Central Administrative Tribunal - Chandigarh
Umeshwari Sharma Daughter Of Sh. Baldev ... vs The Union Territory on 20 March, 2017
CENTRAL ADMINISTRATIVE TRIBUNAL CHANDIGARH BENCH OA No.060/01051/2015 Decided on : 20.03.2017 CORAM: HONBLE MR. JUSTICE M.S. SULLAR, MEMBER (J) HONBLE MR. UDAY KUMAR VARMA, MEMBER (A) Umeshwari Sharma daughter of Sh. Baldev Raj, resident of House No. 1508, Sector 42-B, Chandigarh, for the post of Junior Weight Lifting Coach, Group C. .APPLICANT (Argued by: Mr. Chanderhas Yadav, Advocate) VERSUS 1. The Union Territory, Chandigarh through its Administrator, Sector 9, Chandigarh. 2. Director Sports, Chandigarh Administration, Department of Sports, Hockey Stadium, Sector 42, Chandigarh. 3. Joint Director Sports, Chandigarh Administration, Department of Sports, Hockey Stadium, Sector 42, Chandigarh. ..RESPONDENTS (Argued by: Mr. Arvind Moudgil, Advocate) ORDER (oral)
HONBLE MR. JUSTICE M.S. SULLAR, MEMBER (J):-
The challenge in this Original Application (OA), filed by the applicant, Umeshwari Sharma daughter of Sh. Baldev Raj, is to the impugned orders dated 23.7.2014 (Annexure A-29), dated 18.8.2015 (Annexure A-35), whereby her candidature was rejected on the ground that, as she is not a departmental candidate, so she is not entitled for relaxation of age and notification dated 27.10.2005 (Annexure A-37) to the extent the eligibility of Junior Coaches, was amended.
2. Tersely, the facts and material, culminating in the commencement, relevant for deciding the instant OA, as claimed by the applicant and emanating from the record, is that she completed her 2 years Master in Physical Education during the session 2008-2010 in which she secured 76% marks. As a sports person also, she participated in Senior National Women Weight Lifting Championship and U.P. Weightlifting Championship etc. The certificates of her participation and level of performance / awards are mentioned in Annexures A-4 to A-14. It was further pleaded that applicant was selected as Weight Lifting Coach in the year 2007 in Chandigarh Sports Council, Chandigarh, where she worked from 1.7.2007 to 2.1.2012, with notional breaks. Thereafter, she was selected as Gym Instructor in Chandigarh Judicial Academy on 16.8.2012 (Annexure A-23).
3. The case set up by the applicant, in brief, in so far as relevant, is that the Sports Department of the Chandigarh Administration, advertised the post of Junior Weightlifting Coach (JWC), in the month of April, 2013, vide advertisement (Annexure A-24). The applicant, claiming herself to be highest qualified person and holder of Gold medals and other achievements, applied for the said post on 4.5.2013 (Annexure A-25), after seeking and grant of permission, through proper channel.
4. Having successfully completed the recruitment process, she secured first position in the select list. Surprisingly enough, her candidature was illegally rejected in an arbitrary manner vide letter dated 23.7.2014 (Annexure A-29), on the ground that she is not a departmental candidate. She filed a representation dated 24.7.2014 (Annexure A-30) but in vain. It impelled her to file OA bearing No.060/00631/2014, which was allowed vide order dated 28.4.2015 (Annexure A-33), by this Tribunal.
5. The case of the applicant, further proceeds, that as no action was taken for her appointment by the respondents, so she moved an application under RTI Act, wherein she was informed that as per the subsequent advertisement of September, 2013 (Annexure A-26), she became over-age by 1 month and 12 days, as she was not considered departmental candidate, so her candidature was cancelled, although she secured 1st position. It was alleged that candidature of the applicant was rejected by amending the Recruitment Rules, without any reason. The word of U.T. Employees was replaced with Departmental candidates as per the Amended Rules, Annexure A-37.
6. Aggrieved thereby, the applicant has preferred the instant OA challenging the impugned orders / action of the respondents, on the following grounds:-
i) That the applicant has continuous service, though having notional breaks, with the respondent department itself w.e.f. 2007 to 2012 and without any break on 23.08.2012 the applicant had joined the services with Chandigarh Judicial Academy, therefore, her continuous service with the Chandigarh Sports Department, as well as Chandigarh Judicial Academy, be considered as continuous service under government for the purpose of present appointment.
ii) That the respondent State of UT in the mid of the appointment process, cannot change the eligibility guidelines and the requisite qualifications just to give undue benefits to some highly influential candidates.
iii) That the record of the applicant, regarding which the documents had already been annexed shows that the applicant is an outstanding performer as well as coach, therefore, if the conditions are kept intact as mentioned in April 2013 advertisement, then nobody can stand in competition with the applicant, therefore, the applicant had good chances for appointment.
iv) That the continuous service of the applicant is more than three years, because the respondent authorities, while passing the impugned order, did not consider the earlier service of the applicant with the Chandigarh Sports Council, from where the applicant was appointed in Chandigarh Judicial Academy and the applicant joined over there without any break.
v) That the Chandigarh Judicial Academy is also a government run organization as its funds are used to come from State of Punjab and Haryana. Para 23 of its constitution is reproduced for the ready reference of this Honble Tribunal:
23. Funds of the society, Accounts and Audit:-
(1) The funds of the society shall include the following :-
a) Rs.10.00 crores to be contributed equally by the State of Punjab and Haryana as corpus.
vi) That sports authority of India, which is the highest authority with regard to Sports in India, and during its advertisement, it has given relaxation in age to the departmental candidate and it has also considered the period of contract engagements, the relevant portion of which is reproduced herein below for the ready reference of this Honble Tribunal.
5.0 Relaxation in age Limit.
(a)(i) UP to a maximum of 10 years in case of departmental candidates.
(ii) Personnel / candidates who are not regular employees of SAI, but have been engaged on contract basis would be provided age relaxation for the entire period of their engagement on contract basis in SAI plus three years i.e. such person (s) shall be allowed to deduct the period of such service from his / her actual age and if the resultant age does not exceed the maximum age limit prescribed for the post by more than 3 years. He / she shall be deemed to satisfy the condition regarding age limit. They will have to meet the other qualifying conditions of education etc.
vii) That it is malafide on the face of it, on the part of respondent authorities, as such a marvelous / outstanding candidate is available, but the respondent authorities just to give undue benefits to some scruples persons, in the mid of the process of appointment had relaxed the appointment rules, which is highly arbitrary and just with intention to debar the applicant to age limit has been minimized.
viii) That the respondent authorities had played their best trick just to debar the applicant as the interviews are scheduled on 31.7.2014 and the applicant has been given the rejection letter in the evening on 23.07.2014, so that the applicant can be kept away out of the selection procedure.
ix) That the interview schedule is fixed for 31.07.2014, but due to the present illegal order the candidature of the applicant has been rejected, the said order is highly illegal and arbitrary order.
x) That the applicant is a departmental candidate, the definition of departmental candidate is not given in the rules of the respondent Sports Department itself, the same was taken from the internet and is reproduced herein below for the ready reference of this Honble Tribunal.
A departmental candidate is an employee of any company applies for the direct recruitment job in the same company to elevate his position according to his eligibility.
A bare perusal of which shows that as the applicant is continuously working with the Sports Department for the last about 7 years, first with the Chandigarh Sports Council, then continuously, with the Chandigarh Judicial Academy, without any break.
xi) That the respondents have considered the case of the applicant with malafide and injustice has been done to the applicant.
xii) That when after the intervention of the Honble C.A.T, the applicant was permitted to appear before the interview committee and the applicant has excelled into the selection process, she was at No. 1 and the candidate who was No. 2 was having almost 50% marks of the applicant, which means that candidate was far behind than the applicant. Despite that the respondent authorities who want to appoint a Coach are making the selection process itself unfair, in that case no fair game can be played.
xiii) That the applicant for the last many years when specifically working only for the respondent department or for the U.T. Government than the definition which is being considered by the respondent authorities of a departmental candidate is highly illegal and uncalled for. When the applicant is still working with one of the branches of the same department and the application of the applicant was sent through proper channel by the same department, then it cannot be stated that the applicant is not a departmental candidate.
xiv) That the 2004 rules are still in effect and they have been amended on 27.10.2005, in the amendment the word U.T . Government Employee for the purpose of age relaxation has been illegally replaced with the word Departmental Candidate without there being any reason and just to give benefit to a certain person. It would be relevant to mention that since 2007, there is no employee in the department on contract / adhoc / temporary basis, therefore, the present amendment does not serve any purpose, as the same is made for the benefit of none, the same deserves to be set aside on the same ground of being purposeless.
xv) That the State of U.T. used to follow the rule proposition laid down by the Government of Punjab, which is alma mater for almost all the rule proposition of the U.T. Government. In the Punjab Civil Services Rules, the word is still a Government Employee, whereas in the State of U.T. in the respondent department, it has been replaced with the word Departmental candidates without any reason and without application of mind.
xvi) That there was good reason and analogy behind the Government Employee, as it was for the benefit of big number of employees, who are working for the Government, but by replacing the same to the word Departmental candidate it will benefit of almost none. Therefore, such like amendment cannot sustain in the eyes of law.
xvii) That the above said amendment is also violative of article 14 of the Constitution of India, as earlier Sh. Harjinder Singh who was working with Haryana State Electricity Board was given relaxation while appointing him as Junior Football Coach the application form and copy of the order of the above said Harjinder Singh (Annexure A-38 Coolly)., which clearly shows high handedness of the respondent authorities in the case of the applicant. A bare perusal of which shows that earlier the respondent department itself was appointing the persons from the other State Governments also by giving them benefit of age relaxation. Therefore, the discrimination of the applicant is highly arbitrary on the part of respondent authorities.
7. Levelling a variety of allegations and narrating the sequence of events in detail, in all, the applicant claims that she secured 1st position and was fully eligible for appointment, on the post of JWC, as per initial advertisement issued in April, 2013 (Annexure A-24) but she was non-suited, in the garb of subsequent advertisement issued in the month of September 2013 (Annexure A-26), on the basis of alleged amendment in the rules. On the strength of aforesaid grounds, the applicant seeks to quash the impugned orders and action of the respondents in rejecting her candidature, in the manner indicated hereinabove.
8. The respondents refuted the claim of the applicant and filed the written statement, inter-alia, pleading certain preliminary objections of maintainability of the OA, cause of action, locus standi of the applicant, limitation and mis-representation. On merits, it was admitted that they advertised the post of JWC in April, 2013. It was not disputed that as per indicated advertisement, Annexure A-24, the applicant satisfied the eligibility criteria but her candidature was rejected on the ground that as per subsequent advertisement issued in September, 2013 (Annexure A-26), she was not entitled for age relaxation being not a departmental candidate.
9. However, the respondents have not denied the issuance of initial advertisement, Annexure A-24, in the month of April, 2013 and subsequent advertisement, Annexure A-26, in the month of September, 2013 for the same very post of JWC. Instead of reproducing the entire contents of the reply and in order to avoid the possibility of repetition of facts, suffice it to mention that, virtually acknowledging the factual matrix and reiterating the validity of the impugned action, the respondents have vaguely denied all other allegations and grounds contained in the OA and prayed for its dismissal.
10. Controverting the pleadings of the reply filed by the respondents and reiterating the grounds contained in the OA, the applicant has filed the rejoinder. That is how we are seized of the matter.
11. Having heard the learned counsel for the parties, having gone through the record with their able assistance and after considering the entire matter, we are of the firm view that the instant OA deserves to be allowed, in the manner and for the reasons, mentioned herein below.
12. Ex-facie, the argument of the learned counsel for the respondents, that the applicant became overage by 1 month & 12 days, as per the subsequent advertisement, Annexure A-26, and since she was not a departmental employee, so she was not entitled to age relaxation and her candidature was rightly rejected by the respondents, is not only devoid of merit but misconceived as well.
13. As is evident from the record and the certificates (Annexures A-4 toA-22) that the applicant is an outstanding sports person and obtained Gold Medal in the Weightlifting. The U.T. Sports Department itself gave a certificate of appreciation, Annexure A-22. She was appointed as Gym Instructor in Chandigarh Judicial Academy, as per letter dated 16.8.2012 (Annexure A-23), after relieving from Chandigarh Sports Council. The Sports Department of U.T. Chandigarh, had advertised the post of JWC, for general category in the month of April, 2013, as per advertisement (Annexure A-24), which reads as under :-
CHANDIGARH ADMINISTRATION: SPORTS DEPARTMENT Director Sports, Chandigarh Administration invites applications on plain paper, along with attested copies of certificates / testimonials, for one post of Junior Weight-Lifting from General Category in the pay band of Rs.10300-34800 + 3600 GP. The applications should reach to the Director Sports, Chandigarh Administration latest by 10-05-2013 upto 5.00 P.M. Applications received thereafter will not be entertained.
Educational Qualification
1.Should be a Graduate from recognized University of Institution.
2. Should possess Diploma in Coaching from National Institute of Sports in the required discipline provided that in case of games in which regular courses are not available at National Institute of Sports, candidate should possess Master Degree in Physical Education (Two years integrated course) from a recognized University or Institution.
3.Should be position holder of Open National or first position holder of All India-University Meet.
4. Having experience in coaching for a minimum period of one year in the required discipline.
Age as on 1-1-2012.
Between 21 to 33 years of age as on the 1st day of January of the year immediately preceding the last date fixed for submission of applications. The upper age relaxable upto 45 years in the case of employees of U.T., Chandigarh.
General Conditions:
Government servants will be considered for interview only, if their applications are received through proper channel. They can, however, send advance copies of their applications along with copies of certificates by the prescribed date.
Two passport size photographs duly attested by the Gazette Officer be attached with the application form.
SUNITA BHATIA DIRECTOR SPORTS, CHANDIGARH ADMINISTRATION.
14. In pursuance thereof, the applicant applied for the indicated post. Having successfully completed the recruitment process, she secured 1st position in the select list. Instead of offering the appointment to the applicant, who was most meritorious, the respondents have illegally issued subsequent advertisement, for the same very post, in September, 2013 (Annexure A-26), in which, the age was prescribed between 21 to 33 years, as on the 1st day of January of the year, immediately preceding the last date, fixed for submission of applications.
15. As per the advertisement, Annexure A-24, the upper age was made relaxable upto 45 years in the case of employees of U.T., Chandigarh whereas this age of relaxation was only limited to the departmental candidates as per the subsequent advertisement, Annexure A-26, for the said post.
16. As indicated hereinabove, although the applicant secured first position, but her candidature was rejected by the designated Scrutinizing Committee, as she was not a departmental candidate and not entitled for age relaxation-overage, as informed vide letter dated 23.7.2014 (Annexure A-29). She filed a representation against the said order on 24.7.2014 (Annexure A-30) but to no avail. Aggrieved thereby, she filed O.A.No. 060/00631/2014, challenging the order dated 23.7.2014. The OA was disposed of with a direction to the Chandigarh Administration, to consider her case, as a departmental candidate, and/or for age-relaxation, vide orders dated 28th April, 2015 (Annexure A-33), by a coordinate Bench of this Tribunal. The operative part of the order reads as under:-
10. We have given our thoughtful consideration to the matter and perused pleadings of the parties. From the material on record, it is clear that the applicant is indeed an outstanding sport person. Her application for the post of Junior Weight Lifting Coach has been rejected on the ground that she had worked with the Chandigarh Sports Council and later with the Chandigarh Judicial Academy and since both these bodies were not government departments, the applicant could not be considered as a Departmental candidate and hence she was overage for the post she had applied for.
11. Since the applicant was allowed to appear in the selection, the details of marks awarded by the Selection Committee to the various candidates were perused on 22.01.2015 and it was seen that the applicant had been placed at serial no.1 in the merit list and other candidates were far behind her. We are therefore of the view that the matter requires reconsideration by the Chandigarh Administration in view of the credentials of the applicant and the fact that outstanding sports persons are not always available to work as coaches while it is such persons who can provide the right motivation, encouragement and training to other aspiring sports persons in their field. Hence this O.A. is disposed of with direction to the Chandigarh Administration that the case of the applicant for being considered as departmental candidate and/or for age relaxation may be examined. Such consideration may take place at the level not below that of the Advisor to the Administrator, U.T. Chandigarh and decision taken in the matter within a period of two months from the date of a certified copy of this order being served upon the respondents.
17. Strangely enough, the respondents have not considered the case of the applicant in the right perspective, and rejected her claim, which is clear from the impugned noting dated 18.8.2015 (Annexure A-35). It is not a matter of dispute that the applicant is indeed an outstanding sports person. She fulfilled all the eligibility criteria in terms of the earlier Advertisement, Annexure A-24. Her candidature for the post of JWC has been rejected on the ground that she has worked with the Sports Council and later on with Chandigarh Judicial Academy, and since both bodies are not Government Departments, so she is not entitled to be appointed on the relevant post, as per subsequent advertisement, Annexure A-26.
18. Here to our mind, the respondents have fell into deep legal error, in this regard. Admittedly, as per the initial advertisement, Annexure A-24, the upper age limit was relaxable upto 45 years in the case of employees of U.T. Chandigarh, whereas this criteria was changed and relaxation was only granted to departmental candidates, in subsequent advertisement, Annexure A-26. Therefore, the action of the respondents in denying the appointment to the applicant, as per initial advertisement at Annexure A-24, is not only arbitrary but illegal as well. Once the applicant satisfied the eligibility criteria, in pursuance of the initial advertisement, Annexure A-24, and she secured first position in the select list, in that eventuality, the respondents cannot illegally change the criteria of age relaxation in the subsequent advertisement, Annexure A-26. This matter is no more res-integra and well settled.
19. An identical question came to be decided by a Division Bench of the Punjab and Haryana High Court in the case of Neelam Pathak Vs. State of Punjab, 1997 (1) SCT 770, wherein it was ruled that if the process of selection is delayed, the candidates who were eligible as per the conditions advertised, would not become ineligible only because they had crossed age limit on the date of preparation of selection list. Once the advertisement is issued with the conditions of eligibility, the same conditions would prevail till finalization on the basis of initial advertisement and the candidates who were eligible on the date of applications, would be entitled to be considered for the appointment. It was further held as under:-
9. Even in cases where the recruitment is made in accordance with the rules framed under proviso to Article 309 of the Constitution, the posts/vacancies which occur at a particular point of time are ordinarily required to be filled on the basis of eligibility conditions specified in the rules as they then stand and the subsequent amendment in the rules cannot take away the right of consideration of those who are eligible at the time of advertisement of the posts. Therefore, in the instant case, where recruitment is not regulated by the statutory rules, the respondents cannot deviate from the conditions of eligibility enumerated in the advertisement in response to which the petitioner had applied. In this connection, we may refer to the decision of this Court in Jatinder Kumar v. State of Haryana, 1995(5) SLR 380. That case related to the recruitment of Haryana Civil Service (Judicial Branch). An advertisement was issued by the Haryana Public Service Commission on 1.5.1993 for 32 vacancies. After the expiry of the last date fixed for the receipt of the applications, the Governor of Haryana amended the rules in the light of the decision of the Supreme Court in All India Judges Association v. Union of India, 1993(4) SCT 248 (SC) : 1993(6) SLR 37. That amendment was made effective from 24.8.1993. Subsequently the Commission issued fresh advertisement for the posts which were already advertised in the year 1993 and the posts which had become available thereafter. Some of the candidates who had applied in response to the advertisement No. 2 of 1993 were treated as ineligible in the light of the changed conditions of eligibility. This decision of the Haryana Public Service Commission was challenged in a batch of writ petitions. A division Bench of this Court referred to the decisions of the Supreme Court in Y.V. Rangaiah v. J. Sreenivasa Rao, 1983(1) SLR 789; P. Ganeshwar Rao v. State of Andhra Pradesh, 1988(4) SLR 548; P. Mahendera v. State of Karnataka, 1990(1) SLR 307; N.T. Devin Katti v. Karnataka Public Service Commission, 1992(2) SCT 578 : 1992(2) SLR 378; State of Andhra Pradesh v. T. Ramakrishna Rao, 1971(1) SLR 453; A.A. Calton v. Director of Education, 1983(1) SLR 785 and held:
"The process of selection commences with the inviting of the applications and ends with the making of appointments. The eligibility of the candidates is required to be judged with reference to the date fixed in the advertisement. Any other date would lead to serious anomaly and uncertainty. Therefore, those who were qualified and eligible on the date specified in the advertisement dated 1.5.1993 did acquire a right to be considered for selection in accordance with the terms and conditions of the advertisement."
20. Again while relying upon judgment of Honble Supreme Court in the case of A.K. Kraipak Vs. Union of India, AIR 1970 SC 150, the Honble High Court in the case of Ms. Sukhjit Singh Sekhon Versus Panjab Agriculture University, 1993 (2) RSJ 759, held as under:-
7. A duly selection candidate should be offered appointment otherwise, the Constitutional guarantee as enshrined under Article 16 becomes a mere formality. The Vice Chancellor without affording the petitioner any opportunity of being heard ordered the review of her selection by the Select Committee. It was obligatory for the Vice Chancellor before exercising the power of review, to afford the petitioner an opportunity of being heard according to the principles of natural justice. A duly selected candidate acquires a civil right to be appointed. This right cannot be defeated without affording him an opportunity of being heard. The Supreme Court in Binapani Singh's case(supra) has laid down that if an order affects the civil right of a person, no order adverse to him can be passed without affording him an opportunity of being heard. Binapanis case (supra) has been approved by the Supreme Court in Mohinder Singh case (supra). The principles of natural justice have been applied by the Supreme Court in selection procedure (See A.K. Kraipak Vs. Union of India, AIR 1970 SC 150). The ratio of the above said judgment squarely covers the controversy.
21. Not only that, the reliance in this regard, can also be placed upon a judgment of the Honble Supreme Court in the case of Maharashtra State Road Transport Corporation Vs. R.B. Mandave, 2002 AIR (SC) 224 and decision of this Bench of the Tribunal in O.A.No. 634-HP-2013 Rakesh Puri Vs. Union of India & Others, decided on 27.1.2017.
22. Therefore, it is held that once the applicant has duly applied in pursuance of the initial advertisement, Annexure A-24 and fulfilled the criteria laid down therein, and having successfully cleared recruitment process secured first position in the select list, in that eventuality, she is entitled to be appointed on the indicated post of JWC, in pursuance of the initial advertisement, instead of re-advertising the same very post, by changing the criteria in the manner, indicated hereinabove, in the garb of alleged amendment in the recruitment rules and subsequent advertisement, in order to illegally non-suit the applicant. Therefore, the applicant has a legitimate claim on the indicated post which cannot legally be denied to her by issuance of a subsequent advertisement. Hence, the action of the respondents, in issuing subsequent advertisement, Annexure A-26 and even appointment of some other candidate during the pendency of the OA, is not only arbitrary and illegal, but smeared with malice as well. Even they have not come to the Court with clean hands and their action is the result of colourable exercise of powers, which is illegal and arbitrary and cannot be sustained, in the obtaining circumstances of the case. Thus, the contrary arguments of learned counsel for the respondents, stricto sensu, deserve to be and are hereby repelled. The ratio of law laid down in the indicated judgments is mutatis mutandis applicable to the present controversy and is a complete answer to the problem in hand.
23. No other point, worth consideration, has been urged or pressed by learned counsel for the parties.
24. In the light of the aforesaid reasons, the instant OA is hereby accepted. The impugned subsequent advertisement, (Annexure A-26), orders dated 23.7.2014 (Annexure A-29) and dated 18.8.2015, (Annexure A-35) and all other subsequent actions arising therefrom are hereby set aside. At the same time the respondents are directed to offer appointment to the applicant on the post of JWC within a period of one month positively, from the date of receipt of a certified copy of this order. However, the parties are left to bear their own costs.
(UDAY KUMAR VARMA) (JUSTICE M.S. SULLAR)
MEMBER (A) MEMBER (J)
Dated: 20.03.2017
HC*
1
O.A. 060/01051/2015