Central Administrative Tribunal - Jabalpur
Abdul Kayyum vs The Ordnance Factory Board on 27 November, 2013
Reserved
CENTRAL ADMINISTRATIVE TRIBUNAL, JABALPUR BENCH
JABALPUR
ORIGINAL APPLICATION NO. 654 OF 2012
Jabalpur, this Wednesday, the 27th day of November, 2013
HONBLE SHRI JUSTICE DHIRENDRA MISHRA, JUDICIAL MEMBER
HONBLE SHRI G.P.SINGHAL, ADMINISTRATIVE MEMBER
Abdul Kayyum, S/o Late Mohd. Yaseen, Date of Birth 14.09.1969,
T/o 2866, Type II, Sector-2, Vehicle Factory Estate,
Jabalpur (M.P.)-482001 -Applicant
(By Advocate Shri S.K.Nandy)
V e r s u s
1. The Ordnance Factory Board, Through its Chairman,
10-A Saheed Khudiram Bose Marg, Kolkata-700 001
2. The Director General, Ordnance Factory, Government of India,
Ministry of Defence, Ordnance Factory Board, 10-A,
Saheed Khudiram Bose Marg, Kolkata-700 001
3. The General Manager, Vehicle Factory,
Jabalpur, Jabalpur (M.P.)-482001
4.Shri Jitendra Singh, S/o Shri Prahallad Singh,
Through the General Manager, Vehicle Factory,
Jabalpur, Jabalpur (M.P.)-482001
5. The Ordnance Factory Learning Institution,
Khamariya, Jabalpur (M.P.)-482001 - Respondents
(By Advocate Shri S.K.Mishra)
(Date of reserving the order:-20.09.2013)
O R D E R
By G.P.Singhal, AM:-
The applicant in this Original Application has prayed for the following reliefs:-
8(i) Summon the entire relevant record from the respondents for its kind perusal including the revised merit list dated 21.07.2012;
(ii) Set aside the order dated 24.7.2012 Annexure -A/1.
(ii)(a) Set aside the circular dated 25.08.2010 (Annexure A-2).
(iii) Command the respondents to continue to work the applicant on the post of Charge-man (Non-Technical) (Stores) with all consequential benefits arising thereto as if no impugned order is passed;
(iv) Any other order/orders, direction/directions may also be passed.
(v) Award cost of the litigation to the applicant.
2. Learned counsel for the applicant submitted that he had appeared in the Limited Departmental Competitive Examination (for brevity LDCE) for appointment to the post of Charge-Man (Non-Technical), which was held in June 2012. The notification dated 05.08.2011 (Annexure A-4) issued in regard to this examination, only provided that The minimum pass marks in each individual subject shall be 35%, while the minimum qualifying marks in aggregate shall be 40%. Candidates who qualify in the written examination will be listed in the order of merit. Thus, there was nothing mentioned in this notification regarding the marks in certain subjects to be given precedence over other subjects. The applicant was selected on the basis of written examination and appointment order was issued on 18.07.2012 (Annexure A-6). However, vide the impugned order dated 24.07.2012 (Annexure A-1), the appointment order has been modified, wherein, name of the applicant has been replaced by the name of respondent No.4. Hence this Original Application.
3. The applicants contention is that he had already joined on the promotion post, as will be evident from his Temporary Attendance Card (Annexure A-7) as well as the copy of Attendance Register from 18.07.2012 onwards, filed as Annexure RJ-1. After working for almost 10 days, he has been reverted without giving any opportunity of hearing in this matter. The applicant submitted that the respondents have informed that since the applicant and respondent No.4 had got equal marks, the respondent No.4 was appointed in view of his higher marks in the paper of Stores Procedures and Material Management (Relevant subject). While, it is true that both the applicant and the respondent No.4, had got total 152 marks, and the marks of respondent No.4 were 57 as against 53 of the applicant in the said paper, in other two subjects, the applicant scored more marks than respondent No.4. Thus, out of three subjects marks of applicant were more than those of respondent No.4 in two subjects and therefore he should have been given precedence over the respondent No.4.
4. The applicant submitted that he had also applied for direct recruitment for the same post earlier, and the admission card issued by the respondents for written examination mentioned in the instructions that If more than one candidate obtain same total marks, merit position will be decided by age seniority. The applicant further submitted that it is provided in the Department of Personnel & Training (for brevity DOPT) instructions in this matter that The persons who are assigned the same grading by the DPC should be arranged in the consolidated order of merit with reference to the date arrived at after adding the requisite number of years of qualifying service in the feeder grade to their date of appointment, i.e., with reference to the date from which they became eligible for promotion after referring the prescribed qualifying service in the feeder grade, maintaining their inter-se seniority in the parent service/ grade. However, the respondents have taken entirely different and arbitrary formula through the executive instructions dated 25.08.2010 (Annexure A-2). This formula is not provided in the concerned SRO (66). Thus these executive instructions can not over-rule the statutory provisions of SRO. The notification dated 05.08.2011 (Annexure A-4) regarding selection on these posts also does not provide for such a differentiation.
5. Learned counsel for the applicant submitted that an administrative instruction, being inconsistent with and contrary to the statutory rules, is invalid. He further submits that when no opportunity of show cause is given to the employee, the reversion is bad in law. {Reliance is placed on the judgments of Honble Apex Court, in the matters of Ex. Capt. K. Balasubramanian and others Vs. State of Tamil Nadu and Anothers, (1991) 2 SCC 708, and Ram Ujarey Vs. Union of India, (1999) 1 SCC 685.}
6. The respondents, in their reply, submitted that since the applicant and the respondent No.4 had obtained same marks, the merit among them had to be decided as per the instructions dated 25.08.2010 (Annexure A-2) of the Ordnance Factory Board, Kolkata. According to these instructions the candidate obtaining higher marks in Stores Procedures and Material Management (Relevant Subject) will get precedence in this case. Thus the respondent No.4, on the basis of his higher marks in the said paper, got precedence over the applicant and, therefore, the appointment order dated 18.07.2012 (Annexure A-6) was modified vide the order dated 24.07.2012 (Annexure A-1).
7. In regard to the applicants claim that he had joined on the promotion post, the respondents submitted that the appointment order dated 18.07.2012 (Annexure A-6) clearly provided in its para 4 that FO regarding their charge assumptions will be made separately. Since no Factory Order (for brevity FO) was issued in regard to charge assumption by the applicant, his claim pertaining to joining of duty on 18.07.2012 is without any basis. Thus, the applicant had not joined on the post of charge-man, and therefore, there was no need to issue him any notice before amending the earlier appointment order on 24.07.2012. In regard to claim of the applicant that in absence of provision in SRO 66, the executive instructions dated 25.08.2010 (Annexure A-2) could not have been used to determine the merit between him and respondent No.4, the respondents submitted that these instructions have been issued to clarify the process of determination of merit in case of equal marks of the candidates and they are not inconsistent or contrary to the statutory rules. It will be evident from perusal of these instructions that criteria suggested for giving precedence, as mentioned in these instructions, has reasonable nexus to the work requirement of posts for which appointment is being done. Thus, for the post of charge-man stores, for which the applicant had applied, the paper of Stores procedures and material management has been given precedence. Therefore, there is no unreasonableness in the criteria for deciding the merit in case of equal marks.
8. We have heard the learned counsel for the parties and perused the pleadings of the respective parties and the documents annexed therewith.
9. It is undisputed that while the total marks of the applicant and respondent No.4 were same in the written examination, respondent No.4 got more marks (57) as compared to the applicant (53) in the paper of Store Procedures and Material Management. Therefore, in view of the instructions of Ordnance Factory Board, issued vide circular dated 25.08.2010, the respondent No.4 was given precedence over the applicant and his name was included in the list of selectees, replacing the name of the applicant.
10. The learned counsel for the applicant argued that the instructions dated 25.08.2010 are just executive instructions and they being inconsistent with and contrary to the statutory rules are invalid, in view of the judgment of Honble Apex Court in Ex. Capt. K. Balasubramanian and others (Supra). However, on perusal of these instructions, we find that the criteria adopted for breaking the tie in case of equal marks has reasonable nexus to the requirement of the posts for which selection is being made. Since there is no specific provision in the statutory rules, in regard to deciding of merit incase of equal marks of candidates, there is no question of the instruction dated 25.08.2010 (Annexure A-2) providing for such situations, being inconsistent with or contrary to the statutory rules.
11. The applicant has contended that he has been reverted without giving any show cause notice which is bad in law. However, no factory order was issued regarding charge assumption in this case and therefore the applicant could not have taken the charge of post on promotion. Thus, there is no question of his reversion as the said appointment order was never acted upon. The appointment order dated 18.07.2012 was amended after just 6 days vide the order dated 24.07.2012. Thus, the respondents could not be faulted in issuing the amendment order dated 24.07.2012 (Annexure A-1) without giving any notice to the applicant as the earlier order dated 18.07.2012was still not acted upon, in the case of the applicant.
12. In view of the aforesaid we do not find any justification for interfering with the impugned orders of the respondents. Thus, this Original Application is dismissed, however, without any order as to costs.
(G.P.Singhal) (Dhirendra Mishra) Administrative Member Judicial Member rn 1 OA No.654/2012 Page 1 of 6