Central Administrative Tribunal - Delhi
Anita Soni W/O Shri L.N. Soni And Sulekha ... vs Union Of India (Uoi) Through The ... on 1 March, 2007
ORDER
L.K. Joshi, Vice Chairman (A)
1. By this order, we are disposing off the above two OA s in which the facts of the case and the relief sought are identical. The Applicants have assailed the order No. KSCH/RR Cell/06-07/3481 dated 11.10.2006, which is an order of promotion of some Nursing Sisters to the post of Assistant Nursing Superintendent (ANS), stated in the order to be in pursuance of the order of this Tribunal in OA No. 504/2006 in the matter of Mrs. Veena Chhabra and Ors. v. UOI directing to hold a review DPC for the post of Assistant Nursing Superintendent in Kalawati Saran Children's Hospital (KSCH) to review the promotions made to this post during the year 1997-98 to 2004-05.
2. The brief factual matrix of the cases is as follows. As a result of DPCs held between 1997-98 to 2004-05, the Applicants in both the cases were promoted as Assistant Nursing Superintendents and posted as such by appropriate orders on different dates. In the year 2006, Smt. Veena Chhabra and 19 others, on behalf of Nurses' Union (Union) of KSCH, filed an OA No. 504/2006 before this Tribunal urging that the post based reservation roster for SC/ST/OBC, which was implemented from 1997 had not been correctly implemented and as a result the Applicants (in OA No. 504/2006) were not given correct placements in the DPC held for the year 2002-04. The Union had been making representation to authorities, through one Lily Kutty Thomas, who was not an Applicant in the OA No. 504/2006 about the alleged irregularities, which were agitated in the above numbered OA. The Tribunal passed an order with the consent of the Respondents in OA, namely the Secretary, Ministry of Health and Family Welfare, Government of India and the Principal & Medical Superintendent, Lady Harding Medical College & Associated Hospitals directing them to convene a review DPC 'as early as possible and take a decision on the recommendation of the said Review DPC by 31.8.2006.' A Review DPC was held on 09.10.2006 and the impugned order dated 11.10.2006 was passed following the recommendation of this review DPC.
3. The impugned order has been assailed firstly on the ground that the composition of the Review DPC is not according to the Safdarjung Hospital/Ram Manohar Lohia Hospital/Lady Harding Medical College and Smt. Sucheta Kriplani Hospital/Kalawati Saran Education and Research (sic.)/Pondicherry (Nursing Sister and Staff Nurse) Recruitment Rules (hereinafter RRs) in as much as the RRs provide for a DPC comprising Additional Medical Superintendent as Chairman, Chief Nursing Officer/Nursing Superintendent and Deputy Director Administration/Chief Administrative Officer as Members whereas the DPC had four members including Dr. Virendra Kumar as a Co-opted member. The learned Counsel for the Respondent has, on the other hand, has countered this on the ground that the fourth member has been included because of executive instructions issued by the government to include a Member of SC/ST in every DPC to safeguard the interests of these groups and till the RRs are amended, such a member could be included on the Executive instructions. The instructions issued by the DoP&T on 16.08.90 read as follows:
2.6 Representation for SC/ST and Minorities - Wherever a Selection Committee/Board exists or has to be constituted for making recruitment to 10 or more vacancies in Group `C' or Group `D' posts/services, it shall be mandatory to have one member belonging to SC/ST and one member belonging to minority community in such Committees/Boards. Where, however, the number of vacancies against which selection is to be made is less than 10, no effort should be spared in finding a Scheduled Castes/Scheduled Tribes Officer and a Minority Community Officer for inclusion in such Committees/Boards.
Where an outside member has to be associated with the DPC for Group `C' or Group `D' posts, there would be no objection to nominate on such a DPC, an SC/ST officer from such other Ministry/Department in the event of such officer not being available in the Ministry/Department itself.
In Indra Sawhney v. Union of India and Ors. 1992 Supp (3) SCC 215, the Hon'ble Supreme Court has held as follows:
Question 1(a):
Whether the `provision' in Article 16(4) must necessarily be made by the Parliament/Legislature?
Constitution of India - Article 16(4), 12 and 13(3)(a) - 'Provision' in Article 16(4) - Power of 'State' to make any `provision' - Held (per Kania, C.J. and Venkatachalliah, Ahmadi and Jeevan Reddy, JJ., Pandian, Kuldip Singh and Sawant, JJ. concurring), it need not necessarily be made by the Parliament or any State Legislature - Govt. can introduce reservation by Executive Orders such as the impugned Official Memorandums (OMs) - Having regard to the meaning and interpretation of `State' in Article 12 and of `law' in Article 13(3)(a) local bodies, statutory corporations and other instrumentalities of the State are themselves competent to make such a provision, if so advised - Abuse of such power controlled by the requirement of the exercise to be an objective one and for only the classes satisfying the criteria - Rule of ultra vires will also apply - Per Sahai, J., such executive orders should have been laid before Parliament - Words and phrases
4. The learned Counsel for the Applicant has further contended that even if promotion is made in excess of quota, the excess has to be treated as ad-hoc and regularised subsequently but such promoted persons can not be reverted. Reliance has been placed on the E.A. Sathyanesan v. V.K. Agnihotri and Ors. in which the Apex Court has held as follows It is axiomatic in service jurisprudence that any promotions made wrongly in excess of any quota are to be treated as ad hoc. This applies to reservation quota as much as it applies to direct recruits and promotee cases. If a Court decides that in order only remove hardship such roster-point promotees are not to face reversions, - then it would, in our opinion be, necessary to hold - consistent with our interpretation of Articles 14 and 16(1) - that such promotees cannot plead for grant of any additional benefit of seniority flowing from a wrong application of the roster. In our view, while Courts can relieve immediate hardship arising out of a past illegality, Courts cannot grant additional benefits like seniority which have no element of immediate hardship. Thus, while promotions in excess of roster made before 10-2-1995 are protected, such promotees cannot claim seniority. Seniority in the promotional cadre of such excess roster-point promotees shall have to be reviewed after 10-2-1995 and will count only from the date on which they would have otherwise got normal promotion in any future vacancy arising in a post previously occupied by a reserved candidate. That disposes of the 'prospectivity' point in relation to Sabharwal, 1997 SCC (L&S) 1624.
It has also been argued that such provision has also been made in OM No. 36012/2/96-Estt. (Res.) dated 2.07.1997, which is about the application of Post Based Roster. Attention has been drawn to paragraph six, which is as follows:
6. Excess, if any, would be adjusted through future appointments and the existing appointments would not be disturbed
5. It has also been contended that there were 20 posts of ANS (actually 22 from 2000-01 when two more posts were created for JICA scheme) and four vacancies were created in 2002-03 as per the minutes of Review DPC, which is at Annex P-7. In the post based roster (Annex P-6) there is no representation of SC although points at 7,15 and 20 are reserved for SC. Therefore, when post at point 15 occupied by Mrs. M Joseph, a general candidate fell vacant, Anita Soni was promoted. Therefore, it can not be contended that there was any excess promotion of SC candidate.
6. It is an accepted position that on 02.07.1997, there were 20 posts of ANS and shortfall of SCs was three (roster points 7,15 and 20). Learned Counsel for Respondent has argued that as per DOP&T's instructions, these were to be adjusted against future vacancies. This has been done in the promotions in the years 2001-02 and 2002-03. However, it has been elucidated by the learned Counsel that this has been done in total violation of rules regarding the zone of consideration. There is a normal zone of consideration for unreserved posts and an extended zone of consideration for SC/ST, which is five times the number of posts. Thus if there are four vacancies for SC, for example, the zone of consideration would be up to 20 candidates in the seniority list of the feeder grade. It is because of the operation of the zone of consideration that from 1997-98 to 2003-04 no SC/ST candidate was available in the extended zone of consideration. It was only in 2004-05, as per the minutes of the DPC meeting held on 09.10.2006 that three SC candidates and one ST candidate namely Smt. Achala Kuttan, Smt. L Kullabati Devi, Smt. Bimla Rani (all SC) and Smt. R Ekka (ST) became available in the extended zone of consideration and were promoted. It is, therefore, contended that earlier promotion of the Applicants was against the RRs. In support of this argument, order of this Tribunal in OA No. 716-CH of 1988 decided on 17.07.1995, ATJ 1995 (2) 208 in which it has been held a SC candidate not within the zone of consideration can not claim promotion; Purshottam Lal Das and Ors. v. The State of Bihar and Ors. , in which it has been held that if reservation policy, among other things, is not followed in promotion, reversion can not be faulted; Bhup Sigh v. State of Haryana and Ors. 1999 (2) ATJ 601, in which it has been held that promotion can not be claimed merely on the basis of a reserved point in the roster, have been cited.
7. Another contention raised by the learned Counsel for the Applicant is that the reversion of the Applicants as a result of Review DPC is against the principle of natural justice. The Applicants had occupied the post of ANS from four to two years after their promotion and had had vested rights in the post. Demoting them or bringing them down in the seniority list without giving them an opportunity to be heard and not giving them notice before the Review DPC is arbitrary and malafide. It has been brought to our notice that the Hon'ble Supreme Court has held as follows in Management of MS Nally Bharat Engineering Company Ltd. v. State of Bihar and Ors. :
(18) Citations could be multiplied since there is fairly abundant case law which has come into existence : See, for example, E.P. Royappa v. State of Tamil Nada and Union of India v. Tulsiram Patel. More recently in a significant judgment in Charan Lal Sahu v. Union o finding learned chief justice Sabyasachi Mukharji has referred to almost all the authorities of this Court on this aspect and emphasized that the principles of natural justice are fundamental in the constitutional set up of this country. No man or no manS right should be affected without an opportunity to ventilate his views. Justice is a psychological yearning, in which men seek acceptance of their viewpoint by having an opportunity before the forum or the authority enjoined or obliged to take a decision affecting their right.
(19) It may be noted that the terms 'fairness of procedure', 'fair play in action, 'duty to act fairly are perhaps used as alternatives to "natural justice" without drawing any distinction. But Prof. Paul Jackson points out that Such phrases may sometimes be used to refer not to the obligation to observe the principles of natural justice but, on the contrary, to refer to a standard of behaviour which, increasingly, the courts require to be followed even in circumstances where the duty to observe natural justice is inapplicable" ("Natural Justice" by Paul Jackson, 2nd edn., p. 11).
Shridhar S/o Ram Dular v. Nagar Palika, Jaunpur and Ors. 1990 (Supp) SCC 157 has also been cited in support of the argument above in which it has been held that '
8. The High Court committed serious error in upholding the order of the Government dated 13-2-80 in setting aside the appellant's appointment without giving any notice or opportunity to him. It is an elementary principle of natural justice that no person should be condemned without hearing. The order of appointment conferred a vested right in the appellant to hold the post of Tax Inspector, that right could not be taken away without affording opportunity of hearing to him. Any order passed in violation of principles of natural justice is rendered void. There is no dispute that the Commissioner's Order had been passed without affording any opportunity of hearing to the appellant, therefore the order was illegal and void. The High Court committed serious error in upholding the Commissioner's Order setting aside the appellant's appointment. In this view, Orders of the High Court and the Commissioner are not sustainable in law.
In Basudeo Tiwari v. Sido Kanhu University and Ors. it has been held that:
9. The law is settled that non-arbitrariness is an essential facet of Article 14 pervading the entire realm of State action governed by Article 14. It has come to be established, as a further corollary, that the audi alteram partem facet of natural justice is also a requirement of Article 14, for, natural justice is the antithesis of arbitrariness. In the sphere of public employment, it is well settled that any action taken by the employer against an employee must be fair, just and reasonable which are components of fair treatment. The conferment of absolute power to terminate the services of an employee is antithesis to fair, just and reasonable treatment. This aspect was exhaustively considered by a Constitution Bench of this Court in Delhi Transport Corporation v. D.T.C. Mazdoor Congress .
In Jaswant Singh and Ors. v. State of M.P. and Ors. the principle that opportunity of hearing should be given before cancelling the appointments has been enunciated thus:
(7) The appellants having been appointed pursuant to the order of the Panchayat and having been continued as LDC since February 1987, no order under Sub-section (1) of Section 83 of the Adhiniyam could have been passed by the Collector without affording the opportunity of hearing to them. Admittedly, the opportunity of hearing has not been given. The impugned order of cancellation, therefore, stands vitiated. We, therefore, set aside the order of the High Court as well as the order of cancellation passed by the Collector.
8. The Respondent's contention is that the principles of natural justice are not some straitjacket formula but vary according to the circumstances of the case. The Hon'ble Supreme Court has observed in Ashwani Kumar and Ors. v. State of Bihar and Ors. that '17. So far as the principles of natural justice are concerned it has to be stated at the outset that principles of natural justice cannot be subjected to any straightjacket formula. They will vary from case to case, from circumstance to circumstance and from situation to situation.' Reliance has also been placed on State of Madhya Pradesh v. R.P. Sharma 1996 (3) AISLJ 11 in which the Apex Court has observed that 'The question arises whether a further opportunity need to be given to the respondent? In our considered view, the principles of natural justice cannot be stretched to the ridiculous edge of opportunity at every stage.
9. Another contention that has been raised in this case is that the State has to act fairly and arbitrariness is violative of Article 14 of the Constitution. In this context reliance has been placed on Kumari Srilekha Vidyarthi and Ors. v. State of UP and Ors. , in which the Apex Court has held that '8...In the ultimate analysis, it is the challenge of arbitrariness which the circular must withstand in order to survive.' and '24...The requirement of Article 14 being the duty to act fairly, justly and reasonably, there is nothing which militates against the concept of requiring the State always to so act...' The five Judge Bench in Delhi Transport Corporation v. DTC Mazdoor Congress and Ors. which has also been cited, has held that in case of removal from service without assigning any reason, the regulation is arbitrary, unjust, unfair, unreasonable and opposed to public policy.
10. The respondent has argued that the Apex Court has held in Biswa Ranjan Sahoo and Ors. v. Sushanta Kumar Dinda and Ors. that:
3. A perusal thereof would indicate the enormity of mal-practices in the selection process. The question, therefore, is : whether the principle of natural justice is required to be followed by issuing notice to the selected persons and hearing them? It is true as contended by Mr. Santosh Hegde, learned senior counsel appearing for the petitioners, that in the case of selection of an individual his selection is not found correct in accordance with law, necessarily, a notice is required to be issued and opportunity be given. In a case like mass mal-practice as noted by the Tribunal, as extracted hereinbefore, the question emerges: whether the notice was required to be issued to the persons affected and whether they needed to be heard? Nothing would become fruitful by issuance of notice. Fabrication would obviously either be not known or no one would come forward to bear the brunt. Under these circumstances, the Tribunal was right in not issuing notice to the persons who are said to have been selected and given selection and appointment. The procedure adopted are in flagrant breach of the rules offending Articles 14 and 16 of the Constitution.
11. What emerges from the above is that the Review DPC has been held on the directions of this Tribunal. It is also clear that the promotions given to SC candidates by the DPCs prior to the Review DPC, has been in violation of the rule of extended zone of consideration. The Review DPC is validly constituted. It is also a settled principle of Service Jurisprudence that DPC does not have to explain the reasons for its recommendations and that such decisions are not subject to judicial review. There is no necessity, in our view, considering the observations of the Apex Court in Biswa Ranjan Sahoo (supra), that there is no need to give show cause notice to persons promoted in disregard of rules, while reverting them. Further, in our view we need not stretch the principle of natural justice to such extreme so as to cover the persons promoted wrongly in violation of rules.
12. Considering the rival contentions, the rulings of the Apex Court and the above analysis, it is our considered view that there is no need to interfere with the order No. KSCH/RR Cell/06-07/3481 dated 11.10.2006 (the impugned order), which will stand. No order as to costs.