Central Administrative Tribunal - Delhi
Vinnet Dodhal vs Union Of India on 1 September, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH : NEW DELHI O.A. NO.2594/2010 New Delhi, this the 1st day of September, 2010 CORAM: HONBLE MR. SHANKER RAJU, MEMBER (J) HONBLE DR. VEENA CHHOTRAY, MEMBER (A) 1. Vinnet Dodhal S/o Shri Murari Lal Sharma C/o Jasvinder Singh, Opposite Gurudwara, H1-11/12, New Seelampur, Delhi 110 053 2. Ranbeer Singh Rajput, S/o Shri Parbat Singh Rajput, C/o Jasvinder Singh, Opposite Gurudwara, H1-11/12, New Seelampur, Delhi 110 053 . Applicants (By Advocate: Ms Nidhi Bisaria) Versus 1. Union of India, Through the Secretary, Ministry of Culture, (Archaeological Survey of India), New Delhi 2. Archaeological Survey of India Through its Director General, 10, Janpath, New Delhi 110 001 3. Staff Selection Commission, Through its Chairman/Secretary, Block No.12, CGO Complex, Lodhi Road, New Delhi 110 003 Respondents (By Advocate: Ms Rekha Palli for Respondents 1 &2 Shri S.M. Arif for Respondent 3) O R D E R By Dr. Veena Chhotray, Member (A):
The applicants, 2 in number are aspirants for the post of Assistant Archaeologists in the Office of Director General, Archaeological Survey of India. Through this OA they are challenging the advertisement dated 22nd September, 2009 for the posts of Assistant Archaeologists. Besides, the vires of the amended Recruitment Rules of the year 2006 as applicable to the post of Assistant Archaeologist also forms a subject of challenge.
In response to the prayer for interim relief, the Tribunal had vide its order dated 19.8.2010 directed the process undertaken pursuant to the aforesaid advertisement to remain on hold.
2. In response to the notice, a short affidavit has been filed on behalf of the respondent no.3, the Staff Selection Commission. The learned senior counsel, Shri S.M. Arif appearing on behalf of respondent no.3 would plead for vacation of the interim directions submitting that after short listing, the interview schedules have already been fixed and letters despatched to the candidates. The need for an early order in this case would be urged by the learned counsel. On the other hand, the applicants counsel, Ms. Nidhi Bisaria would make the submission that the issues raised in the present OA were vital not only to the two applicants in the present OA but as many as 75 similarly situated P.G. Diploma Holders, who stood affected by the impugned amendment in the Recruitment Rules and the advertisement. The learned counsel would, therefore, plead about the injustice being caused to all these persons in case the respondents were allowed to proceed with the recruitment process as proposed in this advertisement.
Considering the nature of the challenge and the claims and counter claims on both the sides, we find it would be in the needs of justice to pass a final order itself in the OA. Hence this order is being passed after a detailed hearing in which on behalf of the applicant, the learned counsel Ms Nidhi Bisaria, for the respondent no.2 the learned counsel Ms. Rekha Palli and for the respondent no.3 the learned counsel Shri S.M. Arif participated. We have taken into consideration the averments made by the learned counsels as well as the material on record including the documents submitted on 27.8.2010 on behalf of the learned counsel for the applicant and the relevant departmental file relating to Age Relaxation submitted by the learned counsel Ms. Rekha Palli.
3.1 The brief facts of the case are that the applicants are Post Graduate Diploma holders from the Institute of Archaeology under the ASI and they belong to the batches of 2003-05 and 2004-05. It is revealed from the records that there had been no recruitment for the post of Assistant Archaeologists under the ASI since 2005 and about 75 passed out students from the Institute of Archaeology had been waiting for appointment.
3.2 The post of Assistant Archaeologists are General Central Service Group B non-Gazetted non-Ministerial posts. As per the structure of Archaeology cadre in the ASI, this is at the lowest rung of the hierarchy to be filled hundred percent by direct recruitment. The next two levels are Assistant Superintendent Archaeologist (100% by promotion) and Deputy Superintending Archaeologist (60% by promotion and 40% by direct recruitment). The un-amended Rules in this case had been framed in the year 1993 (Annexure A/1 Colly). These Rules had been modified in the year 2006 in certain respects. In response to an RTI application on this subject, it had been stated by the ASI that the Recruitment Rules of 1993 had been reviewed as per the norms of the DoP&T prescribing a mandatory review of the existing Recruitment Rules after five years.
3.3 The applicants are aggrieved with the amended Rules on two counts (a) Non-prescription of the upper age limit of 32 years instead of 30 years in accordance with the Central Civil Services and Civil Posts (Upper Age Limit for Direct Recruitment Rules, 1998 (Annexure A/7 colly) and (b) the change in the prescribed educational qualifications by which instead of the earlier provision of treating the P.G. Diploma in Archaeology as an essential qualification, the same has now been treated as a desirable qualification.
3.4 It is further stated that the applicant had challenged the amended Recruitment Rules of 2006 vide the Writ Petition (Civil) No.3710 of 2007 before the Delhi High Court. However, vide the Honble High Court order dated 17.8.2009 the same was allowed to be withdrawn with liberty to approach this Tribunal for appropriate relief since the issue raised in the case falls within the jurisdiction of the Tribunal (Annexure A/5).
3.5 The applicants, however, kept on making a number of representations before the authorities to redress their grievances, which did not yield any result.
3.6 In August, 2009 the Staff Selection Commission brought out an advertisement in the Employment News dated 22 28t August 2009 for filling up certain posts for various Ministries/Offices of the Government of India. This, inter alia, included 54 posts of Assistant Archaeologist in the ASI. The age and educational qualifications mentioned in this advertisement were in accordance with the amended Rules, 2006. Both the applicants before us had applied for this post; however, as submitted by the learned counsel Shri Arif their names did not find a place amongst the short listed candidates called for interview.
This has occasioned filing of the present O.A.
4. Before dealing with the respective contentions of the learned counsels the prescribed eligibility qualifications as per the un-amended and the amended Rules are stated as below:
Un-amended Rules Assistant Archaeologist:
Essential:
Master Degree in Ancient or Medieval Indian History from a recognized university or equivalent.
OR M.A. or M.Sc with Archaeology or Anthropology from a recognized University or equivalent. Post-Graduate Diploma in Archaeology from the Institute of Archaeology of the Archaeological Survey of India or equivalent.
Note 1: Qualifications are relaxable at the discretion of the Staff Selection Commission in case of candidates otherwise well qualified.
Desirable:
Experience in the Archaeological field work for a minimum period of one year. Amended Rule:
EQ: (i) Masters Degree in Indian History with Ancient Indian History or Medieval Indian History as a subject or Master Degree in Archaeology or Anthropology with Stone-age Archaeology as a subject or Master Degree in Geology with Pleistocene Geology as a subject from a recognized University or equivalent;
OR Master Degree in Sanskrit or Pali or Arabic or Prakrit or Persian or Tamil or Telugu or Malayalam or Kannada or History of Art with Ancient or Medieval Indian History as a subject from a recognized University or equivalent.
D.Q : (I) Any higher qualification in the subject mentioned under essential qualification namely (i) Junior Research Fellowship or senior Research Fellowship or M. Phil or Ph. D. from a recognized University or equivalent.
Post Graduate Diploma in Archaeology from Archaeological Survey of India or Diploma in Epigraphy or Archaeology or Museology of a recognized University or equivalent.
1 year field experience in Archaeology.
5.1 The learned counsel, Ms. Nidhi Bisarias contention would have mainly two-fold thrust. The first relating to the nature of the duties of the post in question and the second regarding the various aspects of P.G. Diploma course. To establish her points, the learned counsel would contend that ASI requires trained personnel for carrying out activities of Survey which are substantially technical and scientific in nature. It would further be submitted that the due performance of these duties could not been expected from fresh Masters Degree holders, which now as per the amended Rules have been prescribed as the essential qualification. As regards the Post Graduate Diploma in Archaeology (PGDA) from the Institute of Archaeology it would be stated that this Diploma was conducted by the Institute of Archaeology itself which was an arm of the ASI.
Arguing about the qualitative aspects, the learned counsel would highlight details such as a limited intake of 15 students in every batch through an All India Entrance Examination from among the candidates possessing a minimum qualification of Masters Degree from UGC recognized Universities. It would further be stated that the trainees under this course were required to undergo a very rigorous two years training included theoretical and practical knowledge of various disciplines of Archaeology. Considering the importance of this course, the Government was spending crores of Rupees for running the Institute; charging no course fee from the trainees; providing them free lodging and also their traveling expenditure during various study tours.
5.2 The learned counsel, Ms Nidhi Bisaria would particularly emphasize the fact of an Indemnity Bond being taken from the trainees about their not taking up employment under any other body except the Government for a period of three years failing with the stipulation of refund of the monthly stipend amount i.e. @ Rs.1500/- per month also formed a condition of this bond (Annexure A/2 paras (h) and (j)).
5.3 With regard to the prescription of educational qualification as an eligibility condition, learned counsel Ms Bisaria would have a few more submissions to make. It would be pointed out that the candidature of the applicant no.2 had been rejected by the respondents on this very ground earlier of not possessing a P.G. Diploma in Archaeology (Annexure A/12 shows this was in the context of an advertisement in 2004). It would also be submitted that the arbitrariness on the part of the respondents was evident inasmuch as while amending the educational qualifications for the entry level posts, the same had not been done in case of the Deputy Superintendent Archaeology where P.G. Diplima was still retained as one of the essential qualifications. The learned counsel would further submit that this change had been done by the respondents themselves at their own instance. To establish her points, a number of additional documents pertaining to the consultative process at various levels and with different agencies would be sought to be submitted by the learned counsel on the date of hearing itself. The amended educational qualification would also be questioned on grounds of inclusion of regional languages, which as per the learned counsel has no relationship with the duties and responsibilities of the post.
On these grounds the very rationale of the amendment in the educational qualification would be challenged contending that the same had no nexus with the object sought to be achieved.
5.4 As regards the provision for age, the contentions of the learned counsel would essentially pertain to two aspects. The first and foremost would be the prescription of the maximum age limit of 30 years being in violation of the upper age limit of 32 years prescribed by the DoP&T vide its Notification of 21.12.1998. The related submission would be that the respondents had in the past been following this practice, which would be sought to be proved by an advertisement of 2004 incorporating the enhanced upper age limit of 32 years for the post of Assistant Archaeologist (Annexure A/7 colly.).
Thus, it would be contended by the learned counsel for the applicants that the impugned amendment deserved to be declared ultra vires and set aside as they were arbitrary, in contravention of DOP&Ts centralized instructions regarding upper age limit and did not have a rational nexus with the object sought to be achieved. As a related argument, it would be stated that the advertisement itself which was based on these very amended provisions could not be held tenable in law and further it blocked the legitimate prospects for appointment of the P.G. Diploma holders, being trained by the Respondents-ASI itself at huge cost to the public exchequer.
6.1 The OA has been contested by the respondents. The learned counsel Shri S.M. Arif would raise the preliminary objections of the applicants who had applied for this post in response to the advertisement in question being barred from questioning the validity of the selection criteria as per the Doctrine of Estoppel. It would also be submitted by Shri Arif that while the applicant no.1 was within the prescribed maximum age of 30 years, the applicant no.2 was beyond it. Further, it would be submitted that because of the large number of applications received, the respondents have had to resort to short listing and both the applicants could not be included in the short listed candidates because of their obtaining lower percentage of marks in the Post Graduation Degree than the cut off determined for short-listing. Besides, the applicant no.2s candidature had also been rejected on the ground of his being over-aged.
6.2 As regards the justification for the amendment in the Recruitment Rules, a passionate defence would be made by both the learned counsels, Shri S.M. Arif and Ms Rekha Palli. It would be submitted that the applicants, who were agitating their claims as P.G. Diploma holders in Archaeology had not been excluded from consideration even under the amended Rules. In fact, what they were resenting was the consideration of other candidates who are not P.G. Diploma holders. Both the learned counsels for the respondents would emphasize the point about the qualification of P.G. Diploma in Archaeology being retained as a desirable qualification in the amended Rules. It would also be argued by Ms Rekha Palli that besides being eligible for the posts of Assistant Superintending, these Diploma holders have the additional avenue for the post of Deputy Superintending under the D.R. quota for which P.G. Diploma in Archaeology has still been retained as an essential qualification.
6.3 On the subject of upper age limit, the learned counsel, Ms Rekha Palli would make the submission that the Department had repeatedly approached the DoP&T for an age relaxation by two years in the context of the representations made by the applicant no.2. However, the same had been rejected on each occasion, the last being on 28.6.2010. In support, the relevant departmental file would also be produced by the learned counsel.
6.4 The learned counsel also cited before us the decision of the Honble Apex Court in Sanjay Kumar Manjul vs Chairman, UPSC & Ors { 2006 SCC (L&S) 1780 }. In this case dealing with the matter relating to the post of Superintending Archaeologist in ASI the Apex Court had observed that the statutory authority framing Rules was entitled to lay down the qualifications and only the authority concerned could take a decision in that matter. Further it was held that the Court would normally be governed by the opinion of experts and by exercising its jurisdiction under Article 226 and 32, the High Courts or Supreme Court would not ordinarily direct the employer to prescribed qualifications for holding a particular post.
7.1 It is trite that in judicial review the relief granted must be in accordance with the well established principles of law. As was observed by the Honble Chief Mr. Justice Bhagwati while speaking on behalf of the Constitution Bench of Apex Court in D.C. Wadwa (Dr.) vs State of Bihar {(1987) 1 SCC 378}, the rule of law constitutes the core of our Constitution and it is the essence of the rule of law that the exercise of the power by the State whether it be by the Legislature or Executive or any other authority should be within the constitutional limitations.
7.2 Further it has been held in a catena of judgments by the Apex Court that determining the service conditions of its employees which includes prescribing the educational qualifications for different posts is well within the legitimate domain of the employer (P.U. Joshi & Ors vs Accountant General, Ahmedabad & Ors {(2003) 2 SCC 632} / Mallikarjuna Rao & Ors vs State of Andhra Pradesh & Ors {(1992) 2 SCC 707} / Union of India vs Pushpa Rani & Ors {(2008) 2 SCC (L&S) 857}. To quote an extract from the observations of the Apex Court in Pushpa Ranis case (supra) seems apt in the instant context:
Matters relating to creation and abolition of posts, formation and structuring/restructuring of cadres, prescribing the source/mode of recruitment and qualification, criteria of selection, evaluation of service records of employees fall within the exclusive domain of the employer. What steps should be taken for improving the efficiency of the administration is also the preserve of the employer. Power of judicial review can be exercised in such matters only if it is shown that the action of the employer is contrary to any constitutional or statutory provision or is patently arbitrary or vitiated by malafide. xxxx" (emphasis supplied) 7.3 Further as was held by the Full Bench of the Tribunal (Principal Bench) vide its Order dated 6.9.2007 in OA No.1603/2006 M.S. Singnani & Ors, that mere individual hardship cannot be a ground for challenging the vires of a Rule which has stood the test of time and has been followed with all its rigour.
7.4 As regards the plea of Estoppel taken by the respondents counsel, this is also in accordance with the established principle of law that having appeared in the test one cannot challenge its validity {Sunita Aggarwal vs State of Haryana & Ors, 2000 (3) AISLJ 30}.
7.5 Even if we do not reject the claims in the OA on the technical ground of the applicants having already participated in the selection process and thus being barred from challenging the selection criteria; their challenge to the amendments in the Recruitment Rules and consequently to the impugned advertisement is not found to be tenable.
8.1 It is not disputed that the un-amended 1993 Rules stood amended in 2006 by a regular process and were duly notified. The endeavour on the part of the learned counsel for the applicants to question the rationale of the amendment by pointing out various stages in the intervening process is not found to be convincing. It is the ultimate Rules amended after the cumulative process of decision making which would form the subject of our consideration. Along with the OA an information provided under the RTI Act on 23.8.2007 has been annexed which highlights some very critical aspects relevant to the issues before us (Annexure A/9). We find it appropriate to reproduce this document in toto as here under:
Sub: Providing information under RTI Act, 2005 (Sec.5(5) of RTI Act, 2005) regarding Gazette Notification of recruitment rules of Assistant Superintending Archaeologist and Assistant Archaeologist, Group B posts in ASI, 2006.
Sir, With reference to your letter No. nil dated nil the information sought by you under RTI Act, 2005, is as follows:-
Q.No.1 & 3: It has been observed that the candidates from the subject like Tamil, Telugu, Malayalam, Kannada and History of Art will be useful for ASI as these subjects are also somewhere related to past and present history.
Q.No. 2 & 6: It was felt by the members of amendment committee and DOPT that PG Diploma as essential qualification will deprive a lot of otherwise qualified persons of the opportunity of being recruited for this post.
Q.No. 4: Changes have been decided at different stages like Director General, ASI, Ministry of Culture, DOPT, UPSC and Ministry of Law and Justice.
Q.No.5: Dr. R.C. Agarwal, Director (Archaeology), Dr. K.P. Poonacha, Director (Archaeology), Shri Mahendra Mohan, Dy. Director (Admn.), Shri Satya Pal, Dir. (Admn) and Shri D.N. Sreenivasappa, S.O. (Admn.) were the members of the Committee which formulated the RRS, 2006.
Q.No.7: The RRs, 1993 were reviewed as per norms of DOPT wherein it is mandatory to review the existing RRs after 5 years.
8.2 The main ground for challenging the rationale of the altered educational qualification is the alleged un-sustainability of the amended prescription of P.G. Diploma as desirable qualification instead of being retained as an essential qualification in the un-amended Rules. However, as contended by both the learned counsels for the respondents and corroborated by the extensive notings from the relevant files enclosed with the OA as also from the information communicated to the applicant under the RTI (Annexure A/10 colly and Annexure A/9 respectively), this change is stated to have been done with a view to widen the catchments area for recruitment to the post since. The prime consideration behind affecting the impugned changes has been that as per the un-amended provisions, only the products of the Institute of Archaeology were getting chance for competing for the post. Widening the scope to a larger canvas of degree holders in varied related disciplines including the regional languages was found to be well justified considering the varied nature of duties and responsibilities of the post.
8.3 It would be seen that in the amended qualifications only the scope for consideration of candidates has been widened without eliminating the consideration of the P.G. Diploma holders, which is a specialized qualification in this field. We also note that besides the Post Graduate Diploma in Archaeology from the Archaeological Survey of India, Diploma in Epigraphy, Archaeology or Museology of a recognized University or equivalent have been prescribed as the desirable qualification. Further evidently among the candidates who have essential qualifications, those with desirable qualification would get a preference. This, of course, is subject to the short listing criteria adopted by the respondents in which they are well within their rights to evolve an objective criteria to select the best possible candidates.
8.4 As regards the argument of the P.G. Diploma Bond incorporating restricting a stipulation of three years service under the Government on the candidates failing which there is a liability to refund the stipend amount; the same cannot be construed as a guarantee for providing employment under the Government to the exclusion of everyone else nor can it be turned into alibe for challenging the vires of the Recruitment Rules for the posts under the ASI. In any case, it is admitted that the intake for this Diploma is extremely limited with the entire training being provided free by the Government including a monthly stipend. Applying the Wednesbury Principle of reasonableness to argue that these conditions in the Indemnity Bond also carry with them a permanent obligation on the part of the Government to restrict its employment opportunities to only to a limited number of candidates and that too in the age of liberalization and globalization, cannot be found to be acceptable.
8.5 We do not find any arbitrariness, malafide or contravention of Rules in the amended educational qualification.
9. As regards the upper age limit, we note that both in the 1993 as well as 2006 Rules the upper age limit prescribed was 30 years. This is at variance with the enhancement of the upper age limit to 32 years prescribed by the DoP&T vide its Notifications dated 21.12.1998, which has been adverted to in the OA. The same is said to be made applicable to all Central Civil Services and Civil Posts under the Central Government recruited by method of direct open competitive examination. However, a perusal of the relevant Notification as annexed with the OA (Annexure A/7 colly) shows that this centralized decision was to be kept in view by all the Ministries and Departments of the Government of India while framing their own Rules.
The logical course for the respondents in such a case would have been to incorporate this amendment in their Rules themselves and to enhance the upper age limit from 30 to 32 years. This evidently has not been done, without any justification for this vital omission forthcoming from the respondents. Even from the perusal of the departmental file submitted before us, it is found that the grounds for rejection by the DoP&T of the repeated proposals by the Ministry of Culture were because they were asking for relaxation in individual cases without amending the Rules, which had not been found acceptable. We would like to take this opportunity to bring this vital omission to the notice of the respondents particularly respondents No.1 and 2 for appropriate corrective measures.
However, as we in our jurisdiction are not dealing with PILs, we would confine ourselves only to the rights of the applicants before us. As has been submitted by Respondent no.3 in its short counter affidavit, both the applicants, who had applied for this post could not be short listed because of receiving lower marks than the cut off fixed under general category for short-listing. This is true even in respect of the applicant no.2 who was over-age as per the prescribed upper age limit of 30 years.
10. To conclude, after a detailed scrutiny, we do not find the impugned amended Rules as suffering from arbitrariness, malafide or justifying a judicial intervention. We also do not find any thing objectionable about the impugned advertisement. In any case, the applicants having applied in response to this advertisement are also struck by the doctrine of Estoppel from challenging the vires of the selection criteria. In these circumstances, any direction from us to the contrary would amount to blocking the smooth running of the wheels of administration, which cannot be, by any stretch of logic, in public interest. Thus finding the OA as devoid of merit, it is dismissed with no order as to costs. The interim direction regarding keeping the subsequent process pursuant to the advertisement on hold is hereby vacated. No orders as to costs.
(Veena Chhotray) (Shanker Raju) Member (A) Member (J) /pkr/