Central Administrative Tribunal - Kolkata
Preeti vs Education on 26 November, 2021
4 0.a, 351.01807.2018 CENTRAL ADMINISTRATIVE TRIEUNAL KOLKATA BENCH, KOLKATA (CIRCUIT AT PORT BLAIR) No. O.A. 351/01807/2018 Date of order: of fl Aa Present : Hon'ble Ms. B'disha Banerjee, Judicial Member Hon'ble Dr. NanditaChatterjee, Administrative Member 1. Smt. Preeti, Aged about 35 years, W/o ShrRaniit Singh, Presently residing at Dignakad, Fort Blair, South Andaman District. 2. Ms. Sajida, Aged abcui ....... yedrs, D/o Shri M.K. Suloman, R/o Delanipur, Port Blair, South Andaman District. .... Applicants - VERSUS- 1, The Union of India, Through the Secretary fo the Government of India, Ministry of Human Resource Develcpmeni, Department of Education, ShasiriBhawan, New Delhi -- 110 301. 2. The Lieutenant Governor, Andaman & Nicobar Islands, Port Blair. 3, The Princ pal (Secretary, Andaman & Nicobar Administration, Port Blair. 4, The Chief Secre-ary, a h-- Ly . . . ae wot wv . a we fe bens " ' a 10. 11. 12. 2 o.a. 351.01807.2018 Andaman & Nicobar Administretion, Pert Blair. The Secretary-cum-Directeor, Director of Education, Andaman & Nicobar Adirinistraiion, Secrevariat, Port Blair. Tre Director, Directorate of Education, Ancaman & Nicobar Administration, Port Blair. The Deputy Director (Perl.,, Cirectorate of Education, Andamen & Nicobar Administration, Port 3icir. Ms, SaidaBibi, D/o Shri Mohammed Ali, Working as Librarian Grace -- Il, Linder Directorcte of Education, Presently posted at Zonal Library, Kadamiala. Ms. Nehatiwari, Working as Librarian Grade -- II. Lnde: Directorate of Educatio7, Presently posted at GSSS Bakultala. Ms. P. SalimaBanu, Working as Librarian Grade -- Il, Under Direczorate of Educction, Presently posted at GMSSS Mayabunder. P EmmuSalimaBibi, Working as Librarian Grade -- Il, Under Directorate of Education. Ms. NupurGnarami, D/o ShriBidhuBhusanGhararmi, oot Working as -ibrarian Grade =I, Whe 3. o,a. 351.01807.201& Under Directorate cf Educarior, Presently posted at Zonal Library Nancowrle. .... Respondents For the Applicants : Ms. A. Nag. Counsel | For the Respordents : Mr. K. Rao, Counsel | | ORDER
Per Dr. NanditaChatterjee, Administrative Member:
Aggvieved at not having been appointed as Lbrarian Gr. ll by the respondent administration, the apolicants have approached this Tripural in 4'h stage litigation uncer Section 19 of the Administrative Tribunals Aci, 1985 praying for the following relief-
"gq. Lecve be granted io move this crginal aplication jointly under Rule A{5' (a) of the Ceniral Admiristrative Tribunal (Procecure} Rules, 1987.
b, An order/orders cuashing the Order dated 17 September, 2016 passed by the Deputy Director (Ferl.), Directcrate of Educaiion, Andaman & Nicobar Administration wrereby the representcticns of the appicartts rejected and consequenty the arde- dated 23.9.2016 issued by tne Deputy Director [Perl], Andaman & Nicobar Administration appoinring tne private respondents.
C. An order/orders cirecting the resoondent authorities to finalze ine selection by pub shing the select list following the orders passed by the Hon'ble Central Administrative Tribunal in O.A. No. 351/00210/2C15. and O.A, No. 351/001C2/20'6 dcted 13/04/2016 and 21.09.2016 respec'ively to the post of Libratian Grade - Il in pursuance te the advertisemen; datec 17.4.2015.
d. An order / orcers directing the respondent avthorities to appoint the applicants to tre post of Liorarian Grade - Il if they come within the zcne of consideration after publication of the merit list.
e. An order / orders / direction / directing the respondent authcrities to publish the merit list strictly by calculatirg only ine professional experience gained by the candidate cd not the teaching experience for the post of Librarian Grade --1l n terms of the recruitment rules.
f, An order / orders / direccion / directing the rescondent authcrities to apzoint the carcicates in accordance with "he merit list which wovid De published in terms of method as observed by the Hon'ble Cenral Administrative Titunal in the earlier "ound of litigction... ' é : chee 4 0,a, 251.01897.2018 An order / orders / direction / direciing the respondent authoriies to appoint the candidates in accordance with -re nerit list which woule 2e published in terms of the afcresaic method.
h. An order directing ihe respondent authorities to act in accordance with law.
I. An order to issLe, directing ine respondents tc produce the records of tne case before this Hon'ble Tripunal so that conscious able justice may ve done, j. such other or furter order, direction or directions, as your Lordships deems fit cnd proper in the interest of justice."
4, During hearing, Ld. Counsel for the cpplicanis would submit thet the applicant No. 2 has since withdrawn herself from this application, and, accordingly, as prayed for, this Original Application would proceed only in the context of applicant No. 1.
The memo of withdrawal of applican; No. 2 is taken on record.
5, Heard both Ld. Ccunsei, excnined pleadings and documents cn record, It is noted that no rejoinder has been filed against the rep'y furnished by the authorities on 28.12.2020.
The submissions of the applicant as articulated through her Ld. Counsel, is as follows:-
That, the applicant is an aspirant for the post of Librarian Gr. li, and, that, she had respcnded to a notification cf the respondent administration dated 17.4.2015 (Annexure A-5 to the O.A.) in which 15 vacancies were advertised for the cost of Librarian Gr. Il (4 Gen, 2 OBC, 3 ST), and, that the Department of Educatior introduced a self-marking system purportedly with the purpose to ensure transpcrency in according scores in the selection process.
That, although Clauses 12 anc 13 of the notificction indicated -hat for experience, marks wil. be calculated as 0.2 marks per month for 5 0.8. 351.01897.2918 teaching experience from a Governrent / recognized school / Government recognizec college on the basis of certificates from the head o* suc' institution, the applicant surmised that the term "teaching experience" was required exclusively ir tre case of Physical Education teachers as the same notification had declared vacancies both "or the post of Physical Education teachers as well as Librarian II respectively.
That, the applicant No. 1 possesses teaching experience certificate from the Navy Training School as per Annexure A-6 to the O.A, collectively.
That, thereafter, the provisicnal merit Ist wes published on 30.7.2015 calling for claims and obiectiens {Annexure A-1° and A-12 to the O.A,). The applicant objected te the saia provis onal mer't list on the ground that the authorities should not consider teaching experience to award marks on professional experience as because professional experience "or Librarian Gr. fl involves actual work as a Lib-arian and not in a teaching post.
The applicant would refer to the recruitment rules at Annexure A-9 to the O.A., wherein the noted requirement was for professional experience and not for teaching experience. The applicant would aver that if the arbitrary and illegal criteria of teaching exzerience is removed from the orocess of calcuiation of scores for the pest of Librarian Gr. Il, and, that. the professiona experience of the Liorarian fs included as a basis for professional experience, the applicant would qualify to be included in the merit list.
o oe 6 o.a, 251.01807.2018 As her representa-iors were not being considered, the appiicant approacned chis Tribunal in O.A, No. 351/002] 1/2015 (Smt. Preeti & anr. vs. UO! & anr.) which was cisposed of by this Tribunal or 13.4.2016 by holding that the statement of Ld. Counsel for the respondents, namely, thet. "the Library Science subject would be taken into consiceration for the post"
should be brought to the notice of the appointng authority cefore concluding the process of selection.
As the authorities re'used to consider the professional experience of the applicant as Librarian, the applican- preferred another Original Application bearing Nc. 351/0C102/201é a> Anrexure A-15 to the O.A. which was disposed of on Z1.9.2016 by directing the authorities to comply with the directions contained in the orders of ~he Tribunal in O.A. No. 351/00210/20'5 and O.A. No. 351/9021° /2015 respectively. The authorities failed to act in terms of such orders, and the applicant filed a Con-empt Application which was dismissed with liberty to challenge the speaking order passed on 19.9.20° 6 by the authorities.
That, thereafter, having learnt that the curhorities have issued appointment orders tc private respondents vide their orders dated 19.9.2016 (Annexure A-16 to the O.A,) the applicant challenged the same before this Tribunal by filing O.A. No. 3£1/00352'2018 with M.A. No. 351/00191/2018. Such original appication was dismissed on the ground of maintainability upon which the applicants challenged the Tribunal's order before the Hon'ble High Court and upon the orders of the Hon'bie High Court the said speaking order dated 19.9.2016 was communicatec to the tv Me
7 0.a. 351.01807.2018 applicants, challenging which the applicant has coproached this Tribunal "
in the instant O.A. That, the O.A. No. 351/00352/2018 has been disposed of by this Tribunal on 28.12.2020 as infructuous as the instant O.A. has been "ted challenging the order o* tne authorities.
é, The grounds in which the applicart woulc primarily challenge "he speaking order and the appointment orders are as follows:-
(a)
(d) That the authcrities failed to consider -he represeniation of ihe applicants in terms of the recruitment rules for Librarian Gr. I. That the au'norities failed to consider -hat it is professional experience and not teachirg experience which is to ve calculated for according marks to the candidates in the selection process.
And, as suca calculation of teaching experience being impermissible, the provis'onal merit list dated 5.11.2015 is bad in law, That, the respondent acthorities have abs-ained from finclizing the merit list as they are purportedly aware that their ac"on is contrary to the recruitment rules, arc, that such ment list snculd be published forthwith particularly incorporating tre name of the applicant, who would come within the zone of consideration if her professiona: experience is considered and not the teaching experience of the private respondents 8 to 12 as impleaded in this Original Applicatior.
8 0.4. 351.01807.2078 7, The respondents, ser con-ra, have rebutted the claim of the applicants in their following contentions:-
(i) That, in the recruitment notificatior (arnexed at R-1 to their reply as also A-5 to the O.A.}, the following was notec:-
"Ol, Experience marks will be calculated cs 0.2 marks per month for teaching experience in a Govt. / recognized school / Gov-. recognized college or the basis of tne certificate issued by the head of -he institut-on and couniersigned by the DEO/AEO/Zonal Officer of Education ~epartment. Experience of less -han 15 days will be ignored. The experience certificate should be supported by the appropriate appointmeni orders. 'refer SI, No. 13 of rec'uitment Notification).
02. If any university has awarded grace pcints (CGPA} instead of marks, the candidate should submit the conversion -able of grade points into percentage of marks issued cy the universty concemed failing which, the ccmmon criteria/formula evolved by the Department for such conversion shall be copled and shall be final and binding, No further correspondence shall be entertained in this regard. {refer Sl. Nc. 18 of Recruitment Notf cation)"
(i) = That, the applicant, Ms. Preeti hac applied both for General and OBC categories and obtained 59.74 marks, and, was placed at Srl, No. 27 of the provisional merit list.
On the other hand, the candidates, who qualified in the selection process have obtained marks ranging from 69.8097 to 62.2328 beth in General and in OBC category.
That, (ii) = After concluding the selection process in a_ fair and transparent manner, the department had fnalized the selection and issued appointment orders contained in No. 3032 dated 23.9.2016 appointing the private -espondents in terms of their positions in the merit list and, as such process had attained finality 4 years earlier, this particular O.A. is barred in terms of limitation.
8. The Hon'ble High Court at Calcutta (Circu't Bench at Port Blair) disposed of WPCT No. 166 of 2018 (Smt. Preeti and another vs. The Union of India and others) on November, 2018 with the "allowing orders:
be a
9 0.4, 351.01807.2018 " What has iranspired in the chove matter is thct the original order dated 19th september, 2016 was net challenged before any authority. 4owever, subsequent order that was dependent cn the order dated 19tt Sestember. 2016 was challenged ir the said O.A. No. 351/00352/2018. Accordingly, the Tribunal was right in dismissing the said original application as the impugned order hed never been challenged before the said Tribunal.
However, in view of the fact that the order dated September 19, 2016 has row been cha'lenged, it would be appropriate that the Tribunal hear the said matter on merits.
The order challerged in the sad originc! application is depended on the dec's'on that may be taken in the subsequen tribunal application challenging the order dated 19 September, 2016. We feel thet the justice would be sub-served, if the impugned order is set aside and -re Original Application No, 351 /00352/2018 is heard and decided along with the subsequent Tribunai applicatior challengng the order dated 19th September, 2016 analogeusly.
We, however, mcke it clear that we have not eniered into the meris and demerits of the impugned order challenged in the O.A. No. 351/90352/2018 cnd, therefore, any finding recorded hereinabove skal not have any persuasive effect on tne Tribunal for deciding the same along with the subsequent Trbunal application. We further make it clear that all questions including maintainazility of the subsequent tibunal application are kept open and shall not be deemed to have been decided by us. The order impugned is, thus, set aside, The Original Application Ne. 251/00352/2018 is restored to its original file and number, The Tribunal is directed to hear out the original application No. 351/00352/20° 8 along with the subsequen* tribunal application that has been filed by the petitioners on 14th November, 2018."
Accordingly, Original Application No. 351/00352/2018 was restored and thereafier disposed of as infructuous as the applicant hed challenged the orders dated 19th September, 2016 in the instant O.A. 9, The crux of the mater calling for adjudication in the instant O.A. is whether the selection of Librarian il was made as per the provisions of the Recruitment Rules.
10. To resolve this issue. we would, at the outset, refer to the recruitment rules.as annexed at A-é to the C.A. and R-I to the reply. The said recruitment rules are repreduced as under:-
oor 10 oe. 351.01807.2018 so LIBRARIAN GRADE - Il SCHEDULE - 4 RECRUITMENT RULES FOR THE POST OF LIBRARIAN GRADE -- |i DIRECTORATE OF EDUCATION 1, Name of the Posts Librarian Grade - Il
2. No. of Post 's} 123 (2003) * Subject to variation dependarn: on the workload
3. Classificatior: General Central Service Group "B" Non-Gazetted, Non-
Ministerial A, Scale of Pay Rs. 5590-175-9000
5. Whether selection post or non- | Selection selection posi é. Age limit for direct recruits 18-33 years for male and 18-38 years for female (Relaxable in case Govt.
Servanis upto 5 years in accordance with the instructons/orders issued by "he Central Govt. from time to time} Note- The crucial date of determining the age lini? small be fre closing cate for -eceipi of ame from Employment Exchange/applications from candidctes
7. Whether benefit of added years of | Not appiicable service admissible under Rule 3C of CCS {Pension} Ruies, 1972
8. Education and other qualifications ; Essential:
required for the direct recruits Bachelor Degree in any stream from a recognized University with Bachelor Degree in Library Science.
Desirable:
Master Degree in Library Science from a recognized University / Institution OR Three years professional experierce from a recagnized instit tion
9. Whether age and educational | Age-No qualifications prescribed for direct | Educational qualification -- Yes recruits will apply in case of promotees 11 o.a. 351.01807,2018
10. Period of probarion, if any 2 (Two) years
11. Method of recmitmert whether by | 90% by direct recruitmert direct recruiment or by promotion | 10% by promotion failing wrich or by deptiation/absorption and i by direct recruitment percentage of "he pasts to be filled oy various rrethods
12. m case of recruliment by | Promotion promotion/deputation/aasorption From amongst the L'brarians grades from which fromotion /| Grade Ill in the scale o* pay of deputation/absorpiion tobe made | Rs. 4000-6000 with 10 years regutar service in the grace Fo a DPC what is the | Group 'B' DPC consisting of:-
composition?
exists,
--
ww
1. Secretary(Edn) --- Chairman 2, Secretary (Law)-Member
3. Director of - Member Education
4. Assistant Secretary- Member
14. Circumstances in which UPSC is to | Not applicable be consulted in making recruitment We infer from the above -hat the qualificctions required for direct recruit are as follows:-~ "Essential:
Bachelor Degree in any stream from a recognized University with Bachelor Decree in Library Science."
Admitiedly, the applicant herein as wel as "he private responderts, (whose application forms have been furnished by Ld. Counsel fer the respondents Loon directions of tris Tribunal) reveal that all the applicants has fulfilled this cond'ton of bachelor degree in any stream from a recognized University with bachelor degree in Library Science.
The desirable qualifications was noted in the Recruitment Rules as follows:-
Mas-er's degree in Library Sc'ence from a recognized Univers'ty or Institution or 3 years' professional experience 'rom a recognized Universivv.
I2 o.2. 351.01897,2018 We note, therefore, that any candidate with Master's degree in Library Science would noi be requirec to furnish 3 years' crofessicnal experience while seeking claim ic the post of Liorarian Grade ~ Il as er the recruitment rules as the professional experience was only a desiraple alternate requirement.
The applicant's form reveals that she possesses an M. Lib. Degree from the Alagappa University as ser Arnexure A-6 to the O.A. Further, while private respondents No. 8, 9 and 10 possess M. Lib. Degrees, the private respondent No. 11 and 12 do not possess cn M, Lib degree.
Accordingly, para 13 of the notification (at Annexure A-5 to the O.A, and R-1 to the reply), vide which 0.2 marks was notfied to be granted on "teaching experience" js cnly applicable for cancidates who de not Possess Maste~'s degree in Library Science and would hence have no claims to any scores on account of Master's degree in Library Science.
Ld. Counsel for the respondenrs, on the other hand, would coniend in their speaking order tha: the rec'uitment notification was issued after obtaining due approval of the Hon'ole Lieutenant Governor under whose directions the teaching experience has been included as one of the criteria of tne selection Process on grounds of administrative requirements.
The exact content of the Procesal to which the respondent No. 2 had accorded nis approvel has not seen produced before us. We are of the considered opinion. therefore, that the respondents could have defined the criteria of professional experience as teaching experience (as per their admiristrative requiremenis) only in sucn context where'n 3 A r
13 9.a. 351.01807,2018 years' professional experience was mandated unde the recruitment ru'es, namely, in the case of private resceondents 11 and 12 in the instant mat-er, who, admittedly do not possess any Master's Degree in Library Science, and obviously cannot claim any scores on account of Master's degree in Library Science. It is not understood as tt how 3 years' professicnal experience from a recognized Insti-ution was mandared in the case of the applicant, wro, along with private respondent Nos. 8, 9 and 10 undisputedly held Master's degree in Library Science from a recognized University / Institution and -heir marks against such Master's degree in Library Sc'ence should have sufficed against the desirable criteria, Accordirgly, the Clause 13 of the recruiment notification, being a corollary to the desirable cciteria, is contrary to the recruitment rules in the context of candidates wir Master's Degree in Library Science, and, therefore, fails to withstanc legcl scrutiny when according scores to candidates wih Master's degree in Library Science. The said clause, however, is permissible in the case of candidates with no Master's degree in Library Science, . The applicant claims that she had reckoned Clause 13 of tke notification as appliccble to Physical Education teachers as the notification had called for recruitment of both Physical Educatior teachers and Librarian Il.
11. We would, therefore. remanc this matter back *o the competent authority in fhe Education department of the respondent administration, to examine, in accordance with law, the applicability cf Clause 13 of the Fn a en ag eee i ey --
14 o.a. 351.01807.2918 notification at Annexure A-5 c* the O.A. in the background of the recruitment rules of Librarian I, which rotifies that candidates with Master's degree in Library Science were not required fo furnish any certificate of professtonc| experience. The cuttorities should clearly decide whether in the context of desirable criteria, -he marking systerr for Librarian || snould confine itself for award'ng sccres only for Master's degree in Library Science cnd noi call for additional marks on professional /ieaching excerience for cny cardidate aspiring for the post of Litrar:can II.
We would, further, direct the author'ties, to consider the claim of ine applicant in the light of such examination, in terms of her essental qualifications of bachelor's degree in concermed Stream from / recognized University / Institute cs well as Master's degree in Liorary science from recognized University / Institutes disregarding the need for any professional certificate and to reconsider her position in the merit ist.
12. tt is a settled Principle of law that once a judicial forum has taken YP a mater for adjudication, the decision of the selection process challenged therein, will abide by the result of tnis O.A. We also note that despite notice, the Private respondents have nor chosen to respond to the Original Application ied by the applicants from 2015 onwards.
13. Accordingly, the responden: authorities will cecide whether the Gaim of the apclicant in terms of the essential and desirable qualification 35 3.8. S5L.O1807 2018 advances her position appropriately in the merit list, and H so to cormec?
the fis? strictly In accoraance with rnerit.
Por the purpose of fairness and justice, we would direct the respondeni authority that fhey should call bot the apolicant as weil as Ine privee -espondents fo appear wih their supporting document: for personal nearing and fo decide thereatter strictly In terms of the recruliraent mules, HH such time, the imolemeritation of the crovisional merit fist dcted 19.9.2016, if nol acted yod04, shall remair in abeyance, In ine event the apelicant is offered appainiment a3 Librarian Gr. i her enttiements would accrue prospectively from her actual cate of loining.
14. WEh these clirections, the O.A. is disposed of, No costs.
} "< {Bidisha Banerjee) . dudiclal Member (Dr, Nandifa Chatterjee} Administrative Member SF