Central Administrative Tribunal - Delhi
Dr. Khajan Singh vs Indian Council Of Agricultural ... on 29 June, 2015
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A. No.1833/2012 Reserved On:26.05.2015 Pronounced On:29.06.2015 HONBLE MR. G. GEORGE PARACKEN, MEMBER (J) HONBLE MR. SHEKHAR AGARWAL, MEMBER (A) Dr. Khajan Singh Principal Scientist, Division of Dairy Extension, NDRI, Karnal-132001. ..Applicant By Advocate: Shri V.S. R. Krishna. Versus Indian Council of Agricultural Research Through 1. The Secretary, Indian Council of Agricultural Research Krishi Bhawan, New Delhi. 2. The Director General, Indian Council of Agricultural Research Krishi Bhawan, New Delhi. 3. The Chairman, Agricultural Research Recruitment Board, Krishi Anusandhan Bhawan, New Delhi. Respondents By Advocate: Shri Gagan Mathur. ORDER
G. George Paracken, Member(J) This Original Application has been filed by the Applicant against the alleged inaction on the part of the Respondents in not accepting the recommendations of Agricultural Scientists Recruitment Board (ARSB for short) for his appointment to the post of Head, Division of Dairy Extension, National Diary Research Institute (NDRI for short), Karnal.
2. Brief Facts: On the basis of item No.135 of the Advertisement No.03/2010, issued by ASRB, the Applicant applied for the post of Head, Division of Diary Extension, NDRI, Karnal. The said item is reproduced as under:-
Head, Division of Dairy Extension Qualification Essential:- (i) Doctoral degree in the field of Animal Science Extension/Dairy Science Extension/Agricultural Extension with specialization in Dairy including relevant basic sciences.
(ii) A Scientist in the pay scale of Rs.16400-20000 (pre-revised) or in an equivalent position.
Or 8 years experience as a Senior Scientist (Rs.12000-18300) (pre-revised) or in an equivalent position.
Or An eminent scientist having proven record of scientific contribution working in a reputed organization/institute having at least 13 years experience in the relevant subject.
(iii) Evidence of publications/ activities/ contributions to suggest that the candidate has a broad vision/ perspective on agricultural research.
Desirable:- (i) Research and teaching experience in the field of Dairy Extension.
(ii) Specialization and experience in coordination and management of Extension in Research/Teaching programmes in the field of Dairy/Livestock or Veterinary Science.
3. After detailed scrutiny of the applications of all the candidates including that of the Applicant, interviews of the eligible candidates were conducted on 21.10.2010. He has also participated in it and on the basis of his performance, the high powered interview board selected him for the said post. But the Respondents did not issue the appointment letter to him. According to him, the non-issuance of the appointment letter to him after he has been duly selected by the competent selection committee is illegal, arbitrary, discriminatory and mala fide and violates the provisions of Articles 14 and 16 of the Constitution of India. However, he came to know later that the aforesaid selection itself was cancelled for certain extraneous considerations.
4. He has also stated that, along with him, his reporting officer, namely, Dr. (Mrs.) Jancy Gupta was also a candidate for the aforesaid post but the interview board did not select her after assessing her performance. She considered her non selection and the selection of the Applicant as a humiliation heaped on her and she went about making frivolous and concocted allegations against the members of the selection committee as also against him. In her complaints, she alleged bias and favoritism in the selection process as both the Applicant and she were working in the same office and she was his reporting officer. However, the selection was conducted strictly in terms of rules and guidelines on the subject and that there was no bias or favoritism in the selections as alleged by her. In fact, the ASRB ensures that every selection committee is constituted of persons with high integrity. The Respondents without any application of mind and little realizing that her complaint was motivated, cancelled the selection for the said post and decided to re-advertise the post. According to the Applicant, before doing so, the Respondents have not even given a copy of the complaint made by Mrs. Gupta. As a result, he had no occasion to see the contents of her complaint and to contest its veracity. Therefore, according to him, the decision to cancel the selection conducted on the basis of complaints from Mrs. Gupta who was an interested party and who has not been selected was totally wrong, illegal and against the principles of natural justice and equity. He has also stated that the decision of the competent authority not to accept the bona fide recommendations of the selection committee is illegal and bad in law and fraught with danger since any tinkering with due recommendations of the selection committee without any valid reason cannot sustain the scrutiny of law. He has also preferred representations to the competent authority in the matter but there was no reply from them. Thereafter, he sought information through an application dated 11.02.2011 made under the Right to Information under Right to Information Act, 2005 but it was rejected vide order dated 10.03.2011. He has, therefore, filed this OA seeking the following reliefs and interim reliefs:-
Reliefs (i) to call for the records of the case and quash and set aside the impugned action of the Respondents in canceling the selections for the post of Head, Division of Dairy Extension, NDRI, Karnal conducted in pursuance of ASRB Advt. No.03/2010, item No.135;
(ii) to direct the Respondents to finalize the selections already made by ASRB on the basis of interviews conducted on 21.10.2010 and to issue the appointment/offer letter to the selected candidate, i.e., the Applicant;
(iii) to direct the Respondents to consider appointing the Applicant to the post of Head, Division of Dairy Extension, NDRI, Karnal as on the back date along with all consequential benefits arising therefrom including the costs of this application; and
(iv) to grant any other relief or reliefs as may be deemed fit and proper under the circumstances of the case.
Interim Relief In view of the facts and circumstances outlined above, the Applicant most humbly submits that grave injustice will be done to him if the post of Head, Division of Dairy Extension, NDRI, Karnal advertised again especially when the earlier selections have culminated in a meritorious candidate having been selected by ASRB and, therefore, a direction be issued that in the interregnum period status quo as on date be maintained as regards filling up the post of Head, Division of Dairy Extension, NDRI, Karnal.
5. The Respondents in their reply have stated that all recruitments in scientific category are centrally done through ARSB, the recruiting agency of Indian Council of Agricultural Research (ICAR for short) established on the lines of UPSC. The functions of the ASRB as per Rule 26 of Indian Council of Agricultural Research Society are as under:-
26(a) The Recruitment Board shall function as an independent recruiting agency and shall be responsible for recruitment to posts in the Agricultural Research Service and to such other posts and services as may be specified by the President from time to time.
(b) The Recruitment Board shall render such other assistance to the Council in personnel matters including promotion as may be required by the President.
( c) The Recruitment Board shall advise the Council in disciplinary matters relating to personnel recruited/appointed either by the Council itself or in consultation with the Recruitment Board.
(d) The Recruitment Board shall submit annually by the second week of May of the year following the financial year a report on its activities for each financial year to the President.
6. The appointing authority consider its recommendations. They are formally accepted or rejected. In the case of the Applicant, the Union Agriculture Minister who is also the President of ICAR is the competent authority.
7. They have also stated that certain senior scientific positions are filled up on tenurial basis for a period of 5 years. The positions of Heads of Divisions in the various ICAR institutes is one such position. On completion of the tenure, the incumbent could get selected again on regular basis through ASRB. The issue in the instant case is concerned with the filling up of one such position, namely, Head, Division of Dairy Extension, NDRI, Karnal. The earlier incumbent of this position was Dr. (Mrs.) Jancy Gupta who was appointed for a full tenure of 5 years w.e.f. September, 2005 to September, 2010. When Dr. (Mrs.) Jancy Gupta was selected in 2005, the Applicant was also one of the candidates for the said post and he had filed OA No.854/HR/2005 before the Chandigarh Bench of this Tribunal for setting aside her selection and the Chandigarh Bench, after considering the issue in detail, dismissed the same. After the completion of her tenure, Dr. (Mrs.) Jancy Gupta, the post of Head, Division of Dairy Extension, NDRI fell vacant and the ASRB advertised it along with various other posts. 8 candidates including Dr. (Mrs.) Jancy Gupta and the Applicant have applied. The ASRB has called 7 of them for interview, The ASRB recommended the name of the Applicant and the said recommendation was received in the ICAR and the same was being processed for approval of the Competent Authority. In the meantime, a written complaint/representation was received from Dr. (Mrs.) Jancy Gupta. She alleged in her representation that some scientists have scored disproportionate or excessive marks in Part-B of the application form. She has also alleged that the Applicant had litigated against her original selection and, therefore, he is not a better scientist. She has also alleged that the Director of the Institute was biased. The said complaint/represent was examined in ICAR and it was observed as under:-
(a) When Dr. (Mrs.) Jancy Gupta was selected in 2005, the Applicant who was also one of the candidate for the post has filed an OA No.854/HR/2005 for setting aside the selection of Dr. (Mrs.) Jancy Gupta before the Chandigarh Bench of this Tribunal. The Honble CAT, Chandigarh Bench after considering the issue in detail dismissed the aforesaid OA filed by the Applicant whereby the selection of Dr. (Mrs.) Jancy Gupta was challenged.
(b) After the completion of tenure of Dr. (Mrs.) Jancy Gupta, the post of Head, Division of Dairy Extension, NDRI, Karnal fell vacant, ASRB advertised the aforesaid post along with various other posts. Dr. (Mrs.) Jancy Gupta and the Applicant both applied for the post of Head, Division of Dairy Extension, NDRI, Karnal. ASRB recommended the name of the Applicant for the position this time. ( c) Having recommended and selected Dr. (Mrs.) Jancy Gupta once earlier, a good reason to not to continue with her would be if she did not deliver in her job or work. That being so, the ACRs should reflect lack of performance, supported by communication of the same to her from time to time.
(d) In the 5 years period, the Applicant has been graded Average for 2 years, Good for 2 years and Very Good for 1 year whereas Dr. (Mrs.) Jancy Gupta has been graded Very Good for 4 years and Outstanding for 1 year. It will not be out of place to mention here that the present Director of NDRI who is the Reviewing Officer for the last 3 years has graded Dr. (Mrs.) Jancy Gupta as Outstanding and there is no adverse report or comment on any of her attributes or output.
(e) Yet the incumbent Director, NDRI who was a Member of the Selection Committee has recommended the Applicant instead of Dr. (Mrs.) Jancy Gupta which is inherently contradictory and open to allegations of bias etc.
(f) Dr. (Mrs.) Jancy Gupta has also approached the Honble National Commission for women alleging gender bias and partiality in selection.
8. Dr. (Mrs.) Jancy Gupta has also approached the Honble National Commission for Women alleging Gender bias and partiality in selection. The Applicant had also approached the National Commission for Scheduled Castes alleging harassment and discrimination but he could not get any tangible relief from the Commission. Therefore, after due consideration of all those aspects, the Competent Authority decided not to approve/accept the recommendations of ASRB in the matter. It was also decided to readvertise the post so as to ensure a fair, just and unbiased selection. Accordingly, the post of Head, Division of Dairy Extension, NDRI, Karnal has been re-advertised afresh by the ASRB.
9. We have heard the learned counsel for the Applicant Shri V.S.R. Krishna and the learned counsel for the Respondents Shri Gagan Mathur. We have also perused the Respondents file made available by their learned counsel. According to the Respondents, the ASRB is the recruiting agency of the ICAR and it was established on the lines of UPSC. Therefore, the recommendations of the ASRB are also to be considered by the competent authority in the very same manner, the recommendation of UPSC are dealt with. The selection by the UPSC is also only a recommendation and the final authority for appointment is the Government. The Government may accept the recommendation or reject it. However, if it chooses not to accept the recommendation there is a prescribed procedure for doing so. The Government is answerable to the Parliament for any departure by reason of Article 323 of the Constitution. In Jatinder Kumar & Others Vs. State of Punjab & Others AIR 1984 SC 485, the Supreme Court held as under:-
The Government may accept the recommendation or may decline to accept the same. But if it chooses not to accept the recommendations of the Commission the Constitution enjoins the Government to place on the table of the Legislative Assembly its reason and report for doing so. Thus the Government is made answerable to the l louse for any departure vide Article 323 of the Constitution. This, however, does not clothe the appellants with any such right in the instant case. l hey cannot claim as of right that the Government must except the recommendation of the Commission. If, however, the vacancy is to be filled up, the Government has to make appointment strictly adhering to the order merit as recommended by the Public Service Commission, it cannot disturb the order of merit according to its own sweet-will except for other good reasons namely bad conduct or character. The Government cannot appoint person whose name does not appear in the list. But it is open to the (Government to decide how many appointments will be made. The process for selection and selection for the purpose of recruitment against anticipated vacancies does not create a right to be appointed to the post which can be enforced by a Mandamus.
10. As held by the Calcutta High court in its judgment in the case of Sadhan Kumar Basu (Sri) Vs. Anirudha Mukerjee & Co. 1993 (4) SCR 473 (Cal.DB), making recommendation in favour of one and not making recommendation in favour of another does not give rise to any justifiable issue. The only exception is that if the recommendations involved some error of law it may be reviewed and declared that the recommendation is invalid. Again, in its judgment in the case of National Institute of Mental Health and Neuro Sciences Vs. K. Kalyana Raman & Others 1992 Supp. (2) SCC 481, the Supreme Court held that the Courts should be slow to interfere with the opinion of the Selection Committee particularly when such a Committee consisting of experts being men of high status and also of unquestionable integrity. The same principle is applicable to the Appointing Authority also.
11. Even though the Government is not required to follow the aforesaid procedure in the case of not accepting the recommendations of the UPSC in the case of not accepting the recommendations of the ASRB, there is an obligation upon the Appointing Authority to give leally acceptable reasons to reject the recommendation. According to Rule 26 of the ICAR Rules, the ASRB is an independent recruiting agency and it is responsible for recruitment to posts in the Agricultural Research Service and to such other posts and services as may be specified by the President from time to time. Therefore, its recommendations cannot be rejected on any flimsy grounds. But from the facts of this case, it is quite evident that the recommendation of the ASRB to appoint the Applicant to post Head, Division of Dairy Extension, NDRI, Karnal was rejected for extraneous considerations and the reason given for doing so was also absolutely flimsy. The Interview Board headed by the Chairman, ASRB interviewed 6 candidates for the aforesaid post on 21.10.2010 and assessed them on pre-determined parameters and the Applicant was adjudged to be the best among them all. The performa used by the Interview Board for selection to the aforesaid post is reproduced as under:-
Post: Head Institute: Division of Dairy Extension, National Dairy Research Institute, Karnal Date of Inerview:21.10.2010 Time:10.00AM Advt.No.:03/2010 Item No.135 Sr.No. Name of the candidate Marks obtained in the academic qualifications, experience, publications awards, special attainment, etc. (based on screening as per Score Card System) Mx. Marks 50 Marks obtained in the interview including update achievements (Maximum Marks 50) Total marks obtained (Maximum Marks 100) Result/Remarks
1. Dr. Dommeti Uma Maheshwara Rao 22.75 35.0 57.75 Second
2. Dr. Jancy Gupta 31.00 20.0 51.00 X
3. Dr. Kehar Singh Kandian 24.50 30.0 54.50 X
4. Dr. Khajan Singh 26.25 40.0 66.25 First
5. Dr. Om Prakash 22.75 20.0 42.75 X
6. Dr. Rajesh Kumar 26.50 22.0 48.50 X Signature of Members of Interview Board:
Advisor Sd/- Advisor Sd/-
Advisor Sd/-
21.10.2010
(DGs Nominee)
Chairman of Selection Committee
Chairman, ASRB.
While the ICAR was considering the aforesaid assessment of the Interview Board, the incumbent to the said post Dr. (Mrs.) Jancy Gupta and a candidate who applied for fresh consideration, made representation against the aforesaid recommendation of the ASRB. In her representation, she alleged that Dr. A.K. Shrivastava, Director, NDRI, Karnal who created a very unsupportive and uncomfortable atmosphere for her to function as HOD (DE), was present as DGs nominee. He humiliated and harassed her for two years and he influenced the Board against her selection in spite of the fact that she was HOD for one term of five years. She was thus deprived of the chance to serve as an HOD for the further term of 5 years. She has, therefore, requested to review the selection and to provide her another opportunity for interview where DGs nominee may be any other official other than Director, NDRI, Karnal. While examining the said representation, the Respondent-ICAR submitted for the consideration of the Competent Authority that only in case of strong material evidence and justification that it can exercise the option not to accept the recommendation. It has also brought to the notice of the competent authority that there was no procedural violation or any serious lapse in the constitution of the Selection Committee and the omnibus and wild allegation of bias against the DGs nominee without any specific or concrete material evidence by the representationist cannot be given any weightage. The aforesaid noting is reproduced as under:-
(1) There is no provision in the Rules for review of the recommendations of the ASRB. The recommendations of the ASRB are considered and accepted by the Competent Authority, i.e., the Honble AM and President ICAR Society. In case of any strong material evidence and justification, the Competent Authority can exercise the option not to accept the recommendation.
(2) Normally, the concerned Director of the Institute is nominated as the DGs nominee in the Selection Committee. Thus, there has been no procedural violation or any serious lapse in the constitution of the Selection Committee.
(3) But the omnibus and wild allegation of bias against the DGs nominee without any specific or concrete material evidence by the representationist cannot be given any weightage at this stage. Usually, such unsuccessful applicants have resorted to such allegations in other instances also.
12. Accordingly, the aforesaid recommendation of the ASRB was decided to be placed before the appointing authority who is Minister concerned for acceptance. But for whatever reason, the complaint made by Dr. (Mrs.) Jancy Gupta was again ordered to be examined at the level of Additional Secretary, DARE. Accordingly, again the matter was re-examined and again clarified that there is no provision or precedent to review any recommendation of the ASRB. The recommendations are accepted or rejected with justifications by the Competent Authority, i.e., the Honble AM and President, ICAR Society. As there was no good and sufficient reasons to review the recommendation of the ASRB, some of the officials in Respondents came out with strange reason that Dr. (Mrs.) Jancy Gupta will approach court in case Dr. Khajan Singh is appointed. As the DG, ICAR was not satisfied with the aforesaid course of action, he has desired to obtain the detailed comments from ASRB. After examining the complaint of Dr. (Mrs.) Jancy Gupta in great detail, the Director, NDRI informed the ICAR that the points raised by Dr. (Mrs.) Jancy Gupta in her representation are totally wrong, far away from facts, baseless and twisted to get undesired favour for her selection as HOD Dairy Extension Education Division, NDRI. Meanwhile, Dr. (Mrs.) Jancy Gupta approached the National Commission for Women and Dr. Khajan Singh approached the National Commission for Scheduled Castes. The National Commission for Scheduled Caste observed that the ASRB has already recommended the Applicant for the post of Head, Division of Dairy Extension, NDRI, Karnal and as decided the ICAR may resubmit his case to the ASRB for review and issue necessary order thereafter. The directions issued by them to the Respondents reads under:-
The matter was discussed in detail. It was observed that the ASRB has already selected/recommended the petitioners name against the post of Head, Division of Dairy Extension, NDRI, Karnal. After considering all the facts, it was decided that the ICAR may resubmit the petitioners case for reviewing the matter in the light of ASRB recommendation and consider the petitioners claim for promotion to the post of Head, Division of Dairy Extension, NDRI and issue necessary order in this regard. An Action Taken Report in this regard may also be submitted to the Commission within 15 days.
Thereafter, a Women Complaint Committee headed by a senior woman Scientist Dr. Usha Moza was constituted and the said Committee concluded that there is no harassment or general gender bias on the part of the Director, NDRI, Karnal. However, there has been an underlying current of general misunderstanding and strained inter personal relationship between the Director and Dr. (Mrs.) Jancy Gupta. But in spite of all the aforesaid findings that the complaint made by Dr. (Mrs.) Jancy Gupta was baseless, the Respondents took the arbitrary decision to re-advertise the vacancy.
13. In our considered view, the decision to cancel the selection of the Applicant to the post of Head, Division of Dairy Extension, NDRI, Karnal made by a duly constituted committee headed by the Chairman, ASRB was absolutely unfortunate, arbitrary and unwarranted. We, in the above facts and circumstances of the case, allow this OA and direct the Respondents to forthwith appoint the Applicant as Head, Division of Dairy Extension, NDRI, Karnal in terms of the recommendations of the ASRB. The Respondents shall also immediately pass appropriate orders in compliance of the aforesaid directions under intimation to the Applicant and all concerned persons. As this Tribunal has already passed the interim order in this OA to the effect that whatever will be done in subsequent selection that will be subject to the ultimate outcome of the OA, if any person has been appointed to the aforesaid post by the subsequent selection, his service shall also be simultaneously dispensed with. The Applicant is also entitled for Rs.25,000/- (Rupees Twenty Five Thousand only) towards cost of litigation and the same shall be paid within one month from the date of receipt of a copy of this order.
(SHEKHAR AGARWAL) (G. GEORGE PARACKEN) MEMBER (A) MEMBER (J) Rakesh