Central Administrative Tribunal - Delhi
Capt. Yashraj Tongia vs Union Of India Through on 1 March, 2012
Central Administrative Tribunal Principal Bench New Delhi OA No.2229/2011 Reserved on :27.02.2012 Pronounced on : 1.03.2012 Honble Mr. Justice V.K. Bali, Chairman Honble Dr. Ramesh Chandra Panda, Member (A) Capt. Yashraj Tongia Temporarily residing at 25, Ferozshah Road, New Delhi. 89, Shrinagar Main, Indore 452 001. Applicant (By Advocate : Shri Nidhesh Gupta, Senior Advocate, Shri V. S. R. Krishna, Sh. Varun Chopra and Sh. J. P. Tiwary) Versus Union of India through 1. Secretary, Ministry of Civil Aviation, Opposite Safdarjung Airport, New Delhi. 2. The Director General of Civil Aviation Ministry of Civil Aviation, Opposite Safdarjung Airport, New Delhi. 3. The Secretary Union Public Service Commission, Dholpur House, Shahjahan Road, New Delhi. Respondents (By Advocate : Ms. Mahe Zehra for Sh. Hilal Haider and Ms. Alka Sharma) : ORDER :
Dr. Ramesh Chandra Panda, Member (A) Captain Yashraj Tongia, the applicant herein, is aggrieved by the impugned action on the part of 1st and 2nd respondent in not issuing appointment order to him pursuant to the recommendations of the Union Public Service Commission (UPSC) for the post of Director of Flying Training in the Office of the 2nd respondent. He has, therefore, approached the Tribunal with the following prayers:-
(a) To direct the respondents to consider issuing letter of appointment to the applicant without any further delay in pursuance of the recommendations of the select committee of Union Public Service Commission communicated vide letter dated 18.02.2011.
(b) To consider appointing the applicant as on the back date along with all consequential benefits like arrears of salary and allowances, seniority etc;
(c) to grant any other relief or reliefs as may be deemed fit and proper under the circumstances of the case along with costs of the application for harassment done to the applicant for no apparent reason.
2. It is the case of the applicant that in response to an advertisement issued for the post of Director of Flying Training in DGCA, the applicant submitted his application dated 22.07.2010. The UPSC short listed the candidates including the applicant. He was called for interview on 10.02.2011. He was informed vide letter dated 18.02.2011(Page-20) that he had been successful in the said selection. It is his further case that in spite of his selection and recommendation for appointment to the post, the 1st and 2nd respondent due to extraneous, arbitrary and malafide reasons have not issued the appointment letter to the applicant. It is further submitted that 1st and 2nd respondent though have cleared appointment of the applicant but it is only at the behest of the senior officers of the Director General of Civil Aviation (DGCA) against whom the applicant has earlier filed the complaints, have malafidely denied the applicant his due appointment. He was working as Chief Flight Instructor at Yash Air Limited and submitted his resignation from the post after having been selected for the post of Director, Flying Training in DGCA. Despite the recommendation dated 4.04.2011 and reminders on 12.05.2011, applicant finding no other alternative has now approached the Tribunal in the instant OA.
3. Shri Nidhesh Gupta, learned Senior Advocate assisted by Shri Varun Chopra and Sh. J. P. Tiwary for Sh. V. S. R. Krishna, learned counsel for the applicant, would submit that the applicant was found eligible as per his flying and training experience by the UPSC. His selection has been stalled on the pretext that there is conflict of interest raised by the officers of DGCA in the sense that applicants family has been running a Flying Training School. As such, he should not be selected for the said post. Shri Nidhesh Gupta further submits that the applicant has filed two affidavits, one by himself and the other by his father indicating therein that his father is not holding any share or stake in Yash Air Ltd., Ujjain or any other Flying Training School of India. As such, the alleged conflict of interest, Shri Nidhesh Gupta contends does not exist. The allegation of conflict of interest being the fits of imagination of the officers of DGCA, the applicant has been wrongly denied the position of Director of Flying Training in DGCA. He would, therefore, urge the Tribunal to direct the respondents to immediately issue him the appointment letter for the post of Director of Flying Training School.
4. The respondent-Ministry of Civil Aviation has entered appearance through learned Standing Counsel for Government of India Shri Hilal Haider and filed reply affidavit on 31.10.2011 indicating therein that applicants father was running a Flying Training School, namely, Yash Air Private Ltd. where the applicant was working as Chief Flying Instructor. He was not given security clearance by the Ministry of Home Affairs when he along with his father wanted to be on the Board of Directors of the School, since the applicants family is actively involved in Flying Training and aviation activities. The respondents have considered the selection of the applicant and notice that his appointment as Director Flying Training School would bring about the issues of conflict of interest and would not be in the interest of Aviation Industry. He, therefore, submits that only on the grounds of public interest and conflict of interests, the respondents have not appointed him to the said post. Shri Hilal Haider, therefore, submits that the OA should be dismissed on the above grounds.
5. Union Public Service Commission (UPSC) has filed its reply affidavit on 9.08.2011 through Ms. Alka Sharma, learned Counsel, wherein it has been indicated that the UPSC recommended the name of the applicant for the post of Director Flying Training vide their letter dated 18.02.2011 and not issuing of appointment letter to the applicant lies within the domain of the Ministry of Civil Aviation. Therefore, the UPSC has no comments to make in the instant case.
6. The applicant in response to the above counter affidavit filed by the UPSC and Ministry of Civil Aviation has filed the rejoinder, wherein, he has brought on record certain additional information sought under the Right to Information Act, 2005. It has been stated that the applicants case was approved by the Minister of Civil Aviation on 14.03.2011. However, the same was subject to the offer of appointment to be issued by DGCA and he would be asked to join duty if he is found fit by the constituted Medical Board and after his character and antecedents are found positive through the police verifications. With regard to a query whether the applicant has been selected for the said post, there was a positive response. It has been very clearly mentioned that Capt. Arun Mann who has been acting as the Director of Flying Training though was on a consultant capacity and whose consultancy period expired long back has been illegally advising the DGCA and undertaking correspondences in spite of the fact that he does not hold any post in the DGCA. It has, therefore, been indicated by the learned Senior Counsel for the applicant that the applicant has been deliberately and malafidely maligned and though legitimately he deserves to be appointed as Director of Flying Training has been denied the same.
7. We have very carefully gone through the above contentions of the parties and with the assistance of the counsel perused the pleadings.
8. It is not in dispute that applicant has been selected properly by the UPSC and his name has been recommended for appointment to the post of Director of Flying Training in DGCA. It is also admitted fact that the Minister-in-Charge of Civil Aviation has approved his selection. The post is lying vacant. It is noticed that despite the expiry of the consultancy period, Capt. Arun Mann is still continuing in the post. It seems that his perpetuation in the post is preventing the posting of the applicant. Pleadings disclose that Capt. Mann is still corresponding though his locus has been questioned by the applicant.
9. However, at the stage of offering of the appointment letter, the DGCA has brought in the issue of conflict of interest and has informed that the applicants father is managing Yash Air Pvt. Ltd. and conducting Flying Training. This aspect has been very emphatically denied by the applicant and his father through sworn Affidavit filed by them. As the alleged conflict of interest has been fully denied by the applicant and his father, question of conflict of interest does not exist. Further, the respondents have no material to substantiate the so called conflict of interest by showing that father of applicant has any connection with Yash Air Pvt. Ltd. It would, therefore, be appropriate to direct the respondents to issue offer of appointment to the post of Director of Flying Training in which the applicant has been regularly selected, within a period of four weeks from the date of receipt of a certified copy of this order. It goes without saying that if the applicant is found eligible in all other respects, like, if he is found medically fit and if his character and antecedents are found to be positive, his case for offering him the appointment should be done as directed above.
10. Resultantly, the OA having merits is allowed in terms of our directions, leaving the parties to bear their respective costs.
(Dr. Ramesh Chandra Panda) (V. K. Bali) Member (A) Chairman /pj/