Central Administrative Tribunal - Delhi
Mahendra Singh Sharma vs Union Of India on 22 April, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH : NEW DELHI O.A. NO.3269/2009 New Delhi, this the 22nd day of April, 2010 CORAM: HONBLE MR. SHANKER RAJU, MEMBER (J) HONBLE DR. VEENA CHHOTRAY, MEMBER (A) Mahendra Singh Sharma, S/o Shri Surat Singh, Sr. Prosthetist, Prosthetics and Orthotics Workshop, Safdarjang Hospital, New Delhi Resident of H-318, Sarojani Nagar, New Delhi-23 Applicant (Applicant in person) Versus 1. Union of India The Ministry of Health & Family Welfare New Delhi Through its Secretary 2. The Directorate General of Health Services (MH-I Section) Nirman Bhawan, New Delhi 3. The Medical Superindent Safdarjang Hospital, New Delhi 4. Shri N.U. Manohar Retired Workshop Manager (Prosthetics) And Appointed on Contractual Basis As Workshop Manager (Prosthetics) Safdarjang Hospital, New Delhi. Respondents (By Advocate: Shri Tanveer Hamed Ansari for official respondents and none for Respondent No.4) :ORDER: By Dr. Veena Chhotray, Member (A):
The Applicant is working as a Senior Prosthetist, Prosthetics and Orthotic Workshop, Safdarjang Hospital under the Union Ministry of Health & Family Welfare. Through this OA filed under u/s 19 of the AT Act, the applicant is agitating claims for promotion to the post of Workshop Manager Prosthetics. He is also challenging the respondents action in appointing instead the Respondent No.4 on contractual basis, though for a limited period presently.
By way of relief of OA seeks following directions:-
(a) For appointment of the applicant to the post of Workshop Manager (Prosthetic);
Quashing the impugned order dated 30.10.2009 appointing the Respondent No.4 on contractual basis;
Passing any other orders deemed fit;
Award of costs in favour of the applicant 3.1 By way of interim relief, a direction for appointment of the applicant to this post forthwith has also been sought. Responding to this prayer, it was directed by the Tribunal vide its order dated November 16, 2009 that any appointment made during the interregnum shall remain subject to final outcome of the OA. These directions have been continued by subsequent orders.
3.2 The brief facts are that the applicant has been working as a Senior Prosthetist with the Respondents No.3 since the year 2000. The next higher post is that of Workshop Manager (Prosthetic) which became vacant since April 2009 after the superannuation of the incumbent who incidentally happens to be the Respondent No.4.
3.3 As per the relevant rules notified in 1977 the post of Workshop Manager (Prosthetic) has been notified as a Central Service Group B Gazetted Non-Ministerial post to be filled by selection. The recruitment has been prescribed by promotion failing which by direct recruitment. For promotion - Limb Fitter and Brace Fitter with six years service in the grade rendered after appointment thereto on a regular basis are the eligible feeder category. Besides the educational and professional qualifications prescribed for direct recruits have also been made applicable in case of promotees. The following educational and other qualifications are required for direct recruits:-
Essential:
Matriculation or equivalent qualification from a recognized university.
Certificate in Orthotics and Prosthetics from a recognized university.
6 years experience in the manufacturing and fitting of Orthotics and Prosthetics appliances in a recognized institute including experience of workshop management teaching and conducting training courses for Prosthetics and Orthotics. At this point, it would be pertinent to note that in 1996 the posts in the Prosthetics and Orthotic Workshop Rehabilitation Department, Safdarjung Hospital had been redesignated. This, inter alia, included the posts of Limb Fitter and Brace Fitter being redesignated respectively as Senior Prosthetic and Senior Orthotics.
4. The respondents had proposed to reconvene the meeting of a DPC on 24.7.2009 for promotion to the post of Workshop Manager (Prosthetic) (Annex. A-4) on regular basis. It is also found that vide respondents letter dated 4.8.2009 the applicant had been directed to produce copies of educational/technical qualification (Annex. A-2) for consideration for the said post. As per the averments in the OA the outcome of this DPC is not known to the applicant. However, in their CA the respondents have submitted that the aforesaid meeting of the DPC was not held as there was no eligible candidate found for the post (para 4.3). Instead vide their letter dated 30.10.2009 (Annex. A-1), the respondents have engaged the superannuated official i.e. Shri N.U.Manohar (Res.-4) as a consultant on contractual basis at a monthly remuneration. This is sought to be for a period of six months or till the post is filled up on regular basis, whichever is earlier. It is also stated to be subject to the outcome of OA 2088/2009 filed by one Shri Anil Kumar in the CAT (PB), this OA got dismissed subsequently.
5. The OA referring to non-declaration of the outcome of the aforesaid proposed DPC meeting has challenged non-consideration of his case by the respondents for regular promotion. According to him, he fully qualified the prescribed qualifications and he alone is eligible for the post from among the departmental candidates. The applicant is a Higher Secretary pass and thus has the prescribed educational qualification under the rules. As regards the professional qualifications, the following are said to meet these requirements as well:-
i) The applicant has been registered with the Rehabilitation Council of India, the competent body under the Government of India with regard to the rehabilitation professionals. As per a copy of the certificate attached as Annex. A-2 (pages 19 and 20 of the paper books), the applicant has been duly registered as a Rehabilitation Technician.
ii) It is stated that the applicant has a registered certificate in Prosthetics & Orthotics by the National Institute of Rehabilitation Training and Research again under the RCI. A copy of the relevant certificate (page 18 of the paper book) shows this certificate on the basis of a Short Orientation Course in use of Pre-fabricated Components in Prosthetics & Orthotics from 8.5.89 to 27.5.89.
iii) Further, the applicant has also passed a test for category C and J unit, Group H, Class III grade Kirkee and a certificate of Technical Proficiency by issue of Kirkee, Pune, (pages 21 to 23 of the paper books).
iv) Various certificates issued by the Safdarjung Hospital itself justifying the professional efficiency of applicant have also been enclosed. This include a certificate dated 10.2.2003 from Head of Rehabilitation Department in the Safdarjang Hospital certifying that the applicant is trained for taking measurements and fabricate artificial limb independently. Again similar Certificates dated 2.11.1989 and dated 25.09.2008 are annexed with the OA.
6.1 As per the respondents, however, the applicant does not possess the requisite experience and certificate in Prosthetic and Orthotic from a recognized institute. Para 4.6 of the OA makes the stand of the respondents clear on this account as per the following averments:-
..It is submitted here that applicant is not eligible for the post of Workshop Manager (Prosthetic) as applicant does not possess requisite experience and Certificate in Orthotics and Prosthetics from a recognized Institute as per Recruitment Rules. It is further submitted that since there was no eligible candidate for the Post of Workshop Manager Prothetic by promotion and filling up the said post by direct recruitment was a long process, it was decided to fill the post on contract basis in anticipation and in the interst of academic requirement as well as in the public interest. 6.2 In course of the oral submissions, it would be pointed out by the learned counsel for the respondents that whereas the RRs stipulated of the combined experience of both Limb Fitter and Brace Fitter, the applicant is only a Limb Fitter. The certificate in question is said to be of a short duration and not to fulfill the requirements as per the rules. Even the experience of the applicant as envisaged under the RRs has been questioned.
7. We have heard the applicant in person and Shri Tanveer Ahmed Ansari, learned Counsel for the official respondents and have also perused the material on record. For the respondent no.4 despite an opportunity there has been no representation.
8. As per the law by the Apex Court in S.B. Bhattacharya Vs S.D. Majumdar & Ors. (2008) 1 SCC (L&S) 21. In accordance with the relevant rules and instructions is the fundamental right of a Government servant in terms of Article 16 of the Constitution of India as the details in the aforesaid para-5 show in terms of the rules, promotion is first option for filling up the post of Workshop Manager (Prosthetic). The alternative option of direct recruitment has to be exercised only after duly consideration of the legitimate claims of the departmental employees in the feeder category. We also note, an apparent anomaly in the present case, in as much as though in 1996 there were two different and distinct posts of Limb Fitter and Brace Fitter redesignated respectively as Senior Prosthetics & Senior Orthotist; the RRs of 1997 were not changed correspondingly and the combined stipulation of Limb Fitter and Brace Fitter for promotion to the post in question continued to exist.
We find this as arbitrary. The Apex Court in Man Singh Vs State of Haryana & Ors. 2008 (7) SCALE 750, reaffirming that the touch stone of the administrative action is fair play and reasonableness by observing as under:
We may reiterate the settled position of law for the benefit of the administrative authorities that any act of the repository of power whether legislative or administrative or quasi-judicial is open to challenge if it is so arbitrary or unreasonable that no fair minded authority could ever have made it."
Hence the essential question on which the entire issue hinges remains as to whether or not the applicant would be held to possess the requisite qualification in case of promotion as pr the RRs. Whereas, according to the respondents the applicant lacks such qualification; the claim of the applicant is strongly affirming the same. As ruled by the Apex Court in Basic Education Board, U.P. Vs Upendra Rai 2008 (1) SCC (L&S) 771, the Court is not expected to decide grant of equivalence in matters of educational/professional qualifications. Even though the RRs do not prescribe any specific duration for the certificate, we feels that under the totality of the circumstances the claim of the applicant deserves a fair consideration.
9. In view of the foregoing, we are of the considered view that the ends of justice would be served by remitting this matter to the Respondent No.1, i.e. Secretary, Ministry of H&FW with a direction to take a reasoned decision on this aspect after obtaining the views of the Directorate General of Health Services (Respondent No.2) and Rehabilitation Council of India and pass a speaking order in this regard. In the event of the applicants claim being found valid in the process, his case for promotion would be considered by convening a review DPC.
These directions including the holding of the review DPC, if necessary, are to be complied within a period of three months from the date of passing of this order. As regards the contractual appointment, since the same has been done by the respondents in exigency of public interest and for a limited period, we do not find anything objectionable about it. The OA is disposed of in terms of our above directions. Parties would bear their respective costs.
(VEENA CHHOTRAY) (SHANKER RAJU)
MEMBER (A) MEMBER (J)
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