Central Administrative Tribunal - Ernakulam
Mullakoya C vs Ut Of Lakshadweep on 24 November, 2017
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
O.A. No. 181/00041/2014
Friday, this the 24th day of November, 2017.
CORAM:
HON'BLE Mr. U. SARATHCHANDRAN, JUDICIAL MEMBER
HON'BLE Mr. E.K. BHARAT BHUSHAN, ADMINISTRATIVE MEMBER
1. Mullakoya C, aged 30 years,
S/o. Kasmi, Chekkilam, Kavaratti.
Union Territory of Lakshadweep - 682 555.
2. Sainul Hameed. D, aged 30 years,
S/o. Cherukunhi,
Darussalam House, Kavaratti,
Union Territory of Lakshadweep - 682 555. - Applicants
(By Advocate Mr. Syed Rahman for M/s. Sheriff Associates)
Versus
1. Union Territory of Lakshadweep
Represented by its Administrator,
Administration of Union Territory of
Lakshadweep, Secretariat, Kavaratti - 682 555.
2. The Director (Services),
Administration of Union Territory of Lakshadweep,
Secretariat, Kavaratti - 682 555.
3. The Secretary Public Works Department,
Kavaratti - 682 555.
4. The Superintending Engineer,
Public Works Department,
Circle Office, Kavaratti - 682 555. - Respondents
(By Advocate : Mr. Sreeraj for Mr. S. Manu)
The application having been heard on 16.11.2017, the Tribunal on
24.11.2017 delivered the following:
ORDER
Per: E.K. Bharat Bhushan, Administrative Member O.A. No. 41 of 2014 is filed by Shri Mullakoya. C and another, aggrieved by Annexure A-1, Employment Notice dated 02.05.2014, issued by the 2nd respondent, wherein six vacancies of Operator (LTTD Plant) are sought to be filled up through open written competitive examination. The relief sought in the O.A is as below:-
''(i) to set aside the Annexure A-1, to that extent it invites applications to the post of Operator LTTD Plant in Kavaratti Lakshadweep.
(ia) to set aside the Annexure A-13 and A-14.
(ii) to direct the respondents to complete the selection process initiated on the basis Annexure A-8.
(iii) Such other reliefs that this Hon'ble Tribunal may deem just, fit and proper in the facts and circumstances of the case.''
2. Facts of the case in brief are as follows:-
The Applicants are working as Operators in Low Temperature Thermal Desalination Plant (LTTD) at Kavaratti on temporary basis. They were initially engaged by National Institute of Ocean Technology (NIOT), Chennai after the LTTD Plant was erected during the year 2004. The plant was taken over by the 1st respondent with effect from 01.06.2006. Experience certificate issued by NIOT certifying that the applicants had worked as Operators are produced (Annexure A-2 and A-3 respectively). After the plant was taken over, the applicants continued to be engaged by respondent No.1, with a break of one day after every 89 days and this fact is evidenced by document at Annexure A-4.
3. Due to the persistent efforts of the applicant and other similarly situated persons, six posts were created and a notification dated 13.04.2011 was issued in the form of Recruitment Rules (Annexure A-6). In the said notification, qualification prescribed for the post of Operator in LTTD Plant is ''pass in SSLC or equivalent'' and as desirable qualification ''two years working experience in Desalination Plant in Lakshadweep'' was prescribed. However, no regular appointment came to be made in pursuance to Annexure A-6 Recruitment Rules and it was only on 22.02.2012 that the 4 th respondent issued a notification (Annexure A-8) calling for applications based on Annexure A-6 Recruitment Rules. After considering the applications received, a check list was prepared and published through notification dated 13.10.2012 (Annexure A-9).
4. Regrettably, no further action was taken as per selection process initiated and the check list formulated. Instead, respondent No. 1 issued an order dated 11.12.2013 (Annexure A-11) by which all recruitment for Category 'B' and 'C' in the employees were to be subject to open competitive examination. In pursuance to the above, the 2nd respondent had issued the Employment Notice dated 02.05.2014 inviting applications to fill up vacancies under Direct Recruitment through open competitive examination during the year 2014 and this notification is assailed in the O.A (Annexure A-1).
5. It is maintained by the applicants that cancellation of the selection process initiated on the basis of Annexure A-8 is arbitrary and tainted with malafide. While Annexure A-8 has been on the basis of the approved and duly notified Recruitment Rules, Annexure A-11, by way of which, a new method of appointment was brought in, was without any such mandate. The applicant contends further that being a Scheduled Tribe candidate he would reach the maximum age of 30 years shortly and would be ineligible if the steps proposed in Annexure A-12 are pursued. Annexure A-13 and A-14 are true copies of the minutes of the Selection Committee and the proceedings sheet in which the Administrator had accorded approval to the posts, respectively.
6. Per contra, the respondents have filed the reply statement denying the contentions of the applicants. While the nature of service of the applicants is not disputed, it is argued that they cannot claim temporary status in terms of extant orders of the Government of India and Lakshadweep Administration. It is stated that an effort had been made to recruit Operators to the LTTD Plant as per the existing Recruitment Rules but the steps had failed on account of the fact that no eligible hands were available. It is due to this factor that the department had initiated action ''as per failing which'' clause by inviting applications for Direct Recruitment. This was the background in which Annexure A-8 notification was initiated and a check list prepared.
7. However, the orders of this Tribunal while disposing of O.A Nos. 670/2011 and 17/2011 had stood in the way of further steps. The applicants therein had been permitted to make a detailed representation to the Secretary, MHA. Due to these orders, further action in pursuance to Annexure A-8 notification was called off. Alternately, a duly constituted Selection Committee was approved by respondent No.1 and this committee proceeded with the recruitment in question. After due deliberation and in the light of absence of qualified NMR workers, it was resolved to proceed with Direct Recruitment and Annexure A-1 notification dated 02.05.2014 came to be issued. The applicants in the O.A were at liberty to apply to the position advertised in the notification and in view of the increase by two years in the upper age limit for recruitment, the applicants cannot contend that they are prejudicially affected by Annexure A-1 notification.
8. At the hearing on 22.09.2014, an interim order was issued staying all further proceedings in respect of the post of Operator in Annexure A-1. The respondents in the case had filed an M.A. No. 181/78/2014 for modifying the interim order to the effect that the respondents may be allowed to proceed with recruitment of categories other than LTTD Operators due to administrative exigency. In view of the fact that the interim order was applicable only in the case of LTTD Operator category, the M.A was infructuous.
9. Heard Mr. Syed Rahman for M/s. Sheriff Associates, learned counsel for the applicant and Mr. Sreeraj representing Mr. S. Manu, learned counsel for the respondents. Learned counsel for the applicant argued at length that the decision of the respondents to stop the recruitment already in process midway and adopt a different methodology for the same has put paid to the just claims of the applicants who have been working for more than 10 years at the Plant. They justifiably expected, having been included in the check list, that they will be appointed to the posts applied for. While the notification at Annexure A-8 to which the applicants had applied was fully mandated by the Recruitment Rules in force and which continued to be in force even today, the switch over to the new system through Annexure A-11 does not have any legal sanction and is the result of administrative arbitrariness. Experience is a factor mentioned as 'desirable' in the Recruitment Rules and the applicants who have the benefit of the same are deprived of their rightful claims by the arbitrary action of the respondents in removing 'experience' as a factor in recruitment.
10. It has been maintained in the reply statement that further action as per Annexure A-8 had to be called off because of the proceedings before this Tribunal and the orders thereof. Nothing could be farther from the truth as the orders obtained from this Tribunal was only a direction to the Government of India to consider the case of the applicants. Also, if there is a suspicion about the genuineness of some of the matriculation certificates issued by the Distant Education Boards as alleged in the reply, it is for the authorities to investigate the same. Their action in throwing the baby out with the bath water is clearly not justified.
11. Learned counsel for the respondents on the other hand maintained that the facts presented in the written statement are in keeping with the circumstances of the case. Resorting to an open competitive examination is the best way for obtaining candidates with talent and merit and the respondents cannot be faulted for attempting to do so. There is no justification in the claim of the applicants that they were being singled out and the attempt of the respondents was only to see that the best candidates get selected. They would not qualify as workers with temporary status as per existing government regulations and suspicion around the matriculation certificates of many candidates (not specifically those of the applicants) is a genuine concern.
12. We have considered the case in detail. This is a matter involving a selection process which was mandated by the existing Recruitment Rules and which came to be changed after the process had started. There is no denying the fact that the applicants had been working on temporary basis with the LTTD Plant for the last several years and this factor is admitted in the check list, that came to be aborted. The reason advanced by the respondents for changing horses mid-stream is that their hands were forced by orders of this Tribunal in the two different O.As. Facts on hand do not bear this out. This Tribunal had only ordered the applicants' case to be considered and there was no direction to modify the recruitment process which had been initiated. Equally unacceptable is the sweeping charge made by the respondents in the reply statement that ''some'' of the matriculation certificates presented by the candidates are suspected to be fake. If that is so, respondents have all the resources to examine the issue further and take matters to a logical conclusion. The attempt of the respondents to take shelter under a missive of the Government of India (which is not produced) for denying temporary status of the workers including the applicants is not tenable as their experience is admitted in the check list prepared by themselves after scrutiny of the applications received in pursuance of Annexure A-8 notification. The recruitment process had been initiated as per Annexure A-8 in accordance with the Recruitment Rules published as a gazette notification (Annexure A-6). It is surprising to note that a duly designated authority had callously disregarded the same notification, erecting in its place a Selection Committee not mandated in the Recruitment Rules. We would like to use this opportunity to remind respondent No. 1 that this country is governed by 'Rule of Law' and none has the authority to arrogate to himself or herself powers which are in violation of the law of the land.
13. Clearly, the applicants have merit on their side. The O.A succeeds. We direct the respondents to complete the selection process initiated as per Annexure A-8 and A-9 check list. Annexure A-1, A-13 and A-14 are set aside. Further action as above will be completed as expeditiously as possible and in any case within three months of receipt of a copy of this order.
(Dated, 24th November, 2017.)
(E.K. BHARAT BHUSHAN) (U. SARATHCHANDRAN)
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
ax
Annexures of Applicant
1. Annexure A-1 - True copy of the employment notice dated 02.05.14.
2. Annexure A-2 - True copy of the certificate issued by NIOT dated 06.07.10 certifying that the applicants worked as operators in the said unit during the period from 17.05.2005 to 31.05.2006.
3. Annexure A-3 - True copy of the certificate issued by NIOT dated 06.07.10 certifying that the applicants worked as operators in the said unit during the period from 17.05.2005 to 31.05.2006.
4. Annexure A-4 - True copy of the office Memorandum dated 12.09.06.
5. Annexure A-5 - True copy of the order dated 28.01.2008 issued on behalf of the 3rd respondent.
6. Annexure A-6 - True copy of the notification dated 13.04.11
7. Annexure A-7 - True copy of the representations dated 06.09.11.
8. Annexure A-8 - True copy of the notification bearing F.No.2/2/12- C1/272 dated 22.02.2012.
9. Annexure A-9 - True copy of the notification dated 13.10.12 by which the check list was published.
10. Annexure A-10 - True copy of the representation dated 19.01.2013.
11. Annexure A-11 - True copy of the order.
12. Annexure A-12 - True copy of the relevant page of Secondary School Leaving Certificate of the 2nd applicant.
Annexures of Respondents
1. Annexure R-1(a) - A true copy of the communication F.No. 10/01/2005- C2/531 dated 04.04.2011.
2. Annexure R-1(b) - A true copy of the communication F.No. 2/2/2012-C1 Vol. II/855 dated 20.03.2013.
3. Annexure R-1(c) - A true copy of the minutes of the meeting of the Selection Committee dated 18.12.2013.
4. Annexure R-1(d) - A true copy of the file notes of the department.
5. Annexure R-1(e) - A true copy of the Office Order F.No. 12/56/2001- Services dated 07.11.2002.
* ****