Central Administrative Tribunal - Chandigarh
Unknown vs Union Of India Through The Secretary To ... on 30 July, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
O.A.NO.714/CH/2012 Date of order:- July 30, 2012.
Coram: Honble Mrs.Shyama Dogra, Member (J).
Honble Mrs.Promilla Issar, Member (A)
Dr. A.K.D.Dwivedi son of Sh. D.N.Dwivedi, Director, National Institute of Electronics & Information Technology ( erstwhile known as DOEACC) SCO 114-116, Sector 17-B, Chandigarh-160017.
Applicant
(By Advocate : Mr. V.K.Sharma )
Versus
1. Union of India through the Secretary to the Government of India, Department of Electronics & Information Technology (DEITY), Electronics Niketan, 6 CGO Complex, New Delhi-3.
2. Department of Personnel & Training ( DOPT) through its Secretary, North Block, New Delhi-1.
3. Appointment Committee of Cabinet through Cabinet Secretary, Rashtrapati Bhawan, New Delhi-4.
4. Shri Ashwani Kumar Sharma, Director (Technical) Rajcomp Info Service s Ltd., Ist Floor, Yojana Bhawan, Tilak Marg, C-Scheme, Jaipur, Rajasthan.
Respondents
(By Advocate: Ms.Jyoti Chaudhary, for Respondent Nos.1 & 2
Mr.Puneet Bali, Sr.Advocate with Mr. Gurvinder
Singh Bhatti, for respondent No.4).
O R D E R.
Honble Mrs.Promilla Issar, , Member (A):
The applicant has filed the present O.A. praying for the following reliefs:-
i) Quash the illegal, vitiated and arbitrary procedure adopted by the respondents in making selection and appointment to the post of Executive Director for DOEACC Society in the scale of pay of PB-4, Rs.37400-67000 with grade pay of Rs.10,000/- (pre-revised scale of Rs.18,400-22,400) thereby snatching chance of the applicant for getting selection against the post in question and the procedure being in violation of rules and law and Articles 14 and 16 of the Constitution of India is liable to be quashed and set aside;
ii) Direct the official respondents to re-advertise the post of Executive Director with definite criteria and qualifications and start the process afresh.
2. It is the projected case of the applicant that the respondents have adopted an illegal and arbitrary procedure while making selection to the post of Executive Director, DOEACC Society, now known as National Institute of Electronics & Information Technology and this has caused prejudice to him, since the chance of getting selected for the said post has been taken away from him. In support of his contention, the applicant has cited the judgments of the Honble Supreme Court in the cases of Secretary, A.P. Public Service Commission versus B.Swapna (2005(4) S.C.C. Page 154, P.Mahendran versus State of Karnataka (1990(1) S.C.C. Page 411 and Gopal Krushnarath versus M.A.A.Baig ( 1999(1) AS.C. Page 544.
3. The first ground taken by the applicant is that the respondents have relaxed the prescribed/advertised conditions with regard to the relevant experience acquired after passing the qualifying examination and this has been done after the closing date of receipt of applications. Six candidates were short-listed in the screening-in process in April, 2011 as per the prescribed criteria and Shri Ashwani Kumar Sharma (Respondent no.4 ) and one Shri Arun Sachdeva were not in the list of these six candidates who were screened-in. The interview was held on 5.7.2011 and 15 additional candidates were called for interview, including those who had not been short-listed earlier. He has further alleged that the relaxation in the relevant post-qualification experience was done midway into the recruitment process to accommodate certain candidates and this has caused prejudice to him.
4. The next ground taken by the applicant is that a select panel of three persons was prepared with Shri Souresh Bhattacharya at Sr.no.1, Shri Ashwani Kumar Sharma at Sr.no.2 and Shri Arun Sachdeva at Sr.no.3, but the Minister changed the order of merit after conducting interviews himself and placed Shri Ashwani Kumar Sharma at Sr.no.1, Shri Arun Sachdeva at Sr.no.2 and Shri Souresh Bhattacharya at Sr.no.3 in order of merit. Finally, Shri Ashwani Kumar Sharma was selected. The applicant has stated that the decision of the Selection Committee was reversed under external pressure. He has further placed reliance in this respect on the decisions in the cases of P.K.Ramachandra Iyer versus Union of India (1984(2) S.C.C. Page 141 and Krushna Chandra Sahu (Dr.) versus State of Orissa (1995(6) S.C.C. Page 1. It is the case of the applicant that the Minister could not have taken up the task of selection upon himself and he could not have selected Shri Ashwani Kumar Sharma since he is three levels junior to the applicant and was not included in the first list prepared after the screening-in process.
5. The next ground taken by the applicant is that the selected candidate i.e. Respondent no.4, does not possess the relevant experience in the field of Human Resource Development in IECT, which is one of the requirements as per the objectives of the Organisation. He has further averred that Respondent no.4 does not have the relevant experience which would be compatible with the other objectives of the organization. Finally, the applicant has asserted that external forces have been brought to bear upon the selection process with malafide intentions and to influence the recruitment process, as a result of which the whole process has been vitiated. Hence this O.A.
6. On the first date of hearing, status quo as of 13.7.2012 was ordered to be maintained by the respondents till the next date of hearing and this interim order was ordered to be continued thereafter.
7. Respondent No.4 has stated in his reply that the O.A. is liable to be dismissed on the ground of non-joinder and mis-joinder of necessary parties because the DOEACC Society, rechristened as National Institute of Electronic and Information Technology, ( NIELIT in short ) has not been impleaded as a party, though the process of appointment and recruitment was carried out by them. Therefore, this Organization is a necessary party without which just and proper adjudication of the present case is not possible. He has stated that he was selected as per the recruitment rules of DOEACC Society and the selection was approved by the Appointments Committee of the Cabinet, chaired by the Honble Prime Minister. He has already submitted his resignation to his present employer i.e. RajCOMP Info Services Limited. He has also stated that the applicant has no locus-standi to file the present O.A because, after having participated in the selection process, it is not open to the applicant to challenge the same and that too after a lapse of one year. It is settled law that once a candidate has participated in the selection process and has been found to be non-suitable for a post, it is not open to him to challenge the same after the selection has been finalized and specially when he had not been included in the five persons short-listed after the interviews in July, 2011 and he still waited for one year to file this O.A only after he was not selected.
8. He has further stated that the applicant has levelled vague and baseless allegations of relaxation in eligibility conditions given to some candidates and external pressure, but no relaxation was required or was given to him. Even if it is assumed for the sake of argument that any relaxation was given to some other candidates, it does not make any difference since he has been selected on the basis of merit alone without any relaxation. He has further stated that he has the requisite qualification for the post and is covered under the provision under which one of the qualifications is B.E./B.Tech/B.Sc. Engg. in the area of Information, Electronics Communications Technology/Electrical/Mechanical/Production/ Industrial Design etc. or equivalent with 25 years experience. He has further stated that he has an outstanding academic record throughout and has worked in I.S.R.O., Bhabha Atomic Research Centre ( BARC) Mumbai, among other well known Organizations in the field. On the other hand, the applicant has always obtained IInd division throughout his academic career whereas respondent no.4 has been a first class first throughout his academic career. He has also attached a comparative analysis of the educational qualifications and experience of the applicant and himself as Annexure R-4/5.
9. He has further stated that the said selection process was conducted in accordance with the rules and regulations governing the post and after interviewing all the eligible candidates in July, 2011. It was clarified to all the candidates that after this first round of interviews, five candidates will be short-listed for a detailed interview. The applicant could not make it to this short-list of five candidates. Out of these five, three candidates were called for the 3rd round of interviews by the Union Minister of Communication & Information Technology, who is also the Chairman of NIELIT. He has also stated that the applicant has levelled vague and baseless allegations of relaxation in eligibility conditions and selection under external pressure, but has failed to name any person in this respect and no specific relaxation has been mentioned by the applicant to substantiate these allegations. He has further stated that this is an example of vexatious litigation which aims to tarnish the image of the Appointments Committee of the Cabinet, chaired by the Honble Prime Minister.
10. He has further stated that the entire selection process has been carried out in accordance with the rules and regulations governing the DOEACC Society and as per the selection criteria mentioned in the advertisement and proper procedure has been followed. There has been no deviation from the qualifications laid down. Finally, he has prayed for dismissal of the O.A.
11. At the time of final hearing, the original record of the selection was produced by the learned counsel for Respondent no.1 i.e. Union of India through the Secretary to the Government of India, Department of Electronics & Information Technology (DEITY), Electronics Niketan, 6 CGO Complex, New Delhi- 3.
12. We have heard the learned counsel for the parties and have given our thoughtful consideration to the arguments raised on behalf of the parties and have carefully perused the documents placed on record. We have also perused the original record of the selection process.
13. Since the original record was called for perusal, the Court has not given further time to the official respondents to file reply and their oral arguments were heard, which were on the same lines as submitted by the learned counsel for respondent no.4. Therefore, for the sake of brevity, these arguments are not being repeated.
14. The post of Executive Director of DOEAC Society (later re-named as NIELIT) was advertised to be filled up through Direct Recruitment as well as Transfer (absorption)/Deputation. The qualifications for Direct Recruitment were indicated as follows in the advertisement:-
Educational qualification and experience :
. Ph.D.(Engineering/Science) with 15 years experience;
OR . M.Tech./M.E. in the area of Information, Electronics & Communications Technology/Electrical/Mechanical/ Production/ Industrial Design etc.; or equivalent qualification with 20 years experience;
OR . B.E./B.Tech,./B.Sc. Engg. In the area of Information, Electronics, Communications Technology/Electrical/ Mechanical/ Production/ Industrial Design etc.; or equivalent with 25 years experience. The qualifications for Transfer ( absorption)/Deputation were laid down as follows in the advertisement :-
. In case of recruitment by Transfer (absorption)/ deputation):
Officers of Central/State Govt.,/PSUs/Autonomous bodies holding analogous posts on regular basis OR Having 5 years regular service in the pre-revised scale of pay of Rs.16,400-450-20,000.
15. The learned counsel for the applicant argued that one Shri Arun Sachdeva, who had been placed at sr.no.2 in the final merit list, had not completed 25 years of service in January, 2011 since he had joined service on 31.5.1986 and it is apparent that he has been considered by relaxing the condition relating to experience. In this respect, we find that firstly, Shri Arun Sachdeva has not been finally selected and, therefore, his qualifications are of no consequence in respect of respondent no.4 and secondly, he has not been made a party in this O.A. In addition, it has also been brought to our notice that Shri Arun Sachdeva was eligible to be considered under the second mode of recruitment i.e. by Transfer ( absorption)/Deputation and he fulfilled the eligibility conditions laid down in the advertisement for recruitment from this source. Therefore, we do not find that this ground taken by the applicant lends any support to his contention that the selection process has been vitiated because of any relaxation given to Shri Arun Sachdeva, since the same has not been proved and is not relevant since he was not finally selected and he has not even made a party in this O.A.
16. The learned counsel for the applicant also argued that in the first short-list in April, 2011, Shri Arun Sachdeva and Respondent no.4 were not included after the screening-in process. However, on a perusal of the record, we find that the meeting of the Screening Committee for recruitment to the post of Executive Director, DOEACC Society was held on 7.4.2011, in which it was recorded that 21 candidates had been short-listed for appearing before the Search-cum-Selection Committee for interview, on the basis of eligibility criteria laid down for the post, subject to clearance by the Personnel Division of DIT as per extant rules of DoPT in respect of one candidate. In the minutes of the Screening Committee meeting held on 21.4.2011 on the same subject, it was recorded that it was the second meeting of the Screening Committee and it was mentioned that the candidate who had been short-listed and whose case was subject to clearance by the Personnel Division of DIT, was not eligible for being called for interview. It is a fact that in this meeting, six candidates were short-listed, the applicant was one of them and Shri Arun Sachdeva and respondent no.4 were not included in these six candidates. However, it is also found from the notings relating to this subject after this, that the competent authority decided to call all the short-listed candidates for interview as decided by the Screening Committee in its first meeting held on 7.4.2011 and it was also decided to hold the meeting of the Search-cum-Selection Committee on 31.5.2011, which was finally held on 5.7.2011. This is one of the major arguments put forward by the applicant that he was amongst the six short-listed candidates by the Screening Committee. However, we find that no prejudice has been caused to any candidate by the decision of the competent authority to invite all candidates as short-listed in the Ist meeting of the Screening Committee, for the interview, since this decision is in line with the principles of equity and fair play. Every eligible candidate had a right to be considered and any short-listing should have been done only after interviewing all of them and the decision of the Screening Committee in its first meeting was more equitable than the decision taken in the second meeting and, therefore, we do not find that this decision of the competent authority, which granted a chance for consideration to all the eligible candidates, was inappropriate or illegal in any way and it was in fact based on considerations of justice, equity and fair play. Therefore, this argument of the applicant is also not sustainable.
17. All the above mentioned twenty candidates were called for interview by the SCSC, which was finally held on 5.7.2011 and 15 candidates appeared for interview, out of which three candidates were short-listed for the post of Executive Director, DOEACC Society as follows:-
i) Brig. Souresh Bhattacharya ;
ii) Shri Ashwani Kumar Sharma ;
iii) Shri Arun Sachdeva. When the file was submitted to the Minister, he recorded that he had interviewed the candidates and on the basis of academic record and experience, he found that the order of merit would be as follows:-
i) Shri Ashwini Kumar Sharma;
ii) Shri Arun Sachdeva;
iii) Brig. Souresh Bhattacharya. The Ministers recommendations were then ratified by the Appointments Committee of the Cabinet, chaired by the Honble Prime Minister. We find that the selection has been made by the competent authority as per rules and the SCSC was a recommendatory body and not the Appointing Authority. As long as the basic qualifications are fulfilled and there is no arbitrary exercise of power, it is the employer who has to ascertain the suitability of a particular candidate for any job. We, therefore, find that the reprioritizing of the candidates by the Minister is within his competence and there is no illegality in the same. We also find that this reprioritization was not whimsical and arbitrary, but was a reasoned and speaking order. Therefore, on this point also, we rule in favour of the respondents.
18. Another argument put forth by the learned counsel for the applicant was that the qualifications and experience of respondent no.4 are not in tune with the objectives for which the DOEACC Society had been constituted. In this respect, he referred to the following description of the objectives of the Society as described in the advertisement:-
The objective of the Society is to carry out Human Resource Development activities in the area of Information, Electronics and Communications Technology (IECT) through its various Centres in the country, apart from Consultancy and related activities in India and abroad. The Society is presently engaged in implementation of national level schemes for Education & Training in Computers, Bio-Informatics, Computer Hardware, ITES-BPO, Embedded Systems, VLSI Design, Multi-media and Animation, amongst other programmes. However, we find from the educational qualifications and experience of the applicant and respondent no.4, that this allegation is without any basis and the qualifications and experience of respondent no.4 are compatible with the second part of the objectives of the Society(supra). Therefore, this objection of the applicant also fails.
19. The next point raised by the learned counsel for the applicant is that as mentioned in the O.A, the selection has been made under pressure from external forces and there were factors at work to influence the recruitment. However, he has failed to mention any names in this respect regarding the persons who constituted the external forces. He has also, in this allegation, cast aspersions on the integrity of the Members of the SCSC as well as the Screening Committee, that they had functioned on considerations other than merit, but he has not mentioned any names or given any proof and without impleading them as party. This is a highly mischievous allegation and aims to tarnish the image of all these persons without even a shadow of proof. Therefore, in this respect also, we rule in favour of the respondents since no evidence of malafide intention or external pressure has been found.
20. It is also significant that the applicant waited for one year to object to the selection process and that too after he came to know that he had not been selected. This clearly indicates that he has sought legal remedy only because he failed to get selected, even though he had no evidence of any of the illegalities alleged by him. As discussed above, we have found no irregularity or illegality in the said selection process.
21. A number of citations have been mentioned by the learned counsel for the applicant which inter-alia relate to changing of eligibility conditions midway during the selection process and the judicial decisions regarding the course of action to be undertaken if the selection process is found to have been vitiated because of this and other reasons. However, we find that there is no need to go into these citations because the qualifications were not changed during the selection process, no relaxation was given to any candidate, there is no arbitrary or whimsical use of power, there is no evidence of pressure being brought to bear on any person associated with the selection process to influence their decision and not a shadow of proof has been found to substantiate his claim that the selection process has been vitiated in any way. The selection process has been found to be completely legal and valid and, therefore, the said citations have no bearing on the present case.
22. For the reasons mentioned above, it is our considered view that this is a case of unnecessary litigation by a candidate who failed to get selected. The selection process has been found to be completely legal and valid and we would otherwise have imposed heavy costs on him for having wasted the time of this Court. However, taking a lenient view, we impose only notional costs of Rs.2000/- on the applicant to be paid to the C.A.T. Bar Fund.
23. Consequently, in the facts and circumstances of this case, this O.A has been found to be devoid of any merit and the same is accordingly dismissed and disposed of with costs as above. Needless to say that the interim order granted on 13.7.2012 stands automatically vacated.
(PROMILLA ISSAR) (SHYAMA DOGRA ) MEMERMBER (A). MEMBER (J) Dated: July 30, 2012. Kks 16 ( O.A.NO. 714/CH/2012 ) (O.A.No.714/PB/2012) 1