Central Administrative Tribunal - Delhi
Dr. Shakeel Ahmed vs Union Of India Through on 18 December, 2014
Central Administrative Tribunal
Principal Bench
OA No. 3238/2012
Reserved on: 14.07.2014
Pronounced on: 18.12.2014
Honble Mr. Justice Syed Rafat Alam, Chairman
Honble Dr. B.K. Sinha, Member (A)
Dr. Shakeel Ahmed,
Chief Scientist, NGRI
Uppal Road, Secundrabad
Hyderabad,
Andhra Pradesh. Applicant
(By Advocate: Shri Athar Alam & Sh. Azhar Alam)
Versus
1. Union of India through
Secretary,
Ministry of Water Resources,
Shram Shakti Bhawan,
New Delhi 110 001.
2. Secretary,
Union Public Service Commission,
Dholpur House,
Shanhajan Road,
New Delhi 110 069.
3. Sushil Kumar Gupta,
Member,
Central Ground Water Board,
Faridabad, Haryana.
4. Department of Personnel &
Training (DOPT)
North Block, New Delhi. Respondents
(By Advocate: Shri Rajeev Kumar for R-1
Shri Rajinder Nischal for R-2
Shri VSR Krishna for R-3)
O R D E R
By Dr. B.K. Sinha, Member (A):
The instant Original Application filed under Section 19 of the Administrative Tribunals Act, 1985 impugns the order dated 19.07.2012 of the respondent no.1 questioning postponement of the personal talk scheduled to be held on 20.07.2012 on the ground that respondent no.3 had 34 years working experience and had been granted relaxation of three months in the qualifying period so as to gain eligibility.
2. The applicant has sought the following relief(s):-
a). Pass appropriate order or direction to quash illegal, improper communication letter dated 19.07.2012 issued by the Ministry of Water Resources to the UPSC to postpone the interview/personal talk of the petitioner which was scheduled to be held on 20th July, 2012 at UPSC resulting postponement of interview/ personal talk of the petitioner to the post of Chairman, Central Ground Water Board (CGWB) to be conducted by (UPSC) respondent no.2.
b). To direct R-1 & R-2 to hold interview/personal talk of the petitioner to the post of Chairman, CGWB at the earliest after issuing a fresh interview letter with date and time in accordance with the Rules of Respondent no.1, or
c). Pending the hearing and final disposal of the present OA, pass an interim order and direction restraining R-1 & R-2 to include the name of respondent no.3 (internal candidate) who although do not fulfill the criteria laid down by the Ministry of Water Resources and as per the advertisement dated 10.12.2011.
d). Pass any other or further order(s)/ direction(s) as this Honble Tribunal may deem fit and proper in the facts and circumstances of the case in the interest of justice.
3. The case of the applicant, briefly stated, is that he is Chief Scientist working as Deputy Director in National Geophysical Research Institute (hereinafter referred to as NGRI) Hyderabad. The respondent no.2 issued an advertisement dated 10.12.2011 for the post of Chairman, Central Ground Water Board (hereinafter referred to as CGWB) in HAG scale on deputation basis. He received communications dated 19.06.2012 and 02.07.2012 [Annexure P-2 (Colly) page 38 of the paper book] from the respondent no.2 addressed to the respondent no.1 intimating that the applicant was the lone eligible candidate for the post of Chairman, CGWB and was invited for personal talk on 20.07.2012 at 10.30 a.m. The applicant communicated his acceptance to the invitation for the personal talk on 17.07.2012 well before due date. However, when he reached the venue at the appointed time, he was informed that the personal talk had been postponed. The applicant thereupon sent a communication dated 20.07.2012 to the Minister for Water Resources drawing his attention to the fact that as per Clause No.2 of the advertisement dated 10.12.2011, the departmental officers in the feeder category who are in direct line of promotion are not eligible for consideration for appointment on deputation, including short term contract. Further, deputationists are also not eligible for consideration for appointment by promotion. No departmental candidate was found suitable for promotion through the DPC and it was on this account that the post under question was advertised to be filled up on deputation. Thereafter, a legal notice was issued by the applicant under Section 80 CPC without eliciting a satisfactory reply. The applicant thereafter filed a Writ Petition bearing No.3389 of 2012 before the Honble High Court of Delhi, which was disposed of vide order dated 31.08.2012 directing the respondents to treat the writ as representation and to decide the same strictly within two weeks. Since the representation was not decided within a period of two weeks, the instant OA has been filed.
4. The principal ground adopted in the OA is that as per Clause No.2 of the advertisement, the departmental officers in the feeder category in direct line of promotion were not eligible for consideration for appointment on deputation including short term contract. Further, the deputationists were also not eligible for promotion. Hence, the communication of respondent no.1 to respondent no.2 dated 19.06.2012 to include the name of the respondent no.3 was against their own advertisement and terms of contract and hence violative of principles of natural justice, which is grossly prejudicial to the interest of the applicant. The candidature of all the departmental employees had been considered before the advertisement had been issued. The claim of the applicant as an internal candidate had already been rejected whereas the respondent no.3, who did not fulfill the essential qualification as per the terms of the advertisement dated 10.12.2011, had been wrongly appointed.
5. Counter affidavits have been filed on behalf of respondent no.1 and respondent no.2 separately. No counter affidavit has been filed on behalf of respondent nos.3 & 4.
6. The respondent no.1 in its counter affidavit stated that the mode of filling the post of Chairman, CGWB is by promotion failing which by deputation including short term contract. The eligibility for the post under consideration extends to Members of the CGWB in the revised pay scale of PB-4 (corresponding pay scale of Rs.37400-67000 + Rs.10000 GP) with three years of regular service in the grade failing which Members, CGBW with six years combined regular service in the grade of Member and Regional Director, CGWB of which at least two years service in the grade of Member, CGWB are eligible for consideration. The respondent no.3 was the only candidate in the feeder grade for consideration of promotion to the post of Chairman, CGWB. However, he was short of requisite qualifying period by seven months. It was on this account that the Ministry had decided to fill up the post of Chairman, CGWB leading to the advertisement dated 10.12.2011. Total of six applications were received for the post which were sent to the UPSC of which the applicant had been found the lone eligible candidate. In the meantime, the respondent no.3 was granted relaxation in qualifying service clause. His predecessor one Sh. S.C. Dhimman who had also not been having qualifying service for appointment as Chairman, CGWB in 2010 had been similarly facilitated. The then Minister, Water Resources directed the matter to be taken up with the DOP&T and hence the personal talk had to be postponed. The DOP&T in their turn accorded approval for relaxation vide ID Note dated 30.10.2012 as a consequence of which the respondent no.2 was requested that the personal talk scheduled on 20.07.2012 be treated as cancelled. Subsequently, another proposal was submitted to the respondent no.2 on 12.11.2012 to convene a DPC on 15.01.2013 and the DPC recommended the name of the respondent no.2 on the basis of which he was appointed as Chairman, CGWB and has subsequently nearly served out his term.
7. The learned counsel for the respondent no.1 argued that the respondent no.3 was the only candidate in the feeder grade for consideration for promotion to the post of Chairman, CGWB. The question of deputation would only arise when no candidate for promotion was available. The respondent no.3 gained eligibility as a consequence of relaxation granted by the DOP&T. Moreover, no right would accrue to the applicant for appointment to the post in question till the appointment letter was issued to him and he had joined. The respondent no.1 was fully within its right to request for recall of the invitation for personal talk and to recommend the name of respondent no.3 who had gained eligibility in the meantime.
8. The respondent no.2 has also filed a counter affidavit and while supporting the averments of the respondent no.1 has taken the stand that as a result of relaxation being granted to the respondent no.3, he gained eligibility for appointment as Chairman, CGWB and had to be considered a priori. As a consequence, the proposal for filling up the post of Chairman, CGWB stood withdrawn.
9. The applicant has filed a rejoinder application wherein he has rebutted the submissions made by the respondent no.1. However, we find that no new facts have been brought out. Oral submissions have also been made by the respective counsels on the lines above within their pleadings.
10. To our mind, the only issue to be decided in the instant OA is that what right the applicant has to the post of Chairman, CGWB under consideration.
11. The recruitment of the Chairman is governed by the Central Ground Water Board (Chairman) Recruitment (Amendment) Rules, 2007. The mode and eligibility for the post have been prescribed as under:-
(a) Mode prescribed:
Promotion failing which by deputation (including short-term contract)
(b) Field/Source Promotion Members, Central Ground Water Board in the pay scale of Rs.18400-22400/-, with three years regular service in the grade failing which Member, Central Ground Water Board with six years combined regular service in the grade of Member and Regional Director, Central Ground Water Board in the pay scale of Rs.14300-18300 of which at least two years regular service should be in the grade of Member, Central Ground Water Board.
Note:- Where juniors who have completed their qualifying or eligibility service are being considered for promotion, their seniors shall also be considered provided they are not short of the requisite qualifying or eligibility service by more than half of such qualifying or eligibility service or one year whichever is less and have successfully completed their probation period for promotion to the next higher grade along with their juniors who have already completed such qualifying or eligibility service.
Deputation (including short-term contract) Officers under the Central or State Government or Union Territories or Autonomous Organizations or Semi-Government Organizations or Public Sector Undertakings:-
(a) i) Holding analogous posts on
regular basis in the Parent Cadre
or Department; or
(ii) with three years service in the parent cadre or Department in the grade rendered after appointment thereto on a regular basis in the pay scale of Rs.18400-22400/- or equivalent in the parent cadre or department or equivalent; and
(b) Possessing the following educational qualifications and experience
i) Masters Degree in Science or Degree in Engineering from a recognized University or equivalent.
ii) Having 20 years experience in the field of Survey, Exploration, Development, Regime Monitoring, Research, Training, Minor Irrigation and Management of Ground Water Resources.
Note 1. The Departmental Officers in the feeder category who are in the direct line of promotion will not be eligible for consideration for appointment on deputation (including short-term contract). Similarly, deputationists shall not be eligible for consideration for appointment by promotion.
Note 2. The period of deputation (including short-term contract) including the period of deputation (including short-term contract) in another ex-cadre post held immediately preceding this appointment in the same or some other organizations ir department of the Central Government shall ordinarily not exceed five years. The maximum age limit for appointment on deputation (including short-term contract) shall be not exceeding 56 years as on the closing date of receipt of applications. It is indeed a fact that a proposal was sent vide letter dated 10.05.2012 stating that since none of the departmental candidates fulfilled the requisite criteria, the approval of the competent authority had been obtained to fill up the post on deputation basis. Accordingly, the advertisement was issued on 10.12.2011. It was decided to hold a SCM (PT) on 20.07.2012. However, on 09.07.2012, a letter was received from the Ministry with the following endorsement:-
I have considered the representations submitted by Shri Sushil Gupta to UPSC and this Ministry. Shri Sushil Gupta does not fulfill the eligibility criteria as on 01.01.2012, the date of reckoning for promotion to the post of Chairman, falling vacant on October 1, 2012. I had noted earlier that since senior-most person in the feeder cadre for the post of Chairman did not fulfill the eligibility criteria for the promotion, the post can be filled up by deputation. The response to the advertisement issued in this regard has been lukewarm and only one candidate has been invited for personal talk on 20th July, 2012 by UPSC.
Shri Sushil Gupta has experience of working in ground water sector for 34 years where as per the recruitment rules; a deputationist is required to have an experience of only 20 years. It sounds a little unfair to the serving officers of CGWB that while they become eligible for Chairmans post towards the end of their career despite long experience in the field, a person can be taken on deputation only with an experience of 20 years. This highlights the imparity between the two different recruitment processes. It is pertinent to note that Shri Sushil Gupta fulfills the eligibility criteria on the date on which the post of Chairman falls vacant i.e. October 1, 2012. As per rules, since 1st January is considered as the date of determination of eligibility, he falls short of the requisite qualification period by three months. As such relaxation of three months is required for Shri Sushil Gupta on the same lines as the relaxation earlier given to the present incumbent Shri S.C. Dhiman for promotion as Chairman, CGWB. Approval of relaxation of this condition was also accorded by DoPT in that case in 2010.
In view of the above, I feel that relaxation may be granted to Shri Sushil Gupta so that he can also be eligible for the post of Chairman, CGWB. The matter may be processed after taking due permission from DoPT. Since the interview is scheduled on 20th July, 2012, it can be put off for a later date.
Accordingly, SCM (PT) was postponed. Another communication was received by the respondent no.2 from the respondent no.1, which reads as under:-
2.7 M/o Water Resources vide their letter dated 01.1.2012 informed that a proposal for relaxation in the qualifying service for consideration for Shri Sushil Gupta, Member, CGWB for promotion to the post of Chairman, CGWB was sent to the DOP&T for approval. The DOP&T, vide their ID Note No.AB.14017/40/2010-Estt.(RR) dated 29.10.2012 have approved the proposal for relaxation. A proposal for consideration of Shri Sushil Gupta, Member, CGWB for promotion to the post of Chairman, CGWB is under preparation and will be submitted to the UPSC shortly. The process for filling up the post of Chairman, CGWB by deputation, may therefore be cancelled.
12. Coming to the question of law with which we are swayed, it is a settled position that a person selected has no right to be appointed. The Honble Supreme Court in Shankarsan Dass versus Union of India [1991 (3) SCC 47 has held:-
7. It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the 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 bona fide 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 candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in State of Haryana v. Subhash Chander Marwaha, (1974) 1 SCR 165: (AIR 1973 SC 2216), Miss Neelima Shangla v. State of Haryana, (1986) 4 SCC 268: (AIR 1987 SC 169), or Jitendra Kumar v. State of Punjab, (1985) 1SCR 899 : (AIR 1984 SC 1850).
This position has been reiterated in R.S. Mittal versus Union of India & Others [1995 SCC (L&S) 787] Asha Kaul (Mrs.) versus State of J&K [1993 (2) SCC 573], Food Corporation of India and Others versus Bhanu Lodh and Others [2005 (3) SCC 618] and All India SC & ST Employees Association and Another versus A.Arthur Jeen & Others [2001(6) SCC 380].
13. In a more recent case titled as Union of India and Another versus Pradip Kumar Kedia etc. [2012 (1) SCC 432], the Honble Supreme Court has held as under:-
17. Mr. Hansaria submitted that in R.S. Mittal v. Union of India (supra) this Court while interpreting Rule 4 of the Rules has held that:
when a person has been selected by the Selection Board and there is a vacancy which could be offered to him, keeping in view his merit position, then, ordinarily there is no justification to ignore him for appointment. He also relied on the decision in A.P. Aggarwal v. Govt. of NCT of Delhi and Another (supra) in which this Court has reiterated that it is not open to the Government to ignore the panel which has already been approved and accepted by it and resort to a fresh selection process without giving any proper reason for resorting to the same.
18. He cited Director, SCTI for Medical Science & Technology and Another v. M. Pushkaran [(2008) 1 SCC 448] in which this Court has held that the selectee has no such legal right and the superior court in exercise of its power of judicial review would not ordinarily direct issuance of any writ, but each case must be considered on its own merits and where the Court does not find any reason for the authorities not to offer any appointment to candidate placed in the selection panel, the Court can direct appointment. He submitted that in the present case, since no good reason had been shown by the appellants for not making appointment to the vacancies for the post of Judicial Members in the Income Tax Appellant Tribunal, the High Court rightly directed the appellants to make the appointment of B. Krishna Mohan as a Judicial Member. In A.K. Behera versus Union of India and Another [2010 (11) SCC 322], the Honble Supreme Court has taken a similar view. Similar view has also been expressed in the case of Dir. S.C.T.I. for Med. Sci. & Tech. & Another versus M. Pushkaran [2008 (1) SCC 448] wherein their Lordships have held that merely because the vacancies are notified, State is not obliged to fill up all the vacancies unless the relevant rules so indicate.
14. In view o the above judicial pronouncements, it becomes abundantly clear that a person even after selection has no right to be appointed and the State would be very much within its right not to make appointment or to recall the advertisement. In the instant case the applicant has not even been appointed. He was merely called for a personal talk. Though it is certainly true that at that point of time, the applicant was the only eligible candidate, but subsequently it appears that in view of the relaxation granted by the DOP&T, the respondent no.3 had also acquired eligibility.
15. We are further swayed by the fact that more than two years have passed and the tenure of the respondent no.3 is coming to a close.
16. In view of the above consideration, we find that the applicant has no case to pursue. The Application is, therefore, dismissed with no order as to costs.
(Dr. B.K. Sinha) (Syed Rafat Alam) Member (A) Chairman /naresh