Central Administrative Tribunal - Delhi
Saroj Kumari vs M/O Health And Family Welfare on 27 November, 2015
OA 4036/12 & TA 104/13 1 Ms.Saroj Kumari v. UOI & ors
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
O.A.NO.4036 OF 2012
AND
T.A.NO.104 OF 2013
New Delhi, this the 27th day of November, 2015
PRESENT:
HON'BLE SHRI SUDHIR KUMAR, ADMINISTRATIVE MEMBER
&
HON'BLE SHRI RAJ VIR SHARMA, JUDICIAL MEMBER
.............
In OA No.4036 of 2012:
Ms. Saroj Kumari,
d/o Sh.Babu Lal,
House No.4/23, Street No.4,
Shalimar Park Extension,
Shahdara,
New Delhi 110032 ........... Applicant
(By Advocate: Mr.Rakesh Dhingra)
Vs.
1. The Secretary,
Ministry of Health & Family Welfare,
GOI, Nirman Bhawan,
New Delhi.
2. The Director, AIIMS like Institute, through Joint Secretary & Nodal
Officer Dr.Rakesh Kumar,
Ministry of Health & Family Welfare,
Nirman Bhawan,
New Delhi 110001.
3. The Chairman,
National Commission for Scheduled Castes & Scheduled Tribes,
Page 1 of 24
OA 4036/12 & TA 104/13 2 Ms.Saroj Kumari v. UOI & ors
Loknayak Bhawan,
Khan Market,
Lodhi Road,
New Delhi 110003 .............. Respondents
(By Advocates: S/Shri Rajeev Kumar and Gajender Giri)
In TA No.104 of 2013:
Dr. (Miss) Saroj Kumari,
d/o Sh.Babu Lal,
House No.4/23, Street No.4,
Shalimar Park Extension,
Shahdara,
New Delhi 110032 ........... Applicant
(By Advocate: Mr.Rakesh Dhingra)
Vs.
1. Union of India through
Secretary to Govt. of India,
Ministry of Health & Family Welfare,
GOI, Nirman Bhawan,
New Delhi 110011
2. All India Institute of Medical Sciences, Bhubaneswar through
Director, Sijua,
P.O-Dumduma,, Bhubaneswar 751019 .... Respondents
(By Advocate: Mr.Rajeev Kumar)
.............
RAJ VIR SHARMA, MEMBER(J):
In both O.A.No.4036 of 2012 and T.A.No.104 of 2013, the applicant has prayed for the following reliefs:
"A. To direct the respondent no.1 to include the name of the applicant in the list of successful candidates eligible for Page 2 of 24 OA 4036/12 & TA 104/13 3 Ms.Saroj Kumari v. UOI & ors appointment as Assistant Professor (Physiology), OR as Assistant Professor (Biochemistry), OR as Assistant Professor (Pharmacology);
B. To allow the applicant to be eligible for seniority with consequential benefits;
C. To direct Respondent no.1 to take appropriate steps in following the GOI guidelines for filling the post of SC/ST. D. To impose cost and to pass such other and further order/orders as this Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the present case.
E. To pass such other and further order/orders as this Hon'ble Tribunal may deem fit and proper on the facts and circumstances of the present case."
2. The applicant belongs to SC community. After acquiring the qualifications of B.Sc., B.Ed., in 1999, and M.Sc.(Biomedical Science) in 2001, she worked as a Junior Research Fellow with CSIR through UGC- NET during the period from January 2002 to December 2003, and as a Senior Research Fellow with CSIR through UGC-NET during the period from January 2004 to December 2006. In January 2007, she was conferred the degree of Doctor of Philosophy (Biomedical Science) by Delhi University. Thereafter, she worked as a Research Associate with the National Institute of Immunology, Aruna Asaf Ali Marg, New Delhi, during the period from February 2007 September 2011.
3. Respondent no.1 issued an Advertisement: "Faculty New AIIMS No.1/2011/ dated 28.12.2011" for filling up vacancies in faculty positions of Professor, Additional Professor, Associate Professor, and Assistant Professor in six new to be established All India Institutes of Page 3 of 24 OA 4036/12 & TA 104/13 4 Ms.Saroj Kumari v. UOI & ors Medical Sciences (AIIMS) established at Rishikesh, Bhopal, Jodhpur, Patna, Raipur and Bhubaneswar under Pradhan Mantri Swasthya Suraksha Yojana. 3.1 Clause XII of the Advertisement dated 26.12.2011 is reproduced below:
"XII. Details of posts: For each of the Six Institute, applications are invited for the following posts:
SL. Name of Department Prof. Addl. Associate Asst.
No. Prof. Prof. Prof.
1 Anatomy 1 1 1 5
2 Physiology 1 1 1 4
3 Biochemistry 1 1 1 3
4 Pathology 1 1 1 2
5 Microbiology 1 1 1 2
6 Pharmacology 1 - 1 1
7 Forensic Med 1 - - 1
8 Community Med. 1 1 1 2
9 Gen. Med. 1 - - 1
10 Dermatology 1 - - -
11 Psychiatry 1 - - 1
12 Pediatrics 1 - - 1
13 Pediatric Surgery 1 1 - -
14 Gen. Surgery 1 - 1 1
15 Trauma & 1 - 1 12
Emergency
16 Orthopedics 1 - - 1
17 Opthalomology 1 - - 1
18 Obst.&Gyne. 1 - - 1
19 E.N.T. 1 - - 1
20 Radio Diagnosis 1 - - 1
21 Anesthesology 1 - - 1
22 Dentristry 1 - - 1
23 Transfusion Medicine & Blood Bank 1 - - 1
24 Radio Therapy 1 - - 1
25 Pulmonary Med 1 - - 1
26 Physical Medicine & Rehabilitation 1 - - 1
27 Nursing 1 - - 1
Total 27 7 9 48
Reservation for OBC 27% 7 2 2 12
Reservation for SC 15% 4 1 1 8
Reservation for ST 7.5% 2 1 1 4
Grand Total 91
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*The number of vacancies is subject to increase/decrease. Reservation will be as per Government of India policy."
4. In response to the Advertisement dated 28.12.2011(ibid), the applicant applied for the posts of Assistant Professor (Physiology), Assistant Professor (Biochemistry), and Assistant Professor (Pharmacology). On being called, the applicant appeared for interview on 14.4.2012 for the post of Assistant Professor (Physiology) and on 18.4.2012 for the post of Assistant Professor (Biochemistry).
5. On 13.7.2012, respondent no.1 published the result selecting 143 candidates for appointment to the posts of Professors, Additional Professors, Associate Professors, and Assistant Professors in different disciplines. Out of the said 143 selected candidates, 72 candidates were selected for appointment to the posts of Assistant Professors in different disciplines.
6. In OA No. 4063 of 2012, the grievance of the applicant is that respondent nos. 1 and 2 have utterly failed to follow the Government of India's reservation policy, as a result of which neither she nor any of the SC candidates was selected for the posts of either Assistant Professor (Physiology), or Assistant Professor (Biochemistry), or, for that matter, Assistant Professor in any other disciplines, against SC quota, although the Advertisement dated 28.12.2011(ibid) clearly stipulated that reservation would be provided as per the Government of India's policy, and that out of the 48 advertised posts of Assistant Professors in various disciplines, 8 posts Page 5 of 24 OA 4036/12 & TA 104/13 6 Ms.Saroj Kumari v. UOI & ors were reserved for SC candidates. It is also the grievance of the applicant that even though the number of vacancies in the posts of Assistant Professors in different disciplines was increased from 48 to 77, and, accordingly, 12 vacancies ought to have been filled by SC candidates, neither she nor any of the SC candidates was selected for the posts of Assistant Professor (Physiology), or Assistant Professor (Biochemistry), or Assistant Professor in any other disciplines, against the SC quota.
7. TA No. 104 of 2013 was filed by the applicant when the Director, AIIMS, Bhubaneswar, issued a separate advertisement, which was published in Employment News 13 - 19 July, 2013 (Annexure P/1), inviting applications for filling up the vacancies in various posts including two posts of Assistant Professors (Biochemistry) and one post of Assistant Professor (Physiology).
8. It is also the case of the applicant that Dr.G.K.Singh, Director, AIIMS, Patna, who was on the Selection Board, humiliated her, and told her during the interview that she should apply for the post of Demonstrator, and not for the post of Assistant Professor.
9. It is also stated by the applicant that two General category candidates, namely, Ms.Anissa Atif Mirza and Mrs. Indu Saxena, who did not fulfill the prescribed eligibility criteria, were selected by the Selection Board for appointment to the posts of Associate Professor (Biochemistry) and Assistant Professor (Biochemistry) respectively. According to the applicant, the Selection Board and respondent no.1 acted illegally and Page 6 of 24 OA 4036/12 & TA 104/13 7 Ms.Saroj Kumari v. UOI & ors arbitrarily in selecting the said two ineligible candidates and in not selecting her, although she was fully eligible for selection and appointment to the post of Assistant Professor (Biochemistry).
10. In its counter reply to OA No.4036 of 2012, respondent no.1- Union of India has stated that the reservation policy has been followed by the Selection Committee while recommending candidates for appointment to various faculty posts in the six new AIIMS.
10.1 In its counter reply to TA No.104 of 2013, respondent no.1- Union of India has, inter alia, stated that each of the AIIMS is a separate entity, and vacancies in all the six AIIMS could neither be clubbed together, nor could the faculty posts in different streams be clubbed together for the purpose of providing reservation. Taking into account the number of posts advertised in each of the streams, there could be no reservation for SC candidates in the streams, for which the applicant applied, as per the reservation policy.
10.2 Respondent no.1 has further submitted that merely an error in specifying the number of posts reserved for SC/ST/OBC could not create any legal right in favour of the applicant, which did not exist in law. Therefore, the applicant cannot be allowed to claim reservation in posts for SCs in all the various posts in different streams for which she had applied. It has also been stated by respondent no.1 that the applicant was not found suitable by the Selection Committee, and, therefore, she has no legal right to be appointed to any of the posts of Assistant Professor. The allegation that Page 7 of 24 OA 4036/12 & TA 104/13 8 Ms.Saroj Kumari v. UOI & ors Mr.G.K.Singh, Director, AIIMS, Patna, neglected the applicant during interview was denied by respondent no.1. It is also asserted by respondent no.1 that Ms.Anissa Atif Mirza and Ms.Indu Saxena were eligible for appointment to the posts of Associate Professor (Physiology) and Assistant Professor (Biochemistry) respectively, and, therefore, there is no illegality committed by the Selection Committee in selecting them for appointment to the said posts.
11. We have perused the records, and have heard Shri Rakesh Dhingra, learned counsel appearing for the applicant, and S/Shri Rajeev Kumar and Gajender Giri, learned counsel appearing for the respondents.
12. The Constitution of India has provided, among other various protections and safeguards, safeguards for public employment to the persons belonging to Scheduled Castes and Scheduled Tribes, keeping in view the discrimination and disabilities suffered by these classes, to enable them to catch up and compete successfully with their more fortunate brethren and sisters in the matter of securing public employment. Specific provisions for reservations in services in favour of the members of SC and ST have been made in Articles 16(4), 335, 341 and 342 of the Constitution of India. Reservations at the prescribed percentages for SC and ST have been made to the extent stipulated in all the posts filled by direct recruitment and in posts filled by promotion unless any posts are exempted by special or general instructions issued by the Department of Personnel & Training. The objective of providing reservations to the SC, ST and OBC in services is not Page 8 of 24 OA 4036/12 & TA 104/13 9 Ms.Saroj Kumari v. UOI & ors only to give jobs to some persons belonging to these communities. It basically aims at empowering them and ensuring their participation in the decision making process of the State.
13. The stand taken by respondent no.1-Union of India in its counter replies, besides being contradictory, is rather found to be a clever ruse. Respondent no.1-Union of India, while asserting that the reservation policy has been followed by it and the Selection Committee, has stated in the same breath that each of the AIIMS is a separate entity, and faculty posts in different streams cannot be clubbed together for the purpose of reservation. It was clearly stipulated in the Advertisement dated 28.12.2011 (ibid) that out of 48 posts of Assistant Professors in different disciplines, 12 posts were reserved for OBC (27%), 8 posts were reserved for SC (15%), and 4 posts were reserved for ST (7.5%). This apart, it transpires from the result published by respondent no.1 on 13.7.2012 that 72 candidates were selected for appointment to the posts of Assistant Professors in different disciplines, though only 48 posts of Assistant Professors were notified in the Advertisement dated 28.12.2011(ibid). Therefore, as rightly contended by the applicant, 11 out of the said 72 vacancies ought to have been filled by selection and appointment of SC candidates.
14. From the result dated 13.7.2012, ibid, it also transpires that none of the candidates belonging to SC category has been selected for the posts of Assistant Professors in any of the disciplines, against the quota meant for SCs, and four SC candidates have been selected for the posts of Page 9 of 24 OA 4036/12 & TA 104/13 10 Ms.Saroj Kumari v. UOI & ors Assistant Professors in different disciplines on their own merit against unreserved vacancies. It is, thus, clear that the policy of providing reservations has not at all been followed by the Selection Committee, and respondent no.1-Union of India, while considering the candidatures of different candidates belonging to SC community, including that of the applicant in the present case, for selection and appointment against SC quota posts of Assistant Professors in different disciplines.
15. In Faculty Association of AIIMS v. Union of India and others, 2002(63) DRJ 807, the challenge was to the selection process for appointment to the entry level faculty posts of Assistant Professor in AIIMS. The respondents provided for reservation up to 45.5% for SC, ST and OBC candidates in different ratio. The petitioners therein prayed for quashing of resolutions dated 11.1.1983 and 27.5.1994 passed by respondent no.3 applying reservation policy for appointment to the posts and for exemption of speciality and super speciality faculty posts from such reservation. It was pleaded by the respondents that the faculty posts were first exempted from reservation till 11.1.1987, when the Governing Body of AIIMS, New Delhi, decided to apply it pursuant to Regulation 24 and Government of India's reservation policy contained in O.M. dated 23.6.1975. They were, thus, under statutory duty to apply the reservation policy under the AIIMS, New Delhi, Regulations, and Government of India's policy. The issue, which arose for consideration of the Hon'ble High Court of Delhi, was whether reservation policy was inapplicable for making appointment to the entry Page 10 of 24 OA 4036/12 & TA 104/13 11 Ms.Saroj Kumari v. UOI & ors level faculty posts of Assistant Professors and to super speciality posts in the light of the judgments of the Hon'ble Supreme Court in Indra Sawhney v. Union of India, 1992 Supp.(3) SCC 215, Jagdish Sarna v. Union of India, (1980) 2 SCR 831, and Dr.Pradeep Jain v. Union of India, 1984 (2) SCR 942, and whether AIIMS, New Delhi, Governing Body's resolutions dated 11.1.1983 and 27.5.1994 were liable to be struck down for that. After adverting to the said decisions of the Hon'ble Supreme Court, the Hon'ble High Court of Delhi observed as follows:
"11. We have read these paras in between the lines but have not come across any such bar or prohibition against application of reservation policy to speciality and super speciality in medical science. As is well known by now, in this case, court was seized of GOI OM dated 13.8.90 reserving 27% posts for OBCs pursuant to Mandal Commission Report and while upholding this OM, it made certain observations on several issues including the extent of reservation and whether it was advisable to apply it in certain services/posts on account of their nature and duties attached thereto which called for higher level of intelligence, skill and excellence like posts in defense services and in speciality and super speciality in medicine, engineering, physical sciences, space and mathematics and so on. Undoubtedly, court observed that it would not be advisable to make reservation in speciality and super speciality in medical science, but it stopped short of passing any direction in this regard and left it open to the Government to consider and specify the services and posts which could be exempted from the rule of reservation. This, in our view, could not be treated to be any direction or order against the application of reservation policy to speciality and super speciality posts and impugned resolutions could not be invalidated from this.
12. The same holds true about other cited judgments in Dr. Praeep Jain's case and Jagdish Sarna's case also. In the first case, Supreme Court was dealing with the question of reservation on the basis of residential and institutional preference in admission to MBBS and PG courses. It is true that court made some observations against application of reservation to MO and MS courses, but it again did not pass any declaration in this regard. It was the same story in Jagdish Sarna's case also in which court was examining a challenge to a rule reserving 70% of the seats for PG course for local Delhi graduates. It again underscored the need for adopting merit criterion at higher Page 11 of 24 OA 4036/12 & TA 104/13 12 Ms.Saroj Kumari v. UOI & ors levels of speciality but it only ended up with a direction for setting up a Committee for determining application of reservation and the extent thereof and stopped short of passing any order or direction invalidating any application of reservation to the speciality and super speciality. We could not also find anything to support petitioners' case in Dr. Preeti Srivastava v. State of M.P., of which much was sought to be made out by Mr. Gupta. Paras 23 and 26 relied on which he relied are reproduced hereunder :-
"23 This Court has repeatedly said that at the level of superspecialisation there cannot be any reservation because any dilution of merit at this level would adversely affect the national goal of having the best possible people at the highest levels of professional and educational training. At the level of a superspeciality, something more than a mere professional competence as a doctor is required. A superspecialist acquires expert knowledge in his speciality and is expected to possess exceptional competence and skill in his chosen field, where he may even make an original contribution in the form of new innovative techniques or new knowledge to fight diseases. It is in the public interest that we promote these skills. Such high degrees of skill and expert knowledge in highly specialised areas, however, cannot be acquired by anyone or everyone.
26. In the premises the special provisions for SC/ST candidates - whether reservations or lower qualifying marks - at the speciality level have to be minimal. There cannot, however, be any such special provisions at the level of superspecialities."
13. A perusal of these whole judgments suggests that aforesaid observations were made in the context of Indra Sawney's case. However, the court had itself made it clear in this judgment that it was not dealing with the question of application of reservation in post graduate courses. Therefore, even this could not be treated to be an authority on the point.
14. All told, none of these judgments have advanced the case of petitioners any way. Therefore, their prayer to invalidate the impugned AIIMS resolutions on the strength of observations made therein which had not fructified into any directions/order was not liable to be granted. We also notice that none of the case cited except Indra Sawhney's case related to employment and, therefore, it was rather far-fetched to overstretch these to conclude that rule of Page 12 of 24 OA 4036/12 & TA 104/13 13 Ms.Saroj Kumari v. UOI & ors reservation could not be applied to speciality an super speciality posts."
(Emphasis laid) Accordingly, the Hon'ble High Court of Delhi held that nothing came in the way of respondent nos.3 to 5 to apply reservation rule for making regular appointments to the posts of Assistant Professors, and that none of the judgments of the Hon'ble Supreme Court including in Indra Sawhney's case (supra) had imposed any bar or prohibition in this regard.
16. The above judgment of the Hon'ble High Court of Delhi was challenged in Civil Appeal Nos.4500 and 5119 of 2002, Faculty Association of AIIMS v. Union of India and others, decided on 18.7.2013. Disposing of the said Civil Appeals, the Hon'ble Supreme Court held thus:
"18. In paragraph 836 of the judgment in Indra Sawhney's case (supra), it was observed that while the relevance and significance of merit at the stage of initial recruitment cannot be ignored, it cannot also be ignored that the same idea of reservation implies selection of a less meritorious person. It was also observed that at the same time such a price would have to be paid if the constitutional promise of social justice was to be redeemed. However, after making such suggestions, a note of caution was introduced in the very next paragraph in the light of Article 15 of the Constitution. A distinction was, however, made with regard to the provisions of Article 16 and it was held that Article 335 would be relevant and it would not be permissible not to prescribe any minimum standard at all. Of course, the said observation was made in the context of admission to medical colleges and reference was also made to the decision in State of M.P. Vs. Nivedita Jain [(1981) 4 SCC 296], where admission to medical courses was regulated by an entrance test. It was held that in the matter of appointment of medical officers, the Government or the Public Service Commission would not be entitled to say that there would not be minimum qualifying marks for Scheduled Castes/Scheduled Tribes candidates while prescribing a Page 13 of 24 OA 4036/12 & TA 104/13 14 Ms.Saroj Kumari v. UOI & ors minimum for others. In the very next paragraph, the Nine-Judge Bench while discussing the provisions of Article 335 also observed that there were certain services and posts where either on account of the nature of duties attached to them or the level in the hierarchy at which they stood, merit alone counts. In such situations, it cannot be advised to provide for reservations. In the paragraph following, the position was made even more clear when Their Lordships observed that they were of the opinion that in certain services in respect of certain posts, application of rule of reservation may not be advisable in regard to various technical posts including posts in super specialty in medicine, engineering and other scientific and technical posts.
19. We cannot take a different view, even though it has been suggested that such an observation was not binding, being obiter in nature. We cannot ascribe to such a view since the very concept of reservation implies mediocrity and we will have to take note of the caution indicated in Indra Sawhney's case. While reiterating the views expressed by the Nine-Judge Bench in Indra Sawhney's case, we dispose of the two Civil Appeals in the light of the said views, which were also expressed in Dr. Jagadish Saran's case, Dr. Pradeep Jain's case, Dr. Preeti Srivastava's case. We impress upon the Central and State Governments to take appropriate steps in accordance with the views expressed in Indra Sawhney's case and in this case, as also the other decisions referred to above, keeping in mind the provisions of Article 335 of the Constitution." (Emphasis laid)
17. In view of the judgment of the Hon'ble Supreme Court in Faculty Association of AIIMS (supra), the Department of Personnel & Training, vide O.M. No.36012/35/2013-Estt.(Res.), dated 21.1.2014, requested all Ministries/Departments to identify scientific and technical posts which have been exempted from the purview of reservation. The O.M. dated 21.1.2014 (ibid) is reproduced below:
"OFFICE MEMORANDUM Subject: - Identification of Scientific and Technical posts in terms of DoPT's O.M. No. 9/2/73-Estt (Res), dated 23.6.1975.Page 14 of 24
OA 4036/12 & TA 104/13 15 Ms.Saroj Kumari v. UOI & ors The undersigned is directed to invite a reference to this Department's O.M No. 9/2/73-Estt (SCT), dated 23` d June, 1975 wherein it has been stated that scientific and technical posts required for conducting research or for organizing, guiding and directing research which satisfy the conditions laid down therein, can be exempted from the purview of the orders relating to reservations for Scheduled Castes and Scheduled Tribes.
2. The Hon'ble Supreme Court in its judgment date
18.7.2013 in Civil Appeal No. 4500/2002[Faculty Association of AIIMS Vs UOI & Ors] impressed upon the Central and State Governments to take appropriate steps in accordance with the views expressed in Indra Sawhney's case wherein it was observed that there were certain services and posts where either on account of the nature of duties attached to them or the level in the hierarchy at which they stood, merit alone counts and in such situations, it cannot be advised to provide for reservation.
3. In this connection, attention is invited to para 2 of this Department's O.M No. 9/2/73-Estt (SCT), dated 23.6.1975(copy enclosed) in which Ministries/Departments were asked to review the list of scientific and technical posts under their control which are at present exempt from the purview of the orders relating to reservations for Scheduled Castes/Scheduled Tribes. Keeping in view of the aforesaid judgment of the Hon'ble Supreme Court, it has been decided to identify all such Scientific & Technical posts in each Ministry/Department.
4. All the Ministries/Departments are requested to identify scientific and technical posts under them and intimate this Department about such posts P which have been exempted from the purview of reservation. The information may be furnished to this Department by 15th February 2014"
18. A reading of the above referred decision of the Hon'ble High Court of Delhi, the decisions of the Hon'ble Supreme Court of India, and the DoP&T's O.M. dated 21.1.2014, makes it clear that at all relevant times, i.e., when the Advertisement dated 26.12.2011 (ibid) was issued, and the selection was made by respondent no.1, vide result notice dated 13.7.2012 (ibid), for making appointment against vacancies in the posts of Assistant Page 15 of 24 OA 4036/12 & TA 104/13 16 Ms.Saroj Kumari v. UOI & ors Professors in different disciplines in the six new AIIMS pursuant to the Advertisement dated 26.12.2011 (ibid), at least the Government of India's reservation policy was applicable to the posts of Assistant Professors in the six new AIIMS, though the resolution of the Governing Body of AIIMS, New Delhi, did not concern these new AIIMS, each of which has its own separate Governing Bodies.
19. From the result published by respondent no.1 on 13.7.2012 (Annexure A/1) it transpires that for AIIMS, Bhopal, 12 candidates were selected for appointment to the posts of Assistant Professors in different disciplines, the break-up of which was 4-Assistant Professors in Anatomy, 3-Assistant Professors in Physiology, 3-Assistant Professors in Biochemistry, and 2-Assistant Professors in Community & Family Medicine. Out of the 12 selected candidates, one SC candidate was selected for the post of Assistant Professor in Anatomy on his own merit basis against the post under UR (unreserved) category.
19.1 For AIIMS, Patna, 12 candidates were selected for appointment to the posts of Assistant Professors in different disciplines, the break-up of which was 4-Assistant Professors in Anatomy, 3-Assistant Professors in Physiology, 3-Assistant Professors in Biochemistry, and 2-Assistant Professors in Community & Family Medicine. Out of the 12 selected candidates, no SC candidate was selected for AIIMS, Patna, against that category's reserved post.
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19.2 For AIIMS, Bhubaneswar, 12 candidates were selected for
appointment to the posts of Assistant Professors in different disciplines, the break-up of which was 4-Assistant Professors in Anatomy, 3-Assistant Professors in Physiology, 3-Assistant Professors in Biochemistry, and 2- Assistant Professors in Community & Family Medicine. Out of the 12 selected candidates, no SC was selected for AIIMS, Bhubaneswar, also. 19.3 For AIIMS, Jodhpur, 12 candidates were selected for appointment to the posts of Assistant Professors in different disciplines, the break-up of which was 4-Assistant Professors in Anatomy, 3-Assistant Professors in Physiology, 3-Assistant Professors in Biochemistry, and 2- Assistant Professors in Community & Family Medicine. Out of the 12 selected candidates, one SC candidate was selected for the post of Assistant Professor in Physiology on his own merit basis against the post under UR (unreserved) category, and, thus, no candidate was selected against the SC category reserved post for AIIMS, Jodhpur, also.
19.4 For AIIMS, Raipur, 12 candidates were selected for appointment to the posts of Assistant Professors in different disciplines, the break-up of which was 4-Assistant Professors in Anatomy, 3-Assistant Professors in Physiology, 3-Assistant Professors in Biochemistry, and 2- Assistant Professors in Community & Family Medicine. Out of the 12 selected candidates, one SC candidate was selected for the post of Assistant Professor in Physiology on his own merit basis against the post under UR Page 17 of 24 OA 4036/12 & TA 104/13 18 Ms.Saroj Kumari v. UOI & ors (unreserved) category, and, thus, no candidate was selected against the SC category reserved post for AIIMS, Raipur, also.
19.5 For AIIMS, Rishikesh, 12 candidates were selected for appointment to the posts of Assistant Professors in different disciplines, the break-up of which was 4-Assistant Professors in Anatomy, 3-Assistant Professors in Physiology, 3-Assistant Professors in Biochemistry, and 2- Assistant Professors in Community & Family Medicine. Out of the 12 selected candidates, one SC candidate was selected for the post of Assistant Professor in Anatomy on his own merit basis against the post under UR (unreserved) category, and, thus, no candidate was selected against the SC category reserved post for AIIMS, Rishikesh, also.
19.6 From the foregoing, it is clear that no SC candidate was selected for appointment to the post of Assistant Professor in any of the disciplines against the SC quota, and the four SC candidates were selected against the posts under UR (unreserved) category only on own merit basis. Out of the said four SC candidates, two were selected for the posts of Assistant Professors in Anatomy, and the other two were selected for the posts of Assistant Professors in Physiology. It is also clear that selection was made by respondent no.1 for appointment against 12 posts of Assistant Professors in different disciplines in each of the six new AIIMS. Thus, selection and appointment were made by respondent no.1 against 72 posts of Assistant Professors in different disciplines, 15% of which comes to 10.8, rounded off to 11 posts. As against 11 vacancies falling under SC quota, Page 18 of 24 OA 4036/12 & TA 104/13 19 Ms.Saroj Kumari v. UOI & ors respondent no.1 did not select and appoint any SC candidate against any SC reserved category post.
19.7 Therefore, the statement made by respondent no.1 that the reservation policy has been followed by them is baseless. We may add here that unless and until a policy is framed by the Government of India identifying and categorizing the posts to be exempted from the purview of reservation, any deviation from the Government's reservation policy by the Selection Committee/appointing authority, while making selection/appointment to the posts in question, would be tantamount to infraction of statutory norms. Since the respondents have failed to establish that the posts of Assistant Professors in any of these six new AIIMS had been identified for being exempted from the purview of reservation policy, a duty was cast on the respondents to act scrupulously in accordance with the Advertisement dated 28.12.2011(ibid).
20. The next contention of respondent no.1 is that each of the six new AIIMS is a separate legal entity, and vacancies in all the six new AIIMS could not be clubbed together, nor could the faculty posts in different streams be clubbed together for the purpose of providing reservation. While we do find some substance in the said contention of respondent no.1, as each of these six new AIIMS is a separate legal entity in itself, but then this contention runs counter to the Advertisement dated 26.12.2011 (ibid). If it was understood in advance that all the vacancies or faculty posts in different streams in the six newly constituted separate entities could not have been Page 19 of 24 OA 4036/12 & TA 104/13 20 Ms.Saroj Kumari v. UOI & ors clubbed together for the purpose of providing reservations, then the respondent no.1 could have clearly specified the number of posts reserved for SC/ST/OBC in each of these six new, and should not have held out promises to the prospective candidates that reservation would be provided in each of these six new AIIMS as per the Government of India's reservation policy.
21. Respondent no.1 has also not produced before this Tribunal any decision taken by the competent authority not to provide reservation to SC, ST and OBC candidates, while making selections and appointments in pursuance of the Advertisement dated 26.12.2011(ibid). In the absence of any such decision being taken by the competent authority, the Selection Committee and respondent no.1 were bound by the reservation policy, and the stipulation contained in the Advertisement dated 26.12.2011(ibid), and they ought to have selected suitable candidates belonging to SC/ST/OBC against the reserved vacancies for each category, from amongst the available candidates belonging to the said categories, and respondent no.1 is estopped from taking the aforesaid plea before the Tribunal to frustrate the legitimate claim of the applicant.
22. Further, there are clear instructions issued by the Government of India for clubbing/grouping of different posts in equivalent grades, available in an organization/office/department, in order to provide reservation to SC/ST/OBC in accordance with the reservation policy. There are clear instructions issued by the Government of India for applicability of Page 20 of 24 OA 4036/12 & TA 104/13 21 Ms.Saroj Kumari v. UOI & ors the reservation policy to posts in cadres having 13 or less number of posts. The Ministry of Home Affairs, vide its O.M.No.42/21/49-NGS, dated 28.1.1952, lays down that it is necessary to group posts of similar status and salary, and to apply the reservation policy to the groups so formed. The Department of Personnel & Administrative Reforms, had also, vide its O.M.No.8/1/74-Estt. (SCT), dated 12.12.1974, clarified, inter alia, that the instructions regarding grouping of posts for purpose of reservation for SC and ST also apply to posts filled by direct recruitment. The Department of Personnel & Training, vide its O.M.No.36011/17/85-Estt. (SCT), dated 23.7.1985, had further reiterated that the existing instructions provide that in the case of posts filled by direct recruitment, isolated posts and small cadres may be grouped with posts in the same class, for the purpose of providing reservation taking into account the status, salary and qualifications prescribed for the posts in question. The Department of Personnel & Training, vide its O.M. dated 36012/2/96-Estt.(Res), dated 2.7.1997, has also stipulated that the administrative Ministries/Departments might consider grouping of posts in different cadres as prescribed in the Department's O.M. dated 28.1.1952 (ibid) and other orders, and prepare common rosters for such groups. None of these standing instructions appears to have been followed by the respondents in the instant case.
23. The other aspect of the matter is that save and except making a bald statement that the Selection Committee found the applicant as unsuitable for the post, respondent no.1 has not produced before us any Page 21 of 24 OA 4036/12 & TA 104/13 22 Ms.Saroj Kumari v. UOI & ors material/proceedings of the Selection Committee. This Tribunal, by its order dated 31.7.2014, required Mr.Rajeev Kumar, learned counsel appearing for respondent no.1, to keep the original file of the Department ready for its perusal at the time of hearing. Though Mr.Rajeev Kumar was granted opportunities for complying with those directions on 28.8.2015, 16.9.2015 and 23.9.2015, the relevant file was not produced before this Tribunal. Respondent no.1, in its counter replies, has made no averments as to the composition of the Selection Board, the norms and procedure adopted by the Selection Board, the total and cut-off marks prescribed for selection of candidates, the marks scored by the applicant in the interview, etc., etc. In the above view of the matter, we are unable to brush aside the claim of the applicant that the Selection Board and respondent No.1 have acted arbitrarily in not selecting her as an SC candidate for appointment to either of the posts for which she was interviewed on 14.4.2012 and 18.4.2012.
24. In Ministry of Home Affairs'O.M.No.1/1/70-Estt.(SCT), dated 31.7.1970, to which our attention was invited by Mr.Rakesh Dhingra, learned counsel appearing for the applicant, it has, inter alia, been stipulated that if any reserved vacancies remain unfilled for want of suitable Scheduled Castes/Scheduled Tribes candidates, they should not be filled by general candidates, but should be re-advertised. In view of this instruction issued by the Government of India, the vacancies in the post of Assistant Professors (Physiology), or Assistant Professors (Biochemistry), or Assistant Professors Page 22 of 24 OA 4036/12 & TA 104/13 23 Ms.Saroj Kumari v. UOI & ors in other disciplines, falling under the SC quota in the six new AIIMS, could not have been filled by candidates belonging to other categories.
25. After having given our anxious consideration to the facts and circumstances of the case, and the rival contentions of the parties, we are of the firm opinion that this is a fit case where the Tribunal should intervene in the matter and grant appropriate relief to the applicant.
26. It is next to be seen as to what relief can be granted to the applicant. As per the result dated 13.7.2012(ibid), the candidates selected for appointment to the post of Assistant Professor in different disciplines must have been appointed, and, in the meantime, more than three years have elapsed. The applicant has not impleaded the said persons as party- respondents in the present O.A. She has also not challenged the selection and appointment of the said persons as Assistant Professors. Any sort of order interfering with the selection and appointment of the said persons as Assistant Professors will be prejudicial to their interests.
27. Therefore, we feel that the ends of justice would be met if respondent no.1-Union of India is directed to re-examine the proceedings of the Selection Committee, which interviewed the applicant for the posts of Assistant Professor (Physiology) and Assistant Professor (Biochemistry) on 14th and 18th April 2012 pursuant to the Advertisement dated 28.12.2011(ibid), and to consider the case of the applicant on the basis thereof, and take a decision by passing a reasoned and speaking order with regard to selection, or otherwise, of the applicant to the post of either Page 23 of 24 OA 4036/12 & TA 104/13 24 Ms.Saroj Kumari v. UOI & ors Assistant Professor (Physiology), or Assistant Professor (Biochemistry), against the reserved category post for SC available in any of the new six AIIMS, within a period of three months from today.
28. In the event the applicant is selected and appointed to the post of either Assistant Professor (Physiology), or Assistant Professor (Biochemistry), she shall be entitled to all service benefits only notionally from the date of appointment of other Assistant Professors, who were selected and appointed pursuant to the Advertisement dated 28.12.2011(ibid), and on actual basis from the date of her joining the post. Ordered accordingly. Respondent no.1 shall comply with this order and communicate its decision to the applicant within a period of three months from today.
29. In the result, O.A.No.4036 of 2012 and TA No.104 of 2013 are allowed to the extent indicated above. All pending M.As. are disposed of accordingly. No costs.
30. Besides communicating copies of this order to the learned counsel appearing for the parties, the Registry of the Tribunal shall send a copy of this order to respondent no.1 by Speed Post, separately also.
(RAJ VIR SHARMA) (SUDHIR KUMAR)
JUDICIAL MEMBER ADMINISTRATIVE MEMBER
AN
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