Central Administrative Tribunal - Patna
Dr Sadia Fatima vs Aiims on 26 April, 2024
-1- OA/050/00479/2023
CENTRAL ADMINISTRATIVE TRIBUNAL
PATNA BENCH,PATNA
OA/050/00479/2023
Reserved on : 01.04.2024
Pronounced on : 26.04.2024
CORAM
HON'BLE MR. SUNIL KUMAR SINHA, ADMINISTRATIVE MEMBER
HON'BLE MR. AJAY PRATAP SINGH, JUDICIAL MEMBER
Dr. Sadia Fatima, aged 45 years, daughter of Late Ahmed Ali
Bhukhari, Residence of near Pista House, Charminar, District
District--
Hyderabad, Hyderabad, PIN Co
Code- 500002.
...........Applicant
pplicant
By Advocate(s):
Advocate(s):- Dr. Sarvabhoma Rao with Shri Narendra Pandey
-Versus
ersus-
1. Union of India represented through Secretary, Ministry of
Health and Family Welfare, Nirman Bhawan, New Delhi, PIN Code-
Code-
110011.
2. All India Institute of Medical Sciences represented through its
Director, Phulwari Sharif, Patna, Bihar, PIN Code
Code- 801507.
......... Respondents.
By Advocate(s): Shri B.K. Pandey, ASC
ORDER
Per S.K. Sinha, A.M.:
A.M.:- Short facts giving rise to this OA are that applicant, a lady with one leg disability and having Post Graduate Degree in Unani Medicine (M.D. Unani), Unani) applied for the post of Medical Officer Unani at All India Institute of Medical Sciences (AIIMS), Patna in response to the n notification otification dated 29.06.2019 (Annexure 1)
1). An online test was conducted on 29.09.2019 and based on her performance applicant was issued a notice on
-2- OA/050/00479/2023 06.12.2019 to appear before the AIIMS Patna on 19.12.2019 for verification of testimonials for appointment to the said post (Annexure 2)
2). Applicant pplicant appeared before the Committee of Respondent No. 2 with her testimonials by travelling from Hyderabad to Patna despite her physical disability, but her testimonials were not verified verified. She was informed d that a Writ petition had been filed by some of the unsuccessful candidates before Hon'ble Patna High Court. Applicant pplicant was also arrayed as respondent in the Writ Petition.
Though there was no stay by Hon'ble Patna High Court on the appointment process process, respondents espondents did not verify her testimonials. While the Writ Petition was pending pending, applicant made a representation to Director, AIIMS Patna (Respondent no. 2), to issue her the appointment letter subject to the outcome of the Writ Petition but she got no response.. After more than three years, Hon'ble High Court allowed the Petitioners to withdraw the Writ Petition on 15.03.2023 to raise the grievance before the Central Administrative Tribunal Tribunal. Petitioners of the Writ Petition did not approach the Tribunal and after disposal of this Writ Writ Petition the Director, AIIMS Patna cancelled the appointment notification (Annexure 1) and issued a fresh notification on 28.03.2023 without any information to the applicant. Aggrieved by cancellation of the earlier notification and issuance of fresh notification dated 28.03.2023 the applicant has preferred this OA praying for following reliefs:
efs:-
-3- OA/050/00479/2023 "a. Too quash/set aside the notification of the respondent no. 2, dt. 28.03.2023 vide No. 17667/M.O. Unani/2023 cancelling the employment notification under the advertisement vide no. 17667-Medical 17667 Medical officer Unani/2019, Dt. 29.06.2019 for recruitment of of the post "Medical Officer Unani" on direct recruitment basis holding that it is illegal, arbitrary, unjust and without bonafide apart from being inhuman and atrocious against a person with a disability who is a lady postgraduate doctor.
b.Consequently, direct respondents to appoint the applicant in the post of Medical officer (Unani) in the AIIMS Patna giving seniority to her right from the date of calling her for verification of her testimonials dt.19.12.2019 along with other attendant benefits. c. And d to pass such other and further orders as deemed fit in the circumstances of the case."
2. Applicant has pleaded in the OA that cancellation of the notification dated 29.06.2019 by the Director, AIIMS, Patna was illegal, arbitrary and without any val valid id reasons. The AIIMS authorities, in their counter affidavit in the writ petition before Hon'ble High Court,, maintained that the said post was not for open competition and it was reserved for persons with one arm/one leg disability. They had submitted all the valid records of the roster showing the evidence that that the post was reserved for PW PWBD OA/OL and had prayed for disposal of the Writ petition before the Hon'ble High Court.. Applicant pplicant had qualified in the written examination but was being unjust unjustly ly deprived of her appointment on the post of Medical Officer Unani. Applicant, being a lady suffering from disability with one leg leg, met the category requirement adequately and having qualified fied in the online test test, she deserved to be appointed to the said post.
-4- OA/050/00479/2023
3. Contesting the OA, respondents filed written statement maintaining that in response to the earlier notification dated 29.06.2019 for the post of Medical Officer Unani Unani,, online applications were invited. The advertisement was only for one post and was reserved for the UR category with with one arm/one leg disability.. Candidates were shortlisted on the basis of marks obtained in the online examination and there was an in inadvertent advertent error in the marks displayed in the AIIMS, Patna website. On 05.12.2019 the error was rectified immediately immediately. Applicant pplicant was the only candidate with the benchmark disability and accordingly accordingly, she was shortlisted for document verification. In terms of instructions of the DoPT (GoI),, AIIMS Patna has been maintaining 100 point vacancy roster and as per the roster the post of Medical officer Unani was reserved for persons with disability with one arm/one leg. The document of the applicant was yet to be verified. Though the post was reserved for UR PWBD candidate candidate, inadvertently it was not mentioned in the notification that if no UR PWBD was found suitable the post will be open for Unreserved candidate. In view of this anomaly the competent authority had d decided ecided to cancel the previous advertisement and issued fresh notification. The cancellation of earlier notification was done before the process for recruitment was completed completed.. As the selection process had not been completed and some anomaly was noticed in the he advertisement, advertisement a decision was taken to cancel the earlier notification.
-5- OA/050/00479/2023
4. In rejoinder, applicant has pleaded that there was no anomaly in the earlier notification and even if there was a minor anomaly anomaly,, as claimed by the respondents, nobody was adversely affected. The grounds taken for cancelling the earlier notification were not cogent and reasonable particularly when the applicant had already been shortlisted on the basis of online test and she was the only suitable candidate for th the post.
5. The issue for adjudication in this OA is whether the decision of respondents in cancelling the notification issued on 29.06.2019 vide order dated 28.03.2023 was legally sustainable.
6. We have heard the parties in detail and considered their submissions and material on record.
7. Respondents have maintained that the notification dated 29.06.2019 inadvertently showed the post for Unreserved U (UR) category which was identified with one Arm/One Leg. The Institute maintained a reservation roster and as per the roster, the post was reserved for UR PWBD (Unreserved Persons With Benchmark Disability) candidate with One Arm/One Leg. In view of the advertisement, sseveral everal UR candidate who were not PWBD had applied for the post and that was the main reason for cancellation of the advertisement recruitment.
-6- OA/050/00479/2023 8. Applicant's
licant's main contention is that the reason adduced by respondents for cancelling the earlier notificat notification ion dated 29.06.2019 is not valid valid. The notification clearly mentioned that the category of disability for which post is identified suitable was OA/OL (with one arm /one leg) leg).. It automatically suggested that the post was for the PWBD candidates. Applican Applicantt fulfilled the criteria for the post and nobody obody was adversely affected by the so called 'inadvertent mistake'' in the notification. Hence, the decision to cancel the notification was arbitrary and unwarranted. Applicant, meeting the disability criteria and d having cleared the test had a legitimate expectation of getting the job.
9. L/C for applicant has argued that respondents, in i their counter affidavit filed before Hon'ble High Court in the writ Petition (CWJC N0. 25504/2019) 25504/2019),, maintained that the advertised post for Medical Officer Unani was reserved for PWD OA/OL. Hence, in Written Statement to the OA, respondents have drifted from their stand earlier taken before Hon'ble High Court in the writ petition.
10. Counsel for applicant, Mr. Sarva Bhouma Rao put reliance on judgments in following cases cases:-
a. Kerala High Court judgment in Rajesh Vs Union of India on 20.12.2021;
20.12.2021 b. Allahabad High Court in Vindhyavasini Tiwari and nd 4 Ors. Vs State of UP on 09.12.2013 c. Tripura High Court vs. The State of Tripura on 14.05.2019 d. Allahabad High Court in AmarNath Singh and Ors. Vs. Union of India and nd Ors.on 19.12.1997
-7- OA/050/00479/2023
11. It is a well settled law that there is no absolute obligation on the part of respondents to complete the selection process and before such completion the Government is entitled to review the matter and stop the selection process e.g. when the Government decides to revise the eligibility criteria for appointment. Therefore, the law is settled that even candidates selected for appointment have no right to appo appointment intment and it is open to the State State Government at a subsequent date not to fill up the posts or to resort to fresh selection and appointment on revised criteria.
12. In the State of Haryana Vs. Subash Chander Marwaha and Ors. [(1974) (1974) SCR 165 165], Hon'ble Apex Court held that the mere fact that certain candidates were selected for appointment to vacancies pursuant to an advertisement did not confer any right to be appointed to th the e post in question to entitle the selectees to a writ of mandamus or any other writ compelling the authority to make the appointment.
13. In Shankarsan Dash v. Union of India [1991 (3) SCC 47],, the Constitution Bench of Hon'ble Apex Court held that even n if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates donot acquire any indefeasible right to appointment against the existing vacancies. It was pointed out that ordinarily the notification notification merely
-8- OA/050/00479/2023 amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. The State is under no legal duty to fill up all or any of the vacancies by appointing candidates selected for that purpose. Albeit, the State must act in good faith and must not exercise its power mala fide or in an arbitrary manner.
14. It is clear from the above judgments that Government authorities can cancel the selection process at any stage and the selected candidates have no indefeasible right to appointment against the existing vacancies. State can resort to fresh selection and appointment pointment on revised criteria. However, this discretion to cancel the selection process is subject to meet the condition of being reasonable and not being arbitrary arbitrary. Every candidate who applies in pursuance of the advertisement and who has gone through th thee rigor of the process of selection is entitled to have a legitimate expectation for being considered for appointment .
15. In the case of Rajesh Vs. Union of India, India Hon'ble Kerala la High Court discussed various judgments of Hon'ble Supreme Court on the issue under consideration as follows:
follows:-
"10. Apex Court in N.T. Bevin Katti v. Karnataka Public Service Commission and ors. (AIR 1990 SC 1233) held that candidates who applied and undergone written test or selection process have a vested right for being considered for selection in accordance with the terms and conditions contained in the advertisement. Candidates have right to be considered in accordance with the terms and conditions set out in the advertisement.
dvertisement. It is true that the candidates have no absolute right in the matter. We may indicate that even then he has got a right to be treated fairly. It is one of the fundamental rights of our Constitution that ever citizen is protected against arbitrariness arbitrariness on the part of the
-9- OA/050/00479/2023 officers. In Shankarsan Dash v. Union of India (1991 (3) SCC 47) the Constitution Bench of the Apex Court held as follows:
"Even if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates do not acquire any indefeasible right to be appointed against the existing vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bonafide for appropriate reasons. And if the vacancies or any of them are filled up, the state is bound to respect the comparative merit of the e candidates, as reflected at the recruitment test, and no discrimination can be permitted."
16. In Vindhyavasini Tiwari and 4 Ors. Vs State of UP, UP, Hon'ble Allahabad High Court referred to the Hon'ble Supreme Court order in the case of State of Punjab and Others Vs. Arun Kumar Aggarwal and Others [ 2007(5) SLR 237] holding as follows:-
"We would like to make it clear that a candidate on making application for a post pursuant to an advertisement does not acquire any vested right of selection, tion, but if he is eligible and is otherwise qualified in accordance with the relevant rules and the terms contained in the advertisement, he does acquire a vested right of being considered for selection is accordance with the rules as they existed on the date of advertisement. He cannot be deprived of that limited right on the amendment of rules during the pendency of selection unless the amended rules are retrospective in nature."
17. Echoing a similar view, Hon'ble Tripura High Court in the case of Sri Samudra Debbarma Vs. State of Tripura on 14 May , 2019 relied upon pon the judgment of Hon'ble Supreme Court in Kumari Shrilekha Vidyarthi & Ors. vs. State of U.P. &Ors [ (1991) 1 SCC 212].. Para 25 of the Hon'ble High Court's judgment reads as under.
"25. In Kumari Shrilekha Vidyarthi & Ors. vs. State of U.P. &Ors., &Ors., reported in (1991) 1 SCC 212, the apex court had occasion clearly to observe that every State action, in order to survive, must not be susceptible susceptible to the vice of arbitrariness which is the crux of Article 14 of the Constitution and basic to the rule of law, the system which governs us. Arbitrariness is the very negation of the rule of law. Satisfaction isfaction of this basic test in every State action is sine qua non to its validity and in this respect the State cannot claim comparison with a private individual even in the field of contract. The question whether an impugned act is arbitrary or not, is ultimately ltimately to be answered on the facts and in the circumstances of a given case. An obvious test to apply is to see whether there is any discernible principle emerging from the impugned act and if so,
-10- OA/050/00479/2023 does it satisfy the test of reasonableness. Where a mode is prescribed for doing an act and there is no impediment in following that procedure, performance of the act otherwise and in a manner which does not disclose any discernible principle which is reasonable, may itself attract the vice of arbitrariness. Every Every State action must be informed by reason and it follows that an act uninformed by reason, is arbitrary. Rule of law contemplates governance by laws and not by humor, whims or caprices of the men to whom the governance is entrusted for the time being. It is trite that „be you ever so high, the laws are above you'. This is what men in power must remember, always. [see para 36 of the report]."
18. Hon'ble Allahabad High Court in its judgment in Amar Nath Nath Singh and Ors Ors. Vs. Union of India and Ors. on 19 December 1997,, relied upon the observations of Hon'ble Supreme Court in the case of Asha Kaul (Mrs.) and Anr. Vs. State of Jammu and Kashmir and Ors [(1993) 2 SCC 573] which reads as follows:
follows:-
"8. ..........The The most striking observation in Asha Ash Kaul's casese (supra), is that "the Government cannot quietly and without good and valid reasons nullify nulli y the whole exercise and tell the candidates when they complain that they have no legal right to appointment. No Government can adopt such a stand with any justification today." Even in K.S. Gandhi's Gandhi case (supra), in which the order of cancellation of result of account of mass copying was cancelled, the Supreme Court held that if the order cancelling the examination came to be passed, the record should indicate the reason though the order may not containcontain reasons. Every candidate who has applied for a particular post in pursuance of the advertisement and who has gone through the rigour of the entire process of selection, in my view, is entitled to have a legitimate expectation for being considered for appointment, ppointment, may be that he is ultimately not appointed. Appointment on a post in one thing while consideration for appointment is another. Both the things cannot be mixed up and the confusion, if any, in the mind of all and sundry, must be clear with reference reference to these two aspects of the matter, which are quite separate and distinct. The order of cancellation of the recruitment process cannot be attached with that much of sanctity as it may render it inviolable or beyond the pale of scrutiny. The law is that that if an order has been passed to set at naught the entire selection process, it has to conform to the test of reasonableness and fairness. The order should be passed bonafide and must be passed on some concrete and tangible material and certainly it cannot be the outcome of an arbitrary act imbued with subjectively.
9. The Courts certainly have the power and authority to consider the efficacy and sufficiency of the grounds and the material in the wake of which an order of cancellation came into being."
Hon'ble ble Allahabad High Court further observed in the case of Amar Nath Singh ( supra ) as follows:-
" 14. ...........Nevertheless, Nevertheless, there should be wealth of material to take the extreme and drastic step of scrapping the whole recruitment process,
-11- OA/050/00479/2023 particularly when it has reached the final stage. The cancellation or scrapping of the recruitment has very serious repercussions and impact not only on the candidates who have undergone the rigorous of the test but on the general public and the Department itself. It also casts aspersions on the members of the Recruitment Committee. I am constrained to observe that the order of scrapping of the recruitment by the DG/RPF, may not be mala fide but is in utter violation of the established norms and devoid of the considerations fairness and reasonableness. The order is the product of irrelevant considerations and has been passed in a cloistered manner. ..........."
19. Itt is clear from the above judgments of Hon'ble Apex Court and Hon'ble High Court Courts that the State and Appointing Authority A have ve absolute right to cancel the selection process any time . However, the decision to cancel the selection process cannot be arbitrary and unreasonable. State cannot quietly and without good and valid reasons nulli nullify the selection process and tell the candidates that they have no legal right to appointment appointment. Every candidate who applies in pursuance of the advertisement and who has gone through the rigor of the selection process is entitled to have a legitimate expectation for being considered for appointment. Cancellation of selection process has serious consequences on the candidates as well as the public and the department itself. The decision to cancel the selection process has to be tested on the anvil of reasonableness and fairness and cannot annot be arbitrary and mala fide.
20. In the instant case, the respondents cancelled the notification on the ground that the initial advertisement did not mention the reservation category correctly. Perusal of the original advertisement issued on 29.06.2 29.06.2019 shows that in the column for 'Number Number of vacancies and reservation reservation' it is mentioned mention as UR-01 01 and in the
-12- OA/050/00479/2023 column for 'Category of Disability for which which post is identified suitable' it is indicated as OA/OL (one arm and one leg). In the revised advertisement issued in August, 2023, in the column " Number of vacancies and reservation" it is mentioned as UR (PwBD) -1 1 and in the column for ''Category Category of Disability for which wh post is identified tified suitable' it is mentioned as OA/OL. It is clear from the notification issued on 29.06.2019 that the post of Medical Officer Unani was reserved for UR candidate with disability of OA/OL. The OA/OL disability connotes indisputably that it is meant for or persons with benchmark disability. In the notification issued in August, 2023 only PwBD has been added to clarify that that the reservation was for Unreserved nreserved candidates with benchmark disability. We find no change in the reservation category of the advertised ad post. It does not make any difference in the category of disability to the post.
21. Further, AIIMS Patna in their counter affidavit before Hon'ble Patna High Court in WP No. 25504/2019 stated that the post was meant for people with benchmark di disability. It is strange that after having taken the stand before Hon'ble High Court they decided to cancel the notification and issued fresh notification. Applicant is a lady candidate with benchmark disability and she had also qualified in the on on-line selection process.. Notice was issued to her to appear before the AIIMS committee for verification of her credentials and interview. There was no stay order by the Hon'ble High Court.
-13- OA/050/00479/2023 Respondents rather than completing the selection process cancelled the notification dated 29.06.2019. We are of the view that there is no change in the eligibility criteria in the revised notification and hence, ce, there was no need to cancel the earlier notification notification. The decision of respondents was thus arbitrary and unreasonable.
unreasona
22. Considering the facts and legal aspects discussed above, the order dated 28.03.2023 (Annexure 4) cancelling the employment notification dated 29.06.2019 and the fresh notification issued in August, 2023 (Annexure R/G) are quashed and set aside. Respondents espondents are directed to proceed further with the selection process from the stage of verification of applicant's credentials and to complete the entire selection process within a period of three months from the date of receipt of this order.
23. The OA A stands allowed to the extent of above observations and directions. No cost.
SSd/- Sd/- [AJAY PRATAP SINGH] [SUNIL KUMAR SINHA] Judicial Member Administrative Member Srk.