Central Administrative Tribunal - Delhi
Nitin Srivastava vs Union Of India Through on 22 August, 2012
Central Administrative Tribunal Principal Bench New Delhi OA No. 1334/2012 Reserved on : 13.08.2012 Pronounced on : 22.08.2012 Honble Mr. Justice Syed Rafat Alam, Chairman Honble Dr. Ramesh Chandra Panda, Member (A) Nitin Srivastava S/o Sh. R.P. Srivastava R/o House No. 8, Second Floor, Mansarovar Apartment, Plot No. 886, Ward No.8, Mehrauli, New Delhi 110 030. Applicant (By Advocate: Sh. Lalan Chaudhary) Versus 1. Union of India through The National Security Advisor Prime Ministers Office, South Block, Raisina Hill, New Delhi. 2. The Chairman, National Technical Research Organization (NTRO) Block-III, Old JNU Campus, New Delhi 110 067. Respondents (By Advocate: Shri Amit Anand) O R D E R Dr. Ramesh Chandra Panda, Member (A):
Shri Nitin Srivastava, applicant herein is aggrieved by (i) the order dated 10.04.2012 (page-23) whereby his service as Linguist (French) in CMS Division of National Technical Research Organization (NTRO) was terminated and (ii) the letter dated 21.10.2011 (Page-48) whereby he was communicated the extension of his probation period beyond two years upto 06.05.2012. Therefore, he has instituted the present OA seeking the following relief(s):-
a. Quash the termination order dated 10.04.2012 passed by the respondent no.2.
b. Quash the letter dated 21.10.2011, by which the probation period of the applicant was extended by the respondent no.2 c. Direct the respondent no.2 to reinstate the applicant with continuity in service along with consequential benefits.
d. Pass such other order/s as this Honble Tribunal may deem fit and proper in the facts and circumstances of the present case.
2. The factual matix of the case relevant for the adjudication of the issues involved in the present OA would reveal that the applicant submitted his application on 30.04.2007 (Annexure- A3) for the post of Linguist (French) in response to the advertisement issued by the second respondent in Employment News dated 07/13.04.2007 (Annexure-A2) and the last date for submission of applications as per the advertisement was 15.05.2007. He was sent a letter on 07.09.2007 (Page 42) for the interview to be held on 27.09.2007 in which he was asked to produce the original certificates. However, it is his case that the interview was held on 22.10.2007 when he submitted all his original certificates to the competent authority. As he qualified in the said interview, the NTRO issued him a letter dated 07.12.2007 (Annexure-A7) to appear for final interview on 18.12.2007. It is the case of the applicant that by that time the applicant was in possession of the relevant degree and diploma essential for the post. He, having been selected in the interview, was appointed vide Memorandum dated 11.04.2008 (Annexure-A8 Colly.) to the post of Linguist (French). He furnished the attested copies of each of the documents namely BA (Hons.) (French) degree, mark sheet of BA (Hons.) French and DELF B1 diploma along with other relevant documents on 07.05.2008 when he joined the service. To the surprise of the applicant, he received a letter dated 21.10.2011 (Annexure A-9) extending his probation period till 06.05.2012 as per the memorandum dated 18.10.2011 (page-49). It is his case that he was under probation from 07.05.2008 to 06.05.2010 but after lapse of one year and five months of the completion of probation period he was issued a letter extending his probation period upto 06.05.2012. The applicant terms the said letter extending his probation as illegal as it violates the Central Civil Services (Temporary Service) Rules, 1965 and the OM dated 15.04.1959 and 28.08.1988 issued by the DOP&T. His contention is that as there was no extension of probation period within the stipulated period of two years, he should be deemed to have been confirmed. Further, the applicant was terminated by the impugned order dated 10.04.2012 (Page-23) on the ground that his appointment was ab initio irregular as he was not eligible for the post of Linguist (French) as per the terms of advertisement issued in that regard. Vide his representation dated 13.04.2012 (Annexure A-10) he requested the Chairman, NTRO to reconsider his termination and to allow him to continue in the service. But he received no response from NTRO. Thus, feeling aggrieved by the extension of probation period and termination of his service as Linguist (French), the applicant is before this Tribunal in the present OA.
3. We heard Sh. Lalan Chaudhary, learned counsel for the applicant who submitted that the applicants appointment was not irregular as he was in possession of requisite qualification for the given post and was appointed against the sanctioned post through open selection process. The termination of the applicant was illegal as no opportunity of hearing was granted to him which is in gross violation of the principles of natural justice. In the rejoinder affidavit filed by the applicant it has been submitted that though the applicant should have possessed the requisite qualification on the date of submission of application but the advertisement never specified.
4. Highlighting the grounds of discrimination, Shri Chaudhary stated that six Linguists in different languages appointed to their respective posts also did not possess essential qualification at the time of submission of application forms. He has brought on record in the rejoinder the name of persons i.e. (i) Kundan Pandey, Linguist (German); (ii) Anuja Tyagi, Linguist (German); (iii) Santosh Kumar, Linguist (Russian); (iv) Rajat Madhwal, Linguist (Russian); (v) Sagar Banerjee, Linguist (Chinese); and (vi) Narender Kumar Jha, Linguist (French) stating that these candidates did not have requisite qualification on the date of submission of their application forms. His contention is that the applicants services have been terminated whereas all the above six candidates selected and appointed have been continuing in their respective posts. Terming the same as discriminatory in nature, Sh. Chaudhary would contend that action of the respondents would attract the Article 14 of the Constitution of India and the termination order should be quashed.
5. It is further contended that the applicant in his application form has mentioned that result is awaited and the respondents were fully aware of his mentioning of the said phrase and selected him knowing very well that the applicant has appeared in the examination and his result was awaited. When he joined the service he had already passed the examination and supplied the original documents even at the time of interview.
6. In support of the above contentions advanced by the learned counsel for the applicant, he placed his reliance on judgments of Honble Supreme Court in the matters of Arunaben T. Bhojak versus Secy., Ahmedabad Education Society, Lal Bhawan, Badra, Ahmedabad and Others [(1995) 3 SCC 120] and Ashok Kumar Sharma and Another versus Chander Shekher and Another with State of Jammu & Kashmir versus Chander Shekher and Others [1993 Supp (2) SCC 611]. In these circumstances Sh. Chaudhary would urge that the OA should be allowed by quashing the termination order dated 10.04.2012 and directing the respondents to declare that the applicant had completed his probation after completion of two years of service.
7. On receipt of the notice from the Tribunal, the respondents have entered appearance and have filed their reply affidavit on 18.05.2012 through Sh. Amit Anand, learned counsel for the respondents. Shri Anand submitted that the applicant did not possess the essential qualification even on the last date of submission of application form. He drew our attention to the footnote of Sl. No.12 of the application form to submit that candidates should mention their educational qualification i.e. exam passed, code, faculty/discipline code and specialization/subject code. The applicant in his application form dated 30.04.2007 for the post of Linguist (French) in NTRO [against Code 12(a)] had stated result awaited which implied that he did not possess bachelor degree with diploma at the time of submission of his application. He would draw our attention to the copy of applicants application form to highlight that he misled the respondents showing at Annexure CA-2 that the year of passing was 2007. He passed his examination of BA (Hons.) Part-III on 26.06.2007 much after the last date of submission of application form. Further, he submitted that the applicant passed his DELF B-2 course which was for Independence User on 05.11.2007. At the time he submitted his application form, the applicant was in possession of French in DELF A-2 course which was for Basic User and was not meeting the requirement of the post in the light of essential qualification prescribed in the advertisement. It is stated that DELF A2 is equal to a certificate course but not equivalent to diploma, whereas DELF B2 is equivalent to diploma.
8. It is contended by the learned counsel for respondents that the applicant was issued appointment letter purely on temporary basis and it was stated in the offer of appointment that he would be on probation. Shri Amit Anand would submit that a probationer cannot claim to have been confirmed merely because his original period of probation was not extended in time and the same cannot be treated as confirmed if the formal order of extension was not issued for extending the period of probation. Refuting the allegations that applicant should be deemed to have been confirmed as on the date of completion of two years of service as there was no order extending his probation, Shri Anand relied on judgments of the Honble Supreme Court in the matters of Sukhbans Singh Vs. State of Punjab (AIR 1962 SC 1711), Madan Gopal Vs. State of Punjab (AIR 1963 SC 531), State of Bihar Vs. Gopikishore Prasad (AIR 1960 SC 689), State of U.P. Vs. Akbar Ali Khan (AIR 1966 SC 1842) and Union of India Vs. Arun Kumar Roy [1986 (1) SCC 675] to state that action of the respondents in extending probation period was legal. Keeping in view the well settled position in law, Sh. Anand would contend that extension of probation of the applicant is legally tenable. He also referred to the relied on judgments placed before us by the counsel for the applicant and submitted that both the judgments are distinguishable and are not applicable in the present case. In the light of the above contentions, Sh. Anand would submit for dismissal of the OA with heavy costs.
9. Having heard the contentions of the rival parties, with the help of their counsel we perused the pleadings and the relied on judgments. The controversies which come up for our consideration and determination are (i) whether the extension of the applicants probation is legally sustainable? and (ii) whether the termination of service of the applicant passed by the respondents on the ground of his ineligibility at the time of submission of his application form is legally sustainable?.
10. It would be appropriate for us to refer to the first issue relating to extension of applicants probation in the post of Linguist (French). It is well settled position in law that a government servant unless specifically confirmed in the post his service would continue to be on probation. In the instant case the applicants probation though ended on 06.05.2010, it cannot be presumed to have been confirmed on 07.05.2010. It is appropriate for the respondents to examine various aspects to see whether extension of the probation period should be allowed or not. The fact remains that the Comptroller and Auditor General office carried out a verification and found that the applicant being ineligible to file application form for the said post was selected and appointed in an illegal manner. The said fact was enquired into by a senior Indian Police Service Officer of the I.G. level which disclosed that the applicant himself deposed before the enquiry authority about his qualification on the date of submission of his application. It was found by the respondents through the enquiry that the applicant was not eligible for selection/appointment to the post of Linguist (French) as per the essential qualifications prescribed in the advertisement. Therefore, the concerned competent authority extended the applicants probation period upto 06.05.2012. Honble Supreme Court in Sukhbans Singhs case (supra) has held that until there was an affirmative order of the confirmation of government employee by the competent authority on being satisfied as to his worth or he is absorbed in a permanent post, he would be continued as on probation. The period spent after two years of probation would not automatically make the applicant confirmed. This view has been upheld by Honble Supreme Court in the case of Gopikishore Prasad (supra). He may be found fit to be confirmed but it would imply that if such confirmation order has not been issued, the extension of the probation can be issued even retrospectively. It is implicit in the appointment on probation that the probation would continue till such time as the probationer was either confirmed or discharged as held in the judgment of Honble Supreme Court in Madan Gopals case (supra). Honble Supreme Court has also held in Akbar Ali Khans case (supra) that even after expiry of the original or extended period of probation either expressly or by implication the period of probation can also be extended. Examining from different angles about the issue raised by the counsel for the applicant that on expiry of period of two years of service on probation the applicant should be deemed to have been confirmed, we do not find that such a logic has any strength in the eyes of law as discussed above. In view of the above position, we hold the respondents action relating to first issue in extending the probation period upto 06.05.2012 as legally valid.
11. We may now advert to the second issue. Whether the temporary service of the applicant terminated under CCS (Temporary Service) Rules, 1965 as he was not having essential qualification, was legally sustainable?
12. Both parties have placed their reliance on some of the judgments we may refer to the applicability or otherwise of these decisions.
13. In Ashok Kumar Sharmas case (supra) Honble Supreme Court held that if the candidates fulfilled/possessed the educational qualification on the date of interview, in order to have wider selection, it was in public interest to entertain applications who did not possess requisitie educational qualification on the date of application but possessed on the date of interview. The learned counsel for the applicant referring to para 15 of the judgment would contend that the applicant in the OA acquired the educational qualification before the interview and the law laid by Honble Apex Court would cover the case. We have very carefully examined the facts of the cases decided by Honble Apex Court. We do not agree with the contentions canvassed by the learned counsel for the applicant. We note that in Ashok Kumar Sharmas case (supra) the Rule 37 of the Public Service Commission Rules envisaged such a provision to make selection broad based. We may reproduce below relevant para nos. 21 and 22 of the Judgment:-
21. Rule 37 of the public service commission Rules reads as under:
"37. Applications of candidates who have appeared in the examination, the passing of which may make them eligible to appear in an interview for recruitment to a post to be made otherwise than by a competitive examination, but results whereof have not been declared up to the date of making of the application, may be entertained provisionally, but no such candidate shall be permitted to take the interview if he is declared as having failed in the examination or if the results are not available on the date the viva-voce test is held.
The advertisement notice issued by the Commission shall carry a note to this effect invariably.
This shall not apply to applications for sitting in a competitive examination in which case the applicants shall have to be in possession of the prescribed qualifications on the date of making the application."
Efficacy of the rule or the objective of its enactment to throw open the competition by making it more broad based and attract best talents cannot be disputed. But the issue involved is if it could be extended by analogy to any selection or competition held by any other body. Unfairness of construing the notification, in the manner suggested, has already been dealt with. Rules are framed under the Statute to carry out the objective of the enactment. If the rule making authority goes beyond the power conferred on it the rule is rendered invalid. A rule framed under one Statute, therefore, cannot be invoked for carrying out the objective of another enactment. I have, therefore, grave doubt if rules framed by the public service commission could be utilised for purposes of construing the notification issued by the department of government which has separate set of rules.
22. Having dealt with legal aspect it is necessary to be stated that it transpired from the records which were produced by the learned counsel for State of Jammu & Kashmir that a few days before the interview of first batch of candidates was to commence the result of B.E. was announced. Some of the appellants who had applied, even though they were not qualified, approached the secretary in the department concerned to direct the Board to interview them as they were qualified now. The matter was examined thereafter and after ascertaining from the Commission that such practice was prevalent a decision was taken by the appropriate authority to follow the same. Therefore it was not a case where the rule of the Commission need be extended by analogy but factually the appropriate authority had taken decision to follow the same. It was thus adoption of the public service commission Rule for purposes of calling the appellants for interview by the Board.
In view of the above, we are of the considered view that the judgment of Honble Supreme Court in Ashok Kumar Sharmas case (supra) would not be applicable in the facts and circumstances of the present OA.
14. We may also refer to the Honble Supreme Court judgment in Arunaben T. Bhojaks case (supra) relied on by the applicants counsel. The petitioner was a ST candidate initially lacking but subsequently acquiring requisite experience for the post reserved for ST candidates which the respondents attempted to fill up by a general candidate. The appellant approached the Court and when the appeal was pending she was selected/appointed as she had by then acquired the requisite experience. Honble Apex Court held such appointment as legal. The case in the present OA is rather dissimilar. The applicant when applied for the post of Linguist (French) did not have essential qualification which he acquired subsequently. In our considered view the case of Arunaben T. Bhojak (supra) is distinguishable and does not cover the applicants case in the OA.
15. We have also perused the judgment of Honble High Court of Delhi relied on by the counsel for the respondents in the case of Delhi Subordinate Services Selection Board and Anr. versus Ram Kumar Gijroya & Ors. which was decided on 24.01.2012 in LPA No. 562/2011 along with Ms. Renu versus the Chairman/Secretary, D.S.S.S.B & Ors. [WP(C) No. 8087/2011]. In the said judgment, the issue which came up for consideration of the Honble High Court related to the submission of OBC certificate as part of the eligibility requirement of the appellants seeking appointment in the OBC category and they were required to submit the certificate along with application forms by the cut of date advertised for submission of applications. None of the respondents submitted the said certificate but they were allowed to appear in the examination and on the basis of result of the examination provisionally interviewed in the OBC category, but they were not selected as OBC certificates were not filed along with the application forms. Initially, this Tribunal decided the case on 29.04.2011 and later on before the Honble Single Judge and later on before the Division Bench of Honble High Court. The common legal question which came before the Honble High Court was that whether notwithstanding the advertisement inviting applications requiring the certificate of belonging to the OBC category being filed along with applications by the cut off date, the delay in submitting the certificates can be condoned and appointment directed. The Division Bench of the Honble High Court did not agree with the judgment of the learned Single Judge and allowed the appeal agreeing with the order of the Tribunal challenged in the writ petition. The judgment of the Honble High Court has some relevance to the present case. But unlike the OBC Certificate, the present case is of acquisition of degree as part of the essential qualification. A person by birth would be OBC but a person cannot by birth be a degree or diploma holder. The requisite essential educational qualification viz degree/diploma needs to be acquired/possessed only after passing the specified examinations of Universities/Institutions. In the instant case, the applicant did not possess the required essential qualification and the date he filed application form nor even he possessed the same even on the last date of receipt of application form. He had the essential qualification much later and just before his appointment. The illegality committed at the application stage cannot be ignored.
16. We may advert to the facts of the case. It would be appropriate for us to recapitulate certain chronological events, which are relevant for determination of the issue. The same are given below:
Sl.
No. Date Event 1 07/13.04.2007 Date of advertisement for filling the posts of Linguists.
2 30.04.2007 The applicant submitted his application form for the post of Linguist (French) 3 15.05.2007 Last date for receipt of application forms.
4 20.06.2007 The applicant passed BA (Hons.) examination.
5 05.11.2007 The applicant passed DELF B-1 course in French The factual details given in the above chronological events would disclose that the applicant was not in possession of a degree and also diploma in French on the date of submission of applications and even on the last date for receipt of applications forms. It is factually evident that the applicant was not eligible to apply as he did not possess the essential qualification.
17. At this stage we take note that the advertisement was issued by the NTRO for filling up Linguist posts in14 Foreign languages out of which Linguist (French) was one with post code12(9). The essential educational qualification prescribed for the post of Linguist (French) envisaged the following:-
Essential qualifications: Post Graduate degree in the concerned language from a recognized University or Institution or Bachelors degree with diploma in the concerned language from a recognized University or Institution. Oral communication skills in the foreign language. As per the above stipulation the candidates who possessed the above essential qualification were alone eligible to apply. The applicant admittedly applied for the post when he did not possess the qualification i.e. on the date of advertisement or on the date of application or even the last date for submission of application form he was not fulfilling the essential qualification but by the time interview took place he was possessing essential qualification. The respondents held the view that the applicant is not eligible to apply as on the crucial date he has not possessed the essential qualification. It is seen from the applicants application form that at (a) of Column 12 under heading Educational Qualification he has mentioned 01 in the point examination passed which means he has passed Degree/Grad. Further at (b) of Column 12 he has mentioned DELF-A2 below the entry of 03. Respondents seem to have been misguided such entries though the applicant has kept marks column blank after (a) and mentioned Result Awaited. Though he was appointed after selection and interview, the main fact remains that he was not eligible to apply. Hence, the findings of audit and the enquiry noticed that illegality has been committed in allowing the selection process and appointment for the applicant.
18. In case of selection to a post, generally a date is fixed for the purpose of eligibility which is applicable across the board. Neither can it be termed as discriminatory nor arbitrary. By implication, on date of application the candidates applying for the post must be eligible in all conditions indicated in the advertisement. Just because the applicant was allowed to appear for interview and got selected/appointed could not sanctify the illegalities which crept in at the submission of application by him. The date on which application form is filed for the post the applicant must have essential qualification on that date. In many cases the last date for submitting application form is prescribed as the date of eligibility. If such a date is relaxed in one case, the action will be unconstitutional and illegal as held by Honourable Apex Court in State of Tamil Nadu Vs. Seshachalam [AIR 2008 SC 647].
19. In the instant OA if the claim of the applicant would be accepted to extend the date of eligibility to the date of interview or appointment, we would be committing apparent illegality as on the date of application and on the last date fixed for submitting application, the applicant was not eligible as he did not possess essential qualification. Admittedly the applicant did not possess essential educational qualification on the last date of submitting the application forms. He was, therefore, not eligible to apply for the said post, less to speak of his selection or appointment. Thus, the respondents detected the illegal appointment of the applicant to the post of Linguist (French) which they corrected first by extending his probation and later on terminating his services. The selection of the applicant for the post having been found to be illegal, termination of applicants service was the only cure available in the hands of the respondents.
20. It is trite law that irregularity can be regularized but illegality cannot be. In this context, we note the trite law that irregularity can be regularized but illegality cannot be. We place our reliance on the judgment of Hon'ble Apex Court in Pramod Kumar Versus U.P. Secondary Education Services Commission [AIR-2008- SC-1817] where it was held that appointment which was contrary to the statue / statutory rules would be void and an illegality cannot be regularized when such appointment ab initio was illegal. Relevant part of the judgment reads as follows:
"16. The qualifications for holding a post have been laid down under a statute, any appointment in violation thereof would be a nullity.
17. It is a matter of some concern that appointments are being offered by the authorities of the State without verifying the fact as to whether the degree(s) pos-sessed by the candidate(s) are valid or not. It was an ad hoc appointment. Why despite the same, he was allowed to obtain degree from another university is not known.
18. If the essential educational qualification for recruitment to a post is not satis-fied, ordinarily the same cannot be condoned. Such an act cannot be ratified. An appointment which is contrary to the statute/statutory rules would be void in law. An illegality cannot be regularized, particularly, when the statute in no unmistakable term says so. Only an irregularity can be (See Secretary, State of Karnataka and others v. Umadevi (3) and others, ((2006) 4 SCC 1) National Fertilizers Ltd. and Ors. v. Somvir Singh, ((2006) 5 SCC 493) and Post Master General, Kolkataand Ors. v. Tutu Das (Dutta), ((2007)5 SCC 317))."
21. An associated ground advanced by the applicants counsel was that the applicant had been discriminated in the termination of his service whereas six other Linguists similarly circumstanced and appointed by NTRO had been continuing in their respective posts. It was stated that they did not have essential qualification like the applicant. In this regard, it is proper to find out whether negative equality involked by the applicant is legally admissible? The Honourable Supreme Court considered in a catena of its judgments the issue whether the equality is a positive concept or negative one to be enforced by a court. We referred to the judgment in State of Bihar versus Upendra Narayan Singh and Others [2009-5-SCC-65] which has recognized the well settled position in law that the guarantee of equality enshrined in Article 14 is a positive concept and it cannot be enforced by a citizen or court in a negative manner. If an illegality or irregularity has been committed in favour of any individual or a group of individuals, others cannot invoke the jurisdiction of Court for repeating or multiplying or allowing the same irregularity or illegality. In the said judgment Honble Apex Court placed its reliance on its earlier decisions in Chandigarh Administration and another v. Jagjit Singh and another [(1995) 1 SCC 745], Secretary, Jaipur Development Authority, Jaipur v. Daulat Mal Jain and others [(1997) 1 SCC 35], Union of India [Railway Board] and others v. J.V. Subhaiah and others [(1996) 2 SCC 258], Gursharan Singh v. New Delhi Municipal Committee [(1996) 2 SCC 459], State of Haryana v. Ram Kumar Mann [(1997) 1 SCC 35], Faridabad CT Scan Centre v. D.G. Health Services and others [(1997) 7 SCC 752], Style (Dress Land) v. Union Territory, Chandigarh and another [(1999) 7 SCC 89] and State of Bihar and others v. Kameshwar Prasad Singh and another [(2000) 9 SCC 94], Union of India and another v. International Trading Co. and another [(2003) 5 SCC 437] and Directorate of Film Festivals and others v. Gaurav Ashwin Jain and others [(2007) 4 SCC 737] . Considering the above trite law, we do not find merit in the contention advanced by the counsel for the applicant that the applicant should continue in service as similarly placed six Linguists not eligible in the educational qualification have been even now working in NTRO.
22. The termination of temporary service on the grounds of ineligibility does not require to issue notice or to grant opportunity to the applicant. The action of the respondents in terminating temporary service of the applicant, in our opinion, does not violate the principles of natural justice.
23. Considering the conspectus of the facts and circumstances of the case, taking note of the provisions of essential qualification for the post indicated in the advertisement; and guided by law laid by Honble Supreme Court on the controversies in the case, we come to the considered view that there is no ground calling for our intervention in the matter. The applicant failed to convince us on his relief(s) sought in the OA.
24. Thus, the Original Application being devoid of merits is dismissed leaving the parties to bear their respective costs.
(Dr. Ramesh Chandra Panda) (Syed Rafat Alam)
Member (A) Chairman
/naresh/