Central Administrative Tribunal - Chandigarh
Sh. Pradeep Kumar S/O Late Sh. Om Pal Aged ... vs Comptroller & Auditor General Of India on 31 January, 2017
CENTRAL ADMINISTRATIVE TRIBUNAL CHANDIGARH BENCH CHANDIGARH O.A. No.235/CH/2013 Decided on: 31.01.2017 Coram: HONBLE MR. JUSTICE M.S. SULLAR, MEMBER (J) HONBLE MR. UDAY KUMAR VARMA, MEMBER (A)
1. Sh. Pradeep Kumar S/o Late Sh. Om Pal aged 47 years
2. Sunil Kumar S/o Om Parkash 45 years.
3. Rakesh Kumar S/o Garib Dass 38 years
4. Biras Babu S/o Bishambhar Singh 42 years
5. Karam Singh S/o Lajja Ram 38 years
6. Jasbir Singh S/o Bhanwar Singh 44 years All the applicants are presently working as Casual Labourers, in the O/o Accountant General (A&E), Haryana, Sector 33, Chandigarh.
.Applicants Argued by: Mr. Jagdeep Jaswal, Advocate Versus
1. Comptroller & Auditor General of India, 10, Bahadur Shah Zafar Marg, New Delhi.
2. Principal Accountant General (Audit), Punjab, Sector 17, Chandigarh.
3. Accountant General (A&E), Haryana, Sector 33, Chandigarh.
4. P. Deeraj Naidu (Index No. 35227)
5. Pooja Devi (Index No. 46919)
6. Vipan Kumar (Index No. 51850) EX parte vide order dt.17.11.2016
7. Gurinder Pal Singh (Index No. 53030)
8. Kumar Manish Sinha (Index No. 20031)
9. Deepak Kumar Sriwastva (Index No. 30997)
10. Satveer Singh (Index No. 41404)
11. Parveen Kumar (Index No. 19133)
12. Monika (Index No. 35047)
13. Hunny (Index No. 16451) ..Respondents Argued by: Mr. Barjesh Mittal, Advocate, for Respondents No. 1 to 3 Private Respondents No.5,7,9,10,12 & 13 in person Order(Oral) BY HONBLE MR. JUSTICE M.S. SULLAR, MEMBER (J)
1. Applicants Pradeep Kumar s/o Late Sh. Om Pal, and others have preferred the instant Original Application (OA), seeking a direction to the respondents to consider their case for regularization of services, as per Govt. of India DOP&T OM dated 11.12.2006 (Annexure A-2), and the judgment of Honble Apex Court in the case of Secretary, State of Karnatka Vs.Uma Devi, 2006 (2) SCT 462 (Annexure A-1), as they were continuously working since long, against the sanctioned posts in the department. Alternatively, they have also prayed that they be considered against the vacancy of Multi Tasking Staff (in brevity, MTS), in pursuance of the advertisement dated 24.09.2011 (Annexure A-4), in order of merit/marks obtained in the selection process, and the selection of equal number of private respondents having lower merit be quashed.
2. The crux of the facts and material, which needs a necessary mention for the limited purpose, of deciding the core controversy, involved in the instant O.A., as claimed by the applicants, and emanating from the record, is that they were engaged as casual labourers, in accordance with the Rules, and have been continuously working as such since long with the respondents, against the sanctioned posts, as per charts (Annexure A-3 colly). It was alleged that some of the applicants had already rendered more than 10/11 years of service against the sanctioned posts, but they were not considered for one time regularization of service in view of Uma Devis case (supra) and DOP&T O.M. dated 11.12.2006 (Annexure A-2).
3. The case set up by the applicants, in brief, so far as relevant, is that instead of considering the cases for regularization of their services, the respondents have issued fresh advertisement dated 24.09.2011 (Annexure A-4), for filling up 167 posts of MTS. As they fulfilled the requisite qualification, so they were permitted to appear in the recruitment process. The finalized merit-list of selected candidates was prepared for 157 posts of MTS, on 19.02.2013 (Annexure A-6), in which the claim of the applicants was ignored on merit, and their juniors were selected, although they had got higher marks than their juniors. It was alleged that where a candidate of reserved category is more meritorious and higher in merit than the last selected candidate in general category candidates list, then he requires to be considered for posting/recruitment against general category post. The claim of the reserved community candidates cannot be restricted to SC category posts only, as has been done in the present case. Only four persons in reserved category were selected out of six advertised posts. The two posts were stated to have been filled up by compassionate appointment. Since the applicants were already continuously working for so many years and have become over-age for further public employment, at this stage, so they made representation dated 19.02.2013 (Annexure A-7) and issued legal notice dated 20.02.2013 (Annexure A-8), for redressal of their grievance, but in vain.
4. Aggrieved thereby, the applicants have preferred the instant O.A., challenging the impugned pointed action of the respondents, on the following grounds:-
a) That admitted all the applicants (except applicant no. 5) have completed more than 10 years of service and therefore they were entitled to be considered for regularization as per law laid down by the Honble apex Court in the case of Uma Devi (supra) and as per DOPT instructions dated 11.12.2006. Respondents have already advertised 167 posts of Multi-Tasking Staff without considering the applicants for regularization. Applicants were working for last nearly 8-17 years, and have not been considered for regularization by the respondents in wholly illegal and arbitrary manner and no preference is being given to them for permanent absorption as per directions of Honble apex court in the case Uma Devi (supra).
(b) That the applicants also fulfill all the eligibility conditions for being granted the regularization as per the judgment of Honble Apex Court in the case of Secretary, State of Karnatka Vs. Uma Devi 2006 (4) SCT 462, but they have not been granted the said benefits in wholly illegal and arbitrary manner.
(c) That number of juniors to the applicants are being considered for regular recruitment in MTS, and applicants are still being deprived of regularization, in wholly illegal and arbitrary manner. The names of such juniors are at Sr. No. 39 to 57 who are having the experience of only 1-6 years. The Sr. No. 58 to Sr. No. 157 in the final merit list are fresh recruits. If the marks of the applicants are considered, they are having much higher merit.
(d) That the selection of the MTS is also in violation of law laid down by the Honble Courts from time to time inasmuch as:-
1. Para 44 of the judgment of Honble Apex Court in the case of Uma Devi (supra) has not been followed.
2. Para 46 of the said judgment providing for preference and non applicability of age restrictions has not been followed.
3. Final merit list of the selected candidates has been issued selecting the juniors to the applicants, despite the fact that applicants had higher merit than the juniors. In addition, applicants had a prior right to be regularized, being seniors.
4. Fresh recruites have been selected ignoring the claim of applicants who had higher merit. No reason whatsoever has been cited as not to include the applicants amongst the selected candidates.
5. As per settled law, where as SC category candidate draw merit higher than the last selected general candidate, he requires to be considered for posting/appointment against general category posts. The claim of the reserved community candidates cannot be restricted to SC category posts only as has been done in the present case and the claim of the applicants has been restricted to SC category posts only and out of 6 advertised posts of SC category, only 4 persons have been selected.
6. It is further submitted that the merit of the applicants is much higher than the selected candidates and respondents may be asked to bring the original record in this regard.
7. The other illegality in the selection is also that though on the one hand applicants have been awarded marks for the 8th/10th pass qualification, the freshers have been awarded higher marks for being graduates and post graduates. It is settled law that in a selection process the comparison has to be drawn on the minimum prescribed qualification, which in the present case happens to be 10th pass and the higher qualification than the prescribed qualification cannot have any affect on the selection process. It is further submitted since the prescribed qualification was only 10th pass, some of the applicants only submitted matriculation certificate. For example, applicant No. 1 possessed the qualification of graduation, he only submitted the matriculation certificate. Levelling a variety of allegations and narrating the sequence of events, in detail, in all, the applicants claimed that their services are liable to be regularized, and even they are entitled to be appointed against general category post, as they secured more marks than their juniors. On the strength of the aforesaid grounds, the applicants seek to quash the impugned action of the respondents in the manner, indicated hereinabove.
5. The respondents refuted the claim of the applicants, and filed the written statement, wherein it was pleaded that they have issued an advertisement dated 24.09.2011 (Annexure A-4) for the post of MTS in the Pay Band-I of Rs.5220-12000, and the total number of posts under Scheduled Caste category were six. It was further categorically provided that no age relaxation will be allowed to SC/ST/OBC category candidates against unreserved posts, in accordance with DOP&T O.M. dated 01.07.1998 (Annexure R-3). It was further provided that apart from age limit of minimum 18 years and maximum 27 years, as applicable to general category candidates, the normal upper age limit will be relaxable upto 5 years for SC/ST category and 3 years to OBC category. All the six applicants belong to Scheduled Caste Category. Those casual workers, who have been earlier engaged in the offices of IA & AD for at least 2 years, will be eligible for age relaxation to the extent of period of their engagement which would be over and above the relaxation admissible to SC/ST/OBC/PH/Ex-serviceman categories. Apart from the condition of age, the minimum required educational qualification was prescribed as 10th pass, however, for casual workers engaged in IA&AD, the required qualification was fixed as 8th class pass, with a further stipulation that if appointed, the candidate has to pass 10th class, within a period of two years.
6. According to the respondents, all the six applicants applied for the post of MTS in reserved category, however, since applicant No. 6 Sh. Jasbir Singh was not possessing the requisite qualification of 8th class pass, his application was outrightly rejected, whereas, applicants No. 1 to 5 participated in the selection process, and were called for interview. After clearing the recruitment process, the final merit list of MTS was prepared and top four candidates under SC category, with cut-off marks of 86, having more marks than the present applicants, after grant of vertical and horizontal reservation, were selected and appointed on the said posts. The selection to the post of MTS was stated to have been made in view of OM dated 01.07.1998 (Annexure R-3) and in accordance with the Indian Audit and Accounts Department (Multi Tasking Staff) Recruitment Rules, 2011 (hereinafter referred to as, relevant Recruitment Rules) (Annexure A-5). It was alleged that the applicants are not liable to be adjusted against the unreserved vacancy, after availing the relaxation in education qualification and weightage for work experience, in the interest of justice, as the same does not amount to fare competition, at the final stage of selection process. Even, as per Uma Devis case(supra), the persons, who have been regularly appointed, but as per rules, have to be regularized. It was alleged that all the applicants are working against unsanctioned posts, without possessing the prescribed minimum qualification, as per the relevant recruitment rules (Annexure A-5), so their services are not liable to be regularized. Virtually acknowledging the factual matrix, and reiterating the validity of their action, the respondents have stoutly denied all other allegations and grounds, contained in the O.A., and prayed for its dismissal. It may be added here that the private respondents have adopted the written statement, already filed on behalf of the official respondents.
7. Controverting the pleadings of the reply, filed by the respondents, and reiterating the allegations and grounds contained in the O.A., the applicants filed rejoinder.
8. At the very outset, it will not be out of place to mention that earlier this O.A. was disposed of, with a direction to the respondents, to formulate the scheme regarding regularization in view of ratio of law laid down by the Apex Court, Uma Devis case (supra) and to ensure issue of order by the Competent Authority regarding regularization or otherwise of the applicants. At the same time, the respondents were permitted to make appointments, in order of merit, as per the relevant rules, keeping at least three posts vacant in general category, for the applicants, vide order dated 28.03.2013, passed by this Tribunal.
9. Sequelly, the Civil Writ Petition No. 17663/2013, filed by the applicants, was accepted, and the case was remitted back to this Tribunal, for fresh consideration, vide order dated May 23, 2016, by the Honble High Court, which, in substance, is as under:-
The officials respondents appear to have taken the plea that the petitioners being lower in merit are not entitled to be appointed. The petitioners, on the other hand, submit that they are higher in merit than some of the general category candidates but their claim has been overlooked for totally erroneous reasons.
The controversy re: claim of a reserved category candidate who has availed relaxation in age for appointment against open category post is no longer debatable and has been set at rest by the Supreme Court in Jitendra Kumar Singh v/s State of U.P. (2010) 3 SCC 119.
Unfortunately, this aspect was either not argued before the Tribunal or the same has not been dealt with specifically. The factual aspect, namely, whether or not there are general category candidates who are lower in merit and have been offered appointment overlooking the petitioners claim, thus, requires re-determination by the Tribunal. An opportunity of hearing to the candidates who are likely to be affected, if the petitioners claim is accepted, is equally mandatory.
For the reasons aforesaid, we allow these writ petitions in part and set aside the order of the Tribunal to the extent above and request the Tribunal to determine the question, as formulated above. The candidates of the open category who are allegedly lower in merit, shall be impleaded as party respondents, if already not impleaded, and the Tribunal shall ensure that they are arrayed and given an opportunity to defend their appointments. It shall be appreciated if the Tribunal decides the matter at the earliest but not later than six months. This is how, we are seized of the matter.
10. As depicted hereinabove, the facts of the case are neither intricate, nor much disputed and fall within a very narrow compass, for deciding the real controversy between the parties.
11. What cannot possibly be disputed here is that applicants No. 1 to 5, who belong to reserved category, have applied for the post of MTS, in pursuance of the advertisement dated 24.09.2011 (Annexure A-4). According to the applicants, some of them are more meritorious than the last selected candidate in the general category. On the contrary, the respondents claimed that since the applicants have availed the relaxation in educational qualification and weightage for work experience, so they cannot be appointed on the post of MTS in general category.
12. Such this being the position of material on record and legal provisions, now the short and significant question that arises for determination in this case, is as to whether the applicants, who belong to reserved category, and secured more marks than the last selected candidate in general category, can be appointed against the vacancy of MTS in general category, in the given facts and circumstances of the case, or not?
13. Having regard to the rival contentions of learned counsel for the parties, to our mind, the answer must, obviously, be in the affirmative, in this regard.
14. Ex-facie, the argument of learned counsel for the respondents, that since the applicants availed the relaxation in educational qualification and weightage of work experience, so they are not entitled to be considered for appointment, to the post of MTS in general category, is neither tenable, nor the observations of Honble Rajasthan High Court in the case of Madan Lal Vs. State of Rajasthan & Others, 2012 (5) W.L.C. 253, Honble Kerala High Court in the case of Deepa Vs. Union of India (Kerala)(D.B.) 2015 (4) KLT 32 and this Tribunal in the case of Suresh Pal & Others Vs. Union of India & Others in O.A. No. 060/00476/2015 decided on 09.12.2016, are at all applicable to the facts of the present case, wherein the crux of law laid down was that if a candidate has availed the special benefit of additional experience, which was not availed by the general category candidate, then he has to be considered for vacancy in their own category and cannot slip into general category, on the basis of additional marks given to them for this weightage regarding experience.
15. Possibly, no one can dispute with regard to the above mentioned observations, but to us, the same would not come to the rescue of the respondents, in the present controversy. As in the aforementioned cases, the special benefits, of relaxation in educational qualification and weightage of previous service, were availed only by the reserved category candidates, and not by the general category candidates. So in the peculiar facts and circumstances of those cases, it was observed that reserved category candidates, who have availed special benefit of reserved category, cannot subsequently be considered for the post in general category. Whereas in the instant case, all the candidates, including the candidates of general category, have also availed the benefit of relaxation in educational qualification and weightage in marks on account of continuous service in the same department. Once all the candidates, of general category and reserved category, have availed the same very indicated benefits, of relaxation in educational qualification and weightage for work experience, in that eventuality, indeed the applicants No. 1 to 5, who belong to reserved category, cannot possibly be singled out or ousted from consideration, for the post of MTS, in general category and it cannot possibly be saith that they are not entitled to be considered for the above mentioned post. This matter is no more res integra and is now well settled.
16. An identical question came to be decided by the Honble Apex Court in the case of Jitendra Kumar Singh & Another Vs. State of U.P. and Others (2010) 3SCC 119. Having considered the identical controversy, it was ruled by the Honble Apex Court as under:-
39. In view of the aforesaid facts, we are of the considered opinion that the submissions of the appellants that relaxation in fee or age would deprive the candidates belonging to the reserved category of an opportunity to compete against the General Category Candidates is without any foundation. It is to be noticed that the reserved category candidates have not been given any advantage in the selection process. All the candidates had to appear in the same written test and face the same interview. It is therefore quite apparent that the concession in fee and age relaxation only enabled certain candidates belonging to the reserved category to fall within the zone of consideration. The concession in age did not in any manner tilt the balance in favour of the reserved category candidates, in the preparation of final merit/select list. It is permissible for the State in view of Articles 14, 15, 16 and 38 of the Constitution of India to make suitable provisions in law to eradicate the disadvantages of candidates belonging to socially and educationally backward classes. Reservations are a mode to achieve the equality of opportunity guaranteed under Article 16 (1) of the Constitution of India. Concessions and relaxations in fee or age provided to the reserved category candidates to enable them to compete and seek benefit of reservation, is merely an aid to reservation. The concessions and relaxations place the candidates at par with General Category candidates. It is only thereafter the merit of the candidates is to be determined without any further concessions in favour of the reserved category candidates. It has been recognized by this Court in the case of Indra Sawhney (supra) that larger concept of reservation would include incidental and ancillary provisions with a view to make the main provision of reservation effective. In the case of Indra Sawhney (supra), it has been observed as under:-
"743. The question then arises whether clause (4) of Article 16 is exhaustive of the topic of reservations in favour of backward classes. Before we answer this question, it is well to examine the meaning and content of the expression "reservation". Its meaning has to be ascertained having regard to the context in which it occurs.
The relevant words are "any provision for the reservation of appointments or posts". The question is whether the said words contemplate only one form of provision namely reservation simplicitor, or do they take in other forms of special provisions like preferences, concessions and exemptions. In our opinion, reservation is the highest form of special provision, while preference, concession and exemption are lesser forms. The constitutional scheme and context of Article 16 (4) induces us to take the view that larger concept of reservations takes within its sweep all supplemental and ancillary provisions and relaxations, consistent no doubt with the requirement of maintenance of efficiency of administration--the admonition of Article 335. The several concessions, exemptions and other measures issued by the Railway Administration and noticed in Karamchari Sangh are instances of supplementary, incidental and ancillary provisions made with a view to make the main provision of reservation effective i.e., to ensure that the members of the reserved class fully avail of the provision for reservation in their favour....."
40. In our opinion, these observations are a complete answer to the submissions made by Mr. L.N. Rao and Dr. Rajiv Dhawan on behalf of the petitioners.
17. Therefore, it is held that since the applicants No. 1 to 5, who belong to reserved category, availed relaxation in educational qualification and weightage in marks on account work experience in the same department, at par with the candidates of general category, so they are also entitled to be considered on merits, for the post of MTS, in general category, as no extra special benefit was availed by the reserved category candidates. The contrary arguments of learned counsel for the respondents and the contrary observations made in Madan Lals, Deepas and Suresh Pals case (supra), stricto sensu, deserve to be and are hereby repelled. On the contrary, the ratio of law laid down in the indicated judgment of Jatindra Kumar Singh case (supra) is mutatis mutandis applicable to the present controversy and is a complete answer to the problem in hand.
18. No other point worth-consideration has either been urged or pressed by the learned counsel for the parties.
19. In the light of the aforesaid reasons, the instant O.A. is, hereby, partly accepted. The respondents are directed to consider the applicants, for appointment to the post of MTS in general category, in case they are more meritorious, and scored more marks than the last selected candidate, in general category and not otherwise. The entire exercise be completed within a period of two months from the date of receipt of certified copy of this order.
20. Needless to mention, all the corollary and consequences of adjustment will naturally follow, in this regard.
(UDAY KUMAR VARMA) (JUSTICE M.S. SULLAR)
MEMBER (A) MEMBER (J) 31.01.2017
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