Central Administrative Tribunal - Allahabad
Sanjay Savita vs M/O Defence on 24 April, 2018
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(R e s e r v e d o n 0 5 . 0 4 . 2 0 1 8 )
CENTRAL ADMINISTRATIVE TRIBUNAL
ALLAHABAD BENCH
ALLAHABAD
This the 24th day of April, 2018.
PRESENT:
HON'BLE MR JUSTICE DINESH GUPTA, CHAIRMAN
HON'BLE MR. GOKUL CHANDRA PATI, MEMBER- A
ORIGINAL APPLICATION NO. 330/598/2016
1. Sanjay Savita, S/o Shiv Dayal, R/o G-I-T-31,
Armapur Estate, Kanpur.
2. Anoop Kumar Mishra, S/o Harish Chandra Mishra,
R/o 602 E Block, Panki, Kanpur.
3. Nitin Kumar Srivastava, S/o Virendra Prasad
Srivastava, R/o 127/411, Juhi Depo Road, Bara Devi,
Kanpur.
4. Sunil Yadav, S/o Ramesh yadav, R/o 115/228,
Moswanpur, Kanpur.
5. Madhukar Pandey, S/o Late Rajesh Kumar Pandey,
R/o 10/206, Khalasi Line, Kanpur.
6. Nitin Chandra, S/o Suresh Chandra, R/o G-I 242,
Armapur Estate, Kanpur.
7. Rahul Kumar Singh, S/o Nawal Kishor singh, R/o G-I
268, Armapur Estate, Kanpur.
8. Pradeep Singh, S/o Srinath Singh, R/o 125, Shyam
Bihar Naya Shivli Road, Kalyanpur, Kanpur.
9. Yuvraj Chauhan, S/o Babu Singh, R/o 139 A/5, Vijay
Nagar, Kanpur.
10. Ashok Kumar, S/o Chote Lal, R/o New Type 1, 295,
Armapur Estate, Kanpur.
11. Yatindra Kumar Jauhari, S/o R.C. Jauhari, R/o 128,
Mini L.I.G, Mahabalipuram, Kalyanpur, Kanpur.
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12. Ziaul Haq Ansari, S/o M.S. Ansari, R/o Plot No. 30,
Sarkar Nagar, Maswanpur, Kanpur.
............... Applicants
By Advocate : Shri Shyamal Narain
Versus
1. Union of India through Ministry of Defence,
Government of India, Kanpur.
2. Indian ordnance Factories / Small Arms Factory, Kalpi
Road, Kanpur through its General Manager.
3. Director General Ordnance Factories, Kalpi Road,
Kanpur .
........... Respondents
By Advocate : Shri Vivek Rai
ORDER
Delivered by :
Hon'ble Mr. Gokul Chandra Pati, Member (A):
By way of the instant O.A. under Section 19 of the Administrative Tribunals Act, 1985 the applicants have prayed for following main reliefs:-
"i. to issue a suitable direction in the nature of Certiorari quashing the order dated 17.3.2016 issued by the Director / W(A) addressed for Director General Ordnance Factories addressed to the Sr. General manager, Small Arms Facotry, Kalpi Road, Kanpur (Annexure No. A-3 to the compilation);
ii. to issue a suitable direction in the nature of mandamus commanding the respondents to comply the selection process and issue appointment letters to the selectees."3
2. The facts in brief emerging from the O.A. are that the applicants had applied in response to the advertisement dated 02.11.2011 published by the respondent No. 2 for recruitment of 68 posts of Group 'C' industrial employees in Small Arms Factory, Kanpur. Copy of advertisement is annexed at Annexure A-1 to the O.A. On 22.02.2012, the written test was held and the result was declared on 24.02.2013. The applicants qualified in the written test as per the list annexed at Annexure A-2. Thereafter, the respondents kept silent about the process till the Union of the Employees moved a representation to finalize the selection process. In between, the respondent No. 3 i.e. Director General Ordnance Factories issued a letter dated 17.03.2016 (Annexure A-3), whereby the recruitment process for 68 semi skilled posts was cancelled. The O.A is directed against this letter dated 17.03.2016 cancelling the recruitment process.
3. It is stated in the O.A that the grounds for cancellation were that there is change in the selection process as per the decision of Govt. of India orders by which there would be no interview and that trade test marks will not be added in deciding final list whereas, as per the original advertisement, the candidates qualifying the written test were required to appear in a trade test and final selection was to be done based on the marks obtained in written test (100 marks) as 4 well as in trade test (100 marks). There was no interview envisaged in the advertisement dated 22.02.2011. Hence, the criteria for selection has been changed by the respondents and this is cited as one of the grounds for cancelling this selection process.
4. The said letter dated 17.03.2016 has been challenged mainly on following grounds: -
i. The selection process for 68 posts in question was almost finalized in the year 2013 subject to passing the trade test. If the selection process was initiated as per a set of rules, the same rules have to be made applicable till end of this selection process and the changes in rules would apply prospectively, not retrospectively.
Hence, the present recruitment process should continue as per the procedure prescribed in the advertisement.
ii. The cancellation of selection process based on a decision taken in January 2016 is arbitrary exercise of power since the selection process was initiated as per the old notification.
5. The respondents in their Counter have not disputed the facts that the advertisement was published and written test was conducted. It was stated that some of the candidates filed O.A where interim order was granted to the effect that any 5 selection would be subject to outcome of the said O.A. It was also stated in the Counter that the result of the written test could not be published and further progress could not be continued because of the fact that the matter was subjudice and the process of recruitment was suspended. The O.A was finally dismissed by this Tribunal vide order dated 22.11.2012. Thereafter, the HQ of the Ordnance Factory Board asked the Factory to examine whether this recruitment should be deferred in view of the shortage of work load with respondent No. 2. In reply, the factory replied that the selection process should not be deferred. However, the Ordnance Factory Board (which is the competent authority), after getting the reply from the factory decided that in view of inadequate work load, the recruitment process should be deferred vide letter dated 11.06.2013. Accordingly, the recruitment was stopped as per the directive of the competent authority and finally it was cancelled vide letter dated 17.03.2016 of Ordnance Factory Board. The cancellation of the process was informed to all concerned through advertisement in June 2016 by the respondents.
6. In the Rejoinder, the applicants contradicted the statement that the result of written examination was not declared and stated that the result was declared on 22.04.2013. It was submitted that instead of finalizing the selection process and directing the applicants to join the 6 service, the respondents have cancelled the selection process arbitrarily. Other stands taken in the O.A have also been reiterated in the Rejoinder.
7. Matter was heard. Learned counsel for the applicants argued that there are a number of judgments in similar cases where the Courts have held that once the recruitment process is initiated, the criteria or rules applicable for such recruitment cannot be changed or modified. He also submitted that the selection process in this case had progressed substantially and the list of qualified candidates was notified. Hence, it was illegal on the part of the respondents to have cancelled the recruitment process. In support of his contentions, learned counsel for the applicants cited several judgments including the judgment in following cases: -
i. A.A. Calton Vs. The director of Education & Another - 1983 SCC (3) decided by Hon'ble Supreme Court.
ii. P. Mahendran Vs. State of Karnataka - 1990 AIR 405 decided by Hon'ble Supreme Court.
iii. Ramesh Kumar Vs. High Court of Delhi & Anr -
Order dated 01.02.2010 passed by Hon'ble Supreme Court in Writ Petition (Civil) No. 57/2008.
7iv. N.T. Bevin Katti Vs. Karnataka Public Service Commission & Ors - AIR 1990 SC 1233 decided by Hon'ble Supreme Court v. Vindhyavasini Tiwari & Others Vs. State of U.P & Ors - 2014 (1) ADJ 437 decided by Hon'ble Allahabad High Court.
8. Learned counsel for respondents on the other submitted that there are valid reasons for not proceeding with the recruitment due to inadequate work load and changes in criteria as per the decision of the competent authority. He also cited the judgment of Hon'ble Supreme Court in the case of Shankarsan Dash Vs. Union of India - (1991) 3 SCC 47.
9. We have considered the submissions, pleadings as well as the case laws cited by the learned counsels for both the parties.
10. The submission of the applicants' counsel that the applicants have been finally selected and notified is not based on any evidence as the copy of the notification or order of the respondents in which the final result was notified has not been furnished. In the O.A, it is stated that the result of the written test was declared on 24.02.2013. But similarly, copy of the order or notification of the respondents notifying the list of candidates who qualified written test was not 8 furnished. A list of the candidates was furnished by the applicants at Annexure A-2. It is stated in the O.A that after declaration of the written test result , the respondents kept silent vide para 4.3, 4.4 and 4.5 of the O.A. It is also stated in the O.A that the candidates have been finally selected vide para 4.17 of the O.A. There is no mention in the O.A about conduct of trade test. In the Counter Affidavit, the respondents have stated that before declaration of the written test some candidates filed O.A in which there was interim order and the selection process was ordered to be subject to outcome of the O.A and therefore, the respondents did not publish the result of the written test and stopped the selection process. To this contention, the applicants have reiterated in the Rejoinder that the selection process was completed in 2013 and the select list was prepared without furnishing any concrete evidence in support of such contentions. No evidence that the applicants were called for trade test has been furnished by the applicants. In absence of any evidence we cannot accept the contentions of the applicant in this regard and accept the stand of the respondents that the result of the written test was not declared by the respondents before cancelling the selection process.
11. In the case of A.A. Calton (Supra), the dispute was the final approval of the select list, since there was an 9 amendment to the statutory provision by the State Government relating to authority to approve theselect list and the amended rules came into force when the selection process was going on. Hon'ble Supreme Court has held that the amendment would have prospective effect and the selection process would be continued as per the law prior to the appointment. In this case, all the tests were completed and final list of candidates was notified. But in this O.A the select list of candidates has not been finalized and written test result has not been notified by the respondents. Hence, the cited case is distinguishable as facts.
12. In the case of P. Mahendran (Supra), the list of selected candidates was finalized and they were given intimation as well as the steps were taken for imparting them training before appointment. At this stage, the Stage Government amended the recruitment rules omitting certain qualification. Therefore, the list of selected candidates was challenged by some unsuccessful candidates before the State Administrative Tribunal, which set aside the select list prepared by the Karnataka Service Commission. The Hon'ble Supreme Court held that the Tribunal was in error while setting aside the select list and that the amended rules will have to retrospective application in absence of specific provisions in the rules. Further, the State Government was directed to make appointment as per the select list already 10 finalized. This case is also distinguishable on facts since the select list was finalized after all tests unlike the present O.A.
13. In the case of Ramesh Kumar (Supra), the issue was recruitment against the vacancy of District Judge. The petitioners belonging to the SC category appeared in the selection process but could not be selected since as against three posts reserved for SC only one candidate was found suitable and 2 were declared unqualified as they could not secured minimum qualifying marks. In this case, the cut off marks for the written test was decided prior to initiation of written examination and the same was notified. It was found by the Hon'ble Supreme Court that the applicant had secured higher marks than the cut off marks fixed for SC candidates. Therefore, the appeal was allowed. This case is also distinguishable on facts since the selection process was already finalized.
14. In the case of N.T. Bevin Katti (Supra), the issue was regarding validity of the select list prepared by Karnataka Public Service Commission for the post of Tehsildar. During pendency of selection, the State Government issued an order revising the extent of reservation and also prescribing different mode of selection. The selection process was thus concluded with the revised procedure alongwith direction by the State Government. It was held that the appointment 11 should have been done as per the procedure prior to the revised procedure which came into force when the selection process was in progress This case is also distinguishable, as the selection process was finalized in the case unlike the present O.A.
15. In the case of Vindhyavasini Tiwari (Supra), the selection of Sub Inspectors and Inspectors of Police was cancelled because of change of the procedure which came into force after issue of notification for selection. In this case, all tests were completed and the petitioners had qualified in all the tests including preliminary written test, physical standard test and physical efficiency test. At this stage the selection process was deferred and it was challenged in the Hon'ble High Court. After examination the detail position of law as the issue Hon'ble High Court allowed the writ petition quashing the impugned Government order dated 03.09.2013 and consequent order dated 24.09.2013 cancelling the selection process. In this case it is also seen that the selection process has substantially advanced, where as in the present O.A, the result of the written test was not notified by the respondents. Hence, the ratio of judgment in this case is not applicable to the present O.A.
16. From the above, most of the case laws which have been cited by the learned counsel for the applicants are 12 distinguishable on the basis of facts. In this case, the advertisement mentioned that "the advertisement is subject to order, if any, by Hon'ble Courts / Ministry of Defence/ Ordnance Factory Board etc.". Further, written test results were not declared / notified in this case. The respondents have argued that the advertisement was subject to the order of Ordnance Factory Board and the Board have decided to first defer the recruitment process vide letter dated 11.06.2013 mainly on the ground that there is inadequate work load with the respondent No. 2. The applicants failed to challenge the decision of the respondents in 2013 to defer the recruitment process in 2013. Subsequently, in 2014, the recruitment criteria was changed by the Government of India. Since the respondent No. 2 is a factory manufacturing small arms for defence requirement, the respondents are entitled to cancel the selection process if they find that the factory does not have adequate or sustainable work load. Hence, the case of the respondents which is a factory cannot be compared to the case of the recruitments for the posts in government. Hence, we are of the view that the judgments cited by the learned counsel for the applicant will not be applicable to the present case.
17. We also take note of the judgment of Hon'ble Apex Court in the case of Batiarani Gramiya Bank Vs. Pallab Kumar & ors - (2004) SCC (L&S)7152. In the said case, the selection 13 for recruitment in question was being done by the Banking Services Recruitment Board where revised indents were submitted by the Batiarani Gramiya Bank because of financial crisis faced by the Bank before publication of the result and intimation of selection. The dispute in that case was whether the recruiting agency should have gone ahead on the basis of original indent. The Hon'ble High Court in this case did not accept the contention of the Bank that due to financial crisis the number of persons should be reduced. Hon'ble Supreme Court after discussion the case laws applicable to this case held as under: -
"34. We have already noticed that though the advertisement was published in the newspaper and the examinations were held thereafter on 20.03.1988, the Bank had communicated the revised indent by 23.8.1988 well ahead of the intimation of selection and publication of results. The Bank had bona fide and genuine reasons for pruning down the indent. If the banks are forced to accommodate Officers and Field Supervisors more than their required indent, it will have a crippling effect on the banks and public interest will stand seriously prejudiced as several employees will have to be unnecessarily retained and public money will have to be expended on them. When public interest competes with private interest, private interest will have to give way to public interest. In this case, asking the appellant Bank to accommodate Officers and Field Supervisors as directed by BSRB would cause loss to public revenue. ...... .
35. The aforesaid being the decision, we would hold that the respondent-writ petitioners had not acquired any indefeasible right and the decision not to fill up all the vacancies had been taken on bona fide reasons and directions as sought for by the respondents cannot, therefore, be issued."
18. The facts in the present O.A are similar to the case discussed above, since the respondent No. 2 was having shortage of work load, a situation under which recruiting 14 more staff would not be viable, since it is a Government institution running on a commercial basis like the Bank. Therefore, the ratio of the above case is squarely applicable in this case. One of the grounds taken by the respondents is that the respondents do not have sustainable work load, which has not been disputed or contradicted by the applicants. In the light of the decision of Hon'ble Supreme Court in Batiarani Gramiya Bank (Supra), this be a valid ground to defer / cancel the recruitment process. Moreover, the applicants did not raise any dispute since 2013 when the written test was conducted but no action was taken by the respondents to notify the result or progress the selection process till it was cancelled in 2016. Hence, we do not find any justification to interfere with the decision of the respondents to cancel the selection process.
19. In view of the above, the O.A lacks merit and is liable to be dismissed. Accordingly, the O.A is dismissed. No costs.
(Gokul Chandra Pati) (Justice Dinesh Gupta)
Member (A) Chairman
Anand...