Central Administrative Tribunal - Delhi
Shri Anmol Saini vs Union Of India on 1 March, 2013
Central Administrative Tribunal Principal Bench New Delhi O.A.No.1260/2011 Order Reserved on: 04.02.2013 Order pronounced on _______ Honble Smt. Manjulika Gautam, Member (A) Honble Shri V. Ajay Kumar, Member (J) Shri Anmol Saini s/o Shri Balbir Singh Saini r/o 379, Sector-6, R.K.Puram New Delhi 110 022. Applicant (By Advocate: Ms. Sangita Singh for Sh. S.Ravi Shankar) Versus Union of India Through its Secretary Ministry of Health and Family Welfare Nirmal Bhawan New Delhi 110 011. Respondent (By Advocate: Mr. Rajinder Nischal) O R D E R By Shri V. Ajay Kumar, Member (A):
The present OA has been filed questioning the action of the respondents in not allowing the applicant to join duty as Laboratory Technician (EEG) though he was properly selected in the interview and although the offer of appointment has been issued on 24.04.2007 and though the applicant has submitted his acceptance of offer of appointment on 04.05.2007.
2. The respondents vide the Employment News dated 9-15 September, 2006 have called for applications from the eligible candidates for filling up two posts of Laboratory Technician (EEG) in the pay scale of Rs.5000-8000. It was notified that out of the said two posts - one post is reserved for OBC candidates. The applicant since possessing the requisite qualifications as required under the aforesaid Notification, applied for the post of Laboratory Technician (EEG) and appeared in the Interview before the Selection Committee along with others. On his selection, the respondents issued Memorandum No.5-12/2006-Admn.II dated 24.04.2007 offering appointment to the applicant for the post of Laboratory Technician (EEG) under OBC category and directed him to communicate his acceptance within 15 days. Accordingly the applicant has submitted his acceptance to the said offer of appointment vide his letter dated 04.05.2007.
3. Even after the lapse of considerable period, when the respondents have not issued the appointment order to the applicant, for the post of Laboratory Technician (EEG), the applicant made number of representations to the respondents requesting them to issue the order of appointment and to permit him to join duty. The respondents having not answered any of the representations of the applicant for more than a period of two years, finally vide their letter dated 17.06.2009, which is a reply to the RTI applications of the applicant, stated that one Smt. Rajni Sarswat, who was working as Lab Technician (EEG) was promoted to the post of EMG (Technician) on ad hoc basis for a period of one year and the resultant vacancy of Lab Technician (EEG) was notified/advertised and against which the applicant was selected. They further submitted that, however, as the said Smt. Rajni Sarswat could not be regularized in the promoted post of EMG (Technician), she was reverted to the post of Lab Technician (EEG) and hence the post of Lab Technician (EEG), which was notified and wherein the applicant was selected and issued with offer of appointment, was not vacant and hence they could not allow the applicant to join the said post. It is further submitted that the matter was also taken up with Directorate General of Health Services, but the Directorate refused to accept the request of the respondent vide letter dated 28.06.2010 (Annexure R/8).
4. Ms. Sangita Singh proxy of Shri Ravi Shankar, the learned counsel for the applicant, submits that once the respondents notified the post of Lab Technician (EEG) and the applicant was properly and validly selected by the Selection Committee after undergoing the process of selection, and once the respondents issued the offer of appointment which was duly accepted by the applicant, the respondents cannot go back and cannot refuse to appoint the applicant in the post of Laboratory Technician (EEG). She further submits that on 4.05.2007 when the applicant submitted his acceptance to the offer of appointment for the post of Laboratory Technician (EEG), he acquired right over the said post and hence the action of the respondents in not appointing the applicant in the post of Laboratory Technician (EEG) and not allowing him to join duty is illegal, arbitrary and violative of Articles 14, 16 and 21 of the Constitution of India.
5. The learned counsel further drew the attention of this Tribunal to Annexure R-6, filed by the respondents along with their counter, which is an Order dated 19.07.2007 reverting Smt. Rajni Sarswat who was working as EMG(Technician) to the post of EEG (Technician) w.e.f. 19.07.2007 (AN) and submits that the applicant accepted the offer of appointment on 04.05.2007 and whereas the said Smt. Rajni Sarswat was reverted only on 19.07.2007, i.e., after more than two months from the date of acceptance of the offer of appointment submitted by the applicant. Since the post of Laboratory Technician (EEG), for which the applicant is selected and issued with the offer of appointment which was duly accepted, was very much vacant and available on 04.05.2007 on which date the applicant submitted his acceptance, and hence, the contention of the respondents, that for want of vacancy the applicant was not issued with the appointment order and not allowed him to join duty, is untenable and unsustainable and against to their own record.
6. The respondents filed a detailed counter wherein it was stated that two posts of EEG (Technician)/Lab Technician (EEG) were sanctioned in the respondent-Safdarjung Hospital. During the year 2005-2006, one post of EEG(Technician)/Lab Technician (EEG) fell vacant due to promotion of Smt. Seema Bansal as EMG (Technician) on ad hoc basis, and later she took voluntary retirement and consequently Smt. Rajni Sarswat, who was working as EEG (Technician) was appointed as EMG(Technician) on ad hoc basis in place of Smt. Seema Bansal. The resultant two posts of EEG (Technician) were notified vide Employment Notice No.1 of 2006 (Annexure R1) along with other posts, and 23 candidates including the applicant were invited for interview for the post of EEG (Technician) before the Selection Committee scheduled on 10.04.2007. The Selection/Interview Committee recommended two candidates, namely, Sh. Brijender Singh Kiraula - against the unreserved vacancy, and the applicant - against the vacancy reserved for OBC candidate. For appointment to the two vacant posts of EEG (Technician), both the candidates were issued with offer of appointment letters vide Memorandum 5-12/2006 Admn.II dated 24.04.2007 and the applicant submits his acceptance vide letter dated 04.05.2007.
7. It is further submitted that the respondents could not appoint the applicant as Mrs. Rajni Sarswat, who was promoted from the post of EEG (Technician) to the post of EMG (Technician) on ad hoc basis was reverted to the post of EEG (Technician) w.e.f. 19.07.2007. As she could neither to be regularized due to non availability of notified Recruitment Rules of EEG (Technician) nor she was given extension of her ad hoc appointment granted by Directorate General of Health Services/MOHW and hence the matter of appointment of the applicant was kept in abeyance. The matter was taken up with the Director General of Health Services requesting for grant of extension of ad hoc appointment of Smt. Rajni Sarswat as EMG (Technician) and also for granting approval/concurrence for filling up the post of Lab Technician (EEG) against the unfilled higher post of EMG (Technician), in case the ad hoc extension of Mrs. Rajni Sarswat to the post of EMG (Technician) not extended. However, the DGHS refused to accept the request vide letter No.A.17020/12/2007-MH-I dated 28.06.2010 (Annexure R7 colly.) and in view of the refusal of the proposal made by the Hospital authorities by the Director General of Health Services, the applicant could not be appointed and since in the absence of any vacancy, there is no illegality in the action of the respondents in not issuing appointment order to the applicant. It is further submitted that since no appointment order has been issued and since the applicant has not worked at all, the prayer of the applicant to pay the salary and other benefits with effect from 05.05.2007 is liable to be rejected.
8. We have heard the counsel for both sides and have been through the pleadings on record.
9. Admittedly, one substantial vacancy of EEG (Technician) was vacant as on the date of Annexure P-1 Employment Notice No.1 of 2006 and against which the applicant was validly selected by the Selection Committee and respondents issued the offer of appointment vide Annexure P-3 Memorandum dated 24.04.2007 which was duly accepted by the applicant on 04.05.2007 itself. As rightly pointed out by the learned counsel for the applicant, and also as admitted by the respondents in their counter that Mrs. Rajni Sarswat was reverted from the post of EMG (Technician) to the post of EEG (Technician) by an order dated 19.07.2007 with effect from the said date, i.e., subsequent to the date of acceptance of the offer of appointment by the applicant. However, the respondents for the reasons which were not explained either in their counter or in their oral submissions, chosen not to issue the appointment order to the applicant, though the vacancy is very much available. The offer of appointment issued to the applicant is duly accepted by him on 04.05.2007. It is trite that person selected may not have a vested right to be appointed but has a right to be considered for appointment. Once the respondents considered the applicant and having found him suitable for the post and issued the offer of appointment, the applicant acquires certain rights over the post, and the respondents cannot refuse appointment, except on the ground of suitability, and hence, the action of the respondents in not appointing the applicant in the post of Laboratory Technician (EEG), on the ground that the said post was filled up on a subsequent date, is untenable and unsustainable. The respondents being government, should act as a model employer and should follow all the required procedures and principles and act in accordance with law.
10. It is also not the case of the respondents that the aforesaid Notification was issued due to mistake in assessing or calculating the number of vacancies or for filling up of the post for any particular limited period, or any fraud is played by any person.
11. It is trite that Courts/Tribunals cannot compel an employer to fill up a particular post. However, it is also trite to say that once a conscious decision has been taken to fill up a vacancy and a Notification is issued and on completion of selection process and after issuing the offer of appointment and acceptance thereof, they cannot refuse the appointment to the applicant without there being any valid reason.
12. A clear vacancy is very much available as on the date of notification and also as on the date of offer and acceptance of appointment. Out of the two posts of Laboratory Technician (EEG) for which selection has been conducted, one post meant for general category is filled up by appointing Shri Brijender Singh Kiraula. The contention that about two months after the applicant given his acceptance for the appointment, that the second vacancy meant for OBC category candidate is filled with a riverter, is unjustified and would be contrary to the mandate of equality contained in Articles 14 and 16 of the Constitution of India.
13. In the facts and circumstances and for the aforesaid reasons, the OA is allowed and the respondents are directed to appoint the applicant in the post of Laboratory Technician (EEG) with effect from the date on which the respondents appointed Shri Brijender Singh Kiraula, within 60 days from the date of receipt of this order. The respondents are also directed to pay cost of Rs.10,000/- to the applicant. However, the applicant is not entitled for payment of any arrears of pay and allowances.
(V. Ajay Kumar) (Manjulika Gautam) Member (J) Member (A) /nsnrvak/