Central Administrative Tribunal - Jabalpur
Shri Rajesh Kumar Shrivas vs M/O Defence on 29 January, 2019
1 OA No.200/00145/2017
Reserved
CENTRAL ADMINISTRATIVE TRIBUNAL, JABALPUR BENCH
JABALPUR
Original Application No.200/00145/2017
Jabalpur, this Tuesday, the 29th day of January, 2019
HON'BLE MR. NAVIN TANDON, ADMINISTRATIVE MEMBER
HON'BLE MR. RAMESH SINGH THAKUR, JUDICIAL MEMBER
1. Shri Rajesh Kumar Shrivas, S/o Late Nathuram Shrivas, Age -
45 years, R/o Vivekanand Ward, Ordnance Factory Road, Lakhera,
Katni (ACC) 483504 MP.
2. Kartan Singh Chahar, S/o Shri Udveer Singh, Age - 37 years,
R/o Vill. Ramgarh, Po. Murkiya, Khera Post Dist. Agra - 283102
(UP) -Applicants
(By Advocate - Shri P. Shankaran)
Versus
1. The Union of India through the Secretary, Department of
Defence Production, Ministry of Defence, South Block, New Delhi
110001.
2. The Director General/Chairman, Ordnance Factory Board, 10-A
SK Bose Road, Kolkata - 70001.
3. The General Manager, Ordnance Factory Khamaria, Jabalpur -
482005 (MP) - Respondents
(By Advocate - Shri Surendra Pratap Singh)
(Date of reserving order : 04.09.2018)
ORDER
By Navin Tandon, AM.
This Original Application has been filed challenging the stand of the respondents in canceling the candidature of the applicants due to not meeting the qualification criteria. Page 1 of 8 2 OA No.200/00145/2017
2. The following submissions have been made by the applicants:-
2.1 The applicants rendered regular combatant service in Indian Army. After completion of tenure of engagement, they were released on pension in the year 2013 and 2014 respectively.
2.2 Respondent No.3 issued an advertisement in July, 2014 (Annexure A-5) inviting applications for various posts under him. Out of all these posts, applicants applied for the post of Fireman, where 3 out of 18 posts were reserved for Ex-Serviceman.
2.3 As per notification, the minimum qualification prescribed for Fireman category is Tenth class pass from recognized Board/Institution and must have completed basis course on elementary fire fighting from a recognized Institute. The duration of the basic fire fighting course will not be less than 06 months, apart from other physical fitness. 2.4 The applicants have the educations qualification of 10th standard and also have basic course in fire fighting from recognized Institutes. However, the fire fighting course undergone by applicants before their release from service for re-employment purpose under Civil Services was for a Page 2 of 8 3 OA No.200/00145/2017 period of three months, but they had undergone Fire and Industrial Safety Management course while in Army Service (Annexure A/7 and A/8 respectively.) 2.5 Both the applicant participated in the said selection process and successfully cleared written test and physical test. They were placed on the select list published on 21.12.2015 (Annexure A-11).
2.6 The applicants were called for medical examination and verification of testimonials vide letters dated 24.12.2015 (Annexure A-12 and A-13 respectively).
2.7 However, the applicants were informed on 21.12.2016 (Annexure A-1 and A-2 respectively) that their candidature have been cancelled as they do not meet the qualification for the post of Fireman. It has been explained in the letter that they have attended a fire fighting training course only for 3 months whereas the notification clearly stated that such a training course should be of minimum 6 months duration. 2.8 The recruitment rules for Fireman cadre (S.R.O. 32) issued on 04.05.2012 (Annexure A-14) prescribed the qualification as 10th class pass and completion of basic course on elementary fire fighting from a recognised Page 3 of 8 4 OA No.200/00145/2017 Institute. There is no mention of minimum 6 months duration in these rules.
3. The applicants have, therefore, sought for the following reliefs:
"8. Relief Sought for:
In view of the foregoing, it is prayed that this Hon'ble Tribunal be pleased:-
8.1) to quash the orders dated 21/12/2016 and 21/12/2016 at Annexure A/1 & A/2.
8.2) to direct the Respondent No.3 to consider the case of applicants being ex-serviceman candidates as eligible candidates taking into consideration of their past Army Service/certificates and courses undergone, fulfilling the required educational qualification and fit for employment as Fireman for which they were found qualified and selected.
8.3) grant any other relief as deemed fit and proper on the facts and circumstances of the case."
4. The respondents in their reply have submitted that respondent No.3 sought clarification from Ordnance Factory Board (OFB) regarding eligibility of candidates selected for the post of Fireman. It has been clarified by OFB in their letter dated 08.12.2016 (Annexure R-9) that the subject matter has been further examined by the competent authority at OFB. Since OFB in letter dated 07.01.2008 (Annexure R-8) has specified that duration of fire fighting course should be minimum period of six months, and the Page 4 of 8 5 OA No.200/00145/2017 same requirement was mentioned in the advertisement also, no relaxation can be granted.
5. Heard the argument from learned counsel of both the parties and perused the pleadings available on record.
6. Learned counsel for the applicants made a strong case to the fact that the recruitment rules does not specify the duration of the fire fighting course. Executive instructions can not make alterations to the statutory provisions. He further argued that even though these executive instructions were issued on 07.01.2008 (Annexure R-8) imposing the six months course as eligibility criteria, the same were not incorporated in the statutory rules S.R.O. 32 published in May, 2012.
7. Learned counsel for the applicants further argued that in case there is variance in the advertisement and in the statutory rules, it is the latter which will take precedence. He placed reliance on the judgment of Hon'ble Apex Court in Ashish Kumar vs. State of U.P. & Ors., (2018) 3 SCC 55.
8. Learned counsel for the respondents submitted that the advertisement clearly indicated in the qualification criteria that the duration of the fire fighting course should not be less than 6 Page 5 of 8 6 OA No.200/00145/2017 months. The applicants applied for the said posts even after being aware that they do not meet the qualification. They did not challenge the advertisement and participated in the same. At this stage, when their candidature has been rejected, they cannot challenge the qualification criteria. He cited the order of this Tribunal in Ravindar Bharti vs. Union of India & Ors. in OA No.200/01017/2016, decided on 31.07.2018.
9. In the matter of Ashish Kumar (supra), the Hon'ble Supreme Court has held:
"27. Any part of the advertisement which is contrary to the statutory rules has to give way to the statutory prescription. Thus, looking to the qualification prescribed in the statutory rules, appellant fulfills the qualification and after being selected for the post denying appointment to him is arbitrary and illegal. It is well settled that when there is variance in the advertisement and in the statutory rules, it is statutory rules which take precedence."
10. The relevant clauses of the recruitment rules, clarifications and advertisement are extracted below:
10.1 The recruitment rules S.R.O 32 states:
"(ii) Must have completed basic course on elementary fire fighting from a recognised Institute."
10.2 The clarification dated 07.01.2008 (Annexure R-8 issued by OFB reads as under:
"(1) The duration of the Basic Fire Fighting course will not be less than six (6) months."
Page 6 of 8 7 OA No.200/00145/2017
10.3 The advertisement (Annexure A-5) mentioned that:
"(ii) Must have completed basic course on elementary fire fighting from an recognized Institute. The duration of the Basic Fire Fighting course will not be less than 06 months. The institute offering Basic course on Fighting should be recognized by State Government/Government of India".
11. The recruitment rules has not specified the duration of the basic course on fire fighting. The same has been clarified by OFB to be of minimum six (6) months duration. We do not find any conflict in the two stipulations. The executive instructions are only clarifications to the statutory rules and makes for harmonious reading. The same has also been specified in the advertisement. Thus, we fail to notice any conflict in all the three documents referred above.
12. On the above lines, this case is distinguishable from Ashish Kumar (supra), where there was a conflict between advertisement and recruitment rules.
13. In the case of Ravindar Bharti (supra), we have held that:
"16. It is pertinent to mention that as per advertisement Annexure A-1 the mode of selection has been made clear to the candidates who are contestants for the concerned post. It is settled law pronounced by various courts including the Apex Court that there shall not be approbation or reprobation at the same time. The candidates after approaching in the selection process can not Page 7 of 8 8 OA No.200/00145/2017 challenge the method of selection later on after declaration of the final result."
14. In the present case also, the applicants were very much aware at the initial stage itself that they do not have the required qualifications. They did not challenge the required qualification of the advertisement. Having participated in the selection process, the same cannot be challenged at this stage.
15. We do not find any merit in the argument of learned counsel for the applicants that even though the clarifications were issued on 07.01.2008, the same were not incorporated in S.R.O. 32, which were published in May, 2012, and they lose the applicability after May 2012. As discussed in para 11 above, the provisions in two documents as well as the advertisement can be read harmoniously and there is no conflict. Therefore, the clarification issued on 07.01.2008 still remains valid after the issue of S.R.O. 32.
16. In view of the foregoing, we do no find any illegality in the orders of the respondents canceling the candidature of the applicants. Accordingly, the OA is dismissed. No costs.
(Ramesh Singh Thakur) (Navin Tandon)
Judicial Member Administrative Member
am/-
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