Central Administrative Tribunal - Delhi
P.Jayaprakash vs Union Of India on 26 September, 2011
Central Administrative Tribunal Principal Bench T.A.No.22/2011 New Delhi, this the 26th day of September, 2011 Honble Shri Shailendra Pandey, Member (A) Honble Dr. Dharam Paul Sharma, Member (J) P.Jayaprakash s/o Sh. K.C.S.Nair 2-B, J&K Pocket Dilshad Garden Delhi 110 095. Applicant (By Advocate: Sh. Manoj V. George) Versus Union of India Through Secretary Ministry of Culture Shastri Bhavan New Delhi 110 001. Lalit Kala Akademi (Through its Secretary) Rabindra Bhavan New Delhi 110 001. Ms. Savita Lalit Kala Akademi Rabindra Bhavan New Delhi 110 001. Ms. Jaswant Nangia Lalit Kala Akademic Rabindra Bhavan New Delhi 110 001. Mr. Raj Singh Lalit Kala Akademi Rabindra Bhavan New Delhi 110 001. Ms. Ruma Bose Lalit Kala Akademi Rabindra Bhavan New Delhi 110 001. .. Respondents (By Advocate: Shri Prashant Khatana) O R D E R By Shailendra Pandey, Member (A):
The Writ Petition (C) No.11099/2009 & CM No.10410/2009 had been transferred from the High Court of Delhi vide its order dated 01.08.2011 in terms of the Notification dated 31.03.2010, issued by the Government of India. Thereafter, the said Writ Petition has been renumbered as TA 22/2011 by this Tribunal.
2. In this TA, the applicant has challenged the selection process of promotion for the post of Assistants in the office of Respondent No.2 (Lalit Kala Akademi) and also challenged the promotion orders of Respondents No.3 to 6 dated 27.08.2008 and 2.12.2008.
3. The brief facts of the case, as set out in the TA, are that the applicant had been holding the post of UDC from 13.12.1986 and according to him he was at Sl. No.2 as per the intra departmental note dated 26.02.2008 (Annexure P4), initiated by the Assistant Secretary (Estt.) for filling up of three vacant posts of Assistant in the Akademi. It is stated that the respondents had issued a Circular dated 28.07.2008 (Annexure P-5) inviting applications from eligible employees, who had completed 8 years of regular service in the scale of Rs.4000-6000, for filling up the vacant posts of Assistant in the pay scale of Rs.5500-9000. It was mentioned in the said Circular that the selection will be made on the basis of Written Test/Interview. In response to the Circular, the applicant had applied for the said post and also participated in the selection process (written test, interview) for promotion. The DPC had considered 22 candidates for the purpose, and based on their recommendations promotion orders to the post of Assistants in respect of Respondents No.3 to 6 were issued on 27.08.2008 and 2.12.2008. The applicant obtained under the RTI Act, information relating to the list of candidates recommended by the DPC, marks obtained in the written test held, his answer sheet, his gradation in ACRs of 5 years, etc. On receipt of this information, the applicant came to know that based on the written test, interview, ACR gradings and seniority of the eligible candidates, the DPC had recommended the following panel against the three vacant posts of Assistants:
1. Ms. Savita
2. Mr. Raj Singh
3. Ms. Jaswant Nagla Stand by
4. Ms. Ruma Bose
5. Mr. Rakesh Bajaj The applicant also found some errors of calculation while counting marks and, therefore, made an application on 22.05.2009 (Annexure P13) to the respondents stating that he had obtained a total of 48= marks (written test 37=, interview 5, ACR 2, seniority 4) whereas one of the persons shown in the list of successful candidates, viz., Rakesh Bajaj, had secured only 48 marks and, therefore, the list of successful candidates needs to be amended. Thereafter, the respondents intimated the applicant on 07.07.2009 (Annexure R1) that necessary correction had been effected in the list of successful candidates, which now stood as under:
S. No. Name of successful candidate Written Test (75 Marks) Interview (15 marks) ACR (5 marks) Seniority (5 marks) Total Marks
1. Ms. Savita 47 12 3 2 64
2. Sh. Raj Singh 37 12 4 1 54
3. Ms. Jaswant Nangia 38 9 3 2 52
4. Ms. Ruma Bose 32 10 3 4 49
5. Shri P.Jayaprakash 37= 5 2 4 48=
6. Sh. Rakesh Bajaj 40 5 2 1 48 The applicant filed WP (C) 11099/2009 and CM No.10410/2009 in the High Court of Delhi on the ground that promotion to the post of Assistant should have been made on the basis of selection from amongst only the nine senior most eligible candidates and the respondents had erred in considering 22 candidates against 3 vacancies of Assistants. The aforesaid Writ Petition came to be transferred to this Tribunal as TA No.22/2011.
In the TA, the following reliefs have been sought by the applicant:
set aside and quash the selection process of promotion for Assistants in the Respondent No.2 Akademi and cancel the promotions granted to Respondent No.3 to 6. Set aside the promotion order No.LK/3407/Admn dated 27.08.2008 and Order No.II/191 dated 02.12.2008, promoting Respondents 3 to 6 with immediate effect. Issue a Writ of Mandamus or any other similar writ to the Respondent No.1 and 2 to review the promotion process according to the Recruitment Rules and Service Bye Laws of the Akademi.
4. The respondents have opposed the TA and have taken a preliminary objection that the applicant has filed the present application without exhausting the appellate remedy under Section 20(1) of the Administrative Tribunals Act, 1985 and, therefore, the present application is pre-mature and, as such, is not maintainable. On merits they have stated that the applicant had participated in the selection process and not having been able to succeed therein with reference to the vacancies to be filled, has filed the present application, which is, therefore, not maintainable as an unsuccessful candidate has no right to challenge the selection process after participation in the said selection.
5. In his rejoinder, the applicant has stated that Respondent No.2 chose to ignore several representations made by him in the matter [no such copies have, however, been placed on record except for the applications made under RTI and his request for correction in the list of successful candidate] and, therefore, he had to approach this Court for redressal of his grievances, and that this Tribunal can adjudicate the matter on the basis of the available pleadings on record.
6. The learned counsel for the applicant has also placed reliance on the judgments of the Honble Apex Court [D.B.Gohil v. Union of India and Others, (2010) 12 SCC 301] in support of his contention that in exceptional circumstances this Tribunal can adjudicate the matter even if the delinquent employee has not exhausted the available remedies before approaching this Tribunal.
7. Further, the learned counsel for the applicant has stated that the applicant had filed a writ petition before the Honble High Court and later, due to change of jurisdiction, the same was transferred to this Tribunal, therefore, the availing of the alternative remedy is not necessary for adjudication of this matter by this Tribunal. In this regard, reliance has been placed by the applicants counsel on:
Union of India v. Parma Nanda, (1989) 2 SCC 177 Para 18 and Ghanshyam v. R.K.Sharma and Anr. 2009 (103) SLJ 160 (CAT).
8. We have heard the counsel for both the parties and have been through the pleadings on record.
9. As we find that the respondents counsel has taken a preliminary objection that the present application has been filed without exhausting the appellate remedy and, therefore, the present application is pre-mature and is not maintainable, it would be necessary to deal with this aspect of the case first.
This Tribunal is the creature of a statute viz. the Administrative Tribunals Act, 1985. Section 20 of the Act provides as under:
20. Application not to be admitted unless other remedies exhausted (1) A Tribunal shall not ordinarily admit an application unless it is satisfied that the applicant had availed of all the remedies available to him under the relevant service rules as to redressal of grievances.
(2) For the purposes of sub-section (1), a person shall be deemed to have availed of all the remedies available to him under the relevant service rules as to redressal of grievances, -
(a) if a final order has been made by the Government or other authority or officer or other person competent to pass such order under such rules, rejecting any appeal preferred or representation made by such person in connection with the grievance; or
(b) where no final order has been made by the Government or other authority or officer or other person competent to pass such order with regard to the appeal preferred or representation made by such person, if a period of six months from the date on which such appeal was preferred or representation was made has expired.
(3) For the purposes of sub-sections (1) and (2), any remedy available to an applicant by way of submission of a memorial to the President or to the Governor of a State or to any other functionary shall not be deemed to be one of the remedies which are available unless the applicant had elected to submit such memorial. In a recent Judgement of the Honble Apex Court in the matter of D.C.S. Negi v. Union of India & Ors. decided on 07.03.2011 in SLP (C) No.7956/2011(CC No.3709/2011) the Apex Court, while dismissing the Appeal, has emphasized that the Administrative Tribunal established under the Act cannot abdicate its duty to act in accordance with the statute under which it is established . Therefore, in our view, the provisions of the Administrative Tribunals Act, 1985 have to be strictly followed, and we are duty bound to first consider whether the application filed by the applicant is within the provisions of the Administrative Tribunals Act, 1985. As already observed above, Section 20(1) mandates that an application should not be admitted (ordinarily) unless the applicant has availed of all the remedies available to him under the service rules.
10. We find that the applicant has not appealed to the higher authority with regard to the grievance raised by him in this TA, and has thus approached this Tribunal without exhausting the available remedy to him. The learned counsel for the respondents has stated, across the Bar, that under the service Bye Laws of Lalit Kala Akademi, there is a provision for an appeal to the Chairman of the Akademi. The applicant needs to take recourse to the remedy of appeal, which is available to him, before approaching this Tribunal. Therefore, in our view, as per Section 20 of the Administrative Tribunals Act, 1985, the application is not maintainable being premature.
11. The case of D.B.Gohil (supra), relied upon by the applicants counsel in support of his contention that this Tribunal in exceptional cases can admit the application, will not advance the applicants case in view of the clear provisions of the Administrative Tribunals Act, 1985. Also, we find no exceptional circumstances in the present case to warrant his not seeking recourse to the remedy available to him. Moreover, no prejudice would be caused to the applicant if he first exhausts the available remedy. The other case laws, namely, Parma Nand (supra) and R.K.Sharma (supra), relied upon by the applicant, would also not come to the rescue of the applicant in view of the Honble Apex Courts observations in D.C.Negis case (supra) that this Tribunal has to act according to the provisions of the Administrative Tribunals Act, 1985 under which it is established.
12. In view of the above, without expressing any of our opinion on the merits of the case, the OA is dismissed as premature, but the applicant is given liberty to first exhaust the remedy available within a reasonable period and thereafter, if any grievance survives, to approach this Tribunal, if so advised, in accordance with law. No costs.
(Dharam Paul Sharma) (Shailendra Pandey) Member (J) Member (A) /nsnrsp/