observed that some. of the departments under the Administration still prepare Panel containing wait listed candidates disproportionate to the vacancies notified and utilize the same to fill up the subsequent vacancies on ad hoc/contract/regular basis, which is evident from the observations made by Hon'ble CAT in order dated 13.12.2012 passed in OA No:6/AN/2012 Shri Golo Toppo vs- A&N Administration (Health.
All Heads of Departments/Offices are once again advised to strictly adhere to the following guidelines while preparing panel/wait list while filling up the vacancies by direct recruitment:
5. The Select list should be limited to the vacancies notified;
6, The Panel/Wait list prepared by the Selection Committee should not be unduly inflated and the same shall be limited to a maximum.of 40% of the vacancies notified;
3, The Panel/Wait list should be utilized only for filling up vacancies occurred as a result of non-joini _ duty by selected candidates or they resign from the posts within one year of joining the post, 4, Vacancies occurred subsequent to the recruitment process shall not be fified from the Panel/Wait list as this will deprive the chances of candidates who qualified later;
Any deviation of the above instructions shall be viewed seriously and responsibility shall be fixed against the erring officials.
(Sheo Pratap Singh) Secretary (Persennel)"
3A bare perusal of the 'circular would exemplify and demonstrate 'that the circular irrefutably and indubitably allows candidates for wait list to join, within one years of the vacation of the post due to resignation by an appointee. The respondents are conspicuous by that silence as to the dates on which the appointees resigned and the posts occupied by them became available to be offered to the wait listed candidates. If the panel was published on 2.3.2019 the select list candidates presumably joined within 15 days, could not have resigned immediately. Thus, the representation of March, 2020 by the present wait listed candidates was well within time.
6. Per contra, Ld. Counsel for the applicant would vociferously object to the rejection on different ground. They would refer to a decision in State of Jammu & Kashmir & ors. vs. Sat Pat reported in 2013 2 JT 530 where having noted that some of the selected candidates in the i i ror 5d ~ «
8 0.a. 351.01012.2020 with o0.a. 351.1088.2020 with 0.a.351. 1319.2020 merit list had not joined in spite of being offered appointment, and the said Sat Pal sought for an appointment against an available vacancy and the respondents had taken 'the plea that a waiting list was valid only for one year and that one Trilok Nath was eligible for appointment against the vacancy in question out of the said waiting list, | Hon'ble Supreme Court held as under:-
"18. In view of the factual and legal position discussed by us hereinabove, we . are of the view, that in the facts and circumstances of the case, it would be just and appropriate to direct the appellants to appoint the respondent Sat Pal against the post of Junior Engineer (Civil) Grade ~ II, The aforesaid offer of appointment will relate back to the permissible date contemplated under the rules laying down conditions of service of the cadre to which the respondent Sat Pal will be appointed. Naturally, the respondents will be entitled to seniority immediately below those who were appointed from the same process of selection. Since Sat Pal has not discharged his duties, he would be entitled to wages only with effect from the date of the instant order."
Ld. Counsel would also refer to a decision of Hon'ble Apex Court in Purushottam v. Chairman, MSEB and another reported in 1999 SCC (L&:S) 105 where the Hon'ble Apex Court held as under:-
"4, In view of the rival submission the question that arises for consideration is whether a duly-selected person for being appointed and illegal kept out of employment on account of untenable decision on the part of the employer, can be denied the said appointment on the ground that the panel has expired in the meantime. We find sufficient force in the contention of Mr. Deshpande appearing for the appellant inasmuch as there is no dispute that the appellant was duly selected and was entitled to be appointed to the post but for the illegal decision of the screening committee which decision in the meantime has been reversed by the High Court and that decision of the High Court has reached its
- finality. The right of the appellant to be appointed against the post to which he has been selected cannot be taken away on the pretext that the said panel has in the meantime expired and the post has already been filled up by somebody else, Usurpation of the post by somebody else is not on account of any defect on the part of the appellant, but on the erroneous decision of the employer himself. In that view of the matter, the appellant's right to be appointed Electricity Board to appoint the applicant to the post for which he was duly selected within two months from-today. We make it clear that appointment would be prospective in gature."
7. he rival contentions were carefully analysed. In view of the legal propositions enumerated above, having noted that even wait listed a 0.a. 351.01012.2020 with.o.a. 351.1088.2020 with 0.a.351. 1319.2020 candidates have a right'to be considered for appointment in the event candidates from the main list does not join, given the fact that vacancies " Are available for consideration and at least 1009 vacant posts of MTS were advertised, the original application is disposed of witha direction upon the respondent authorities to consider the merit of the applicants and pass appropriate orders for their appointment from the waiting list, keeping suitable number of vacancies aside for the present wait listed
- candidates.
8. In O.A. No. 1319/2020, the applicant, Manohar Prasad has ta claimed for adjustment against the post of Revenue Field Assistant. It is neither denied nor disputed by the respondents that posts are available, the merit list candidates from the main list having not joined or having resigned after joining. Therefore, the applicant be suitably considered.
9. Let the exercise be completed within a period of two months from the date of receipt of a copy of this order.
10. The O.A.s accordingly stand disposed of. No costs.
(Dr. Nandita Chatterjee) | (Bidisha Banerjee) Administrative Member Judicial Member SP