Central Administrative Tribunal - Delhi
Vinod Kumar Verma vs Union Of India Through on 24 May, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA No.915/2013 MA 707/2013 New Delhi this the 24th day of May, 2013 Honble Mr. A.K.Bhardwaj, Member (J) 1. Vinod Kumar Verma, S/o Shri Jay Gopal Verma, R/o 5L, 26B, NIT, Near 4-5 Chowk, Faridabad. 2. Devki Nandan S/o Sh Jaypal Singh, R/o H.No. 788, Sector-7, R.K.Puram, New Delhi-22. 3. Ved Parkash S/o Shri Sita Ram, R/o 55L, 26B, NIT, Near 4-5, Chowk, Faridabad. 4. Shyamen Dra Kaushal S/o Sh. Achhelal Yadav, R/o H.No. 6A, Room No. 30, Ber Sarai, Near Old JNU, New Delhi-16. Applicants (By Advocate Shri Srigopal Aggarwal) VERSUS 1. Union of India through Secretary, M/o Statistics & Programme Implementation, Sardar Patel Bhawan, New Delhi-01 2. Dy. Director General, NSSO (FOD), Delhi Region, East Block-6, Level-5, R.K.Puram, New Delhi-66 3. Dy. Director General NSSO (FOD), Old CGO Complex, NH IV, Faridabad-121001. Respondents (By Advocate : Mrs. Avinash Kaur ) O R D E R
National Sample Survey Office (NSSO) under the Ministry of Statistics & Programme Implementation undertakes sample surveys for planning and policy formulation by Government of India. Sample Surveys are being conducted by the Department for effective formulation and implementation of various Government policies pertaining to subjects of National interest like poverty, un-employment, education and price collection etc. The primary field work for carrying out the field job of collection of data in socio economic and other Surveys is done by a cadre of officers called Assistant Superintending Officer (ASO). As per statutory rules and procedure, the recruitment to the post of ASO in FOD is made through the Staff Selection Commission, a Government organization. In the process of engagement of Field Instigators on contractual basis as a stop gap arrangement purely temporary in nature, the NSSO invited applications from eligible candidates. On the basis of assessment by a Selection Board, the applicants along with others were engaged as Field Investigator on contract basis initially for a specific period on a consolidated remuneration of Rs.11000/- p.m. The consolidated remuneration was subsequently enhanced to the tune of Rs.15000/- vide Office Memo F.No.A-12026/1(A)2011-E.II dated 16.04.2012 (Annexure R-III) and their engagement was expended uto 31.12.2012 vide Office Memo No.A-12026/1 (A)/2011-E.II dated 28.05.2012 (Annexure R-III). Yet again, the engagement was extended upto March, 31.03.2013. In September, 2012, the NSSO (Respondent herein) proposed to outsource the job of Field Investigators through an agency involved in providing manpower to Government and invited quotations from interested agencies. Nevertheless, they dropped the process and decided to invite fresh applications for engagement as Field Investigator vide Office Memo No.A-12026/1 (A)/2012-E.II dated 4.01.2013. The applicants herein also applied for their first contractual appointment, but they could not be selected by the Assessment Board. The Assessment Board recommended 10 candidates for their engagement and retained 12 candidates in the panel for being engaged subject to enhanced need of Field Investigators. A brief detail of assessment of performance of candidates by the Board including the applicants and those were selected for contract appointment by the Board, reads as under:-
Engagement of Field Investigator on Contract Basis during the year 2013 Details of Field Investigators selected for FARIDABAD OFFICE Sl.
No. Name Fluency in Local language (10) GK awareness (15) Knowledge of subject studied (15) Personality (15) Knowledge of Computer (15) Aptitude of Suitability for field survey (15) Experience in Survey & data collection (15) Total Marks (100) Remarks
1. Archna Saxena 08 08 08 08 7 10 13 62 *
2. Latika 09 08 12 10 11 10 0 60 $
3. Ankit Gupta 08 10 10 08 12 10 0 58 $
4. Rakesh Kumar 06 07 06 07 10 10 12 58 *
5. Uma Varshney 08 12 11 08 09 10 0 58 $
6. Ankesh Singhal 07 06 10 07 08 12 06 56 *
7. Dharmesh Kumar 08 06 06 07 08 10 11 56 *
8. Kavita 08 07 07 07 07 09 10 55 *
9. Kapil 08 04 06 08 09 09 10 54 *
10. Karamveer Singh 08 07 08 05 05 09 12 54 *
11. RakeshAnand Pandey 07 06 06 05 10 08 12 54 * 12 Mushtaq Ahmed 09 05 06 07 06 08 12 53 *
13. Brij Bala 07 05 05 07 10 09 09 52 *
14. Himanshu Mouiya 06 03 05 08 10 10 10 52 *
15. Manoj Kumar 08 02 06 06 08 10 12 52 *
16. Jitender Kumar 06 04 08 05 08 06 14 51 *
17. Akbar Ali 07 07 06 08 08 06 08 50 *
18. Amrita Singh Yadav 05 04 06 07 10 10 08 50 *
19. Kalpana 08 02 06 08 08 09 09 50 *
20. Mahender Kumar 08 06 06 06 09 07 08 50 *
21. Ravinder Yadav 09 05 06 06 06 08 09 49 *
22. Amit Tomar 06 06 05 05 10 08 08 48 * NOTE: In the panel of 22, twelve candidates were offered engagement letters. Requirement of Fls: 10 Out of 17 Field Investigators selected in the year 2011, 11 applied in response to the advertisement in January, 2013 Out of which 5 could figure in the merit list. 3 have been given re-engagement. Sl.No.15, 16 are in the panel. Drop out are 6 i.e. Four Applicants +2 ( S/Shri Satpal & Anil Kumar Sen secured 40 & 31 respectively)
1. Shyamender Kaushal 08 05 06 03 06 06 06 40
2. Vinod Kumar Verma 08 05 06 08 06 07 06 46
2. Devki Nandan 05 05 04 05 06 08 12 45
4. Ved Prakash 06 03 04 06 06 07 06 38 Aggrieved by non extension of their contractual appointment, applicants have filed the present OA praying therein:-
(i) to direct the respondents to extend the services of the applicants for another terms on contractual basis or until the final disposal of this OA.
(ii). to direct the respondents that the services of the applicants will not be replaced by the fresh faces I i.e. fresh contract Field Investigators) and that they can only be replaced by the officials appointed on regular basis.
(iii). to allow any other relief which this Honble Tribunal deem fit under the facts and circumstances of the case.
(iv). to allow costs.
2. Counsel for the applicants submitted with aplomb that:
The subrogation of services of applicants by fresh contractual employee as Field Investigator is against the law of land and contrary to the order of Chandigarh Bench of this Tribunal in Vandana Jain and Ors Vs. Union of India and Ors ( 2012 (1) CAT 55).
He also placed reliance on the judgment of the Honble Supreme Court in A.L.Kalra Vs. Project and Equipment Corporation of India Ltd (1984 (3) SCC316), Management of M/s M.S. Nally Bharat Engineering Co Ltd Vs. State of Bihar and Ors ( 1990 (2) SCC 48) and S.T.Rooplal and Anr. Vs. Lt. Governor through Chief Secretary, Delhi and Others (2000 (2) AISLJ 395).
3. In the counter reply filed on behalf of respondents, it is pleaded that the applicants while working as Field Investigators on contract basis were fully aware of the nature of their engagement and signed the terms and conditions of contract on their own volition with open eyes, thus have no legitimate claim for continuance of their engagement. Their engagement was for specific period on clear terms & conditions. The fresh hands also have been given contractual appointment only for 9 = months from 1.04.2013. Even some of the Field Investigator, who could be assessed comparatively meritorious by the Board have also been given contractual appointment afresh. They also placed reliance upon the judgment of Honble Supreme Court in Secretary, State of Karnataka and others Vs Umadevi (3) and others (2006)4 SCC 1). According to them, when a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognized by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature.
4. I have heard counsel for parties and perused the record.
5. The applicants were engaged as Field Investigators w.e.f. 10.08.2011 for the period upto 31.03.2012, i.e. for eight months. In terms of clause 7 of the letter dated 27.07.2011, they were required to sign the agreement of contract. In view of the pleadings and rival contentions of the parties, following propositions arise to be determined by this Tribunal:-
(i) Whether the services of a person appointed on contract employee can be substituted by engaging another set of contractual employee.
(ii) Whether having submitted applications to compete with fresh hands for their further engagement on contract basis and remaining unsuccessful, the applicants can question the denial of further contractual employment to them
(iii). Whether in the absence of any challenge to the selection for the post of Field Investigator in which they remained unsuccessful, the applicants could question the non extension of their contractual appointment.
(iv). Whether a Bench of this Tribunal can take a view different from the one taken by the co-ordinate Bench of equal strength.
6. As far as right of a contractual employee to continue in service beyond the terms of engagement is concerned, the question has been dealt with extensively by Honble Supreme Court in the case of Secretary, State of Karnataka and Ors Vs. Uma Devi (2006 (4) SCC 1). In the said case, Honble Supreme Court viewed that the contractual appointment comes to an end at the end of the contract and the High Court under Article 226 of the Constitution should not ordinarily issue directions for absorption, regularization, or permanent continuance of such employees unless the recruitment itself was made regularly and in terms of the constitutional scheme. In para 45 of the judgment, it is viewed that if the contractual employee accepts the employment with open eyes and knew the nature of employment, such appointment is not an appointment to the post in the real sense of the term. It is ruled by Honble Supreme Court that the argument that since one has been working for some time on the post, it will not be just to discontinue him even though he was aware of the nature of the employment when he first took it up, is one that would enable the jettisoning of the procedure established by law for public employment and would have to fail when tested on the touchstone of constitutionality and equality of opportunity enshrined in Article 14 of the Constitution of India. Contractual employee cannot even invoke the theory of legitimate expectations. For easy reference, paras 43, 45, 47 and 48 of the judgment are extracted hereinbelow:-
43. Thus, it is clear that adherence to the rule of equality in public employment is a basic feature of our Constitution and since the rule of law is the core of our Constitution, a Court would certainly be disabled from passing an order upholding a violation of Article 14 or in ordering the overlooking of the need to comply with the requirements of Article 14 read with Article 16 of the Constitution. Therefore, consistent with the scheme for public employment, this Court while laying down the law, has necessarily to hold that unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee. If it is a contractual appointment, the appointment comes to an end at the end of the contract, if it were an engagement or appointment on daily wages or casual basis, the same would come to an end when it is discontinued. Similarly, a temporary employee could not claim to be made permanent on the expiry of his term of appointment. It has also to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent, merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by the relevant rules. It is not open to the court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right. High Courts acting under Article 226 of the Constitution of India, should not ordinarily issue directions for absorption, regularization, or permanent continuance unless the recruitment itself was made regularly and in terms of the constitutional scheme. Merely because, an employee had continued under cover of an order of Court, which we have described as 'litigious employment' in the earlier part of the judgment, he would not be entitled to any right to be absorbed or made permanent in the service. In fact, in such cases, the High Court may not be justified in issuing interim directions, since, after all, if ultimately the employee approaching it is found entitled to relief, it may be possible for it to mould the relief in such a manner that ultimately no prejudice will be caused to him, whereas an interim direction to continue his employment would hold up the regular procedure for selection or impose on the State the burden of paying an employee who is really not required. The courts must be careful in ensuring that they do not interfere unduly with the economic arrangement of its affairs by the State or its instrumentalities or lend themselves the instruments to facilitate the bypassing of the constitutional and statutory mandates.
xxx xxx xxx 45. While directing that appointments, temporary or casual, be regularized or made permanent, courts are sway ed by the fact that the concerned person has worked for some time and in some cases for a considerable length of time. It is not as if the person who accepts an engagement either temporary or casual in nature, is not aware of the nature of his employment. He accepts the employment with eyes open. It may be true that he is not in a position to bargain -- not at arms length -- since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets. But on that ground alone, it would not be appropriate to jettison the constitutional scheme of appointment and to take the view that a person who has
temporarily or casually got employed should be directed to be continued permanently. By doing so, it will be creating another mode of public appointment which is not permissible. If the court were to void a contractual employment of this nature on the ground that the parties were not having equal bargaining power, that too would not enable the court to grant any relief to that employee. A total embargo on such casual or temporary employment is not possible, given the exigencies of administration and if imposed, would only mean that some people who at least get employment temporarily, contractually or casually, would not be getting even that employment when securing of such employment brings at least some succor to them. After all, innumerable citizens of our vast country are in search of employment and one is not compelled to accept a casual or temporary employment if one is not inclined to go in for such an employment. It is in that context that one has to proceed on the basis that the employment was accepted fully knowing the nature of it and the consequences flowing from it. In other words, even while accepting the employment, the person concerned knows the nature of his employment. It is not an appointment to a post in the real sense of the term. The claim acquired by him in the post in which he is temporarily employed or the interest in that post cannot be considered to be of such a magnitude as to enable the giving up of the procedure established, for making regular appointments to available posts in the services of the State. The argument that since one has been working for some time in the post, it will not be just to discontinue him, even though he was aware of the nature of the employment when he first took it up, is not one that would enable the jettisoning of the procedure established by law for public employment and would have to fail when tested on the touchstone of constitutionality and equality of opportunity enshrined in Article 14 of the Constitution of India.
xx xxx
47. When a person enters a temporary employment or gets engagement as a contractual or casual worker and the engagement is not based on a proper selection as recognized by the relevant rules or procedure, he is aware of the consequences of the appointment being temporary, casual or contractual in nature. Such a person cannot invoke the theory of legitimate expectation for being confirmed in the post when an appointment to the post could be made only by following a proper procedure for selection and in concerned cases, in consultation with the Public Service Commission. Therefore, the theory of legitimate expectation cannot be successfully advanced by temporary, contractual or casual employees. It cannot also be held that the State has held out any promise while engaging these persons either to continue them where they are or to make them permanent. The State cannot constitutionally make such a promise. It is also obvious that the theory cannot be invoked to seek a positive relief of being made permanent in the post.
48. It was then contended that the rights of the employees thus appointed, under Articles 14 and 16 of the Constitution, are violated. It is stated that the State has treated the employees unfairly by employing them on less than minimum wages and extracting work from them for a pretty long period in comparison with those directly recruited who are getting more wages or salaries for doing similar work. The employees before us were engaged on daily wages in the concerned department on a wage that was made known to them. There is no case that the wage agreed upon was not being paid. Those who are working on daily wages formed a class by themselves, they cannot claim that they are discriminated as against those who have been regularly recruited on the basis of the relevant rules. No right can be founded on an employment on daily wages to claim that such employee should be treated on a par with a regularly recruited candidate, and made permanent in employment, even assuming that the principle could be invoked for claiming equal wages for equal work. There is no fundamental right in those who have been employed on daily wages or temporarily or on contractual basis, to claim that they have a right to be absorbed in service. As has been held by this Court, they cannot be said to be holders of a post, since, a regular appointment could be made only by making appointments consistent with the requirements of Articles 14 and 16 of the Constitution. The right to be treated equally with the other employees employed on daily wages, cannot be extended to a claim for equal treatment with those who were regularly employed. That would be treating unequals as equals. It cannot also be relied on to claim a right to be absorbed in service even though they have never been selected in terms of the relevant recruitment rules. The arguments based on Articles 14 and 16 of the Constitution are therefore overruled. While commenting upon the substitution of ad hoc or temporary employees by another ad hoc and temporary employees, their Lordships viewed that the direction made in para 50 of the judgment was inconsistent with the view propounded by the Constitution Bench in the case before it (Secretary, State of Karnataka and Ors Vs. Uma Devi). Finally, in the said case, it was also clarified that those decisions which run counter to the principle settled or directions which run counter to what has been held by the Honble Supreme stand denuded of their status as precedents. Paras 25, 26 and 54 of the judgment read as under:-
25. This Court then concluded in paragraphs 45 to 50:
"The normal rule, of course, is regular recruitment through the prescribed agency but exigencies of administration may sometimes call for an ad hoc or temporary appointment to be made. In such a situation, effort should always be to replace such an ad hoc/temporary employee by a regularly selected employee as early as possible. Such a temporary employee may also compete along with others for such regular selection / appointment. If he gets selected, well and good, but if he does not, he must give way to the regularly selected candidate. The appointment of the regularly selected candidate cannot be withheld or kept in abeyance for the sake of such an ad hoc/temporary employee.
Secondly, an ad hoc or temporary employee should not be replaced by another ad hoc or temporary employee; he must be replaced only by a regularly selected employee. This is necessary to avoid arbitrary action on the part of the appointing authority.
Thirdly, even where an ad hoc or temporary employment is necessitated on account of the exigencies of administration, he should ordinarily be drawn from the employment exchange unless it cannot brook delay in which case the pressing cause must be stated on the file. If no candidate is available or is not sponsored by the employment exchange, some appropriate method consistent with the requirements of Article 16 should be followed. In other words, there must be a notice published in the appropriate manner calling for applications and all those who apply in response thereto should be considered fairly.
An unqualified person ought to be appointed only when qualified persons are not available through the above processes.
If for any reason, an ad hoc or temporary employee is continued for a fairly long spell, the authorities must consider his case for regularization provided he is eligible and qualified according to the rules and his service record is satisfactory and his appointment does not run counter to the reservation policy of the State "
26. With respect, why should the State be allowed to depart from the normal rule and indulge in temporary employment in permanent posts? This Court, in our view, is bound to insist on the State making regular and proper recruitments and is bound not to encourage or shut its eyes to the persistent transgression of the rules of regular recruitment. The direction to make permanent -- the distinction between regularization and making permanent, was not emphasized here -- can only encourage the State, the model employer, to flout its own rules and would confer undue benefits on a few at the cost of many waiting to compete. With respect, the direction made in paragraph 50 of Piara Singh (supra) are to some extent inconsistent with the conclusion in paragraph 45 therein. With great respect, it appears to us that the last of the directions clearly runs counter to the constitutional scheme of employment recognized in the earlier part of the decision. Really, it cannot be said that this decision has laid down the law that all ad hoc, temporary or casual employees engaged without following the regular recruitment procedure should be made permanent.
xxx xxx xxx
54. It is also clarified that those decisions which run counter to the principle settled in this decision, or in which directions running counter to what we have held herein, will stand denuded of their status as precedents.
In view of aforementioned, it is clear that a contractual employee does not acquire any right either to continue in service beyond the term of contractual appointment or for regularization. The law declared by Honble Supreme Court in State of Haryana & Ors Vs. Piara Singh and Ors etc ( JT 1992 (5) SC 179), i.e. the direction contained in para 50 of the judgment was declared inconsistent to the view taken in the case of Secretary, State of Karnataka and Ors Vs. Uma Devi (ibid). In the said para, it had been viewed that the order issued by the Government of Punjab and Haryana providing for regularization of adhoc/temporary employee who have put in two years/one year service are quite generous and leave no room for any legitimate grievance by any one. For easy reference, said para is extracted hereinbelow:-
50. We must also say that the orders issued by the Governments of Punjab and Haryana providing for regularisation of adhoc/temporary employees who have put in two years/one year of service are quite generous and leave no room for any legitimate grievance by any one. The directions that ad hoc or temporary employee should not be replaced by another set of ad hoc or contractual employee was not adversely commented upon.
7. In Vandana Jain & Ors Vs. Union of India and Ors ( 2012 (1) AISLJ CAT 55), Chandigarh Bench of this Tribunal viewed that the contractual employees may not be substituted by another set of contractual employees. In para 45 of the order, it found no distinction between ad hoc employee and contractual employee inasmuch as both were engaged for a definite term and performed same duties and functions. Para 45 of the judgment reads as under:-
In the case of Raj Bala v.State of Haryana & Ors (2002(3)RSJ 43 a division Bench of Punjab & Haryana High Court had the occasion to consider the claim made by the contractual employees (mistresses, teachers and lecturers etc.) for the grant of maternity benefit. Their claim was resisted by the State Government on a plea that they were not entitled to the grant of maternity leave as their appointments were of contractual character. That contention was rejected by the High Court by relying upon the view obtained by the Apex Court in the case of Rattan Lal & Others v. State of Haryana & Others (supra). In that decision, it was held that there was hardly any distinction between an ad hoc employee and a contractual employee inasmuch as both were engaged for a definite term and they performed the same duties and functions. In that case, the State had placed reliance upon a decision in the case of Santosh Malik v. State of Haryana (2000 (2) RSJ 765 in which was held that maternity leave was not permissible to the part-time employees. Even in State of Haryana and Ors Vs. Piara Singh and Ors etc.etc. (ibid) also it has been held that temporary employee should not be permitted to be replaced by another ad hoc or temporary employee, he must be replaced only by regularly selected candidates. However, in Secretary, State of Karnataka and Ors Vs. Uma Devi (ibid), in Constitutional Bench judgment, it could be held that there may be occasion when Union or State government may have to employ persons in posts which are temporary, as additional hands without following required procedure, to discharge duties in respect of posts on projects that one needed permanently. No doubt the services of a contractual employee working for quite some time may not be replaced by another contractual employee arbitrarily but there is another issue, i.e. whether employer can be forced to tolerate contractual employee once engaged till he is substituted by regularly selected incumbents, irrespective of his efficiency/competence/merit or suitability. The answer should be unequivocally no. In the cited case, the respondents carried fresh engagement of process ignoring the applicants substituting their services and this Act of substitution could not withstand the test of judicial scrutiny. But here the respondents gave an opportunity to applicants also to prove their competence and merit for contractual employment for another term and those who were considered most suitable for the job were given the appointment. In such situation, unless the selection process is vitiated and questionable, the engagement of contractual employees different from those who already worked may not be found at fault. May be those who were already engaged as contractual employee after being tested in terms of the selection process might question the fresh test conducted for their contractual appointment itself, but in the present case it is not so. Having applied for their fresh contractual appointment and participated in the selection, the applicant approached the Tribunal only when they could not find place in the panel of selected candidates.
8. It is stare decisis that those who participated in the selection and remained unsuccessful may not question the same. In this connection, we may refer to the decision of the Supreme Court in Dr. G. Sarana Vs. University of Lucknow & Ors. reported in (1976) 3 SCC 585 wherein also a similar stand was taken by a candidate and in that context the Supreme Court had declared that the candidate who participated in the selection process cannot challenge the validity of the said selection process after appearing in the selection process and taking opportunity of being selected. Para 15 inter alia reads thus:-
"15.... He seems to have voluntarily appeared before the Committee and taken a chance of having a favourable recommendation from it. Having done so, it is not now open to him to turn round and question the constitution of the Committee."
27. In Union of India and Others vs. S. Vinodh Kumar and Others reported in (2007) 8 SCC 100 at paragraph:
18.. it was held that it is also well settled that those candidates who had taken part in the selection process knowing fully well the procedure laid down therein were not entitled to question the same.
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13. To similar effect is the another decision of the Apex Court in Manish Kumar Shahi v. State of Bihar & others, (2011) 1 SCC (L&S) 256 where, in paragraph 16, the Apex Court has held as follows:
16. We also agree with the High Court that after having taken part in the process of selection knowing fully well that more than 19% marks have been earmarked for viva voce test, the petitioner is not entitled to challenge the criteria or process of selection. Surely, if the petitioners name had appeared in the merit list, he would not have even dreamed of challenging the selection. The petitioner invoked jurisdiction of the High Court under Article 226 of the Constitution of India only after he found that his name does not figure in the merit list prepared by the Commission. This conduct of the petitioner clearly disentitles him from questioning the selection and the High Court did not commit any error by refusing to entertain the writ petition. Reference in this connection may be made to the judgments in Madan Lal v. State of J&K, (1995) 3 SCC 484, Marripati v. Govt. of A.P., (2007) 11 SCC 522, Dhananjay Malik v. State of Uttranchal, (2008) 4 SCC 171, Amlan Jyoti Borooah v. State of Assam, (2009) 3 SCC 227 and K.A. Nagamani v. Indian Airlines, (2009) 5 SCC 515. In the case of R.S.Dass Vs.UOI & Others ( 1986 (Supp) SCC 617), the Honble Supreme held that-
The Selection Committee is constituted by high ranking responsible officers presided over by Chairman or a Member of the Union Public Service Commission. There is no reason to hold that they would not act in fair and impartial manner in making selection, and The Selection Committee and the Commission both include persons having requisite knowledge, experience and expertise to assess the service records and ability of adjudge the suitability of officers. In this view we find no good reasons to hold that in the absence of reasons the selection would be made arbitrarily.
(ii) In the case of UPSC Vs. H.L.Dev and Ors (AIR 1988 SC 1069) it has been held:-
How to categorize in the light of relevant records and what norms to applying in making the assessment are exclusively the functions of the Selection Committee. The jurisdiction to make the selection is vested in the Selection Committee.
(iii) The view taken in the case of Dalpat Abasahab Solanke Vs. Mahajan1990 SC 434) read as under:-
it is needless to emphasize that it is not the function of the Court to hear appeals over the decisions of the Selection Committees and to scrutinize the relative merits of the candidates. Whether a candidate is fit for a particular post or not has to be decided by the duly constituted Selection Committee which has the expertise on the subject. The Court has no such expertise. In the case of UPSC vs. L.P.Tiwari & ors ( 2006 (12) Scale 278), the Honble Supreme held that-
It is now more or less well settled that the evaluation made by an expert committee should not be easily interfered with by the Courts which do not have the necessary expertise to undertake the expertise that is necessary for such purpose. Such view was reiterated as late as in 2005 in the case of UPSC vs. K.Rajaiah and Ors reported in (w2005) to SCC 15, wherein the aforesaid rules for the purpose of promotion to the I.P.S. Cadre was under consideration. In the case of M.V.Thummaiah & Ors Vs. UPSC & Ors (Appeal (Civil) 5883-5891 of 2007), the Honble Supreme Court held that-
Normally, the recommendations of the Selection Committee cannot be challenged except on the ground of malafides or serious violation of the statutory Rules. The Courts cannot sit as an appellate authority to examine the recommendations of the Selection Committee like the Court of appeal. This discretion has been given to the Selection Commission only and Court rarely sit in court of appeal to examine the selection of the candidates nor is the business of the Court to examine each candidate and record its opinion. As has been noticed hereinabove, in the absence of any challenge to selection in which they participated and remained unsuccessful, the applicants could not get the relief for their fresh engagement/continuation as contractual employee ahead of those who stood higher than them in merit. As has been held in S.I.Rooplal and Anr. Vs. Lt. Governor through Chief Secretary, Delhi and Ors ( 2000 (2) AISLJ 395), it is hardly necessary to emphasize that considerations of judicial propriety and decorum require that if a learned single Judge hearing a matter had to take the view that the earlier decision of the High Court, whether of a Division Bench or single Judge, need to be re-considered, he should not embark upon that enquiry sitting as a single Judge, but should refer the matter to a Division Bench, or in a proper case, place the relevant papers before the Chief Justice to enable him to constitute a larger Bench to examine the question.
9. In the present case, for their appointment as contractual employee for another term, the applicants submitted their application in response to OM dated 4.01.2013 and participated in the selection. Only when they did not find place in the select panel, they filed the present OA. Such was not the issue before the Chandigarh Bench in Vandana Jain and Ors Vs. Union of India and Ors (ibid). In the said case it could be viewed that a contractual employee cannot be substituted by another contractual employee. I respectfully agree with the view so taken. But I am unable to direct the respondents to continue the applicants as contractual employee ahead of those candidates who are selected by the selection process initiated by OM dated 4.01.2013, for the simple reason, that the applicants participated in the selection and could not find place in the select panel.
10. In the facts and circumstances of the case and in the prevalent situation, the only relief admissible may be that in future selection of contractual Field Investigator, if any made by the respondents, due weightage should be given to the past experience, work and conduct of the applicants. Ordered accordingly.
OA stands disposed of.
(A.K.Bhardwaj) Member (J) sk