Central Administrative Tribunal - Delhi
Shashi Prabha vs Union Of India on 1 December, 2008
Central Administrative Tribunal Principal Bench, New Delhi T.A. No.15/2008 Monday, this the 1st day of December 2008 Honble Shri Shanker Raju, Member (J) Honble Dr. Veena Chhotray, Member (A) Shashi Prabha W/o Shri S.C. Bhalla R/o 37D, Navyug Adarsh Apartments F-Block, Vikaspuri, New Delhi-18 ..Applicant (By Advocate: Shri L.R. Khattana) Versus 1. Union of India through Secretary to the Govt. of India Ministry of Health and Family Welfare Department of Family Welfare Nirman Bhavan, New Delhi-11 2. Director National institute of Health and Family Welfare New Mehrauli Road, Munirka, New Delhi-67 ..Respondents (By Advocate: None for respondent No.1 Shri Mukul Gupta for respondent No.2) O R D E R
Shri Shanker Raju:
Denial of appointment to the post of Librarian in National Institute of Health and Family Welfare (for short NIHFW) is the claim of the applicant in the present T.A.
2. A brief factual matrix of the case transpires that the applicant, who joined NIHFW as Assistant Librarian, was promoted as Senior Technical Assistant on regular basis on 24.1.1996. On completion of 24 years of service, applicant was accorded upgradation under Assured Career Progression (ACP) Scheme in the scale of Rs.6500-10500, which concerns the post of Librarian, being the higher promotional post. An advertisement was issued by NIHFW whereby post of Librarian was advertised. Applicant applied for the said post and a duly constituted Screening Committee called her for interview. The Selection Committee recommended the name of the applicant against direct recruitment to the post of Librarian, being meritorious and she was also offered appointment in 2001.
3. Recruitment rules, the then in vogue in 2001, for the post of Librarian amongst educational and other qualifications for direct recruitment, prescribe Masters degree preferably in Science or Social Science subjects from a recognized University or equivalent and also a degree in Library Science from a recognized University or equivalent with three years experience as a desirable qualification. Masters degree in Library & Information Science (for short LIS) of a recognized University was also stipulated. However, after the Screening Committee on selection recommended the name of the applicant, a clarification sought by the applicant as to whether degree in LIS from IGNOU can be treated as equivalent to the Masters degree, as referred to in the recruitment rules. Association of Indian Universities and Ministry of Human Resources & Development clarified that the degree, including Masters degree in LIS from IGNOU is recognized and treated at par with the corresponding degrees of Indian Universities and also simultaneously ruled that Masters degree in LIS of IGNOU is recognized and post-graduate degree in its own area. Accordingly, it has been decided that Masters degree in LIS, not being equivalent to M.A., as it is only a one year duration course, the appointing authority, on representation of the applicant, rejected the request for appointment to the post of Librarian, which, according to the authority, was not tenable under the present circumstances.
4. Another process ordered in 2005 is undisputedly kept on hold. However, a proposal by the governing body to amend the rules to include Masters degree in Science or Social Science of not less than two years duration has been proposed but till date no amendment has been carried out.
5. Shri L.R. Khattana, learned counsel appearing for applicant states that denial of appointment on unreasonable and arbitrary grounds with mala fide on discrimination is not inconsonance with law.
6. Learned counsel for applicant further states that applicant being a highly qualified person once granted upgradation under ACP Scheme following the same norms to the post of Librarian, including educational qualifications, which are not dispensed with in case of direct recruitment as well, now taking a different stand is not in accordance with law. It is stated by learned counsel that without giving any reasons and a prior reasonable opportunity, an appointment of the applicant was cancelled.
6. Learned counsel for applicant has also stated that one N.U. Singh, who possesses the same qualification, was directly recruited as Librarian and not extending the same benefit to the applicant amounts to invidious discrimination and violative of Articles 14 & 16 of the Constitution of India.
7. Learned counsel for applicant relies upon the decision of Apex Court in R.S. Mittal v. Union of India, 1995 Supp (2) SCC 230 to contend that on selection non-accord of appointment without proper reason is unjustifiable and against the law. He also relies upon the decision of Apex Court in State of A.P. & others v. Goverdhanlal Pitti, (2003) 4 SCC 739 to contend that malice in law in state action vitiates it. Lastly, he relies upon the judgment of Apex Court in P. Mohanan Pillai v. State of Kerala & others, (2007) 9 SCC 497 to contend that any change in the policy decision by the administrative authority should pass the test of Articles 14 & 16 of the Constitution of India.
8. On the other hand, learned counsel appearing for respondent No.1 vehemently opposed the contentions and on production of departmental records, it is stated that the present T.A. is barred by latches and an interim order passed by the High Court of Delhi on 14.2.2005 cannot be a binding precedent.
9. Learned counsel would also contend that mala fides have not been established. It is stated that the applicant, who does not fulfill the eligibility criteria and when by a mistake she has been offered appointment to the post of Librarian on scrapping of the selection process, it does not give her any indefeasible right.
10. Learned counsel would also contend that whereas Masters degree preferably in Science or Social Science does not include the desirable Masters degree in LIS, as there has to be two years duration of the course for a Masters degree. Accordingly, on a prerogative to lay down qualification, as there is no infirmity in the impugned order, claim of the applicant is liable to be dismissed.
11. Lastly, it is stated by learned counsel that if in other cases on same qualifications, somebody has been appointed, on the principle of negative equality, this illegality cannot vest the applicant with an indefeasible right.
12. We have carefully considered the rival contentions of the parties and perused the material placed on record.
13. Though on selection despite vacancies, being a trite law, one has no indefeasible or legal right to be appointed on a post but simultaneously when appointment has been denied on arbitrariness and unjustifiable grounds, is a violation to Articles 14 & 16 of the Constitution. It is trite that in the matter of appointment, when one possesses the required qualification as per the statutory rules on the date of recruitment, makes him/her eligible to be considered for promotion, as ruled in Mohd. Sartaj & another v. State of U.P. & others, 2006 (1) SC SLJ 317.
14. It is also trite law that in the matter of recruitment rules any alteration during selection is not permissible and changing the rules of game during selection is an illegality, as ruled by the Apex Court in Himani Malhotra v. High Court of Delhi, (2008) 2 SCC (L&S) 203 and also Pramod Kumar v. U.P. Secondary Education Services Commission & others, (2008) 7 SCC 153. Also held in K. Manjusree v. State of A.P. & another, (2008) 3 SCC 512 that a selection criteria cannot be altered later on.
15. On perusal of the records, the recruitment rules for the post of Librarian as in vogue in 2001 for direct recruitment, insofar as the educational qualifications are concerned, require a degree from recognized university as an essential qualification and also a Masters degree preferably in Science or Social Science subjects and as a desirable qualification, degree in LIS from a recognized University or equivalent. There is no reference as to what would be the duration of Masters degree but the essential was that it should be from a recognized university or equivalent. In the above view of the matter, the Selection Committee after meticulously going into the qualification of the applicant as per the statutory rules, found her most meritorious and recommended her name for appointment and thereafter an offer of appointment was also processed. However, a clarification was sought as to whether Masters degree in LIS is treated as equivalent as Masters degree, the Association of Indian Universities and Ministry of HRD when approached for clarification, which are the competent authorities to decide equivalence, clearly ruled that degree in LIS from IGNOU is recognized and treated at par with corresponding degrees from Indian Universities. As a matter of fact for Social Science, one of the heads and sub-subjects of specialization is Library Science as well. However, Ministry of HRDs clarification as to Masters degree in LIS from IGNOU being a recognized post-graduate degree in own area of specialization, has never denied equivalence of such degree as an essential Masters degree. We also find that in NIHFW and Board of Technical Education as well as Institute of Homeopathy, same qualifications led to appointment of persons as Librarian with Masters degree in LIS. However, we find from the records that as per Masters degree in LIS from IGNOU, the duration of the programme, which could be completed in a minimum period of one year and maximum period of four years, fulfills its requirement that a person can complete the degree in LIS within two years as well.
16. The contention put forth that the outer limit of four years is of no avail and once the recruitment rules do not stipulate as to Masters degree being of two years duration, the recruitment rules, which stipulate the Masters degree in LIS as desirable qualification, it cannot be assumed that it can be an essential qualification if degree of the applicant is equivalent to any of the Masters degree. As such her having possessed the Masters degree in LIS fulfills that she has both essential and desirable qualification. As the recruitment rules do not stipulate the embargo of two years duration of post-graduate degree course introducing by way of an amendment, which is yet to be carried out, amounts to alternation the game of selection.
17. Moreover, the concept of negative equality would play the role only when benefit of which extension has been sought, has been derived by a person against law. Once the recruitment rules in vogue in 2001 issued by the respondents do not stipulate two years post-graduate degree course, yet one Shri N.U. Singh on direct recruitment was appointed as Librarian on the same qualification, his appointment has to be treated as in accordance with statutory rules, which has not been done away with later on. As such on the same qualification, depriving the applicant of her legitimate claim for appointment after being selected, is not only unreasonable and unfair but is also without any justifiable reasons.
18. Another aspect of the matter, which has to be looked into as relevant consideration is that once the applicant has been granted upgradation under ACP scheme after 24 years of service on the post and pay scale of Librarian on the same norms as stipulated in the recruitment rules for promotion, it is deemed that the applicant being equivalent has been granted the promotion to the post of Librarian. As such, the respondents now cannot approbate and reprobate simultaneously to question her eligibility to deny appointment, that too, when they have already given her upgradation under ACP scheme.
19. Legitimate expectation being equitable doctrine has role to play. In administrative law, fairness being a nascent edition to the principles of natural justice when a person like the applicant, who has been selected and offered appointment, when not allowed to join and the appointment not being contrary to law, doctrine of legitimate expectation, which operates in procedure, would come into play, as ruled by Apex Court in Jitendra Kumar & others v. State of Haryana & another, (2008) 1 SCC (L&S) 428 and also in Official Liquidator v. Dayanand & others, 2008 (13) SCALE 558.
20. From the reasons assigned by the respondents to deny appointment to the applicant and keeping in light the decision of Apex Court in R.S. Mittals case (supra), the delay, as reflected by respondents learned counsel, would not be apt in law, as the decision of the respondents arrived in 2004 was challenged before the High Court of Delhi in 2005 and an interim stay has been granted, which was made absolute. Reasons to deny appointment to the applicant not being reasonable and rather arbitrary and a malice in law as apparent on the face of it, the decision cited in R.S. Mittals case (supra) would have, in all fours, applicability in the instant case as well.
21. Resultantly, for the foregoing reasons, the TA is allowed. Impugned order is set aside. Respondents are directed to offer an appointment to the applicant to the post of Librarian from the date her selection was made, i.e., on 21.8.2001, with all consequences in law. No costs.
( Dr. Veena Chhotray ) ( Shanker Raju ) Member (A) Member (J) /sunil/