Central Administrative Tribunal - Chandigarh
Unknown vs Union Of India Through The Secretary ... on 27 January, 2017
CENTRAL ADMINISTRATIVE TRIBUNAL CHANDIGARH BENCH CHANDIGARH O.A. No.634/HP/2013 Decided on: 27.01.2017 Coram: HONBLE MR. JUSTICE M.S. SULLAR, MEMBER (J) HONBLE MRS. RAJWANT SANDHU, MEMBER (A) Rakesh Puri (Head of the Department), S/o Late I.J.M. Puri, Institute of Hotel Management, Kufri, Shimla.
.Applicant Argued by: Mr. Vikas Chatrath, Advocate Versus
1. Union of India through the Secretary Tourism, Govt. of Indian Transport Bhawan, Parliament Street, New Delhi -110001.
2. Union of India through A.D.G. Tourism, Govt. of Indian Transport Bhawan, Parliament Street, New Delhi -110001.
3. Chairman, Board of Governors, Institute of Hotel Management, Catering and Nutrition, Kufri, Shimla.
..Respondents Argued by: Mr. Sarfaraz Khan, Advocate for Respndts.No.1& 2 Mr. Kulbhushan Khajuria, Advocate for Resp. No. 3 Order(Oral) BY HONBLE MR. JUSTICE M.S. SULLAR, MEMBER (J)
1. The challenge in the instant Original Application (OA), filed by applicant Rakesh Puri s/o Late I.J.M. Puri, is to the impugned subsequent advertisement dated 17.04.2013 (Annexure A-3), and for further directions to the respondents to select and appoint the candidates on the basis of merit, in pursuance of initial advertisement dated 05.08.2012 (Annexure A-1).
2. The matrix of the facts and material, culminating in the commencement, relevant for disposal of the present O.A., and exposited from the record, is that the applicant was working as the Head of the Department, in the Institute of Hotel Management, Kufri, Shimla (in short, IHM). He is stated to have good academic record, teaching skill and authored various books on hotel management. The respondents initially issued an advertisement dated 05.08.2012 (Annexure A-1), to fill up one post of Principal, by way of direct recruitment basis, wherein the following essential qualification and experience were prescribed:-
AGE LIMIT:
Not exceeding 52 years as on 31.03.2012. Upper age limit is relaxable upto 5 years in case of SC, ST and departmental candidates and as specified for other categories by Government of India from time to time. Under no circumstances the age should exceed 57 years.
Essential Qualification:
(i) Graduate from a recognized University
(ii) Degree/Three year diploma in Hotel Management from an institute affiliated to National Council for Hotel Management and Catering Technology/State Board of Technical Education/Recognized University. The candidate must have secured atleast 50% marks in Degree/Diploma in Hotel Management. For Graduate in Hotel Management item No. (i) is not necessary.
Experience:
At least 3 years experience in hotel related subject (s) as Head of Department in an Institute of Hotel Management affiliated to National Council for Hotel Management & Catering Technology.
OR At least 20 years experience in teaching and/or hotel industry including 3 years in hotel operations related subject(s) & Head of Department in an Institute of Hotel Management affiliated to State Board of Technical Education/Recognized University.
OR At least 20 years experience in teaching and/or hotel industry including 3 years as Principal in Food Craft Institute affiliated to National Council for Hotel Management & Catering Technology OR Minimum 20 years hotel industry experience including minimum 5 years in Managerial capacity in 4star/Heritage or above category approved hotel *Hotel operations related subjects are: Food Production, Food and Beverage Service, Accommodation Operation/Housekeeping and Front Office This post is transferable.
3. According to the applicant, out of 17 applications, received in response to the advertisement, 07 applications were shortlisted and interview was conducted on 22.11.2012 by the Interview Committee, consisting of subject-experts, Chief Secretary, Govt. of Himachal Pradesh and A.D.G. Tourism (Joint Secretary), Govt. of India.
4. The case set up by the applicant, in brief, insofar as relevant, is that in the wake of successfully clearing of recruitment process, he was placed at Sr. No. 1 in the Select List and his name was recommended for selection and appointment by the Selection Committee. But he was not offered the appointment letter of the post of Principal as, according to him, the respondents wanted to appoint one Dhiman Banerjee, irrespective of the merit of the candidates, although he was not fulfilling the requisite qualifications/experience, as prescribed in the advertisement (Annexure A-1). Consequently, applicant moved an application under the RTI Act and came to know that Dhiman Banerjee was not eligible for the post of Principal as he was not having requisite experience, but the information was not supplied to him, on the ground that the result for the post of Principal was not declared, as per letter dated 10/11/01.2013 (Annexure A-2). It was alleged that Dhiman Banerjee had not appended the requisite experience certificates, with his application form. Then, the applicant moved an application to the Chief Secretary, Himachal Pradesh in the capacity of Chairman of Governing body of the Institute, in this regard, but in vain.
5. The case of the applicant further proceeds that since Dhiman Banerjee was not fulfilling the essential qualification/experience, in pursuance of the initial advertisement (Annexure A-1) and the respondents illegally wanted to appoint him on the post Principal, so they issued another fresh impugned advertisement dated 17.04.2013 (Annexure A-3), to fill up the same very post, without declaring the result of the post, in pursuance of previous advertisement (Annexure A-1). The subsequent advertisement (Annexure A-3) was stated to have been published, illegally changing the criteria, in order to help Dhiman Banerjee.
6. Levelling a variety of allegations and narrating the sequence of events in detail, in all, the applicant claimed that he was placed at Sr. No. 1 in the select list, his name was recommended for selection and appointment for the indicated post, but the respondents have illegally changed the criteria and re-advertised the same very post, by way of impugned advertisement (Annexure A-3), in order to oust him and to accommodate Dhiman Banerjee.
7. Aggrieved thereby, the applicant has preferred the instant O.A., challenging the action of the respondents and the impugned subsequent advertisement (Annexure A-3), on the following grounds:-
(i) That the subsequent advertisement (Annexure A-3) was stated to have been ordered/issued illegally, changing the selection criteria, in order to help Dhiman Banerjee.
(ii) That non appointment of the applicant despite the fact that as per the information, he is at No. 1 for the purpose of selection and appointment as Principal in response to the first advertisement, especially as Dhiman Banerjee did not have the requisite experience and had used fake documents as referred above, consequently, he could not be appointed and having realized that Dhiman Banerjee could not be appointed and rather than appointing the next candidate in merit, respondents have re-advertised the post of Principal ignoring the legitimate and genuine claim of the next candidate in appointment, though mentioned above it has been learnt that the applicant is meritorious and is at Sr. No. 1, after Dhiman Banerjee. Such action of the respondents in re-advertising the post with new rules is not based upon bonafide or can the test of reasonableness can be passed within the meaning of Article 14 of the Consitution of India. Reliance is placed on Neelam Thakur Vs. Dr. Y.S. Parmar University, 1996 (1) RSJ 718, wherein it has been categorically held that although a person on select list has no vested right to be appointed to the post for which he has been selected, however, appointing authority cannot ignore the select list on whims and decline to make the appointment. There must be cogent and reasonable grounds for not appointing a person whose name is in the select list. Paragraph 12 which is relevant, reads as under:-
12. Viewed thus, the legal position may be summed up as follows. Once a select list is prepared, the concerned authority cannot sit over and has to take action. It is true that although a person on the select list has no vested right to be appointed to the post for which he has been selected, the appointing authority cannot ignore the select list on its own whims and decline to make appointment and there must be cogent and reasonable grounds for not appointing a person whose name is in the select list. In the present case there are no reasons communicated for cancelling the process of selection and appointment for the post of Principal in question.
(iii) That while ordering re-advertisement, the respondents have violated the mandate of Article 16 of the Constitution of India because once the candidates in the merit are available then there exists no reason whatsoever in not offering the appointment against the post of Principal and by this act of respondents, the Constitutional guarantee as enshrined under Article 16 of the Constitution of India has become a mere formality.
(iv) That the action of the respondents in ordering re-advertisement is not sustainable in view of Smt. Harjit Kaur and others Vs. State of Haryana and others 1998 (2) RSJ 357, wherein Division Bench of our own High Court while dealing with the controversy clearly held that the decision to issue fresh advertisement to fill up the vacancies is patently arbitrary and un-justified because no legal justification has been given to deny the appointment to the selected candidates. In this judgment, considering the fact that the other candidates were selected, still they were not given appointment, Court while relying upon the judgment of the Supreme Court allowed the Writ Petition and directions were issued to appoint the selected candidates against the vacant posts. Copy of the judgment dated 27.01.1997 is already annexed as Annexure A-5.
(v) That still further it has clearly been held that the appointing authority cannot scrap the panel of selected candidates during the period of validity except for well founded reasons. In the present case although the petitioner is in the merit list against the available post of Principal, still the meritorious candidate has not been issued appointment letter and furthermore, when the process was complete in pursuance to the first advertisement, no reason whatsoever has been mentioned in cancelling the said process, therefore, keeping in view the facts and circumstances mentioned above, the applicant who is eligible is entitled to be appointed against the advertised posts.
(vi) That the action of re-advertisement with new Rules is an outcome of malafide intention to oust the applicant. The respondents are stopped from their own act and conduct, since once the post has been advertised and eligible candidates are available, it was mandatory upon the respondents to select and appoint the most meritorious candidate. Even otherwise, it is an old vacancy and the same ought to have been filled under the old Rules. Further, the action of the respondents is also not tenable in view of the settled position of law that the criteria cannot be changed after the selection process has been started, to hold therein that the criteria for selection cannot be altered by the authorities concerned in the middle or after the process of selection has commenced as has been done in the present case, reliance is placed on Maharashtra State Road Transport Corporation Vs. R.B. Mandve, 2002 AIR (SC) 224.
(vii) That the applicant has been representing to the respondents personally and otherwise, to know the reasons as to why the select list in response to the advertisement dated 05.08.2012, however, no response has been received. He has also moved an application of even date seeking the score sheet of all the candidates who had appeared in the interview in the tabulated form prepared under the signatures of Selection Committee, however, deliberately the said information has not been supplied to the applicant, which speaks of malafide and volume of their conduct. The copy of the representation 22.04.2013 and the application under RTI Act are annexed as Annexures A-6 and A-7. On the strength of the aforesaid grounds, the applicant seeks to quash the impugned action of the respondents and advertisement (Annexure A-3), in the manner, indicated hereinabove.
8. The respondents have refuted the claim of the applicant, and filed reply on behalf of Respondent No. 3, inter-alia, pleading preliminary objections of maintainability of the O.A., cause of action and locus standi of the applicant. It was alleged that the applicant was neither selected for the post of Principal, nor he fulfilled the requisite qualification, as per amended Recruitment and Promotion rules. He has already crossed the age of 52 years, relaxable by five years for SC/ST and departmental candidates. The post of Principal was stated to have fallen vacant on 01.10.2012, due to superannuation of the earlier incumbent. Consequently, the respondents advertised the post of Principal, IHM, Kufri, on 05.08.2012, in view of the then existing recruitment and promotion rules for the said post. It was claimed that thereafter, on 20.02.2013, Respondent No. 1 amended the Recruitment and Promotion Rules for the post of Principal and the post was re-advertised by virtue of the impugned advertisement dated 17.04.2013 (Annexure A-3).
9. However, on merits, it was pleaded that there is no violation of principles of natural justice, in re-advertising the post in question. As the applicant was not fulfilling the requisite qualifications/experience, and was over-age on the date of occurrence of the vacancy, so he was not even eligible to be appointed on the post. It was alleged that the recommendation of the Selection Committee, in pursuance of first advertisement (Annexure A-1) have never been placed before the appointing authority. However, it was vaguely denied that the respondents intended to appoint Dhiman Banerjee. The post was properly advertised and the applications were invited from the eligible candidates. The applicant participated in the interview and he could not justify or establish his claim before the Selection Committee. The allegations, with regard to malafide intention, to amend the recruitment and promotion rules, in order to accommodate Dhiman Banerjee, were stated to be wrong. The post of Principal was re-advertised, in view of the amended recruitment and promotion rules. Virtually acknowledging the factual matrix and reiterating the validity of their action and impugned advertisement (Annexure A-3), the respondents have stoutly denied all other allegations and grounds contained in the O.A., and prayed for its dismissal.
10. Having heard the learned counsel for the parties, having gone through the record with their valuable help, and after bestowal of thoughts over the entire matter, we are of the affirm view that the instant O.A. deserves to be accepted in the manner, and for the reasons mentioned herein below.
11. As depicted hereinabove, the facts of the case are neither intricate nor much disputed, and fall within a very narrow compass to decide the real controversy between the parties.
12. Such this being the position on record, now the short and significant question that arises for our consideration, in this case, is as to whether the respondents have power to ignore the claim/selection/appointment of the applicant, in pursuance of initial advertisement dated 05.08.2012 (Annexure A-1), in the garb of subsequent advertisement dated 17.04.2013 (Annexure A-3), in the given facts and circumstances, or not.
13. Having regard to the rival contentions of learned counsel for the parties, to our mind, the answer must, obviously, be in the negative, in this regard.
14. What cannot possibly be disputed herein is that the applicant fulfilled all the requisite qualification for the above mentioned post, as per the initial advertisement (Annexure A-1). Now he has retired on 30.04.2015, after attaining the age of superannuation, during the pendency of the O.A. Initially, the Selection Committee recommended the name of one Dhiman Banerjee for the post of Principal, whereas the name of applicant Rakesh Puri was placed at Sr. No. 1 in the waiting list, vide recommendation/proceedings dated 22.11.2012 (Annexure A-8). Meanwhile, the complaint regarding experience of Dhiman Banerjee in Indian Tourism Development Corporation (in short, ITDC), was received to the effect that he had not attached copies of requisite certificates with his bio-data, submitted in the Institute. The Principal In-charge of IHM, Kufri, Shimla, referred the matter to the Additional Director General of Tourism, with a copy to the Chief Secretary, Govt. of H.P.- cum- Chairman of IHM, in this regard. On checking, it was found that no experience certificate of ITDC was attached by Dhiman Banerjee, which was an essential condition for appointment to the post.
15. As a consequence thereof, the Selection Committee recommended the name of applicant Rakesh Puri, for the post of Principal, IHM, Kufri, as per evaluation sheet, vide proceedings (Annexure A-10).
16. Surprisingly enough, instead of offering the appointment letter of the post of Principal to the applicant, the respondents have issued a fresh impugned advertisement dated 17.04.2013 (Annexure A-3) to fill the same very post of Principal, IHM, by way of direct recruitment, in the garb of subsequent guidelines/un-dated draft recruitment rules, in order to debar the applicant from his legitimate right of appointment to the post of Principal. According to the applicant, all that has been done by the respondents, only to accommodate Dhiman Banerjee, whose candidature was cancelled for want of requisite experience of ITDC, which was a condition precedent for recruitment to the said post, prescribed in the initial advertisement (Annexure A-1).
17. In that eventuality, the respondents were required to appoint the applicant on the post of Principal, in pursuance of initial advertisement (Annexure A-1), instead of re-advertising the same very post, vide subsequent impugned advertisement (Annexure A-3), in the garb of alleged amended recruitment rules, in order to illegally non-suit the applicant on the said post. In this manner, the applicant has a legitimate claim on the indicated post of Principal which cannot legally be denied to him by issuing subsequent advertisement (Annexure A-3). Thus, the action of the respondents is not only illegal, but smeared with malice as well. They have not come to the Court with clean hands, and their action is the result of colorable exercise of power. This matter is no more res integra and is now well settled.
18. An identical question came to be decided by a Division Bench of the Honble Punjab and Haryana High Court in the case of Neelam Pathak Vs. State of Punjab, 1997 (1) SCT 770, wherein it was ruled that if the process of selection is delayed, the candidates who were eligible as per the conditions advertised, would not become ineligible only because they had crossed age limit on the date of preparation of selection list. Once the advertisement is issued with the conditions of eligibility, the same conditions would prevail till finalization on the basis of that advertisement and the candidates who were eligible on the date of applications would be entitled to be considered for the appointment. It was further held as under:-
9. Even in cases where the recruitment is made in accordance with the rules framed under proviso to Article 309 of the Constitution, the posts/vacancies which occur at a particular point of time are ordinarily required to be filled on the basis of eligibility conditions specified in the rules as they then stand and the subsequent amendment in the rules cannot take away the right of consideration of those who are eligible at the time of advertisement of the posts. Therefore, in the instant case, where recruitment is not regulated by the statutory rules, the respondents cannot deviate from the conditions of eligibility enumerated in the advertisement in response to which the petitioner had applied. In this connection, we may refer to the decision of this Court in Jatinder Kumar v. State of Haryana, 1995(5) SLR 380. That case related to the recruitment of Haryana Civil Service (Judicial Branch). An advertisement was issued by the Haryana Public Service Commission on 1.5.1993 for 32 vacancies. After the expiry of the last date fixed for the receipt of the applications, the Governor of Haryana amended the rules in the light of the decision of the Supreme Court in All India Judges Association v. Union of India, 1993(4) SCT 248 (SC) : 1993(6) SLR 37. That amendment was made effective from 24.8.1993. Subsequently the Commission issued fresh advertisement for the posts which were already advertised in the year 1993 and the posts which had become available thereafter. Some of the candidates who had applied in response to the advertisement No. 2 of 1993 were treated as ineligible in the light of the changed conditions of eligibility. This decision of the Haryana Public Service Commission was challenged in a batch of writ petitions. A division Bench of this Court referred to the decisions of the Supreme Court in Y.V. Rangaiah v. J. Sreenivasa Rao, 1983(1) SLR 789; P. Ganeshwar Rao v. State of Andhra Pradesh, 1988(4) SLR 548; P. Mahendera v. State of Karnataka, 1990(1) SLR 307; N.T. Devin Katti v. Karnataka Public Service Commission, 1992(2) SCT 578 : 1992(2) SLR 378; State of Andhra Pradesh v. T. Ramakrishna Rao, 1971(1) SLR 453; A.A. Calton v. Director of Education, 1983(1) SLR 785 and held:
"The process of selection commences with the inviting of the applications and ends with the making of appointments. The eligibility of the candidates is required to be judged with reference to the date fixed in the advertisement. Any other date would lead to serious anomaly and uncertainty. Therefore, those who were qualified and eligible on the date specified in the advertisement dated 1.5.1993 did acquire a right to be considered for selection in accordance with the terms and conditions of the advertisement."
19. Again while relying upon judgment of Honble Supreme Court in the case of A.K. Kraipak Vs. Union of India, AIR 1970 SC 150, the Honble High Court in the case of Ms. Sukhjit Singh Sekhon Versus Panjab Agriculture University, 1993 (2) RSJ 759, held as under:-
7. A duly selection candidate should be offered appointment otherwise, the Constitutional guarantee as enshrined under Article 16 becomes a mere formality. The Vice Chancellor without affording the petitioner any opportunity of being heard ordered the review of her selection by the Select Committee. It was obligatory for the Vice Chancellor before exercising the power of review, to afford the petitioner an opportunity of being heard according to the principles of natural justice. A duly selected candidate acquires a civil right to be appointed. This right cannot be defeated without affording him an opportunity of being heard. The Supreme Court in Binapani Singhs case(supra) has laid down that if an order affects the civil right of a person, no order adverse to him can be passed without affording him an opportunity of being heard. Binapanis case (supra) has been approved by the Supreme Court in Mohinder Singh case (supra). The principles of natural justice have been applied by the Supreme Court in selection procedure (See A.K. Kraipak Vs. Union of India, AIR 1970 SC 150). The ratio of the above said judgment squarely covers the controversy. Reliance, in this regard can also be placed upon a judgment of the Honble Supreme Court in the case of Maharashtra State Road Transport Corporation Vs. R.B. Mandave, 2002 AIR (SC) 224.
20. Therefore, it is held that the applicant was entitled to be appointed on the post of Principal, IHM, Kufri, in pursuance of initial advertisement (Annexure A-1). The action of issuing subsequent impugned advertisement (Annexure A-3) and all the contrary actions of the respondents, in this regard, are held to be illegal and in-operative on the rights of the applicant. The contrary arguments of learned counsel for the respondents, stricto sensu, deserve to be and are hereby repelled. The ratio of law laid down in the indicated judgments is mutatis mutandis applicable to the present controversy and is a complete answer to the problem in hand. Since the applicant has retired on 30.04.2015, during the pendency of the O.A., so he would, naturally, be entitled to all consequential benefits of promotion notionally to the post of Principal, IHM.
21. In the light of the aforesaid reasons, the instant O.A. is accepted. The impugned advertisement dated 17.04.2013 (Annexure A-3) and all impugned subsequent contrary actions/rules, are held to be inapplicable and in-operative, as regards the appointment of the applicant, on the indicated post is concerned. As a sequel thereof, the applicant is held entitled to all the consequential benefits of promotion to the post of Principal, notionally during the relevant period. At the same time, the respondents are directed to pay all the notional benefits to him, arising there from, within a period of three months from the date of receipt of certified copy of this order. However, the parties are left to bear their own costs.
(RAJWANT SANDHU) (JUSTICE M.S. SULLAR)
MEMBER (A) MEMBER (J) 27.01.2017
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