Central Administrative Tribunal - Ernakulam
Giri Sankar M.G vs Union Of India Represented By Its ... on 20 June, 2016
Author: P. Gopinath
Bench: P. Gopinath
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No.180/00606/2014
& Original Application No.180/00653/2014
Monday, this the 20th day of June, 2016
CORAM:
HON'BLE Mr. JUSTICE N.K. BALAKRISHNAN, JUDICIAL MEMBER
HON'BLE Mrs. P. GOPINATH, ADMINISTRATIVE MEMBER
Original Application No.180/00606/2014
1. Giri Sankar M.G.,
S/o.V.Mohanan Nair,
Residing at Bhagavathy Cottage,
Bhagavathy Nada P.O., Balaramapuram,
Thiruvananthapuram - 695 501.
2. Arshad M.,
S/o.Assainar,
Residing at Appatta House,
Moolad P.O., Naduvannur (via),
Kozhikode - 673 614. . . . . . Applicants
(By Advocates Mr.K.A.Hassan)
Versus
1. Union of India represented by its Secretary,
Ministry of Health, Centre Secretariat,
New Delhi - 110 001.
2. Director General,
Employees State Insurance Corporation,
Panchdeep Bhavan, Comrade Road,
Indrajith Gupta (CIG) Marg,
New Delhi - 110 002.
3. Deputy Director (ADM),
Employee's State Insurance Corporation,
Regional Office (Kerala), Panchadeep Bhavan,
North Swaraj Round, Thrissur - 680 020.
4. Regional Director,
Employee's State Insurance Corporation,
Regional Office (Kerala), Panchdeep Bhavan,
North Swaraj Round, Thrissur - 680 020. . . . . Respondents
(By Advocate Mr.T.V.Ajayakumar [R2-4])
Original Application No.180/00653/2014
Ranjana.M.R.,
D/o.late V.Ramachandran,
Jaya Vihar, Near Manathitta Vishnu Temple,
Kasshaka Nagar, Ayyanthole, Thrissur - 680 003. . . . . .Applicant
(By Advocates Mr.K.A.Hassan)
Versus
1. Union of India represented by its Secretary,
Ministry of Health, Centre Secretariat,
New Delhi - 110 001.
2. Director General,
Employees State Insurance Corporation,
Panchdeep Bhavan, Comrade Road,
Indrajith Gupta (CIG) Marg,
New Delhi - 110 002.
3. Deputy Director (ADM),
Employee's State Insurance Corporation,
Regional Office (Kerala), Panchadeep Bhavan,
North Swaraj Round, Thrissur - 680 020.
4. Regional Director,
Employee's State Insurance Corporation,
Regional Office (Kerala), Panchdeep Bhavan,
North Swaraj Round, Thrissur - 680 020. . . . . Respondents
(By Advocate Mr.T.V.Ajayakumar [R2-4])
These applications having been heard on 8 th June 2016 the Tribunal on
20th June 2016 delivered the following :
ORDER
HON'BLE Ms.P.GOPINATH, ADMINISTRATIVE MEMBER Since the matter involved in both these O.As are one and the same, they are being considered and disposed of by this common order.
2. The applicants in O.A.No.606/2014 had appeared for the appointment of meritorious sports person for the post of Upper Division Clerk and Multi Tasking Staff in E.S.I.Corporation, Kerala Region. The application was invited for various states. Applicants aver that due to some mistake committed in the selection process conducted by the West Bengal region of the ESI Corporation the respondents are taking hasty steps to cancel the selection list prepared after interview conducted by the 4 th respondent. 1st applicant applied for the above said post for MTS and 2 nd applicant applied for the UDC in pursuant to Annexure A-1 notification. The 1 st applicant was a plus two qualified candidate who possessed the following qualifications relevant for the post to which he applied :
a. Kerala University Badminton individual Championship for two years ie. 2010-2011 and 2011-2012.
b. Captain of the Kerala University Shuttle Badminton team during 2011-2012 and 2012-2013.
c. Senior Inter District Bronze Medalist for the period during 2012- 2013.
d. Junior (under 19 years) State Silver Medalist during 2010-2011.
e. Gold medalist in Kerala School Games in 2009-2010.
3. 2nd applicant who applied for the post of UDC was a graduate and possessed the following additional qualifications :
a. The National First Certificate issued by the Volley Ball Federation of India.
b. The National third place certificate in Volley Ball Championship issued by the Volley Ball Federation of India for the year 2009.
c. The Certificate of Merits dated 2.4.2012 issued by the University of Calicut in Volley Ball (men) for participation of volley ball for the years 2009-2010, 2010-2011 and 2011-2012.
d. Certificate No.156 dated 8.2.2010 issued by the Kerala Volley Ball Association for obtaining 3rd place for the Championship of Kerala Senior State Championship.
e. Merit Certificate No.2038 issued by the XLIXth Kerala State School games Wrestling and Athletic Championship for the year 2006.
4. In the final stage of the selection process for the post of UDC/MTS, the 3rd respondent issued memos to the applicants to attend the interview at 10 a.m on 10.12.2012 at the regional office before the 4th respondent. When the 3rd respondent was about to appoint candidates from the final selection list, it was reliably understood that due to some irregularities/mistake committed by the West Bengal regional office in its procedure, the respondents are about to cancel the selection list of the Kerala State region also and the applicants apprehend that a fresh notification is going to be issued. For the 1st applicant, it is the last opportunity for him to submit an application for appointment on the basis of the above said Annexure A-2 series of unique competency certificates. The meritorious certificate produced and marked as Annexure A-4 cannot be used by the 2 nd applicant, any more, since the validity of the same is only for two years. IT was the last opportunity for applying for any post in the sports quota since he has already attained 26 years. Reliefs sought by applicants are to direct the 1 st respondent to consider the selection list prepared after complying all formalities as per Annexure A-1 notification and to direct the 2 nd and 3rd respondents to consider the selection list and pass orders appointing the applicants to the concerned post.
5. The applicant in O.A.No.653/2014 had also appeared for the appointment of meritorious sports person for the post of Upper Division Clerk in E.S.I Corporation, Kerala Region under sports quota 2012 as per Annexure A-1. In the interview also she was successful and included in the selection list. The applicant is also under the impression that due to some mistake committed in the selection process conducted by the West Bengal region of the ESI Corporation the respondents are taking hasty steps to cancel the selection list. The applicant in the O.A has listed her achievements in the school, university, State and National Table Tennis competitions. The applicant is 28 years and would become ineligible for applying for any post under sports quota. Hence applicant prays for appointment as per selection list prepared by 3rd and 4th respondents.
6. The respondents in the reply statement submit that as per Section 17 (2) of the ESI Act, the method of recruitment, salary and allowances, discipline and other conditions of service of the members of the staff of the Corporation shall be such as specified in the regulations made by the Corporation in accordance with the rules and orders applicable to the officers and employees of the Central Government drawing corresponding scales of pay, provided that where the Corporation is of the opinion that it is necessary to make a departure from the said rule or orders in respect of any of the matters aforesaid, it shall obtain the prior approval of the Central Government. According to Regulation 4 of Employees' State Insurance Corporation (Staff and Conditions of Service) Regulations, 1959 the appointing authority for all appointments to the posts is the Director General. They deny the statement that the 3 rd respondent ie. Deputy Director (Admn.) issued Annexure A-1 notification for direct recruitment of meritorious sports person for the post of Upper Division Clerk and Multi Tasking Staff in the ESI Corporation, Kerala Region under Sports Quota 2012 and submit that Annexure A-1 notification was issued by the 4 th respondent Regional Director as seen from the last portion of Annexure A-1 notification itself. It was in accordance with the direction issued by the ESI Corporation Headquarters, vide letter No.A-12/23/1/07.E.II dated 19.4.2012 the 4th respondent Regional Director initiated the action for the process of recruitment of meritorious sports person for the recruitment year 2012-2013. The last date for submission of application for recruitment of the sports person as per the above notification was 2.11.2012. After conducting field trials and interview, the Selection Committee recommended 5 candidates for appointment under sports quota in accordance with the priorities prescribed by DOPT in OM 14034/1/95-Estt.(D) dated 4.5.1995 and submitted that the above list to the Headquarters vide letter dated 10.12.2012. The applicants 1 and 2 are included in the above list for the post of MTS and UDC with Sl.Nos.4 and 3 respectively. The 1 st applicant is included in the general category and the 2nd applicant in the OBC category. After the examination of Annexure R-1(a) letter, the Deputy Director of the ESIC Headquarters vide letter dated 21.12.2012 called for the following requisite documents which were not furnished along with the above recommendation by the 4 th respondent :
1. Copies of the advertisements published in the various newspapers.
2. Copies of the recommended candidates' application forms with documents viz. (Educational Certificates, Sports Certificates, Specimen Form etc.)
3. Copy of the Attendance Sheet of the candidates.
4. Copy of the modalities decided by the Selection Committee.
5. Minutes of the Selection Committee duly signed by the members and the Chairman.
In compliance of the above directions the 3 rd respondent sent a letter dated 29.1.2013 and 7.5.2013 to the 1 st respondent forwarding copies of all required documents.
7. Heard the counsel for the applicant and respondents and perused the written submissions made. Respondents admit that it was pointed out to them that as per the Headquarters Office instructions dated 8.10.1990 it is stipulated that no qualifying examination or interview will be held for the above recruitment. The Selection Committee for the appointment of meritorious person in the sports quota vacancies of the Corporation, was to be made on the basis of the recommendation of the Committee constituted for the above purpose, and the Committee had to follow procedures/guidelines laid down by the DOPT and Headquarters instructions issued from time to time. Two relevant guidelines specifically stated therein are :
(a) As per DOPT instructions sports persons fulfilling eligibility conditions have to be considered only in the order of preference of their level of participation at different levels of competition on the basis of certificates as prescribed.
(b) DOPT instructions do not envisage conducting of interview of candidates for the recruitment of meritorious sports persons. Besides the Headquarters instructions dated 8.10.1990 mentioned above also conveyed that no interview or qualifying examination should be held for the above purpose.
8. ESI Headquarters after examining exhaustively the proposal/recommendation of the Selection Committee submitted by the Regional Office recommending appointing of 3 UDCs and 2 MTS's in various disciplines, noticed certain irregularities in the procedures followed by the Regional Office namely :
(i) the interviews of the candidates have been conducted which is violative of the Headquarters instructions dated 8.10.1990 (Annexure R-
1[g]).
(ii) DOPT instructions and Headquarters instructions envisages grant of preference according to the level of participation certificate of the candidates and no such preference have been given while recommending recruitment.
9. In view of the aforementioned discrepancies observed in the procedure adopted by the Regional Office in the recruitment process for the preparation of merit list of the selected candidates, the competent authority did not accept the recommendation of the Committee. There is a specific direction in the memorandum not to conduct interview for appointment of meritorious sports persons which unfortunately escaped the notice of the respondents 3 and 4. In the above circumstances the Director General decided to cancel the above recruitment process initiated by the Regional Director for the recruitment of 3 UDCs and 2 MTS's on the basis of interview in various sports disciplines in the Kerala Region. Therefore the contention raised by the applicants that there is no justification for issuing a fresh notification on the ground that mistake/irregularity was committed by the West Bengal or any other State Region is devoid of any merit. If the aforesaid select list, in violation of stipulated directions of the recruitment procedure is not cancelled, it will perpetuate illegality.
10. The Apex Court in the case of Rakhi Ray vs. High Court of Delhi (2010) 2 SCC 637 held as under :
'24. A person whose name appears in the select list does not acquire any indefeasible right of appointment. Empanelment at the best is a condition of eligibility for the purpose of appointment and by itself does not amount to selection or create a vested right to be appointed. The vacancies have to be filled as per the statutory rules and in conformity with the constitutional mandate.' (emphasis provided)
11. This was a case where the respondent exercised his discretion, rather than follow the fixed rules circulated in office instructions dated 8.10.1990. All recruitment are bound by a procedure laid down for the same and any arbitrary change of rules or standard procedure vitiates the process of recruitment. No one is vested with such absolute power to change the procedure and administrative discretion also does not extend to change or violate the rules of recruitment. Hence the prayer of applicants for appointment as per select list drawn up cannot be considered.
12. Even if this could have been a case of genuine lack of knowledge, still the selection cannot be validated nor could a judicial stamp of approval be extended, to the selection under the sports quota. The decision of the competent authority, not to accept the recommendation of the selection committee was appropriate as the procedure laid down for recruitment was not followed. The above recruitment process cannot be regularized in view of faulty procedure adopted. The mistake was committed by the respondents and hence the argument of the applicants that they should not be penalised as they were qualified, requires consideration. The only relief that can be provided is to direct the respondents to notify the applicants about the next such recruitment to be made and consider the applicants despite the fact that they are overaged or their certificates are outdated as otherwise applicants in these O.As will suffer both these disqualifications on account of the cancellation of the faulty recruitment process followed by the respondents, for which the applicants cannot be held responsible or made to suffer. The O.As are disposed of accordingly. No costs.
(Dated this the 20th day of June 2016)
(P. GOPINATH) (N.K. BALAKRISHNAN)
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
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