Central Administrative Tribunal - Mumbai
Dr Sajal Kumar Chattopadhyay vs M/O Agriculture on 4 June, 2019
d Od Ne. 506%
* CENTRALT, ADMINISTRATIVE TRIBUNAL,
MUMBAT BENCH, MUMBAT.
O.A. No. 520/2016
aN
Date Of Decision: 4 June, 2019.
CORAM: R. VIJAYKUMAR, MEMBER {A}.
R.N. SINGH, MEMBER (3}.
Dr. Sajal Kumar Chattopadhyay, Age 58 yrs.,
S/o Shri Sadhu Charan Chattopadhyay,
Working as Principal Scientist, .
ICAR~- Central Institute for Research on
Cotton Technology, Adenwala Raad,
Matunga, Mumbai-~ 400 O19,
Residing in Type 'V' Quarters, 602,
ao ® . CIRCOT, Matunga, Mumbai- 406 619.
.. Applicant.
(By Advocate Shri S V Marne)
Versus
fend
. The Union of India,
Through the Secretary,
(Department of Agricultural Research and
Education, DARE) & Director General,
Indian Council of Agricultural
Researcen (ICAR}),
Krishi Bhavan, New Delhi- 210 ool.
an & . The President & Disciplinary Authority
- © of ICAR, Indian Council of Agricultural
Research (ICAR}, Krishi Bhavan,
New Delhi~ 220 O81,
Tay
3. Director,
ICAR~ Central Institute for Rese
Cotton Technology, Adenwala Roed,
Matunga, Mumbai-~- 400 O15.
.. Respondents.
(By Advocate Ms. Pavitra Manesh
for Shri M.S8.Topkar)
Raserved on : 2£0,04.2018
Pronounced on i &. §. Baars
O16
V
OA No. 52
LOT
t
ORDER
PER:~ R. VIGAYKUMAR, MEMBER (A).
applica the seeking Ae OTS & KO te © Oo BA QRH Gm ee Bey body t , B ioe $5 ok poy bys omy oo Diep A ED eg 4 = oN Re oe os ft OHS be (So Ge RE se Cred O 4a Co ny hb ONG SH Yon *, ts re ®, 4 G or Cup oy 2 cs) fey gs ty es me ER Oey . x, Boo ob BA ody my PA SR wy ory ER ee har ed :
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Scientist (Textiles Manufacture) from O7 05.2014. Complaints were received on irrequiarities in recruitment for in technical categories conducte Muraba a. Ln Auguat-Saptember advertisement for these eight eight posts ad by CIRCOT 2OLO. The posts which 4 OA No. 520/201 6. included the post involved in the impugned disciplinary proceedings was published in the. Employment News on 13-18 February 2010 with requirements as follows for the relevant ii} Reservation: UR-], ST-1.
Sy & j +4.
oS be os O , G ty Oy a o thy ; : j ivi QOusiifications: Matricalate with at beast one year Certificate from Reo 'i a
3. Arter following prescribed procedures, a charge memorandum was issued to the applicant on 26.08.2013 in respect of Ae) appointment of a Technician Grade (T-1), MP im unreserved vacancy for which the Selection Committee meeting was held on €1,09.2010. This Selection Committee sonsiat ted of: 1) Dr. eo. Shaikh, Director, CIRCoT MATUNGA, Mumbai; 2) Dr. S.K.. Chattopadhyay, Head, M.P.D, CIBCOT, Matunga Mumbai; 3) Dr. S.G. Gayal, Head, e.BlP LE. CIRCST Matunge, ¥ yy oo co oes | ae ~ | a 5 Od No, §20/2016 | Mumbai; 4} Prof. H.V. Ramteke, Head, Textile 7 Technology Department, S.A.S.M.ILR.A., World, Mumbad ; 5} Shri KH. Sawakhande, Scientist (Sr. Seale), CIRCOT, 'Matunga, Mumbai . The Committee recommended Shri B.G. Gole in their proceedings dt. 01.09.2610 ia ned by all six Members and which was i y thereafter, approved on the same day by th E ¥ 4 Director, CIRCOT who was also functioning as Chairman of the Selection Committes. The Single Article of Charge drawn against the applicant is as under:
"Article of Charge 4 te ; .
While functioning as the Head MPD, OFRCOT and tha Memb Bath Selection Committee during 2010, Dr. . SR. Cha ttopadhvay screened tae ee \ | applications received for the post of = T-2 (MPD) and recommended he selection of Shri Deepak Ganpat Gole ta the post of T-] (4PD). The essential qualification for the post provided for the applicants to have passed Matriculation and Posse:
tre selection Oe "She © & ' an violation ar fhhe Recrultme By ALS. above aert, Or. SK.
4. The selected candidate had the following qualifications as per the praforma placed before the Selection Committee:
Frage enitvialiticoation: Experience Remarks 19/03/2010 five.
ne 4 : :
Applicant igfosing data af . ' WK application} SS As ee yy ® > rt o> £ wh Po PShed 44 Wears. ° SIL. SVS.) 1. orRcor- Employee heapek Months 2 Rays Teohnician tn CTRCaP Sanpat ' Ger PPIs 20 Gore years
5. | The Inquiry Officer appointed for 'this purpose completed. HhiS inquiries and submitted a Report(A-16}) on 18.11.2014 which noted that the applicant had requested the Director, CIRCOT to fill three vacant Post WE of Technical Assistant fone in Textile Technology and two in Machine Operation) in letter dt. 18.06.2009 and mentioned
9) tr i activities of RmLCroe processing, LX testing, maintenance of sample records/test records /report preparation/cataloques ete.
for cotton samples received under paid test.
Although the request Was far Technical ' ? OA No. S2Q/203 8 categories, the Advertisement did not mention Category and Functional Group. The Inquiry Report records its view on this x administrative lapse in advertisement and notes that there is no post classified as T™ LiMPD) in any of the functional groups and $86 technical posts identified in the Icar be Handbook of Technical Services, t also comments on the screening process as follows:
"5S. Method adested far screening of applications also appears to be casual and faulty. It appears that initial Serutinization or rhe applications Was aoane by adeinistration Followed by verificatian oF qualifications/feguivealencias by the Head, MFD as per advertisement. Sereening oF applications is extremely pertant step Ln selection process and in fach a Fuil~fledged screening Committee consisting experts from MPO and member(s) From administration should have been constituted ta screen the applications for the said post of T~ i {MPD}. Because Scientist f(s; generaiiy have dimilted knowleciye of administrative matters, recruitment i sy ang intricacies associated wi ky , ;
t essential que.
é. it alse records certain views of the charged officer on the requirement of a ane year certificate Lrom a recognized g OA No. 520/2016 officer that the Granthpalan (Library) at Certificate from Government of Maharashtra and Exper. lence Certificate for having worked for six years in MPD CIRCOT would suffice. ft also notes that the selection was unanimous and the inability of the inguiry to determine, from documents "supplied by both parties, whether qualifications had been specified aitter due consultation. In view of) this and after noting the difficulties faced body s ree) ct boa pat ie) in filling up the posts of technicia Inquiry notes its findings as below:
"FINDINGS OF THE INQUIRY:
On the basis ef eritical analysis of documentary evidences and WrLbten briefs of PO and CO, the article of charge as framed against Or. S.K Chattopadhyay, Director {Acting} and the - taen Head MPD, CIrRCOT, Mumbai. under \ Rules i¢ of CCS{CCA}) Rule 1965 as : extended fo IGAR employees wide Nemorandum F.No. 4-17/12-Vig. (PD) (4) at. 26.08.2013 stands partially proved 1,8. CHARGE PROVED PARTIALLY. °
7. The Disciplinary Authority disagreed with the findings of the Inquiry Officer for the following reasons and communicated these in Letter dt. €6.11.2015 as below:
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baer q Gre 10. . «OA No. T2020 8 + Disciplinary Authority held that the Charg ed % Officer was involved in screening as well a
164) selection process and Was thus fully responsible for the wrong selection made Further, that the selectee was working in the Charged Officer's unit and the Latter ox D deliberately ignored the fact that ¢ ct re) selected person was not possessing foot ssential wo quali fication and recommended Ri if) selection to the post of T-1l.to favour him.
Fuxther, that all the other Charged Officers whoa had been exonerated ware members of the Selection Committee but were not expected te a.
qo inte the eligibility of the candidates recommended by the Screening Committee, The Appellate Authority noted that all aspe Hg Ae ae had 12 been taken inte account by Disciplinary Authority and on the relevant o iv} Dr. Chattopadhyay screened aii the 26 apoiications for the pest of Pi {MPD}. Out of the 26 apolicetiens, he rejected 13 applications but did not reject the appiication of Shri Gale whe did net fulfill the requisite qualification. Dr Chettopadhyay and Shri Khamkar were the only officials sssoaciated with the sereening precess and were < wong 3 £N = ay wy :
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ay gn ; fet ry a rot ae 4, bet4 wy be f2 O4 No. §20/3016 'to him and this non-supoly had been unfairly upheld by the Disciplinary Authority. He denied that he had specifically recommended . Sole bout also OY selection of Shri -pD.
et ty > ip 8 states that at cannot be held hat the selectes did not possess the essential qual * ry ie we O Ds ct jae O 3 in of Fok y ry as a et
193) ~ ies] @ es 2 of i Th En up ro) SA, oO m3 Ts qualification of Granthpalan and a certificate from CI RC COT of his experience iny .
os i the MED. He also states that after record and communicating .-his disagreement, the Disciplinary Authority had to provide 15 days time to the charged officer for filing his reply in aceardance with the BoPT OM No. 425/04 /2012-AVD-IV {A} (Annexure A-11)} dt.
29.d1.2012 and that the reply of the Chargeqay officer was required to be sent to the cVc for second stage advice of to UPSC for the advice as the case may be. In this case, the Disciplinary Authority communicated his the second stage advice of the cvc dt.
< & 3 «EN . 44 wy Jard on O6.11.2015 and a copy of this CVC advice was Woy es re a} ft ee also enclosed Tor reply by the Charged oe SMELT Sit © £3 OA Na. S201 6 Officer in the OM at. 20.11.2015. in reply, + the applicant had asked for additional 63, documents in his: letter dt. O1.22.2015 an after receipt of a reply denying these decuments from the Under Secretary (Vigilance) en 16.12.2015, he filed a representation on all theses aspects in his letter dt. 23.12.2015. The applicant argues that the action of the BA was in violation of the procedures and by obtaining the second stage advices of the cVC before obtaining the the CVC and DA had pre-judged his case without giving him proper opportunity to reply on the Inquiry Report and on the Disagreement Note. In this connection, he refers to the case of Union of India through Dept. of Revenue & Anr. Vs. Kamal Kishor Dhawan & Anr. in WLP. No. 9533/2009, where the Hontble High Court of Melhi cbserved as follows:
"60. ...The consultation with the CVC for the imposition of the punishment prior to hearing of the representation of Reapandent No.ifi.e. The deiinguent officer} is aiso a substantial elue id G4 No. 5320/2016 abeut the mind of the Diesciplinery Authority whe had undoubtedly already formed its conclusion on the guilt of Respondent No.i (i.e. the delinguent officer} with regard to the charges framed against him."
LO. The applicant also submits that the Inquiry Officer had determined that initial 'scrutiny of applications was done by the Administration followed by verification of qualifications and equivalence by the Pea MPD and that this screening was very important and should have been done by a proper Screening Committee considering a cr ey a ot.
Scientists had Limited knowledge oF administrative mathers., Re states that this would suggest that the applicant had only verified qualification and equivalence for x the purpose of screening and cannot be blamed for the entire screening. He also contends that once the Inquiry Officer found that the and the candidate had been selected unanimously by the Selection Committee, the Inguiry Officer failed to establish a co-
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a 16 Od No. $20/2016 | communication. He further denies that any Screening Committes was formed as held by the states that the visaw expressed aot fa cr o :
oa ~ me at + x © by the Disciplinary Authority that the 3 applicant functioned as Chairman of the oF Screening Committee is. completely false and ' no such Committee was constituted ner Office : . . oo KK Order issued and that there is no such) decument on record or office order and none the inoguiry. on this basis, he states that the Disciplinary Authority appears to have admitted and referred to non-existent and inadmissible evidence. Ha refers to the role of the Chairman who was also the 'Ppointing @ | Authority and had functioned in a dual role ct o} fet Bs to fFarst select and recommend and then k off in this ih appoint and that he had been le ¢ process. Both the Chairman and the other Members of the .Committee had a duty to point oub any ineligibility or unsuitability of candidates before making the recommendation and that the applicant alons could not be "at 9 i? G4 No. T2202 8 held fully resgonsible. He also adverts to the Tnguiry Report which notes that Scientists are not well-versed. with adtiinistrative matters. According to him, the lack of efficiency or failure to attain o higher standards of administrative ability I while hold ng a high post would - not constitute misconduct as held by the Hon'ble Apex Court in Union of India Vs. J. Ahmed [ (1973) 2 sec 286] in C.A. No.2152 of 1969, decided on 07.03.1979.
i3. ' Finally, the applicant has alleged mala fides in the enhire process by arguing % that the disciplinary proce eedings hac essentially been commenced with a view te making him ineligible for consideration for the post of Director of CIRCOT by withholding His Vigilance clearance sinee the proceedings were for @ major penalty. He states that after receiving an interview call letter for the interview on 27.08.2012, this was withdrawn on 24.08.2012 stating lack of Vigilance clearance even though no such proceedings were pending on that date.
is %) Thereafter, ths wost was was only through the Tribunal that he could appear 4 interview end the results had been kept in sealed cover until finalization of the disciplinary proceedings.
14, The respondents state that the Inquiry Officer had held the charges against the former Director and Chairman of thaw li Selection Committee and two other members as 'not proved' and this was agreed by the C¥C upon which the bisciplinary Authority dropped the charges. However, the Inquiry Officer held that charges againet the applicant and tant Administrative the former Assi iB tm ay Officer (AAO). were partially proved and action was taken. They deny any relevance in the selection for the post of Director. They. state that four interviewed candidates had ha Oo.
m th ifTl Certificates and three candidat cr Diploma in Textiles but despite this, the selectee was Given preference. They insist that the applicanh was part of the Screaning Committee and camnok shift the burden to the OLLIE 19 ---- OANa. 5320/2016 Selection Cemmittee. They submit. that the applicant has not proven that any prejudice was caused to him "due te denial of the documents he was seeking as mentioned in his application. In their view, the Chairman and Members of the Selection Committee were not required to go throu igh the eligibility of screened candidates. They reiterate that the applicant and the AAO (Shri Khamkar} had screened all the 26 applications and rejected 13 whereas they. had included Shri 0.6. Gale who was not possessing essential qualifications. They state that the 'e qualification for .'Librarian' cannot by any stretch of imagination be taken as a relevant mh field |. for the Mechanical Processing Division{MPD) and therefore, there was a of misconduct on the part of the definite act applicant. They also submit that the Chairman of the Committee who was alse Director came to the post after screening and issue of interview letters and his role was limited to the Sslection Committee. They estate that the judgments cited. by the ee a} O4 Ne. S202016 applicant are distinguishable and are not applicable Lo the present facts and * circumstances. They also mention in response that the appeal of the applicant to the . President (ICAR) was also treated as a review petition since no further opportunity was any mala fide intention in the selection process nor favoritism shown by the applicant anc therefore, instead of eoncluding 'that the charge was not proved, he suddenly and without logic, concluded that the charge was te partially proved. He has reiterated various ty other aspr et ects already mentioned in hissy application. On the aspect of whether the respondents had taken the viswe of the Technical Service Division of FCAR,. & document requested by the applicant, the respondents had denied such a document but the applicant has annexed this as A-2?4, of later date to selection, which reads as below:
internet yy 2F O4 No. 3200/2016 *Estt.. IV Section Ref. notes over-leaf Phe Technical Service Division of the Pfouncil deals with the policy matters relating to the Technical Service. of the Counoil. As no policy matter is invoiver in this case, this may be xamined by the concerned SMD, 1.4. Cc at ; & Experience Cerbif bificate canrot ep C the requirement of Frade Certificate For one year. if selection has been done an che basis af experience cartificate, then the same is not correct and needs to be reotified.
Bdf~ dt. O7/08/ 201 2 DS¢(Ts & WS): scdf~ US (Vig) 2 sdf~* 1é. Further, he also states that in case the two documents he had asked were not relevant, the Disciplinary Authorit y should not kaye Furnished them to the c¢ve. Ir addition to making certain allegations aise denies the comtentions respondents on the 'screening proc Hy { demanding submission «a & copy relevant Office Order, its service
22. Od No, S20/2016 -
Report of the Screening Be ia) 3 hie bely a ty i ct ct hy B x x yintly gned by the applicant and ran O zB a je * ct cr o D aan) o yee we he a LAL Shri Knamkar (AAO) and proof of such documents being examined in the inguiry.
L?, During arguments, Learned senior counsel for the applicants Shri S.V.Marne, reiterated his pleadings and referred to the view of the Hon'ble Apsx Court in State of Uttar Pradesh & Ors. Vs. Rajpal Singh[ (20108) 5 SCC 783] in C.A. No. 3511 of 1998, decided on 20.02.2001, on the differential treatment of the applicant and other Selection Committee Members and in which it is held as .
follows:
"A Service Law - Penalty/Punishment -~ Diserimination ~- Different punishment for identical charges, delinquency and CS iheident an gAae Same day - \S Unsusteinability of - When cherges are Same and identical in relation to one and the same incident, te deal with tne delinguents differentiy in the award of punishment, held, would be aiscriminatery. "
18. Further, dn Inspector Prem Chand Vs. Gevt. of NCT of Delhi € Ors. {2007} 42.S8SCC 566 in C.A. No. i815 of 2007 decided on 05.04.2007, Lt Was held following J.Anmed (supra) that error of tudgment is not 23 OA No, 520/2018 misconduct and can only be considered as negligence simolicitor. Further, he also referred toa th iD be decision in Bhagwati Prasad Dubey Ve. Food Corporation of India & Anr. 1987 (Supp) ScCc 579 in C.A. No. 10642 of 1983 decided on 29.10.1987, in which no special reasons had been mentioned for favouring the particular supplier and therefore, the aopellant at worst, could only be accused of i wd an error of Judgment. He fairly admitted that in the present case, the selected candidate had been working under the licant for six years until the interview.
fis ae p x sy re@ldooen 01.09.2010 and even prior to the res sf applicant's joining as Hof on 04.05.2009 for L3. The learned counsel aise relied on the rulings of the Hon'ble Apex Court in B. Vani Kumari Vs. Union of India & Ors. {2004} 1 ALD 819 (DB) in W.P. No. 15247 of 2003, decided on 07.11.2003, wherein the petitioner had not followed the rule of reservation in ot ecting candidates for promotion. In this in a fm ease, the petitioner had been arraigned as CO @ % Pikes oS oF Bee as wa yam S SOR Os GAH GS HHO mM th ~ Bye Dy oe POR f SHG Dee G Oy me tH | % Rap PSM Eee Ea RDS hor Bet Guy oad GS esa oak ge 6 a a i an GO rt Bw na 7 hi Zor oz Seadoo «. G6 Ba "Dae D gags = a KE tet my ig Gog te 43 yee pany ae eee Ado OD 4 Rg ted 4b cs see GS " Gots 3 Ad a 3 Bi wor rut oe SS » ty kyr es ing $3 1G Ye " OGM Be GH ob 2 8 ER ord sed ow ted x Sie Eu Bw wy mt fy OF wor op 2 OY On Ow ONS riceh My ee a tog 2 Oo EW Bsa g my Me * my 43 a OW. po wey ne Ce mee fa "est iS Eo ht os Aad a "t On mon re 2 @ $ * ey te OOO eR ay oe SEY tag 43 63 i Ge 8 we FP oR BO ' sy "Be S Geook ww ~ o 05 iy uy, Dt © tr 5 8 8 Sy + oO os 36 8 o4 © BY e Com oe . nS m RAO , 43 Spy ; ats a5 'ES em O 2 og pg. OF 42 @ hay cis yo US Ca $y SE ge hy o od 24 aD G BN Ba & m 8 Bo oh oa * go 8 RO og $ eoQ "Pe DE Sag 6 oa" 2 ee Py Qe pn Gs Ee hy a 3 1 ya pe SS hs % et Oy G@ Go ei 43 fo @ por ; 3 & 'Ee a by a GO @ YEN BOM og Ty en ee je n wm + 4q Tt rpg BT BG 14 Som Oo ® Ugo" z TS YS OC E:
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Moog BO 34 a gr Ow ay oy EE US CEM OEE Eg De Soe RH BS aa 8 a wed wed hd ER as : a % A ag fy a at 4 ty fay ee 7B. s 0 ana TOE pe Be @ Doey EO "py. ES mh EE el od n G oO 3 % ee wi mh a, by a BR SE ee Me Com ono E mE _: nb & ss é @ g "eee 5 8 NES Ss eno sueevlssuy BES ELE RR o koa gd | in bh Ma Bek te oS mp ey ES " "a moog Gy ga Ge br 4d mt Eh Sune ane "mt es 2 i O ood ny Tok a sf rf % a " @ Q Ky if She te Oo -- om hy é "os 6 & g i fo 8 ic oN 6 ee 8 ze @ Mm 4: O& OG & J on a a ES WO Oe Oe J om Oy Oe cy r > hed oo x é 7" . : mG Me & a g a 8 ory 4d 2g, Caw 26 O4 No, 520/2016 --
commissiens or amissions, it is aiways open For the conpetent autherity to send back the selection fist te the selection committee or set right by himself. But, can it be said that the mambers of the Committee have commi Ctect any miscenduct in the absence of any aitegations of mala fide, corruption or misconduct touching the integrity of the Officer."
21. In response, the learned senior } counsel for the respondents Shri M.S.Topkar, argued that the applicant and the AAO (Shri ce Khamkar} had been authorized to screen the various candidates against the advertisement. In regard to the three cases relied upon hy the applicant, he stated that they were distinguishable in the facts and circumstances of the present case. Further, with regard te the decision in B. Vani cr 2 rt x kumari(supra), he argued that the applicant WaS mot punished for selection but for bad screening. - He claimed that out of five people, one was not qualified and four had
42. in rebuttal, the learned counsel for oe a? OA No. 5202016 --
case, 2s. When this case Was heard on 13.03.2019, learned counsels were heard and orders were reserved. At thie stage, the spondents produced the proceedings of the Selection Committee meeting for this particular post. However, it WAS again iisted for being spoken to on 26.03.2019 and respondents were directed to produce the original Screening Committee file and Selection Committees file in which initial screening was made and screened applicants were cénsidered by. the Screening Committee.
On the promise that these documents would be op produced in one week, the matter wa adjourned and when it WAS heard | on. 10.04.2015, tne arguing counsels for respondents did net turn up and only a proxy counsel appe sared and it was noted at th a ey tame thet both the files that were require @ iG to be deposited in one week. had not been made assistance from a available and the lack of respondents was deeply deprecated. Finally, only the Selection Committee file was made 28 OA.No. 520/2016 | available.
24. We have heard the learned counsel for the applicant and learned counsel for the respondents and carefully cone sidered the facts and circumstances, law points and rival contentions in the case, 25, the Selection Committees proceedings have been perused and it shows that the six vet ke, - WG mambers headed by the Chairman and with shrO0 a oF fh 3 PT & rs O as Member Secretary called 13 persons for interview and 11 persons attended. The qualifications for. these 11 persons were as below:
"i. BA, PRY Electrical.
a, HSC, IPE Pumo Mechanic, IPT Machinist.
3. Hse, Diploma in Man-made Textile Chanisetry.
4, SSC, 5, SSC, iff Turner, OVP.
6, HSC, Diploma in Handicor Fechnology.
? a Sc., PGDSN, &. HSC, Dipiama in Handloom Technology, Post Diploma in Textile Chemistry.
2, ig", If)F in Diesel Mechanic.
LG, HSe¢isss), if. SSC fselected candidate) ."
26. Of these candidates, item 4 had ten years experience in CIRCOT, item 10 had ten ance in CYFRcoT. and item li had be @G ee ey % O ns ces a > CTT
-- © Bo. OA Ne, S2G/20 18 bie cr > twenty years experience in CIRCOT. The also mentions that item 10 had worked in MPD for Six years and whereas item IL had worked in MED for ten years.
27. In the present case, the applicant has challenged the fact that his appeal had rs a G 3 Y o os Gy & ry Ct @ o mn cr o ty re a x te ae @ = ow tu oh fe tf Q be 5 {> $d Ky From the present situation is that the applicant is of the rank of a Principal Seientist and the respondents have made it os clear that there is no further scope Eoxr -
"
review and it is, under such circumstances, that they have combined both appeal and review in disposing of his appeal as a review petition. This action of the respondents rs to 0 0©6ohe in order and since the Pa apps applicant has sougnt adjudication of this matter before this Tribunal thereafter, no prejudice can clearly be claimed.
28. The applicant has submitted that the Disciplinary Authority communicated the second stage advice to him along with his } sined such advice o Inquiry Report and had obt before taking his representation on the 30 Qa No, 3202076 Inquiry Report. Therefore, he pleads that the Disciplinary Authority has pre-judged his guiit. Aithough the applicant himself has produced a circular No. 08/12/14 dt.
03.12.2014 that dispenses with second stage consultation where First stage consultation has not been deviated, in the present case, second stage consultation has been takan. Such consultation has been communicated "& the officer in accordance with the provisions of Chapter XI & XIE of the Vigilance Manual, Volume-T and based on the views of the Hon'ble Apex Court an State Bank of Inida v¥. B.C. Aggarwal and Anr. decided on 13.10.1992 and the observation of the Hon'ble High Court of Karnataka in W.P. No. 6558/93. Such _ | © actions are clearly intended to fulfill the requirements of natural justice consistent with expediency of prscedures and no error can be ascribed on this aspect. 29, The respondents have claimed in accordance with the opinions expressed by the Disciplinary Authority and. the Appellate Authority that the qualifications of the CO hte COOOL © © 3 , . / OA No. F202016 selected candidate, SHri D.G. Gole, can by no sire etch of imagination, be considered as relevant to the Job especially since he had a qualification as navien which had nothing to do with the technical aspects of the cotton processing. On the contrary, lies the opinion obtained by the respondents themselves at Annexure A-ed from their Technical Servi és Division that experience in the technical. organizations cannot he ted as a substitute for a regular trea technical qualification. Although this opinion bears a Later date, 2 has plicabilit "YY as a clarification of what was always intended by the administration.
Further, the qualifications prescribed in the advertisement are in no manner clear and the respondents had an express duty to specify their requirements for the particular yob in terms of Enown and available qualifications.
N Not having . acquainted themselves with the needs o£ the ob and ther fixed qualifications, the respondents cannot turn around and blame all and sundry for not bein 1h 33 OA No. 3202078 able to comprehend their intentions. Nor can the respondents initiate disciplinary proceedings for their own failures.
'
30. hese entire disciplinary proceedings bg have proceeded by alleging misconduct. According to Black's Dictionary, misconduc at would be a dereliction of duty, unlawful or improper bshaviour. Further, official misconduct arises from a public officer's) corrupt violation of assigned duties by malfeasance, misfeasarce OF non-feasance, Therefore, what is required at the preliminary stage is for setting out a rule of conduct. In the present case, the applicant was Head of Division of the MPD which was benefiting from the selection of © Technical Assistant in these selection proceedings. Therefore, it might be possible to presume that the Hof had a duty to assist in screening. Presumably, the BAO had such a duty under the adminis trative supervision of 2 the Director who was also the Appointine ae =~ Authority in the present case. No evidence SELLE SELL 33 OA No: $20/2016 . papers,- before the Inquiry Officer, or in these proceedings, to show that there were orders issued to farm a Screening Committee whereby the responsibility was delegated from the hands of the Appointing Authority-cum-
Director to the two persons impugned by the.
3f° respondents in the disciplinary proceedings.
t Despite all efforts and urging of this "Tribunal, the vespondents have failed to Y) oroduce the Screening Committee proceedings G 5 nor have they even produced a list of the fh oy candidates who had applied for the job and the screening papers that resulted in 13 of chem being placed for consideration by 'the Selection Committee. An argument could be 'ce raised that the order forming the Screening Committee was informal and oral. However, if even a List is not available, such a claim is also not maintainable. In the absence of any papers relevant Lo the Screening Committees, we have no access to understanding the nature of the recommendations made and whether any qualified persons had been dropped even at that level and that any a ° Favoritism had been caused in prep jf OA No. 5202016 | aring the list of persons for the Selection Committee.
In this yregard, in Was Set ont
4. conduct conduct set ont Rules. In this Conduct Rules of the Appointing mo such directions that Ce as relating d, Bhmed case(supra), it misconduct would be a which is inconsistent with a code of in the relevant Conduct sé, Wh may construe the ko the directions 4 ey < . Sw Authority-cum-Director bu© are available. Therefore, we are unable to identify the basis on which misconduct is applicant.
Si. The respondents Selection Committees candidates who selected a the applicank but Selection oF the about the being candidates alleged against the = have argued that the amitted several qualified ere seven in number ang candidate who was working under was unqualified. Perusal. list yielded information considered and who appeared in the interview as already listed above. The respendsnts have argued in this COMNece Laon 2 not be considered by any that the sele ched candidate could sihretch ot n on SOLE COOOL e 04 No. 202018 fas Nay imagination as having a relevant qualification. Perhaps this is true.
However, it would be very 'difficult to 4ustify an ITI Electrical candidate with automobile experience, a Pump Mechanic or a Machinist, a Turner with De °P, a 'PGDM, a Fitter or & Diesel Mechanic aS app Late re ot 'Oo i qualifications. Further, the Selection Cemmittee considered four persons at No.4 who had SSC only, No. 7 who had BSC and PGDM, No. foot 10 who had HSC and No. It who had SSC. Al four did not possess the additi onal technical qualification and therefore, the question arises as to what made the Selection Committee go into a stupor when they were faced with such a assemblage. What indeed is the role of a Selection Committee becomes a significant question. A Selection Committes is given agenda papers stating the title of the post, its job responsibilities and the pacific qualifications for the job. As in Lso oy all cases, the present Committee was given a full list of persons with all these A qualifications and the marking system 38 («OA No. $20/2016 fea required them to give marks for educational qualification and experience in the desired field although they have failed to give any indications of grading in those areas while giving marks in all other aspects of subject matter knowledge and interest. Perusal of the marking also shows that 'the selected candidate, Shri D.G. Gole, got 8.5 marks from tk 4 Sate eek Tws £ even e : Member Bg WH the Six Selection Committee Membars and Eh next person below him got only 7.3 marks.
Therefore, there appears to have been a clear unanimity in th selection and if there was consistent bias ranging across all the members led by the Chairman. As mentioned hefore, the Committees has evidently notes recorded its views on the aspects of qualification and experience which should also have attracted the attention of the Appointing Authority. In the present case, the Appointing Authority had a duty to entrust tne initial screening in a proper "manner and to delegate his authority to this Committee in an anforceable ihariner. He had SOLED a7 . OA No. S202016 cr another respansibility to ensure that h z uy selection Committee went about its business in a@ manner consistent with the rules and to verify that they had done sa when their recommendations later arrived at his table. He may, as a Chairman, have taken a particular view of the matter but as Director and Appointing Authority, he had to take an overall administrative view in keeping with '4 te 583 fer -
the rules and regulations buh it is evident that this has not happened. In this regard, reference may be had to the rulings f the Hon'ble: Apex Court in 2B. Vani o KRumarifsupra}) at Para 23, extracted above, and as submitted by the learned counsel for the applicant, it is the duty of the Competent Authority to ensure that the panel is done correctly and the responsibility cannot be passed on to the Selection Committee and vests entirely with the Acministration. Instead, all efforts have besn made to place the blame in the hands oF the applicant without the needed supporting vidence or data © identify the natura of iD 38 OA Ne. 520/2016 his misconduct or of his ubiquitous role in deciding all matters in the Selection Committee and by the Appointing Authority. ft 2s particularly intriguing that the applicant has been charged with bad screening but in these proceedings, the respondents have not been able to produce the Screening Committee files or «even the list of 26 candidates who applied and of the L© 5 candidates rejected in screening despite much te prompting by this Tribunal.
32. im the circumstances narrated above, the disciplinary proceedings are clearly in error both on the aspect of the claim of yoee misconduct and on the imputation made against 3 the applicant ny 2S a& member of the Selection | © Committee, The impugned orders and disciplinary proceedings are therefore quashed. The applicant is entitled to consequential benefits and in case deductions had been made from his salary, the same shall be rvefunded within four weeks with interest of 8% from the date of each deduction up to date of payment. The applicant has alss SARA nga gba a aa anatase oaa as baseeessereaeerees 39 OA No. 5202016 pleaded for appointment as regular Director but that was evidently derived as a consequence of the denial of Vigilance Clearance and after he appeared in the interview, when his case was placed in sealed cover on account of these disciplinary proceedings. We are unable to inquire into the mala fides of respondents alleged by * applicant for want of more detall and because that would appropriately be part of separate J yroceedings and reliefs. However, aS a consequence of quashing of these disciplinary proceedings, the respondents are Alirected to open the sealed cover and to take necessary action thereafter in accordance with the vules within a period of two' weeks and to communicate their decision to the. applicant re within a week thereafter. These short periods have been specified considering that the applicant has mentioned that he is superannuating by the end of June 201%.
33. The OA is accordingly allowed as above. Further, considering the nature of the proceedings and the flagrant disobedience coh af O4 No. 3202018 or inability of respondents to preduce the os Screening Committee proceedings or list of 2¢ é a my 5 iS post and cr candidates who had applied for the applicant conservatively quantified at As. 29,000/~, shall be paid by Respondent No.2 to the apolicant within two weeks of receipt of a ce sctifie a copy of these orders, (R.N. Singh) (R. Vijaykdmar) | Member (7) Member ayy' | Ram.
OO.