Central Administrative Tribunal - Delhi
Mohan Kumar vs Delhi Transport Corporation, Govt. Of ... on 21 October, 2016
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
TA No. 71/2013
Reserved on 16.03.2016
Pronounced on 21.10.2016
Hon'ble Mr.Sudhir Kumar, Member (A)
Hon'ble Mr.Raj Vir Sharma, Member (J)
Mohan Kumar,
S/0 Sh.Dayal Chand,
R/o G-35, Mohan Garden,
Ramapark Road, Uttam Nagar,
New Delhi-110059. .... Applicant
(By Advocate: Mr.Neeraj Sood )
VERSUS
1. Director of Employment,
Government of NCT of Delhi,
5-Shamnath Marg, New Delhi-110054
2. Delhi Transport Corporation,
Government of NCT of Delhi,
IP Estate, New Delhi-110002. ... Respondents
(By Advocate : Mrs. Alka Sharma for R-1 and
Mr. Manish Garg for R-2)
ORDER
(Hon'ble Mr. Sudhir Kumar, Member (A):
This Transferred Application had been filed as Writ Petition (Civil) No. 7065/2012 before the Hon'ble Delhi High Court on 15.10.2012. After some hearings, through the order dated 30.08.2013, the Hon'ble High Court was pleased to transfer the case to this Tribunal. After completion of the pleadings, and many adjournments thereafter, the case came to be heard and reserved for orders.
2. The applicant had registered himself with the respondent no.1 with a registration ID for his candidature being sponsored by the Employment Exchanges for appropriate posts in his Schedule Caste category. The applicant had also obtained a First Aid Medical Attendant 2 TA 71/2013 certificate from the St.John's Ambulance Association, in order to become eligible for appointment as a Conductor, and had registered himself as such with the Registrar of Transport. Respondent No. 2 had later asked respondent No 1 to send the list of eligible candidates for appointment as Conductors, but the applicant's grievance is that his name was not sent even though he was eligible for the post, and upon his seeking information under the Right to Information Act, 2005, respondent no. 2 duly informed him that his name had not been nominated by respondent no.1. When he sought information by the same method from respondent no.1, he was informed that those candidates who had updated their skill till 08.06.2010 had been nominated, but since the applicant's skill had been updated later, on 20.07.2010, his application could not be sent in that lot.
3. When the applicant again sought details of such candidates, he was informed that since registration had been done online, confirmation of each individual candidate's information has to be done by the Employer himself. He even managed to obtain information in the form of a CD, but could not get the details of updation of the skill required for Bus Conductor licences in respect of others even from that. He again sought further information from respondent no.2 as to the registration ID nos of the candidates who had been called for interviews, and he has submitted that he was indeed eligible for his name being sent by the Employment Exchange, but that he has been deprived of such an opportunity due to mal-practices and malafides on the part of respondent no.1 and 2. He has alleged this is to be a breach of his privilege and rights under the principle of equality of opportunity under Article 14, 15 and 16 of the Constitution. 3 TA 71/2013
4. He has further alleged that respondent no.1 had miserably failed in its duty and had breached the principles of equity and fair play in having left out his name while going in the chronological manner on the basis of date of registration of the ID, and had not provided true and correct information of the candidates to respondent No.2. He has submitted that he has an apprehension that he as well as many other eligible candidates had been deliberately deprived of employment opportunities due to the mal-practices of officials of respondent No.1. He has also alleged corruption and favouritism on the part of officials working under respondent no.1 and has alleged that when the data as updated on line by the candidates cannot be certified by respondent no.1, they could not have sought shelter behind the statement that the names of all those candidates who had updated their skills till 8.06.2010 have been forwarded to respondent no.2. In the result, in the writ petition before the Hon'ble High Court, he had prayed for the following reliefs:-
"(A). Entertain and Admit the present writ petition; and (B). To call for the records from the respondent no.1 with respect to the candidates sent for the post of bus conductor along with the updation details of the skill of the said candidates and from respondent no.2 to provide the list of candidates appointed by it as bus conductors along with the date of issue of the Conductor licence of the said candidates; and (C) Issue appropriate writ/directions/orders to direct the respondent no.2 to consider the candidature and recruit the petitioner with back service and consequential benefits w.e.f. March 2011; and (D ) Pass any other or further orders or directions as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case in favour of the petitioner and against the respondents."4 TA 71/2013
5. When the case was still pending before the Hon'ble High Court itself, a short affidavit had been filed on 27.02.2013 on behalf of respondent no.2. It was pointed out therein that in the meeting held on 7.05.2010 it was decided that recruitment of additional Drivers/Conductors in DTC should be made on contractual basis, instead of regular appointments, in order to reduce the permanent nature of liabilities of DTC in future. It was submitted that only on the basis of such a decision a requisition had been sent to respondent no. 1, which had provided the list, and respondent no.2 had in turn taken all subsequent steps in filling up those vacancies only on the basis of that list. It was further submitted that since the applicant's name did not figure in that list, his case obviously could not have been considered, and no wrong had been committed by respondent no.2.
6. A detailed counter affidavit on behalf of respondent no.1 had also been filed before Hon'ble High Court itself on 5.04.2013. It was submitted therein that the entire process of registration of candidature with them is computerised, and the registrants are given a password, through which they can make changes in their application forms online, after the unique identity number had been given to them, and if there has been any lacuna, the applicants themselves are responsible, since the respondent no.1 does not certify the correctness of the information contained in those online applications.
7. It was further pointed out that the present applicant was initially registered with them in 2009, indicating his skill as 'Medical Assistant', and as per the records available with the Data Centre, he had entered the skill of Bus Conductor in login ID only on 20.07.2010. 5 TA 71/2013
8. It was pointed out that respondent no.2 had requisitioned the candidates for the vacancies of the posts of Bus Conductors with requirements of being between 18-35 years of age, educational qualification 10th class pass, and qualification and skill entered as Bus Conductor. It was pointed out that the first respondent had forwarded the names of eligible candidates to respondent no. 2 on 18.05.2010, but when, on the representation of certain candidates, a decision in this regard was taken, an additional list was also forwarded to respondent no. 2 on 9.06.2010 containing the names of candidates possessing higher qualifications. It was submitted that the name of petitioner could not have been included in those lists, as he had not updated the skill of Bus Conductor in his login ID till that date, and till 1½ months thereafter. Subsequently, respondent no.2 had asked for the names of even those candidates who had registered upto the same cut off date of 8.06.2010, but belonged to SC/ST/OBC category, and may have crossed the maximum age limit of 35 years, but may be within the limit of age relaxation as per the Government rules, and accordingly an additional list of SC/ST/OBC/PH candidates was also forwarded to respondent no.2 on 4.08.2010. Thereafter, on 15.12.2010, respondent no.2 requested to provide another list of candidates (exclusively of persons with disabilities), which was also sent on 20.12.2010. It was explained that in this process, in three stages, a total of 32651 candidates were sponsored.
9. It was pointed out that the petitioner could not have formed part of any of these lists as he had obtained the Bus Conductor's license from the Registrar of Transport, Janakpuri, New Delhi on 9.07.2010, which was updated by him in the records of the respondent No.1 on 20.07.2010, and it was denied that his name had been withheld by the 6 TA 71/2013 officials of respondent no.1 due to any other reason. Thereafter, they had explained the details of the information under Right to Information Act provided to the applicant, and it was submitted that he had never sought for information regarding date of updation of skills in CD form in respect of all candidates, and a wrong averment had been made by him in this regard.
10. It is seen from the order sheet that the Writ Petition filed before the Hon'ble High Court had been dismissed as having become infructuous, through order dated 21.06.2013, as follows:-
"The petitioner has filed the present application seeking a direction to respondent no. 2 to consider the candidature of the petitioner for an ongoing selection process by the respondent no.2 for the post of Bus Conductor.
Learned counsel for respondent no.1, on instructions, states that the respondent no.2 merely sponsors the names and does not conduct any selection process.
Learned counsel for the petitioner submits that the respondent no.2 has called candidates for interviews on various dates commencing from 10.06.2013 and the last date being 21.06.2013.
In view of the above, this application has become infructuous."
In view of this, learned counsel for the petitioner seeks leave to withdraw the application with liberty to file an appropriate application as and when fresh recruitment process is commenced by respondent no.2.
Application is thus dismissed as withdrawn with liberty as aforesaid."
11. Thereafter, even though the application had been dismissed by the Hon'ble High Court as withdrawn, somehow, two months later, the case had once again got listed, before another Single Bench, in which the following order was passed transferring the case to this Tribunal, without noticing the earlier order dated 21.06.2013 dismissing the application as withdrawn:-
7 TA 71/2013
"1. Petitioner seeks employment with the Delhi Transport Corporation (DTC). DTC is included in the list of schedule of the organizations and disputes of whose employees will be decided by the Central Administrative Tribunal (CAT).
2. Therefore, at the request of the petitioner instead of dismissing the petition, this petition is transferred for decision to the CAT, Principal Bench, Delhi.
3. Let the parties appear before the Registrar of CAT on 25th September, 2013."
12. Somehow, even after the case had been dismissed as withdrawn on 21.06.2013, a rejoinder affidavit was filed by the present applicant before Hon'ble High Court itself, on 22.08.2013, before the case got listed in a duplicacy before another Single Bench. That rejoinder affidavit was filed by the applicant to the counter affidavit of respondent no.1, through which it was alleged that the selection of candidates made by the respondent no.2 on the basis of the lists sponsored by respondent no.1 was wrong, as those lists had been sent in violation of the law as laid down by Hon'ble Supreme Court in Excise Superintendent, Malkapatnam, Krishna District, A.P. Vs. K.B.N.Visweshwara Rao & Ors (1996) 6 SCC 216) and Arun Kumar Nayak Vs. Union of India & Ors (2006) 8 SCC 111). It was submitted that his case was that respondent no. 1 had sponsored for employment those candidates who had registered subsequent to him, but he has neither been provided with certain information, nor their date of licences, as well as registration details, and, therefore, illegality had been committed by both respondents nos.1 and 2. All other submissions made by the respondents in their counter replies were denied.
13. After the case came to be transferred to this Tribunal and registered as TA no.71/2013, another rejoinder affidavit had been filed by the applicant to the counter affidavit of respondent no. 2 on 8 TA 71/2013 12.12.2013. It was denied that respondent no.2 had taken steps only on the basis of the lists provided by respondent no.1, and it was prayed that the lists of all the recruited candidates should be placed before the Tribunal. It was further submitted that as per a news article dated 03.10.2013, the Crime Branch of Delhi Police had conducted a raid and had found that the appointments of Bus Drivers and Conductors in cluster buses were being made on the basis of forged and fabricated documents. It was, therefore, prayed that the lists of all appointees, and the dates of their licences as Bus Conductors as had been entered in the skill records of respondent no.1, should be called for by this Tribunal.
14. Heard. Learned counsel for the applicant had during the course of his arguments filed a copy of the Hon'ble Supreme Court judgment in Excise Superintendent Malkapatnam, Krishna District, AP (supra) and had relied upon another judgment of the Hon'ble Supreme Court in State of Bihar Vs. Upendra Narayan Singh and Others (2009) 5 SCC 65) and, in particular paragraphs 27 to 31 of that judgment, which may be reproduced as below:-
"27. For ensuring that equality of opportunity in matters relating to employment becomes a reality for all, Parliament enacted the Employment Exchanges (Compulsory Notification of Vacancies) Act, 1959 (for short 'the 1959 Act'). Section 4 of that Act casts a duty on the employer in every establishment in public sector in the State or a part thereof to notify every vacancy to the employment exchange before filling up the same.
28. In Union of India and others v. N. Hargopal and others [(1987) 3 SCC 308], a two-Judge Bench of this Court considered the question whether persons not sponsored by the employment exchange could be appointed to the existing vacancies. The High Court of Andhra Pradesh had ruled that the provisions of 1959 Act are not applicable to Government establishment; that the Act does not cast duty either on the public sector establishment or on the private sector establishment to make the appointments from among candidates sponsored by the employment exchanges only, and that instructions issued by the Government of India that candidates sponsored by the employment exchanges alone should be appointed are contrary to Articles 14 9 TA 71/2013 and 16. This Court referred to Sections 3 and 4 of the 1959 Act, adverted to the reasons enumerated in the counter-affidavit filed on behalf of the Union of India before the High Court to justify the appointments only from among the candidates sponsored by the employment exchange and held:
"9... The object of recruitment to any service or post is to secure the most suitable person who answers the demands of the requirements of the job. In the case of public employment, it is necessary to eliminate arbitrariness and favouritism and introduce uniformity of standards and orderliness in the matter of employment. There has to be an element of procedural fairness in recruitment. If a public employer chooses to receive applications for employment where and when he pleases, and chooses to make appointments as he likes, a grave element of arbitrariness is certainly introduced. This must necessarily be avoided if Articles 14 and 16 have to be given any meaning. We, therefore, consider that insistence on recruitment through Employment Exchanges advances rather than restricts the rights guaranteed by Articles 14 and 16 of the Constitution. The submission that Employment Exchanges do not reach everywhere applies equally to whatever method of advertising vacancies is adopted. Advertisement in the daily press, for example, is also equally ineffective as it does not reach everyone desiring employment. In the absence of a better method of recruitment, we think that any restriction that employment in government departments should be through the medium of employment exchanges does not offend Articles 14 and 16 of the Constitution."
29. In Excise Superintendent, Malkapatnam, Krishna District, A.P. v. K.B.N.Visweshwara Rao and others [(1996) 6 SCC 216], a three-Judge Bench while reiterating that the requisitioning authority/establishment must send intimation to the employment exchange and the latter should sponsor the names of candidates, observed:
"6.... It is common knowledge that many a candidate is unable to have the names sponsored, though their names are either registered or are waiting to be registered in the employment exchange, with the result that the choice of selection is restricted to only such of the candidates whose names come to be sponsored by the employment exchange. Under these circumstances, many a deserving candidate is deprived of the right to be considered for appointment to a post under the State. Better view appears to be that it should be mandatory for the requisitioning authority/establishment to intimate the employment exchange, and employment exchange should sponsor the names of the candidates to the requisitioning departments for selection strictly according to seniority and reservation, as per requisition. In addition, the appropriate department or undertaking or establishment should call for the names by publication in the newspapers having wider circulation and also display on their office 10 TA 71/2013 notice boards or announce on radio, television and employment news bulletins; and then consider the cases of all the candidates who have applied. If this procedure is adopted, fair play would be subserved. The equality of opportunity in the matter of employment would be available to all eligible candidates."
30. The same principle was reiterated in Arun Kumar Nayak v. Union of India and others [(2006) 8 SCC 111] in the following words:
"9. This Court in Visweshwara Rao, therefore, held that intimation to the employment exchange about the vacancy and candidates sponsored from the employment exchange is mandatory. This Court also held that in addition and consistent with the principle of fair play, justice and equal opportunity, the appropriate department or establishment should also call for the names by publication in the newspapers having wider circulation, announcement on radio, television and employment news bulletins and consider all the candidates who have applied. This view was taken to afford equal opportunity to all the eligible candidates in the matter of employment. The rationale behind such direction is also consistent with the sound public policy that wider the opportunity of the notice of vacancy by wider publication in the newspapers, radio, television and employment news bulletin, the better candidates with better qualifications are attracted, so that adequate choices are made available and the best candidates would be selected and appointed to subserve the public interest better."
31. The ratio of the above noted three judgments is that in terms of Section 4 of the 1959 Act, every public employer is duty bound to notify the vacancies to the concerned employment exchange so as to enable it to sponsor the names of eligible candidates and also advertise the same in the newspapers having wider circulation, employment news bulletins, get announcement made on radio and television and consider all eligible candidates whose names may be forwarded by the concerned employment exchange and/or who may apply pursuant to the advertisement published in the newspapers or announcements made on radio/television.''
15. On the other hand, learned counsel for the respondents had pointed out that both these judgments have been fully followed by respondent no.2 in calling for lists of candidates from the Employment Exchange only, and when the aspects of reservation for SC/ST/OBC, and physically handicapped persons, had been raised, even the lists of such candidates had also been obtained subsequently from the 11 TA 71/2013 Employment Exchanges under Respondent No.1 only, and when there was still a shortage of physically handicapped candidates, a further list of physically handicapped candidates only had also been sought from the Employment Exchanges under Respondent No.1. He denied any wrong doing on the part of the respondents and prayed that the OA may be dismissed.
16. We have given our anxious consideration to the facts of this case. It appears to us that the submissions made by the learned counsel for the applicant before the Hon'ble High Court on 21.06.2013 that the Writ Petition/now this TA, had become infructuous, and when he had sought leave to withdraw the Writ Petition, with liberty to file an appropriate application as and when fresh recruitment process is commenced by respondent No. 2, and the application had been dismissed by the Hon'ble High Court that day as withdrawn, with liberty as aforesaid, was perhaps the correct course. We do not know as to in what manner, without a separate Civil Misc. Application having been filed for revival of the disposed off Writ Petition, that Writ Petition again came to be listed before the another Single Bench of Hon'ble High Court on 30.08.2013, after which it had got transferred to this Tribunal.
17. We also find that the requirements of the cited Supreme Court judgments, making it compulsory for obtaining lists of candidates from the Employment Exchanges have been fully complied with by the respondent no.2, and that when the lists were already sent on 9.06.2012, of the candidates who had registered their skills as Bus Conductor till 8.06.2012, and the applicant had not till that date even acquired the necessary certificate/ license, which he had obtained on 09.07.2012, and updated on 20.12.2012, the applicant cannot now 12 TA 71/2013 claim to have been discriminated against in any manner by respondent no.1. Respondent no.2 had never received his application, and, therefore, no allegation can be made as if the respondent no. 2 had discriminated against the petitioner/applicant and cancelled his name.
18. Therefore, there is no merit in the TA, and it is dismissed, but there shall be no other as to costs.
(Raj Vir Sharma) (Sudhir Kumar) Member (J) Member (A) 'sk'