Central Administrative Tribunal - Delhi
Mahesh Kumar Singh vs The Union Of India Through The Secretary on 3 July, 2015
Central Administrative Tribunal Principal Bench, New Delhi O.A. No.3757/2011 Order reserved on 4th December 2014 Order pronounced on 3rd July 2015 Honble Mr. A.K. Bhardwaj, Member (J) Honble Dr. B.K. Sinha, Member (A) Mahesh Kumar Singh, son of Mr. Bhola Nath Sharma Assistant Professor (Ad hoc) Department of History, Army Cadet College Indian Military Academy, Dehradun (Uttarakhand) Resident at 4, Nehru Enclave (Sai Ashish) Near Wadia Institute, GMS Road, Dehradun (Uttarakhand) ..Applicant (through Mr. A.P. Sahay, Advocate) Versus 1. The Union of India through the Secretary Ministry of Defence Govt. of India South Block, New Delhi 2. The Director General of Military Training General Staff Branch, Army Head Quarters DHQ PO New Delhi 3. The Secretary, Union Public Service Commission Dholpur House, Shahjahan Road, New Delhi 4. The Commandant, Indian Military Academy Dehradun 110 007 5. Mr. Jagat Narayan s/o father name not know to the applicant c/o Choudhary Yashvir Singh, MMIG C-88 Phase 1, Ashiana, Moradabad, UP ..Respondents (through Mr. Rajesh Katyal, Advocate for respondent Nos. 1, 2 & 4, Mr. Satyendra Kumar, Advocate for Mr. R V Sinha, Advocate for respondent No.3, and Mr. R K Sharma, Advocate for Mr. S.S. Hooda, Advocate for respondent No.5) O R D E R
Dr. B.K. Sinha:
As has been captioned in the counter reply affidavit filed on behalf of respondent Nos. 1, 2 and 4, 15 posts of Assistant Professors (erstwhile Lecturers) had been sanctioned for Indian Military Academy (IMA) Dehradun. In the wake of ban on direct recruitment, the Commandant, IMA was authorized to make appointment of Lecturers (now Assistant Professors) on ad hoc basis purely as stop-gap-arrangement. With such arrangement, the applicant herein was appointed as ad hoc Lecturer w.e.f. 10.9.1999. Initially he continued in service with some breaks but subsequently at the strength of the Order passed by this Tribunal, he continued in service w.e.f. 13.12.2001 onwards. Details of his ad hoc service mentioned in the aforementioned reply read thus:-
(e) Shri Mahesh Kumar Singh (i) Initial Appointment 10 to R/O 7, Panchsheel Park Sep 1999 to 15 Jun 2000 (16 Jun 2000 to 04 Jul 2000 artificial term break)
(ii) Re Appointed on 1st Occasion 05 Jul 2000 to 15 Jun 2001 (artificial term break 16 Jun 2001 to 16 Aug 2001).
(iii) Re Appointed on IInd Occasion 17 Aug 2001 continued due to CAT Order wef 13 Dec 2001
2. In the present Original Application filed by him, he has questioned the Advertisement published in Employment News dated 8 14 January 2011 and sought issuance of directions to the respondents to quash Item No.4 of Advertisement No.01 issued by the Union Public Service Commission (UPSC) and has sought issuance of direction to keep the solitary post of Assistant Professor in the Department of History as vacant. The prayers made in the Original Application read thus:-
i. For issuance of appropriate direction to quash Item No.4 of Advertisement No.01 (vacancy no.11010104308) issued by the Union Public Service Commission, New Delhi and published in the Employment News dates 8-14 January, 2011 whereby and whereunder, firstly, the solitary post of Assistant Professor in the department of History in the Army Cadet College, which is a wing of the Indian Military Academy, Dehradun, has been shown to have been reserved for the members of the Scheduled Caste Candidate and thereby making 100% reservation, which is unconstitutional; and, secondly, the said advertisement is not in accordance with the UGC norms / guidelines inasmuch as (a) it prescribes the upper age limit whereas as per the UGC norms / guidelines there is no upper age limit in the recruitment of Assistant Professor in the Colleges and University; and (b) there is anomaly in the eligibility criteria as it sought to exempt the requirement of NET for the candidates having Ph.D. or M.Phil. Degree.
ii. For quashing the Recruitment Rules, namely, Army Cadet College Wing, Indian Military Academy (Assistant Professor) Recruitment Rules, 2010 as contained in SRO 13 dated 8th March 2010 and as amended by SRO 44 dated 14 Sep 10, in so far as it is inconsistent with UGC guide lines.
iii. Pass such other order or orders as may be deemed fit and proper in the facts and circumstances of the case.
3. Mr. A.P. Sahay, learned counsel for applicant relied upon the judgment of Honble Supreme Court in State of Karnataka & others v. K. Govindappa & another (2009) 1 SCC 1 to espouse (i) reservation cannot be applied to single isolated post, as it would amount to hundred percent reservation and (ii) the post of Lecturer (History) itself is not inter-changeable with other posts of Lecturer.
4. On the other hand, in the counter reply filed by them, the respondents put forth:
i) Consequent to change in the reservation policy from vacancy based to reservation based and also on inclusion of reservation for OBCs in the Government service, the reservation points were re-drawn and the reservation roster is being maintained for 15 posts of Lecturers and the same is no longer maintained with reference to subjects.
ii) As a result of recasting of the roster in terms of O.M. No.3612/2/96-Estt. (Res) dated 2.7.1997, the post of Lecturer (History) has fallen on the slot reservation/ earmarked for SC/ST.
iii) In the Advertisement issued in March 2000, the post of Lecturer (History) was shown as reserved for SC category.
iv) In view of the previous Order passed by the Tribunal in O.A. No.1348/2011 (with connected cases) on 13.12.2001, the ad hoc appointment of the applicant could be substituted by a regular appointment.
v) Respondent No.5, selected as Assistant Professor (History) by the UPSC, joined the service on 24.4.2012.
5. Respondent No.5 filed written submissions to espouse that at the time of Advertisement the applicant was overage and was not eligible for the post.
6. In the rejoinder filed by him, the applicant repeated the stand taken by the respondents and brought to the fore that in view of the Order passed by the Tribunal in O.A. No.1348/2001 (supra), it was incumbent upon the respondents not only to permit him to continue to work on the post held by him on ad hoc basis but also to consider him for regular appointment.
7. At the time of final hearing, the learned counsels for respective respondents also submitted that in the wake of the O.A. No.1348/2001 filed by the applicant along with other applicants therein and the Order passed by the Tribunal, the present Original Application is barred by res judicata.
8. We heard the learned counsels for the parties and perused the record.
9. In the backdrop of the rival contentions put forth by the counsels for the parties, following propositions arise to be determined by us:
a) Whether the post of Lecturer (History) was to be considered as a separate cadre or the part of the cadre of Lecturers (Assistant Professors)?
b) Whether there can be a reservation against single isolated vacancy?
c) Whether the applicant can be nixed consideration for regularization being overage?
d) Whether the Original Application is barred by res judicata?
10. As far as the first proposition is concerned, as has been ruled by the Honble Supreme Court in the case of State of Karnataka & others v. K. Govindappa & another (supra), in the absence of there being any scope for inter-changeability of posts in different disciplines, each post in a particular discipline has to be treated as a single post. Paragraphs 21 and 22 of the judgment read thus:-
21. In this regard, Mr. Hegde has explained the difference between "post" and "cadre" and that the two expressions could not be equated with each other. He has also explained that the expression "cadre" was not synonymous with "service" and that merely because there were single posts in the different disciplines taught in the college, it did not mean that each post constituted a separate cadre within the cadre of Lecturers.
22. While there can be no difference of opinion that the expressions "cadre", "post" and "service" cannot be equated with each other, at the same time the submission that single and isolated posts in respect of different disciplines cannot exist as a separate cadre cannot be accepted. In order to apply the rule of reservation within a cadre, there has to be plurality of posts. Since there is no scope of inter-changeability of posts in the different disciplines, each single post in a particular discipline has to be treated as a single post for the purpose of reservation within the meaning of Article 16(4) of the Constitution. In the absence of duality of posts, if the rule of reservation is to be applied, it will offend the constitutional bar against 100% reservation as envisaged in Article 16(1) of the Constitution. Being bound by the view taken by the Apex Court as above, we are constrained to hold that the post of Assistant Professor (History) cannot be treated as a post in the cadre of Assistant Professor and has to be treated as separate cadre.
11. The issue whether there can be reservation against single post or not, has a prolix and protracted history. In Union of India & another v. Madhav s/o Gajanan Chaubal & another (1997) 2 SCC 332, it could be held that the provision for reservation in promotion to a single post by rotating the vacancies as per the roster point would not be violative of Article 16 (1) of the Constitution. Paragraphs 9 and 10 of the judgments read thus:-
9. It would thus be seen that this Court has accepted that reservation could be provided even to the isolated posts on the basis of the rule of rotation. Extension of reservation in such cases is not unconstitutional. On the other hand, such scheme provides opportunity and facilities to Scheduled Castes and Scheduled Tribes to be considered for promotion to hold single posts consistent with equality of opportunity on par with others. In R.K. Sabharwal v. State of Punjab (1995) 2 SCC 745 : (1995 AIR SCW 1371) a Constitution Bench of this Court considered whether the reservation as per the roster by promotion could be valid and consistent with Art. 16(1) of the Constitution. This Court had pointed out that the reservation to the post as per the roster for the purpose of promotion is valid in law. The same can be filled up applying the roster points prescribed by the Government. When a candidate belonging to the backward classes was appointed by promotion on merit, he cannot be considered to be reserved candidate but the candidate appointed on rule of reservation to be filled up in roster point available to the reserved candidates. In Chetan Dilip Motghare v. B. L. Education Society Nagpur (1995) Supp (1) SCC 157 : (1994 AIR SCW 1865) a Bench of two Judges of this Court considered whether reservation to single post could be valid in law. Though the decision in Vidyulata Arvind Kakade's case was brought to the notice of the learned Judges, the learned Judges found that it did not lay down any contra principle to the one laid down by this Court in Paswan's case (AIR 1988 SC 959) and, therefore, it was held that single point post could not be reserved for promotion. With due respect, we hold that the learned Judges have not correctly appreciated the ratio laid down by this Court in Vidyulata's case and Arti Choudhry's case (AIR 1974 SC 532). In State of Bihar v. Bageshwardi Prasad, (1995) Suppl (1) SCC 432, the Bihar Government had provided by way of a circular, the rule of rotation to a single post and applied the roster point for providing promotion to the vacancies that had arisen in accordance with roster point. This Court had upheld the rule of reservation and held that reservation to the single post by applying the rule of rotation is not violative of Arts. 14 and 16(1) of the Constitution. The judgment in Pasvan's case (AIR 1988 SC 959) was distinguished.
10. Thus, we hold that even though there is a single post, if the Government have applied the rule of rotation and the roster point to the vacancies that had arisen in the single point post and were sought to be filled up by the candidates belonging to the reserved categories at the point on which they are eligible to be considered, such a rule is not violative of Art. 16(1) of the Constitution.
12. Nevertheless, in State of Karnataka & others v. K. Govindappa & another (supra), it could be held by the Apex Court that in no case could reservation be made applicable in respect of single post. Paragraphs 15 to 20 of the judgment read thus:-
15. Reference was lastly made to another Constitution Bench decision in the case of Post Graduate Institute of Medical Education and Research vs. Faculty Association [(1998) 4 SCC 1], wherein the views expressed in the earlier decisions relating to reservation in a single post again came up for consideration. Reversing the views expressed earlier in Union of India vs. Madhav (supra) and in other similar cases, the Constitution Bench held that there could be no reservation in respect of a single post cadre as by applying the rule of rotation, the single post could become a reserved post, which was contrary to the Constitutional scheme which did not permit 100% reservation in a single post. While trying to reconcile the view of the Constitution Bench in Arati Ray Choudhary's case (supra), it was explained that the decision rendered therein was in the context of the "carry forward" principle and did not support reservation in a single cadre post.
16. Mr. Hegde submitted that since the posts of Lecturers in the college constituted one single cadre, only the roster principle would apply, as had been made applicable in the instant case and the High Court had erred in treating each discipline as a separate unit for the purpose of reservation. It was submitted that the impugned orders passed by the learned Single Judge, as also the Division Bench, were liable to be set aside.
17. Responding to Mr. Hegde's submissions, Mr. P.P. Singh, learned advocate, reiterated the stand taken on behalf of the respondent No.1 before the High Court and submitted that the post of Lecturer in History being a single post, the question of reservation did not arise as that would amount to 100% reservation, which would offend the constitutional mandate of Articles 14 and 16(1) of the Constitution. Mr. Singh referred to the letter dated 28th July, 1994, addressed to the Joint Director, Department of Public Instruction, Bangalore Division, on behalf of the college seeking approval of the appointment of the respondent No.1 as permanent Lecturer in History, wherein it had been explained that no application for appointment had been received from any Scheduled Tribes candidate and that the respondent No.1 was the only candidate for the post.
18. Mr. Singh submitted that the judgment of the High Court was based on sound principles of law which did not warrant any interference in the appeal.
19. While adopting Mr. Singh's submissions, Ms. E.R. Sumathy, learned advocate appearing for the respondent No.2 college, urged that the decision in Arati Ray Choudhary's case involved two schools being run by the South Eastern Railways, where plurality of posts existed which made it possible to apply the rule of rotation since the bar of 100% reservation would not be applicable in the facts of the case. Mr. Sumathy submitted that the principle enunciated in Arati Ray Choudhury's case would not be applicable in the instant case where only one institution was involved and Lecturers of such separate discipline formed a single cadre.
20. We have carefully considered the submissions made on behalf of the respective parties and the decisions cited by learned counsel in support thereof. In dealing with the issue raised in this appeal, it has to be kept in mind that some of the earlier decisions in Madhavi's case (supra), in the case of Suresh Chandra as J.B. Agarwal [(1997) 5 SCC 363 and Post Graduate Institute of Medical Education & Research vs. K.L. Narasimhan, [(1997) 6 SCC 283, in which reservation by rotation even in respect of a single post had been approved, was subsequently overruled in the Constitution Bench decision in the case of Post Graduate Institute of Medical Education & Research vs. Faculty Association (supra) and it was held that in no case could reservation be made applicable in respect of a single post. The Constitution Bench approved the views expressed in Dr. Chakradhar Paswan's case (supra) following those expressed by the earlier Constitution Bench in Arati Roy Choudhary's case (supra). In view of the above, the only question which we are called upon to consider is whether the High Court was right in treating the post of Lecturer in History in the respondent No.2 college as a single isolated post forming a separate cadre in itself and not part of the cadre of Lecturers comprising all the different disciplines taught in the college.
13. Though both the judgments, viz. Union of India & another v. Madhav s/o Gajanan Chaubal & another (supra) and State of Karnataka & others v. K. Govindappa & another (supra) are delivered by the Division Benches of the Honble Supreme Court, nevertheless it is stare decisis that when there are two conflicting judgments delivered by the Benches of equal strength, the subsequent judgment would hold the field. Moreover, in State of Karnataka & others v. K. Govindappa & another (supra), the Apex Court passed the order after taking note of most of the judgments on the subject, including the judgment passed in Union of India & another v. Madhav s/o Gajanan Chaubal & another (supra), relied upon by the respondents.
14. Being bound by the judgment of Apex Court in State of Karnataka & others v. K. Govindappa & another (supra), we are of the view that the single post of Assistant Professor (Lecturer (History)) could not have been kept reserved for SC category and the applicant could not have been nixed consideration for appointment to the same on the ground that he did not belong to reserved category.
15. As far as the plea of the applicant being overage raised on behalf of the respondents is concerned, we find that the applicant had earlier joined O.A. No.1348/2001, filed before this Tribunal, to seek regular appointment and the same was disposed of with the following directions:-
(a) The impugned advertisement dated 15.04.2001 inviting applications for ad hoc appointment for the post of Lecturer, which the applicants have been holding, is quashed and set aside.
(b) The respondents shall permit all the applicants to continue to work in the post they are/were holding on ad hoc basis without subjecting them to any fresh selections or interviews for holding such ad hoc post till such time, replacement regularly selected by the UPSC arrive to join duty.
(c) If the services of any one of the applicants have been terminated, he/she should be re-engaged and permitted to continue till regular appointee is report for duty, though such persons would not be entitled for back wages during the period between their dis-engagement and re-appointment.
(d) All the applicants would be entitled for monetary benefits like pay and allowances, increments and service benefits like leave etc. as are granted to a regular staff.
(e) The applicants shall also be permitted to appear for selection for regular appointment in accordance with the Rules. No costs.
16. When the aforementioned directions, including the one for permitting the applicant to appear in selection for regular appointment, were issued by this Tribunal, it was not held that he would be considered in the selection with relaxed age limit or by giving him age relaxation for ad hoc service rendered by him in IMA, Dehradun. Maybe, for the reason that the cause of action for filing the present Original Application, was Advertisement No.01 published in the Employment News dated 8-14.1.2011 and the same in O.A. No.1348/2001 being the Advertisement dated 15.4.2001 inviting the applications for ad hoc appointment, the plea of res judicata raised on behalf of the respondents is liable to be rejected, but when in the earlier Original Application the issue of regular appointment of the applicant was in question and a direction in this regard was issued, the question of entitlement of the applicant for age relaxation to the extent of ad hoc service rendered by him ought to have been addressed to. In terms of the principle of constructive res judicata, a plea, which ought to have been raised in the previous litigation, though not raised specifically, would operate res judicata in the subsequent proceedings. It is not in dispute that the maximum age limit for the post of Assistant Professor (History) (ibid) was 35 years and as on cut-off date the applicant has exceeded the same. In the wake of O.A. No.1348/2001, we cannot, in the present Original Application, adjudicate the proposition whether he should be considered for the post in question with relaxed age or with relaxation of age limit to the extent of ad hoc service rendered by him or not. No efforts were made on behalf of the applicant to rebut the plea raised on behalf of respondent No.5 regarding the applicant being overage for the post or to establish that in the year 2001 when the O.A. No.1348/2001 was adjudicated he was within the prescribed age limit for the post. Though we could have given direction to the respondents to hold a fresh selection for the post of Lecturer (History) but since we are inclined to accept the plea of respondent No.5 that the applicant herein is overage for the post in question and no relief can be granted to him, we refrain from venturing into the arena of public interest and nix the reliefs sought for in the present Original Application.
17. Original Application is according dismissed. No costs.
( Dr. B.K. Sinha ) ( A.K. Bhardwaj ) Member (A) Member (J) /sunil/