Central Administrative Tribunal - Jabalpur
Dr Jayashree Dubey vs M/O Environment And Forest on 7 November, 2023
1 O.A.No. 200/00444/2022
Reserved
CENTRAL ADMINISTRATIVE TRIBUNAL, JABALPUR BENCH
Jabalpur
Original Application No.200/00444/2022
Jabalpur, this Tuesday, the 7th day of November, 2023
HON'BLE JUSTICE SHRI AKHIL KUMAR SRIVASTAVA, JUDICIAL MEMBER
HON'BLE SHRI KUMAR RAJESH CHANDRA, ADMINISTRATIVE MEMBER
Dr. Jayashree Dubey, W/o Shri Rajesh Dubey, Assistant
Professor, IIFM Bhopal, Aged - 50 years, Adult, R/o E-4/401,
Arera Colony, Bhopal. Pin - 462016
- Applicant
(Applicant, appeared in person)
Versus
1. Union of India, Through the Secretary, Ministry of
Environment, Forest and Climate Change, Indira Pariyavaran
Bhawan, Jor Bagh Road, New Delhi, Pin Code - 110003
2. Indian Institute of Forest Management, through its Director,
Nehru Nagar, Bhopal (M.P.) Pin Code - 462003
- Respondents
(By Advocate - Shri Hemant Shrivastava, along with Shri
Amardeep Gupta)
O R D E R(Final)
By Kumar Rajesh Chandra, AM:-
This Original Application has been filed by the applicant aggrieved by the orders:
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Reserved i. Dated 03.12.2020 (letter sent by IIFM to the MoEFCC, proceedings of the personnel selection committee meeting held on 16th and 17th September 2020 for interview of faculty position 'Associate Professor' in the faculty area of Marketing Management.
ii. Dated 23.11.2021 (Annexure A/6, regarding acceptance of legal opinion and cancellation of claims of the applicant.) iii. Dated 18.02.2022 (Annexure A/12)
2. Through this Original Application, the applicant sought for the following relief:
In view of the facts and circumstances, and in the light of the submissions made in the present OA, the Hon'ble Tribunal may kindly be pleased to grant the following reliefs. a. Quash the notification dated 18.02.2022-Ref. Advt- IIFM/PERS/PSC-58/2022 (Annexure A/12) b. Issue appointment on the position of Associate Professor w.e.f. 4th December 2020, to the present applicant who is the only eligible and selected candidate for the said position. c. The present applicant should be granted all the back date arrears of salary which she was supposed to get if she was appointed on the said position.
d. Compensation worth 75 lakh to the applicant for denial of justice by authorities despite full knowledge of facts, causing mental harassment since 04.12.2020 and financial loss by denying her legitimate benefits for being the only eligible selected candidate.
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Reserved e. To grant the cost of litigation and any other relief.
3. Briefly stated facts of the case of the applicant as projected in this Original Application are that the applicant is currently serving as Assistant Professor at IIFM, Bhopal since 30.07.2010. In the month of October 2019, Director, IIFM, issued a notification bearing No. Advt. No. IIFM/PERS/PSC-51 (2)/2019 for direct recruitment of persons to work for the position of Associate Professor and Professor in different subject areas. In the said Advertisement, the minimum eligibility and other conditions for the position of Associate Professor were prescribed. The applicant applied for the position of Associate Professor in Marketing Management. She was shortlisted and called for interview on 16th September 2020 along with other 18 shortlisted candidates, amongst which only 2 candidates secured more than requisite qualifying 70% marks, therefore, the applicant was placed at Serial No. 2 as per the final recommendation dated 03.12.2020. On seeing the qualification/experience of the selected candidate (Dr. Prateek Maheshwari) at Sl. No. 1, after his joining on 01.01.2021, the applicant was shocked as the said candidate (Dr. Prateek) did not possess even the bare minimum eligibility/experience to be appointed to the said post as per MoHRD norm for the IITs/IIMs which IIFM is obliged to follow. After discovering so, the Page 3 of 15 4 O.A.No. 200/00444/2022 Reserved applicant sent various representations since 14.01.2021, to the Director, IIFM, Chairman, Board of Directors & Secretary of MoEF&CC, and Chairperson, Faculty Grievance Committee, IIFM, requesting to revert the illegal appointment and offer of position to her being the first waitlisted candidate, but no reply was received by her. Later on, subsequent to the representations dated 26.02.2021 & 19.03.2201 sent to the Secretary (MoEF&CC) through email, the AIG of Forest (RT), MoEF&CC sent a letter dated 30.03.2021 to the Director IIFM to get the matter examined and furnish action taken report immediately to the Ministry. Having received no response, the applicant also sent an urgent reminder letter-I to Director IIFM, on 13.04.2021. Since no reply was received, the applicant complained to CVC and PMO through the portal. As a consequence, the Ministry had to issue a second urgent reminder on 18 June 2021. Thereafter on the basis of such complaints Director IIFM discussed the grounds of ineligibility with Dr. Prateek on 24.06.2021, subsequent to which Dr. Prateek tendered his resignation on the same date. Thereafter, in response to the Applicant's representation to the Faculty Grievance Committee, a 3 member board level Faculty Grievance Committee composed of Chairman, Member and Secretary had its sitting on 03.09.2201, where the committee was informed that 'the process of Page 4 of 15 5 O.A.No. 200/00444/2022 Reserved appointment of Dr. Prateek by screening committee was not as per MoHRD norms and that Dr. Prateek Maheshwari had tendered his resignation on 24.06.2021 which was accepted by the Chairman, BOG, IIFM. Based on the Director's report to the Ministry stating that Dr. Prateek Maheshwari was not eligible and meeting with the applicant on 03.09.2021, the committee in its report recommended the appointment of the applicant instead of repeating the whole recruitment process. However, despite the Committee's recommendation the Respondents took legal opinion of an Advocate, where the learned Advocate without appreciating the facts of the present case which was related to the present/advertised vacancy in detail, recommended not to appoint the present applicant citing lack of rights of waitlisted candidate for future vacancy, ignoring the fact that this case was not for a 'future vacancy'. However, despite the ministry and IIFM finally acknowledging the illegality (i.e. selecting an ineligible candidate against statutory norms) of Dr. Prateek's selection and appointment, and consequent resignation by Dr. Prateek, the institute did not declare the joining of Dr. Prateek Maheshwari as void ab initio, didn't cancel the order and did not revise the erroneous proceedings / minutes of the selection committee. The applicant has not been offered the position despite being the only Page 5 of 15 6 O.A.No. 200/00444/2022 Reserved eligible candidate and selected candidate who secured above cut off marks for the position of Associate professor (Marketing Management). The applicant submitted that there is violation of three O.M.s dated 21.03.1968, 14.03.1963 and 24.11.1958 (Annexed collectively as Annexure A/9), on the basis of which the order of appointment should have been cancelled as soon as it came to the notice of the appointing authority. Instead the institute accepted the resignation of Dr. Prateek that too with three months notice causing further loss to the taxpayers money.
4. The respondents have filed short reply as well as detailed reply. In their reply, the respondents have submitted that the applicant filed this O.A. when the respondent no. 2 issued an advertisement for appointment to the single post of Associate Professor (Marketing Management). After completion of the whole selection process, one Dr. Prateek Maheshwari was selected to the post and the Applicant's name was kept at the top in the waiting list. Dr. Prateek Joined the service on 01.01.2021 and thus the instant selection process came to an end, and since the incumbent in the main select list joined the duty, the existence of wait list ceased to survive and the contention of the applicant that since Dr. Prateek Maheshwari had eventually tendered resignation and the said post stood fell vacant again, she should have been offered that Page 6 of 15 7 O.A.No. 200/00444/2022 Reserved post as a wait listed candidate no. 1 is baseless. In support of their averments in their reply, the respondents relied upon catenae of judgments of the Hon'ble Apex Court.
4.1 The respondents in their reply submitted that since the new recruitment process for the post of Associate Professor marketing management was commenced, the applicant, by way of interim relief prayed for staying the effect and operation of notification dated 18.02.2022, which was considered and later modified to the extent that respondents can proceed further with the recruitment process as per the fresh advertisement, however, final selection for the position of Associate Professor in Marketing Management shall not be made till further orders. The institute in compliance with interim relief granted to the applicant did not proceed further to fill up the vacant post of Associate Professor in Marketing Management.
5. During the course of arguments, the applicant emphasised the following issues:
(i) After advertisement for Associate professor, the top two names recommended were, Dr. Prateek Maheshwari, 1st in merit and Dr. Jayashree Dubey, 2nd in merit. Dr. Prateek Maheshwari was given 74% and she was given 73.25%. The score given to Dr. Prateek is Page 7 of 15 8 O.A.No. 200/00444/2022 Reserved not justified because he did not have experience and hence he should not have been given such marks. She should be the only deserving candidate. Dr. Prateek Maheshwari, who was 1st, was not even eligible and after being given an opportunity of personal hearing with director IIFM on 16.06.2021, he was apprised of three major shortcomings in his candidature as reported by the CAO-
IIFM, in screening of his application.
(ii) If Dr. Maheshwari was ineligible, why did the department waste time in show cause etc. and later on say that six months have elapsed and took plea that the panel is exhausted. The respondents have also admitted that there was a mistake and Dr. Prateek should have been weeded out at the time of screening itself / not have been called for interview. The appointment was illegal as it suffers from the vice of not carefully examining the application and wrongly appointing an undeserving person and this is also admitted by the respondents. Here the resignation tendered by Dr. Prateek cannot be taken as exhaustion of the panel because he should be removed rather than allowed to resign.
(iii) The applicant submitted that the reply of the respondents is a bunch of lies as the respondents in their reply submitted that there was a singular post. It is not so, because IIFM has not mentioned the number of posts in advertisement, the committee recommended Page 8 of 15 9 O.A.No. 200/00444/2022 Reserved two names i.e. Dr. Prateek Maheshwari and the applicant on merit. They never said that Dr. Prateek is to be appointed and the applicant is waitlisted, so the contention that applicant is waitlisted is not true. Applicant's contention is that she should be given the post from 04.12.2020 and not from the date on which Prateek Maheswari resigned. The respondents in their reply referred to the right of waitlisted candidates, but here, it is the case of illegally appointed person, so she is not waitlisted. The applicant also demanded cost.
6. The respondents during the course of arguments argued on the technical grounds:
i. Calling in question the interview letter issued to Dr. Prateek after his appointment cannot be done.
ii. Calling in question the legal opinion is not allowed before any court / Tribunal.
iii. The appointment of Dr. Prateek has been challenged but he has not been impleaded as party.
iv. Even the resignation order of Dr. Prateek has not been challenged.
6.1 The respondents further submitted that until and unless Dr. Prateek Maheshwari comes before this Tribunal to defend his appointment, relief cannot be granted to the applicant. The committee later found that Dr. Prateek was not eligible so he Page 9 of 15 10 O.A.No. 200/00444/2022 Reserved resigned and the vacancy should be treated as fresh vacancy.
Furthermore, no court has so far declared that Dr. Prateek's appointment was illegal. Dr. Prateek never suppressed any fact so competent authority found that his resignation be accepted, so here arose a fresh vacancy.
6.2 This is only the perception of the applicant that appointment of Dr. Prateek was illegal, but without impleading him and without his appointment being declared illegal by competent authority or any court of law, the applicant cannot question the legality of appointment of Dr. Prateek.
6.3 Furthermore, vide Annexure A/4, it is clear that the members of the committee, came to the conclusion that rather than repeating the whole process again, the committee suggests that since Dr. Jayashree was also the first waiting list candidate for the post of Associate Professor Marketing Management as per letter dated 03.12.2020, she can be considered if the rules of MoHRD/IIFM norms and internal guidelines permit to do so, and if not then IIFM may initiate a fresh process for appointment on that post. This Report was accepted by the Director, IIFM and thereafter, legal opinion was taken and a fresh recruitment process was initiated. The representations of the applicant were considered and rejected, so her grievance was paid proper heed to. The counsel for the Page 10 of 15 11 O.A.No. 200/00444/2022 Reserved respondents further submitted that the applicant has not called in question as to why resignation was accepted and why was Dr. Prateek appointed. The counsel for the respondents also filed a paper book of case laws and administrative laws. FINDINGS:
7. This Tribunal has considered the matter and also perused the pleadings and documents annexed herewith and supplied during the course of arguments. The judgments relied upon by the parties during the course of hearing are also taken into consideration.
8. It is observed that the whole appointment process is not vitiated, only the undeserving candidate was appointed at the place on which the applicant deserves to be appointed. The right to the applicant accrued to the post when an ineligible candidate was wrongly appointed in her place.
9. The respondents emphasised that since the candidate at Sl.
No. 1 has resigned, now it is the discretion of the respondents to either appoint waitlisted candidate or go ahead with the fresh recruitment as six months had already elapsed since the appointment of Dr. Prateek. Hence, the legal opinion was taken in this matter by the respondents, and legal opinion is not being questioned.
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Reserved
10. The issue contested by both the parties and which is present before us is whether the applicant is a waitlisted candidate or not. It is clear that in the proceedings of the personnel selection committee, the names of two candidates were recommended i.e. Dr. Prateek Maheshwari with 74.00% score and applicant i.e. Dr. Jayashree Dubey with 73.25% score on the basis of six defined attributes. Since Dr. Prateek did not have even requisite experience for which he was awarded marks so this calculation in respect of Dr. Prateek is not correct. Moreover, if the screening were done carefully, his name would not have even come in the recommendation list as he was not even eligible for interview and the applicant would be the only one in the list of recommended candidates. Here, for the negligence on the part of the respondents, the applicant cannot be made to suffer and her right accrues as the only deserving candidate. The issue of ineligibility is undisputed as is agreed to by the respondents. Further, vide letter/recommendation of Faculty Grievance Committee IIFM, (Annexure A/4), it is clear that the Members of the Committee also suggested to consider the Applicant if rules of MoHRD/IIFM norms and internal guidelines permit to do so. So, there arises no question of taking legal opinion as it is not a future vacancy rather it is the same vacancy on which the appointment has to be made Page 12 of 15 13 O.A.No. 200/00444/2022 Reserved after completion of the process of appointment and the candidate eligible will be given appointment. The question of exhaustion of panel also does not arise as when the respondents came to know about the appointment of the candidate is wrongly done, then there is no need of giving him notice period and accepting his resignation and he could simply be removed; and it is also not clear as to why the respondents did so. When the one Dr. Prateek was not eligible, how can he be presumed to have resigned? Moreover, the procedure of serving notice and accepting his resignation should also not be the procedure to be followed in his case. We also find it grotesque as the counsel for the respondents submitted that the applicant has not called in question why the resignation was accepted and why was Dr. Prateek appointed. It is like one commits a mistake and then says as to why did you not question me at that time and now it is not his fault. The applicant is questioning the respondents not Dr. Prateek as to how the respondents accepted resignation when the person was declared non-eligible, so there is no necessity of making Dr. Prateek as Party. Moreover, she is not seeking any relief from Dr. Prateek who is not longer there in the Organisation.
11. The judgments relied upon by the counsel for the respondents do not seem to be relevant for the instant case as all Page 13 of 15 14 O.A.No. 200/00444/2022 Reserved these are relating to waitlisted candidates. The applicant here has clearly demonstrated that she should have been the one and the only one in the list of recommended candidate, because the name of Dr. Prateek was wrongly cleared despite not having requisite experience for the post and hence she is not a waitlisted candidate.
12. It is clear from the above observations that the right of the applicant accrued to the post since the very beginning. It was wrong on the part of the respondents to appoint an ineligible candidate on that post and pay him salary and other allowances. Since Dr. Prateek was appointed in whatsoever manner and there is no material placed before this tribunal to prove that he was complicit in this, his appointment and subsequent payment of salary and allowances till he resigned about six months' later, that was done wrongly on the part of respondents cannot be recovered from him. Since, there is no record of any investigation placed before us to finally decide whether this wrong was actually a mistake or negligence or wilful act on the part of certain officials, it would create a financial implication to pay salary to two candidates for one post for that period if applicant is considered to be appointed on that post w.e.f. 04.12.2020. But it is for the respondent to decide as to how will they make a budgetary Page 14 of 15 15 O.A.No. 200/00444/2022 Reserved provision for payment of salary for these six months for which applicant is definitely not responsible.
13. So, in view of the above observations, we direct the respondents to consider the case of the applicant for appointment the post of Associate Professor Marketing Management from the date when Dr. Prateek was offered appointment that is 04.12.2020 and pay arrears of the salary difference to the applicant since then considering she was appointed on the said post from that date i.e. 04.12.2020. The notification dated 18.02.2022- Ref. ADVT- IIFM/PERS/PSC-58/2022 (Annexure A/12) stands modified to the extent as if there is no advertisement for that vacancy of Associate Professor in Marketing Management against which the applicant is being appointed. This is in consonance of the interim relief already granted to the applicant.
14. In view of the aforesaid, this Original Application is allowed with the observation made above. No order as to costs.
(Kumar Rajesh Chandra) (Akhil Kumar Srivastava)
Administrative Member Judicial Member
vk/-
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