Central Administrative Tribunal - Ernakulam
Shafeeq.C.N vs The Executive Engineer on 27 January, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
O.A.NO.554/08
&
O.A.NO.638/08
&
O.A.NO.91/09
Wednesday, this, the 27th day of January, 2010
CORAM:
HON'BLE SRI GEORGE PARACKEN, MEMBER(J)
HON'BLE SRI K.GEORGE JOSEPH, MEMBER(A)
O.A.No.554/08
Shafeeq.C.N.,S/o Attakoya,
Cheriyam Nallai, Kalpeni Island,
U.T of Lakshadweep. .. Applicant
By Advocate: Mr.M.V.Thamban
vs.
1. The Executive Engineer,
Department of Electricity,
U.T. Of Lakshadweep, Kavaratti.
2. The Secretary of Power,
U.T of Lakshadweep,
Kavaratti.
3. The Administrator,
U.T of Lakshadweep,
Kavaratti.
4. Abdul Shukoor. Z.M.,
Zuhara Manzil, Kadamat Island,
U.T of Lakshadweep.
5. Badarudheen A.P,
Amina Pura, Amini Island,
U.T of Lakshadweep. ..Respondents
By Advocate: Sri S.Radhakrishnan(R1-3)
Sri Shafik M.A(R4&5)
O.A.No.638/08
L.Rahmathulla
Charge man,
Electrical Sub Division,
Androth. ... Applicant
By Advocate :Mr.K.B.Gangesh
vs.
1. The Administrator,
Administration of Union Territory
of Lakshadweep, Kavaratti.
2. Executive Engineer,
Department of Electricity,
Administration of the Union Territory
of Lakshadweep, Kavaratti.
3. Sri Musthafa M.V.,
Mathilvaliammada, Kalpeni Island.
4. Sri P.P. Ahmed Koya,
Puthiyapura, Bitra Island.
5. Sri Sajid Khan,
Sadikamanzil,South Bandaram,
Minicoy Island.
6. Sri Abdul Shukoor Z.M.
Zhuara Manzil,
Kadmath Island.
7. Sri Sayyid Mohammed Muhsin A.B,
Azhikkakam Baliyapura, Androth Island.
8. Sri Baderudheen A.P.,
Aminapura, Amini Island. .. Respondents
By Advocate:Mr.S.Radhakrishnan (R1 & 2)
Mr.Shafik M.A (R8)
O.A.No.91/2009
Shafeeq.C.N, S/o.Attakoya,
Cheriyam Nallal, Kalpeni Island,
U.T. of Lakshadweep. .. Applicant
By Advocate:Mr.M.V.Thamban
vs.
1. The Executive Engineer,
Department of Electricity,
U.T of Lakshadweep,
Kavaratti.
2. The Secretary of Power,
U.T of Lakshadweep,
Kavaratti.
3. The Administrator,
U.T of Lakshadweep,
Kavaratti.
4. Sajid Khan M.G.,
Junior Engineer(Electrical)
Electricity Department,
Lakshadweep Office,
Wellington Island, Kochi. .. Respondents
By Advocate : Mr.S.Radhakrishnan(R1 to 3)
The application having been heard on 12.01.2010, the Tribunal on 27-01-2010
delivered the following:-
ORDER
HON'BLE MR.K.GEORGE JOSEPH, MEMBER(A):
O.A.Nos. 554/08, 638/08 and 91/09 were heard together as they all pertain to the same select list of candidates for the post of Junior Engineer(Ele.) published vide F.No.36/2/2006-Estt/Ele/2036 dated 03.09.2008. O.A.Nos. 554/08 and O.A.No.91/09 are filed by the same applicant.
2. Facts in brief are as under. Two vacancies of Junior Engineer(Ele.) was notified on 3.8.06. No action was taken subsequent to the notification due to administrative reasons. Four more vacancies of J.E(Ele.) arose in 2008. A fresh notification inviting applications for selection of candidates for total 6 posts was made on 16.5.08. As per notification dated 3.8.06 candidates were eligible for two years age relaxation on the basis of open merit examination. Meanwhile tests/interviews were dispensed with and selection of the candidates on the basis of educational qualification/experience was to be done as per directions in the order dated 28.4.07. As the vacancies for 2006 and 2008 were merged, age relaxation was given to candidates who applied for the vacancies of 2008 also. A consolidated list of 17 eligible candidates from 43 applicants was prepared and 6 candidates were selected by the recruitment committee and 4 candidates were wait listed. The select list of candidates with wait list was notified on 3.9.2008. The above listed O.As were filed seeking various reliefs pertaining to the said notification.
O.A.No.638/08
3. The applicant sought the following reliefs:-
1. Set aside Annexure A6 select list issued by the 2nd respondent for the post of Junior Engineer(Electrical), Department of Electricity, Union Territory of Lakshadweep.
2. Declare that only candidates possessing Degree/Diploma in Electrical Engineering with relevant experience as prescribed under Annexure A1 Recruitment Rules is entitled to apply for the post of Junior Engineer(Electrical) as notified under Annexure A notice.
3. Declare that the respondents are liable to conduct selection to the post of Junior Engineer(Electrical), Department of Electricity, Union Territory of Lakshadweep by way of a written test and interview and not solely on the basis of the qualifications mentioned in Annexure A1 Recruitment Rules.
4. To issue such other order or direction as the Hon'ble Tribunal may deem fit to the facts and circumstances of the case.
5. To award costs to the applicant.
4. The applicant contends that as per the Recruitment Rules and notice dated 16.5.08, Degree/Diploma in Electrical Engineering with relevant experience is the sole educational qualification prescribed for the post of Junior Engineer(Electrical). Therefore the selection of candidates possessing Degree/Diploma in Electrical and Electronics is illegal and arbitrary. In the absence of express provision for equivalent qualification in the recruitment rules and notice for selection, the respondents cannot arbitrarily select persons with equivalent qualifications especially when persons with requisite qualifications are available for selection. The respondents have arbitrarily granted age relaxation to the candidates selected. The method of selection based solely on the marks obtained in the basic educational qualification without a written test and an interview is illegal and arbitrary, O.A.No.554/08
5. The applicant seeks the following reliefs:-
i)to declare that the respondents 4 and 5 are over aged for the post of Junior Engineer(Electrical) as per Annexure A2 notification and that their names are liable to be deleted from Annexure A3 select list.
ii)to issue an order directing the respondents 1 to 3 to delete the names of 4th and 5th respondents from Annexure A3 select list and to include the name of the applicant in Annexure A3 select list and to appoint him as Junior Engineer (Electrical).
iii)to issue such other reliefs that this Honourable Tribunal may deem fit and proper in the facts and circumstances of this case.
6. The applicant contends that respondent Nos. 4 and 5 in the said O.A. are over aged for submission of applications. Therefore their names should be removed from the select list, whereupon the applicant can get a place in the select list. O.A.No.91/09
7. This O.A. is also filed by the applicant in O.A.No.554/08. In this O.A. the applicant seeks the following reliefs:-
i)to declare that the respondent No.4 is unqualified for the post of Junior Engineer(Electrical) as per Annexure A2 notification and that his name is liable to be deleted from Annexure A3 select list.
ii)to issue an order directing the respondents 1 to 3 to delete the names of 4th respondent from Annexure A5 select list and to include the name of the applicant in Annexure A5 select list and to appoint him as Junior Engineer (Electrical).
iii)to declare that the appointment order if any issued by the respondents appointing the respondent No.4 as J.E.(Ele), is invalid as it has been issued violating the rules.
iv)to direct the official respondents to relieve the respondent No.4 from the post of J.E.(Ele), if he has already joined.
v)to issue such other reliefs that this Honourable Tribunal may deem fit and proper in the facts and circumstances of this case.
8. The applicant contends that as per notification dated 16.5.08 and the recruitment rules, respondent No.4 in this O.A. is not qualified to be selected as he has no experience in transmission and distribution but only in operating and maintaining 100 KWP SPW power plant which is not a sufficient experience. He had applied only in response to notification dated 3.8.06. He did not apply in response to the notification dated 16.5.08. Therefore his inclusion in the select list is erroneous, arbitrary and illegal. If he is removed from the waiting list, the applicant has a fair chance of selection and appointment.
9. The respondents contested the O.As. As the vacancies for 2006 and 2008 were merged it became necessary to consider all the candidates similarly giving age relaxation to those who applied for the vacancies for the year 2008 also to avoid litigation. The Administrator of Union Territory of Lakshadweep is competent to allow age relaxation. Candidates who applied during 2006 were given age relaxation taking 15.9.2006 as cut off date and for those who applied during 2008 taking 10.6.08 as cut off date. Mr. Bardarudheen.A at Sl.No.6 in the select list was a candidate who applied during 2006. On giving age relaxation of 2 years he was 31 years and 11 days old as on 15.9.06.Mr. Abdul Shukoor Z.M. At Sl.No.4 being a departmental candidate was eligible for age relaxation up to 40 years on the condition that he should have rendered a minimum of 3 years continuous service under the department. He had not completed 3 years regular service by 20.6.08. Inadvertently he was included in the list of eligible candidates and in the select list. Therefore being ineligible his name was deleted from the select list as per corrigendum dated 12.11.2008.The respondent at Sl.No.6 in the select list was included in the select list as he was not over aged as on 15.09.06, his date of birth being 2.9.1975. After considering the representations of the applicant, the Administrator permitted all the candidates who were within the age of 32 years to be considered for selection to the post of Junior Engineer.
10. In the reply to O.A. No.91/09, the respondents admit "It is also true that as per notification in Annexure-A2(16.5.2008), candidates who had applied as per notification in Annexure A1(3.8.2006) have to apply again if they want to be considered as per notification in Annexure -A2.(bracketed dates have been supplied). It was also admitted that the selection committee had not considered the experience in operation and maintenance of SPV power plants as required experience as per RR during 2006. But in 2008 it concluded that the stand earlier taken was not fair and considered the working experience in operation and maintenance of SPV power plants under the Electricity Department in Lakshadweep as one of the specified fields in the RRs as the SPV power plants in Lakshadweep are involved in generation, transmission and distribution of electricity as required by the RR. Therefore Sri Sajidkhan M.G., the 4th respondent in O.A.No.91/09 who is having 2 years working experience in SPV power plant as Operator was considered as an eligible candidate for the selection to the post of J.E.(Ele.). The RR for the post of J.E.(Ele.) in the Department of Electricity does not contain provision for conducting written test/interview. As all eligible candidates applied during 2006 and 2008 were considered the name of Sri Sajid Khan M.G.,the 4th respondent in O.A.No.91/09 was also included though he had not applied in response to the notification dated 16.5.2008.
11. The essential qualification prescribed in the RR is Degree in Electrical Engineering or Diploma in Electrical Engineering with 2 years experience in the field of electrical works. In view of the clarification issued by the Directorate of Technical Education, Kerala , Diploma in Electrical and Electronics is treated as equivalent to the qualification prescribed in the RR. Persons having knowledge in both electrical and electronics can work more efficiently as almost all equipments are having electronics components. In the light of the above facts and circumstances, the O.As should be dismissed.
12. In his rejoinder the applicant in O.A. 638/08 submitted the recruitment rules and notification dated 16.5.2008 does not prescribe Degree or Diploma in Electrical and Electronics as a prescribed qualification for the post of Junior Engineer(Electrical). The clarification offered by the Director of Technical Education, Kerala States does not in any way be equated to a declaration of equivalency by the Lakshadweep Administration. The notification and the recruitment rules do not provide for consideration of an equivalent qualification for the purpose of recruitment to the post of Junior Engineer. There is no declaration of equivalency of Degree/Diploma in Electrical Engineering and Degree/Diploma in Electrical and Electronics by the Lakshadweep Administration as such. Age relaxation up to the age 32 is not permissible as per the notification and recruitment rules. The Administrator of Union Territory of Lakshadweep is entitled to grant age relaxation only if the same is specified in the notification for selection.
13. In his rejoinder the the applicant in O.A. No.554/08 submitted that in the notification dated 16.5.08 it is categorically stated that the candidates who have already applied earlier in response to the notification dated 3.8.2006 are free to apply if they are within the age limit as on 20.6.08. From this it is amply clear that the candidates who crossed the age limit on 20.6.08 cannot be considered for selection. Combining of candidates who applied during 2006 and 2008 is arbitrary,illegal as it is against the rules and notifications. It is very clear from the foot note given in 2008 notification that those who applied already against 2006 notification can also apply against 2008 notification provided they are within the age limit. Therefore all those who have applied only during 2006 are liable to be removed from the select list except those who have applied again. The selection procedure followed by the Department is not transparent and warrants judicial scrutiny and appropriate action. There is an additional vacancy of Junior Engineer on account of a retirement on 30.6.2008. The select list was notified only on 3.9.2008. Therefore that post can be filled from the next candidate in the waiting list , which happens to be the applicant.
14. Arguments were heard and documents perused.
15. The submissions made by the contestants will have to be examined in terms of the notifications and the recruitment rules. Notification dated 16.5.08 is reproduced as under:-
"F.No.36/1/2006-Estt./Ele Administration of the Union Territory of Lakshadweep (Department of Electricity) KAVARATTI-682 555 Dated: 16.05.2008 NOTICE Applications are invited for the appointment to the post of Junior Engineer(Electrical) in the scale of pay Rs.5000-150-8000 under the Lakshadweep Electricity Department from the qualified local candidates from Lakshadweep Islands. Qualification required as per the existing Recruitment Rules for the appointment to the above said post are as given below:-
1. Number of post : 6(Six)Three posts Regular and Three Posts on Temporary basis
2. Age Limit :18-15 years(five years relaxation for ST)(Total 30 Years).
3. Educational Qualifications : 1.Degree in Electrical Engineering of a recognized University or Diploma in Electrical Engineering of a recognized institution with 2 years Experience in any one of the following field
i)Running and maintenance of] Diesel Generating set
ii)Generation, Transmission & Distribution of Electricity
iii)Internal electrification of buildings (Experience Certificate in the above fields after passing the Diploma only will be considered eligible).
The selection to the posts will be made for two posts from the candidates already applied for in response to earlier Notification of even number dated 03.08.2006. However, there is no objection in applying for remaining 4 posts subject to the condition that the applicants are within the age of 25 years (with 5 years relaxation permissible for ST candidates).
This issues with the approval of Secretary(Power vide Diary No.733 dated 02.05.2008.
Applications should reach the undersigned on or before 20.06.2008 with attested copies of all certificates proving age/Educational qualification/experience/caste etc. The crucial date for determination of age shall be the last date fixed for receipt of applications ie. 20.06.2008.
Sd/-
(S.Attakoya) Executive Engineer To The Heads of Offices at Kavaratti with a request to display the notice in their office Notice Board.
Copy to. 1)Deputy Collector/SDO/AO Bitra in islands for similar action.
2)Copy to District Employment Officer, Kavaratti with a request to furnish the list of qualified hands.
3)Copy to Director, I&P with a request to publish the matter through Lakshadweep Times.
4)Officer in charge, AIR, Kavaratti for broadcasting in AIR, Kavaratti.
5)Assistant Engineers/Junior Engineers in Islands for wide publicity."
16. It is very clearly mentioned that selection to the posts will be made for 2 posts from the candidates already applied for in response to earlier notification dated 3.8.06. There is no objection to apply for the remaining 4 posts subject to the condition that the applicants are within the age of 25 years (with 5 years relaxation permissible for ST candidates).
17. The qualifications required for direct recruits extracted from the recruitment rules for Junior Engineer(Electrical) is as under:-
"Degree in Electrical Engineering of a recognized University OR Diploma in Electrical Engineering of a recognized Institution with 2 years experience in any one of the following field.
i) Running and maintenance of D.G Sets
ii) Generation, Transmission & Distribution of Electricity
iii) Internal electrification of buildings.
The prescribed qualification is Degree in Electrical Engineering or Diploma in
Electrical Engineering with 2 years relevant experience. Nothing more nothing less.
18. During the oral submission the learned counsel for the applicant in O.A.No.638/08 relied on the decision of the Hon'ble High Court of Kerala in 2000(1) K.L.J 600, to drive home the point that when an advertisement mentions a particular qualification, no appointment can be made disregarding the same.
19. The Apex Court in Ashok Kumar Sharma v. Chandrasekhar; (1997)4 SCC 18, held that an advertisement or notification issued/published calling for applications constitutes a representation to the public and the authority issuing it is bound by it and it cannot act contrary to it. In our view this decision squarely applies to the O.As. under consideration. The Lakshadweep Administration was not justified in entertaining applications from those candidates who did not possess the qualification prescribed in the recruitment rules and the notifications. When the advertisement mentions particular qualification and if appointments are made in disregard to the same, it amounts to a fraud on public as per the proposition laid down by the Apex Court in Tripura Sundari Devi's case;(1990)3 SCC 655. If the recruitment rules and the notifications themselves do not provide for equivalency then the Lakshadweep Administration is not empowered to entertain applications from candidates who are stated to have equivalent educational qualifications to the qualifications notified. The respondents rely on the letter dated 26.2.03 which is reproduced below as under:-
"Office of the Director of Technical Educational Thiruvananthapuram, No.C4/6698/03/DTE. Dated: 26.2.2003 From The Senior Joint Director(P.S) To The Executive Engineer, Administration of Lakshadweep, Department of Electricity, Kavaratti-682 555.
Sir, Sub:- Education - Technical -Equivalency - reg. Ref:- Your lr.No.F.No.36/4/92-Estt/Ele(part)/327 dtd 11.2.2003.
I am to inform you that the Diploma Certificate issued by the Board of Technical Education, Tamil Nadu is recognized by the Government of Kerala in the respective branches as per G.O.(MS)- 526/Public Service (D) Department dt. 17.7.1965.
Yours faithfully, Sd/-
Senior Joint Director(P.S)"
20. As rightly contended by the applicant in O.A. No.638/08 this letter cannot be in any way be considered as declaration of equivalence of a Degree/Diploma in Electrical Engineering with a Degree/Diploma in Electrical/Electronics. It only conveys that a Diploma Certificate issued by the Board of Technical Education, Tamil Nadu is recognized by the Government of Kerala in the respective branches and nothing more. The respondents pretend too much when they state that Diploma in Electrical and Electronic Engineering is treated as equivalent to Diploma in Electrical Engineering on the basis of the letter from the Directorate of Technical Education, Kerala.
21. It is true that in terms of clause 5 of notification No.40/3/85-Estt/Ele dated 2.9.02 the Administrator ,Union Territory of Lakshadweep is competent to allow age relaxation. But this power is to be exercised judiciously, not arbitrarily. Any relaxation given after the last date for submission of applications is arbitrary, illegal and discriminatory, inasmuch as it is not available to all those who could have benefited from it. Those who did not apply in view of the age restriction notified are deprived of the benefit of age relaxation.
22. After a notification is issued, there are only two proper courses of action,one is to complete the process in accordance with the notification and the other is to cancel it for any reason . If it was not possible for administrative reasons not to select persons for filling up the two vacancies for which notification dated 03.08.2006 was issued, the right course of action was to cancel it. But the respondents did not choose to do so.
23. In the foot note to notification dated 16.05.2008 it is stated that those who responded to the 2006 notification can apply again if they are within the age limit in terms of 2008 notification. In terms of this foot note only eligible persons can apply. The onus is on them to apply. The Administration is not empowered to treat the applications for 2006 as applications for 2008. In doing so, the Administration erred and selected a person who did not even apply in response to 2008 notification.. From the records it is observed that at one stage,the selection committee had recommended 2 candidates from 18 eligible candidates during 2006 and 4 candidates from 8 eligible candidates during 2008. This was in accordance with the commitment given in the notification dated 16.5.08 which stated "The selection to the posts will be made for two posts from the candidates already applied for in response to earlier notification of even number dated 03.08.2006".This list is reproduced as under:-
"2006 Sl.No. Name of candidate Native place % of marks 1 Shri Musthafa M.V. Kalpeni 80.25 2 Shri P.P.Ahmed Koya Bitra 71.70 Wait list 1 Shri Baderuddeen A.P. Amini 60.17 2 Shri Shafeeque.C.N. Kalpeni 58.75 2008 Sl.No. Name of candidate Native place % of marks 1 Shri Sajid Khan M.G. Minicoy 65.28 2 Shri Abdul Shukoor Z.M. Kadmat 61.14 3 Sri Sayyid Mohd Muhsin A.B. Andortt 60.22 4 Shri Thajil Mulook.B. Chetlat 59.37 Wait list 1 Shri Mohammed Hussain K.I. Bitra 55.60 2 Shri C.M.Muhthar Kadmat 54.23 3 Shri L.Rahmathulla Andrott 54.20"
24. It may be contrasted with the select list notified on 03.09.2008:-
"F.No.36/2/2006-Estt./Ele/2036 Administration of the Union Territory of Lakshadweep (Department of Electricity) Kavaratti-682 555 Dated: 03.09.2008 NOTICE The Select List of Candidates for the post of Junior Engineer(Ele) published vide F.No.36/1/2006-Estt/Ele dated 16.05.2008 is furnished below in order of merit.
SELECT LIST
Sl.No. Name of Candidate Native Place
1. Shri Musthafa M.V. Kalpeni
2. Shri P.P.Ahmed Koya Bitra
3. Shri Sajid Khan M.G. Minicoy
4. Shri Abdul Shukoor Z.M. Kadmat
5. Shri Sayyid Mohammed Muhsin A.B. Andrott
6. Shri Baderudheen A.P. Amini
The Candidates in waiting list will be considered only when the
candidates in the select list not accept the appointment.
WAIT LIST
Sl.No. Name of Candidate Native Place
1. Shri Thajil Mulook B. Chetlat
2. Shri Shafeeq C.N. Kalpeni
3. Shri Mohammed Hussain K.I. Bitra
4. Shri C.M.Muhthar Kalpeni"
25. In the first select list Sri Sajid Khan is shown against the four posts notified in 2008. It is an admitted fact that he did not respond to 2008 notification. He holds a Diploma in Electrical & Electronics Engineering and has experience as a SPV power plant operator. He had responded to 2006 notification only. The erroneous inclusion of Shri Sajid Khan in the select for 2008 by the selection committee appears to have been corrected by the Recruitment Committee on account of the merging of the vacancies for 2006 and 2008 and the applications for the same. But the merging of the vacancies and applications for 2006 and 2008 itself is illegal, not being in accordance with the terms and conditions of the notification dated 16.05.08 and amounts to a fraud on the public. If the respondents felt that persons having knowledge of electronics can work more efficiently, it is up to them to revise the RR accordingly.
26. However, with regard to the experience of Shri Sajid Khan, in SPV power plant, the contentions of the respondent in para 10 above, are acceptable in terms of the prescribed experience in the RR and notifications.
27. It is seen that in the year 2008 there was one more vacancy of JE(Ele) on account of retirement which was not taken in the estimation of vacancies for 2008. The respondents went about in the most casual way in filling up the vacancies of JE (Ele) without due diligence, utterly disregarding the RR and notifications. Not one in the select list is having the prescribed educational qualification.
28. In the light of the discussion above, we are of the view that the Lakshadweep Administration erred in selecting candidates disregarding the educational qualification prescribed in the RR for J.E(Ele) and notified in the advertisements dated 03.08.06 and 16.05.08. It erred in notifying a combined select list disregarding the commitment given in the notification of 16.05.08. It erred in granting age relaxation after 20.6.2008, the last date fixed for receipt of applications. It erred in merging the applications for 2006 and 2008 which resulted in giving unfair advantage to a particular person, who stood no chance for selection for 2006 and who did not apply for 2008. These infirmities have completely destroyed the legal sanctity of the process of selection. Therefore we declare the impugned select list null and void. Consequently the O.A No.638/08 succeeds to the extent of the order given below. In terms of the very same order, O.A. No.554/08 and O.A.No.91/09 are disposed of.
29. The select list of candidates for the post of Junior Engineer(Ele) published vide Notice F.No.36/2/2006-Estt/Ele/2036 dated 03.09.2008 and the appointments made, if any, pursuant to the said notice, of person(s) without the prescribed educational qualification, are quashed and set aside. The respondents are at liberty to revise the RR for JE(Ele) as required and grant relaxations in a transparent and equitable manner and conduct fresh selection, if they so desire. No costs.
(K.GEORGE JOSEPH) (GEORGE PARACKEN) MEMBER(A) MEMBER(J) /njj/