Central Administrative Tribunal - Mumbai
Javed Ali Baloch vs M/O Personnel,Public Grievances And ... on 8 August, 2023
QA No.seg/2ol? Central Administrative Tribunal! Mumbai Bench. O.A. No. 00562 /2017, Order Reserved on 13" July, 2023. Order Pronounced ons? August, 20) Hon"ble Mr. Justice M.G. Sewlikar, Member (3 Haon'ble Dr. Bhagwan Sahai, Member (A) Shri Javed Ali Baloch, Age 33 years, Son of Ali Mohammad Baloch, working as Self-employed, residing at House No. 464, Chanandevi Road, Near Prabhat School, Amli, Silvassa, Dadra Nagar Haveli:396230. Applicant (By Mr. Vishal Shirke, Advocate} suctapuatnnnnanttenantieninnnaneins Versus i. Union of India, Through the Administrator, Dadra Nagar Haveli, Silvassa- 396230, bo Deputy Secretary (Personnel), Department of Personnel and Training, Un- ion Territory of Dadra & Nagar Haveli, Silvassa: 396230. Member Secretary, Staff Selection Board, Moti Daman, Daman: 396220 ys . Respondents (By Dr. V.8. Masurkar, Advocate) ORDER
Per: Hon'ble Mr Justice M.G. Sewlikar.
The applicant has filed this OA seeking directions to complete selection process dated 10th May, 2013 and cancellation of advertisement dated 28th August, 2013 to that extent or in the alternative to consider the candidature of H a OA No.562/2017 the applicant in the selection being conducted pursuant to the advertisement dated 28th August, 2013 granting him necessary age relaxation,
2. Facts leading to this application in brief are thus:
2.1. The applicant belongs to OBC category. He has passed 12th Standard examination and also passed typing test of 70 wpm. His date of birth is 29th November, 1983, 2.2. It is the case of the applicant that respondent no. 2 published an advertisement dated 10th May, 2013 for Alling up 16 posts of Lower Division Clerk ( which included posts of Cashier and Panchayat Secreatary). The of the applications was 30th June, 2013.
2.3. The applicant further has contended that he applied pursuant to that advertisement. His age on 30th June, 2013 was 29 years and 7 months. He received a call letter dated 22nd January, 2014 calling upon him to appear for skill test/typing test on Sth February, 2014, The applicant accordingly remained present for the said skill test, He, however, learned that the said test was postponed. No written intimation of postponement was given to him. He did not receive any communication thereafter in regard to the holding of skill test/typing test, i 3 ' OAD 3 bey, S82) POLY Raetiac)
24. Tt is further alleged that intead of completing the selection process pursuant to advertisement dated [Oth May, 2013, the respondents published another advertisement dated 18th March, 2016 for 7 anticipated vacancies.
This second advertisement was silent about the advertisement dated 16th May, aOi3, On enquiry, the respondents orally informed the applicant that the sélection process for vacancies advertised on 10th May, 2013 would be continued. Therefore, the applicant did not apply pursuant to this second advertisement. However, this second selection process was also abandoned.
2.5. The applicant has farther cotended that he and other sligible candidates kept on making enquiries with the respondents, but they kept on assuring him that the test would be conducted soon. Staff Selection Board was constituted ee for ¢ conducting recruitment process for the Union Teitory of Daman and Diu.
and Dadra and Nagar Haveli. Therefore, the applicant and others made a representation on 28th August, 2017 to the respondents Nos.2 and 3 for expediting the recruitment process. However, an 28th Aug rust, 2017, anothe advertisement was published on website of the respondents for filling up of 16 posts of LOC in Union Territory of Dadra and Nagar Haveli. The prescribed ave limit was between 18 and 27 years. This advertisernent stated that the advertisements dated 10th May, 2013 and 18th March, 2016 have been cancelled. The applicant is age barred for the advertisement dated 28th August, 2017 (impugned advertisement). Since impugned advertisement covered the vacancies of the advertisement dated | Oth May, 2013, the applicant Lae , : . OA No SO2 201 F applied on 31st August, 2017 for age relaxation, but his request was orally rejected. Hence, the applicant has filed this OA,
3. Respondents have filed their reply contending therein that the advertisement was issued on 10th May, 2013 for filling up the pasts of LDC by direct recrulirnent in the Union "Territory of Dadra & Nagar Havell. However, due to technical and administrative reasons, the said tests could nat be conducted. Thereafter, another advertisement was published on 18th March, 2016 for the post of LDC (anticipated 7 posts) wherein the age limit was stipulated between 18 and 27 years. The applicant did not challenge the said advertisement on the ground that he had exceeded the age limit of 27 years as on the date of the said advertisement. They further contended that by the Oo advertisement dated 28th August, 2017, the earlier advertisements dated [0th May, 2013 and [8th March, 2016 were cancelled. The applicant has no right to challenge the cancellation of the advertisement for the reasons that he does not fulfil the age criterion of 27 years. They further contended that as per the prevailing rules, the Dadra & Nagar Haveli Staff Selection Board was constituted on 15th May, 2017 and members were appointed as Chairman, Member, Member Secretary, etc. Thereafter OM dated Sth september, 2017 was issued pertaining to the selection procedure for direct recruitment for posts in group B & C, including Multi-Tasking Staff (MTS). Th ey further contended that the respondents had received 2460 applications in response to the advertisement dated 10th May, 2013.
OANG SHOT?
4. Applicant has filed rejoinder contending therein that he did not apply for the advertisement dated 18th March, 2016 as the earlier advertisement dated 10th May, 2013 was not cancelled. The advertisement dated 10th May, 2013 was in respect of 16 vacancies whereas the advertisement dated 18th March, 1016 was for 7 anticinated vacancies. The apolicant. therefore. assumed the O16 was for 7 anticipated vacancies. The applicant, therefore, assumed that caer ms the second advertisment dated 18th March, 2017 was in respect of 7 additional vacancies aver and above the vacancies advertised in the advertisement dated i3th May, 2013. Mere formation of Staff Selection Commission or finalization of Selection procedure in 2017 cannot be the reason for cancellation of selection process Initiated vide advertisement dated ]Oth May, 2013. 7 respondents have vaguely given the reasons for cancellation of advertisement details of the administrative/techiical exigencies.
3. Then Respondents Aled affidavit of Member Secretary, Staff Selection Board in which they have assigned the cause for postponment of the test to be held pursuant to the advertisement dated 10th May 2013, 5.1 Ibis stated in the affidavit that ull 2016, the Union Territories of Daman & Din and Dadra & Nagar Haveli were headed by a cormmon Administrator. However, the same was separated with pwo different Administrators for each of the Union Territory, Therefore, the administration was concentrating on stablizing the newly created Independent administration from August, 2016 onwards. In December, 2015, the Administrator of Daman & Diu was also OA No.562/2017 assigned the charge of Administrator of Dadra & Nagar Haveli, thereby making common Administrator for both the Union Territories, On 26th January, 2017, it was decided to constitute the Staff Selection Board and, therefore, from January, 2017 ta May, 2017, the process for any recrulment was kept on hold Hill the constitution of the new Staff Selection Board in the UT of Dadra & N agar Haveli. Thereafter the Board published an advertisement dated 28th August, 2017 for filling up 1) vacancies and cancelling earlier advertisements dated 10th May,.2013 and 18th March, 2016.
6, The Applicant has filed reply to this affidavit contending therein that the Administrator of Daman & Diu and Dadra & Nagar Havel] was never separated Territory. Therefore, there was no such need of stabilizing the newly created independent administration from August, 2016. In December, 2016, the Administrator of Daman & Diu was again assigned the charge of the Administrator of Dadra & Nagar Haveli, thereby effectively providing for acomimon Administrator for both the Union Territories.
7. We have heard learned counsel for the applicant Shri Shirke and learned counsel for the respondents Shy Masurkar.
8. Shri Shirke submitted that the examination was to be conducted on 05th February, 2014. He was present for the skill/typing test on that day. But the 6 examination could not be held as it was postponed indefinitely. No written intimation nor any reason was given for postponement of the skillAyping test. The applicant was 29 years and 7 months old as on 30th June, 2013 Le. the last date to apply for the said post.
2. He further submitted that on 18th March, 2016, another advertisement was issued for 7 anticipated vacancies. The applicant did not apply for the said pasts as the age was recluced to 27 years and the respondents did not issue any clarification regarding cancellation of the advertisement dated 10th May, 2013. He urged that another advertisement No.1 dated 28th August, 2017 was published on the website of the respondents for filling up of 16 posts Union Territory of Dadra & Nagar Haveli, The prescribed age limit was between [Sto 27 years. There was a mention in the advertisement that the advertisements dated 10th May, 2013 and 18th March, 2016 have been cancelled. He submitted that the respondents did not give iniy plausible explanation for cancellation of these Qvo advertisements. The applicant became age barred on the dates of 2°"
and 3" advertisements dated [8th March, 2016 and 28th August, 2017. The respondents have power to cancel the advertisements but they must come up with some plausible explanation for it. He contended that the only explanation given is that the respondents could not make provision of adequate computers for holding skill test/typing test. He submitted that this is an explanation for aed OA Na.562/2017 postponement of the examination and not for the cancellation of examination, For cancellation of examination, the reason ass} gned by the respondiens 18 that earlier there Was one administator on the Union Territory of Daman & Diu and Union Territory of Dadra & Nagar Haveli. Thereafter, two administrators were appointed, one for Union Territory of Dadam & Diu and another Territory: for Dadra and Nagar Haveli. In the affidavit tiled by Shri Ashish Mohan, it is contended that the Staff Selection Board, Dadra & N agar Haveli was constituted on 05th May, 2017 after which it was mandated to fil up the vacancies for the Group B and Group C posts by direct recruitment under various departments of Dadra & Nagar Haveli through the Staff Selection Board, He submitted that this cannnot be a explanation much less a plausible one for the cancellation of the advertisement dated 10th May, 2013. He, therefore, submitted that the applicant is entitled to age relaxation of four years for the said post. He placed reliance on the following case laws:-
(i) Essen Deinki Vs. Rajiv Kumar, 2002 (8) Supreme Court case 400
(i) Writ -A No.7783/2022 Ajay Kumar Yadav and Another Vs, State of UP. and 2 others, Allahabad High Court,
(ii) Dinesh Kumar Kashyap and others Vs. South East Central Railway and Others, 2019 (12) SCC 798,
(iv) Nagen Bhoi and Others Vs. State of Odisha and Others, 2023 SCC Online Ori 172
10. Learned counsel for the respondents Shri Masurkar submitted that the I examination was to be conducted on 05th February, 2014. However, it had to be postponed as the respondents could not make adequate provisions of computers for holding the examination. The respondents had to cancel the advertisement 8 dated [Oth May, 2013 and 18th March, 2016 for the reason that administration of the Union Territory of Daman & Diu and Dadra & Nagar Haveli separated and two administrators were appointed instead of one. The Staff Selection Commission was constituted on 05th May, 2017. Therefore, the respondents had to cancel the previous advertisernents dated Oth May, 2013 and 18th March, 2016. He contended that this is a godd ground for the cancellation of the advertisements. The affidavit fled by Shri Ashish Mohan makes it clear that the Staff Selection Board for Dadra & Nagar Haveli was constituted on 05th May, 2017 afer which it was mandated to fll up the vacancies for the Group B and C posts including MTS. Therefore, on 28th August, 2017, impugned Rea t2 oy Ps fawn lisement was issued. He contended that cancellation of selection process applicant does not get a right to be enforced by a mandamus unless and until he is selected in the process of selection and gets the letter of appointment. He placed reliance on the following case laws! () Maharashtra Public Service Cammission Vs. Sandeep Shriram Warade and Others, 2019 €6) SCC 362.
(ul) Union of India and Ors, Vs. Tarun &. Singh and Ors., ATR 2601 SC 2196. (Hp Union Public Service Cormmission Vs. Girish Jayanti Lal Vaghela and Others, 2006 (2) SCC 482.
i. We have given thoughtful consideration to the submissions made on both the sides.
ig, it isan admitted position that advertisement was published on 10th May, 20 La or Alling up 16 pasts of Lower Division (lerk including post of 3 OA No.362/2017 Cashier and Panchayat Secretary. The applicant applied for the said post. Accordingly, a call letter was issued to him. However, the said examination was postponed. Second advertisement was issued 'on 18th March, 2016 for anticipated 7 vacancies which was also postponed. Third Advertisement was UT of Daman & Diu and 11 posts in UT of Dadra & Nagar Haveli,
13. Admitteldy, advertisements dated 10th May, 2013 and 18th March, 2016 were cancelled by the advertisement dated 28th August, 2017. Law on this point has been settled by the Supreme Court in the case of Dinesh Aumar Kashyap (supra). In para 6, the Supreme Court has held thus:-
5. Our country ix governed by the rule of law, Arbitrariness is an anathema to the rule af law. When an employer invites applications for filling up a large number of posts, « faree 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 far the examination, They spend time and money to travel to the place where writen test is held If they qualify the written test they have to again travel fo appear for the interview ana medical examination, ete. Those who are successful and declared to be passed have a reasonable expectation that they will be appointed. No dowbt. as pointed out above, this is net a vested right. However the State must Rive some justifiable, non-arbitrary reason for not fill ing 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. If must give some plausible reason Jor not filling up the posts. The courts would normally not question the Justification hut 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 af these principles that we need to examine the contentions of SECR.
14. In the case of Ravinder Siaeh Vs. JAK Store Sports Council and Grs, SIP No S/2615, Hick Court of Jammu & Kashmir and Ladakh at Seingear decided on O5th June, 2023, in para 6 it has been held thus:-
&..... Phere can ge no dispute on the pr oposition 0} jie nv thar niere selection does mot confer any right of appointment and mat an esiplover Sas a right to abandon the selection process at cry time, out ie Question would be, can oP he done arbitrarily witheut any reasonable and just cause on the sweet will of the emplover and can an employer be permitted to resort fo pick and choose method while making appointment from oa selection list by appointing a less meritorious candidate and} feave more mritorious candidate. The answer has to be emphatic" so mot.at all" because ours is a country poverned by rule ay law ane arbitrariness is an anatiwerg to the rule of law. When an employer invites applications for filling up a large number of posts, a large number » of uaenipived youth apply for the same, they spend Nme in filling the form and pay the application fee and thereajien, spend time fo ih for the examination, as also money te travel to the place, where tests In further ance of the selection soit OCess Es Feld, Jf hey quality the written test, they may have again io appear for interview and medical excoxination and travel again and those. whe are successful and are declared to have qualified, have a reqsonable expeEec#lanan ther they will be appointed and no doubt, ay noticed above, tits is not a vested right, pel the employ yer or the Stare hus fo give justifiable nonearbity ary reasons for not offering such successdful qualified anes ippelniment, particularly, when ihe SmnEN lover is State, as if is bound: t fo act and follow the mandate of Irticle 14 of the Constii Husion. lt eca nnot without any reason decline to fill up a post without any lawful justification, which justification must not only be reasonable, should as guil as sot arbitrary, capricious and whimsical. This praposition of law } tas been laid dows oy the Apex Court in case titled as, dShankarsan Dash Vs. Union of india, reported in $991 SCC (3) 475 tS, th the case of 4iav Aumar and Anather Vs. State of UP and 2 iNhers (supra) , the observations of Supreme Court in the case of High Court af Delhi Vs. Devina Sharma, 2022 (4) SCC 643, have been quoted thus : the OA No.S62/2017 examination cannot however be postponed indefinitely nor can the candidates who have applied be left in a state of uncertainty. The age bar which they would encounter is not of their own volition.
is. 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 only be reasonable but also should not be arbitrary, capricious and whimsical, the examination to be held on 05th February, 2014 that they could not arrange for the requisite computers for holding the online examination. This explanation fo say the least is totally unacceptable. Moreover, this is not a cause for cancellation ofthe advertisements. This was the cause for postponement of the examination. The second examination dated 18th March, 2016 was also postponed for which no reason is assigned.
18. Por the cancellation of these two advertisements, the reasons assigned is that Staff Selection Board was constituted on 05th May, 2017.
Another reason assigned is that till August, 2016, the Union Tervitorities of Daman and Diu and Dadra and Nagar Haveli were headed by a common 12 Administrator. The same were separated with twe different Administrators for each of the Union Territory. The Administration was concentrating on stabilizing the newly created independent administration from August, 2016 onwards. This cannot be a sround for cancellation of the examination, Proce xl watandraw -« as! a Aesaq eek TE eee fF weet. barat eeeren ~ ° OF stieclion can be abandoned if there is some legal or perocedural flaw or if Shere are malpractices. Separation of Union territory and appointment of two arbitrators can hardly be a ground for cancellation of the selection process. When the respondents could issue fresh advertisement, they could have certainly continued with the old advertisement dated 10th May, 2013.
y heretore, mere constitution of the Staff Selection Board or separation of Union Territorites into two cannot be said to be a justifiable ground for cancellation q he said thai the reasons assigned by the respondents are arbitrary. Because of their inaction, the applicant became age barred for no fault on his part.
19, In the case of furun A. Sinek (supra), the Supreme Court held in pare 4 as under:
4, The question for consideration is whether the learned single Judee of Allahabad High Court was just lifted fin interfering with an order of cancellation passed by the competent ai whoritv and direct that the precess of xelection should be completed. Needless to mention that subsequent to the order af cance! pation, i In view af the allegation of malpractice, ihe x feparimental aquihorinies has held ar feng) uty info the mnatier and the result of thet enquin yp was revealed grass irregularities and illegalities as referred to in the fudgment of the Division Bench of Aughabad High Court. Consequently the process of selection which stands vikewted by adoption of large scale malpractice to a public * 13 OA No.S62/2017 office, cannot be permitted to be sustained by Court of Law Thett apart, an individual applicant for any particular post does not vet a right to be enforced by a Mandamus unless and until he is selected in the process of selection and gets the letter of appointment. In the case in hand, much before the so-called list of selection was approved by the Railway Board. the order of cancellation had emanated on the basis of the complaint received from so many quarters. in viewe of the subsequent findings of the enquiry committee which has gone into the matier we have no hesttation in coming to the conclusion that the learned single Judge of ANahahbad Hi: igh Court was wholly in error in issuing the direction in question and, therefore, the Division Bench of Allahabd High Court was fully justified in interfering with the said order of learned single Judge of Allahabad H. teh Court. The Division Bench of Caleutta High Court committed error in following the judgment of learned single judge af Allahabad High Court. The Judgment of Division Bench af Caloutta High Court is set aside and the judgment of Division Bench of ANahabad H. igh Court is uphetd. in the circumstances, we allow the Union' appeals and alismiiss the appeals filed on behalf of the individual candidates. The appeals ar dispased of accordingly Any other question of law remains open"2
ee ~- This decision of the Supreme Court has no application to the facts of the case at hand. In this Supreme Court decision, the advertisement had been issued. In response to which large number of applications were received, cal] letters were issued to suitable candidates and thereafter candidates were selected but that selection list had not obtained approval of the Railway Board. The Railway Board had received several complaints alleging malpractice in the process of recruitment and therefore cancelled the process of selection. A fresh selection was ordered. A large number of Writ Petitions were Sled challenging the order of cancellation of recruitment for the post of Constable and issuance of fresh advertisement. Therefore, the examinations were cancelled. There was justifiable reason for cancellation of examination. In the case at hand, no justifiable reason is forthcoming.5 CA No S82/2017
20, Shri Masurkar ha laced reliance on the case of fier Public Service Conunission Fs. Girish Japanti Lal Vaehela and Others (epra}, the question involved was whether a person working on a shor rt term contract basis can be oy said to be a government servant. This is not the question involved in this ai, In view of the above, it is clear that the selection process was cancelled for no justifiable reason. Therefore, the applicant is entitled to AES erence AR arsenic This Tribunal had permitted the applicant to appear for the examination as per Advertisement dated 28th August, 2017 for the post of Lower Division Clerk. Accordingly, he appeared for the examination and his result had been submitted in sealed cover which is kept with the Registy In view of the aboye, the Original | Applica is allowed. Tf on opening seale -d cover, it Is found that the applicant has passed examination and is sultable for ot the appomtment, the respondents shall grant him age relaxation and give him eet e appointment, Pending MLAs. if any, stand closed. No casts.
(De. Bhdgwal Saal) (lustite M.G, Sewlikar) Momber (A) Mentber (} acl me -
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