Central Administrative Tribunal - Delhi
Shri Chandra Mouleshwer Jha vs Union Of India on 21 April, 2011
Central Administrative Tribunal Principal Bench OA No.1446/2011 MA No.1178/2011 New Delhi, this the 21st day of April, 2011 Honble Dr. Ramesh Chandra Panda, Member (A) Honble Dr. Dharam Paul Sharma, Member (J) 1. Shri Chandra Mouleshwer Jha S/o Shri Badri Narayan Jha, Flat No.A(9), Room No.29, Near D.U. Campus, Delhi 110 007. 2. Miss. Anamika Tiwari D/o Mr. Arvind Nath Tiwari House No.2700, 2nd Floor, Mukherjee Nagar, Delhi 110 009. Applicants. (By Advocate : Shri Gagan Mathur) Versus 1. Union of India Through Secretary Ministry of Culture, Shastri Bhawan, New Delhi 110 001. 2. National Archives of India Through Director General of Archives, Janpath, New Delhi 110 011. 3. The Chairman Staff Selection Commission, Government of India, Northern Regional Office, Block No.12, CGO Complex, Lodhi Road, New Delhi 110 003. Respondents. (By Advocate : Shri S. M. Arif) : O R D E R : Dr. Ramesh Chandra Panda, Member (A) :
MA No.1178/2011 has been filed by both the Applicants for joining together as the cause of action and the relief (s) claimed are the same. Hence, the MA No.1178/2011 is allowed.
2. By way of OA No.1446/2011 filed under Section 19 of the Administrative Tribunals Act, 1985, the Applicants have prayed for the following relief(s):-
(a) A direction to the effect that the applicants are entitled to be considered for relaxation and direction to the respondents to grant relaxation to the applicants for consideration for appointment to the post of Assistant Archivist for which interview is scheduled for 21.04.2011;
(b) Direct the respondents to grant all consequential benefits to the applicants, if the applicants are declared successful in the interview;
(c) Any other and such further relief, which this Honble Tribunal deems just and proper under the facts and circumstances of the present case, be also passed in favour of the Applicants and against the Respondents.
3. Brief facts of the case would reveal that the Applicants are working as Archival Assistants with the National Archives of India since 18.01.2010 (Pages 23 and 24) on a monthly consolidated pay of `15000 for a period of one year vide order dated 6.01.2010 on contract basis. It is the Applicants case that they have been working diligently and were also awarded certificate by the Respondent No.2 acknowledging their hard work with the projects of Respondent No.2. The Applicant No.2 has two years experience of Teaching of modern History in a recognized educational institution. It is the case of the Applicants that the Respondents after a long gap of 10 years have advertised for 21 permanent post of Assistant Archivist through Respondent No.3 in the year 2009. Both the Applicants applied for the said post and submitted their respective applications to the Respondent seeking relaxation in essential qualification and inter aila submitted that the relaxation in Essential Qualification (EQ) be granted to them as they possess the one year Diploma in Archives and Record Management and M.A. in History and has been serving as Archival Assistant and as such requested the Respondent No.2 to recommend their case for consideration by Respondent No.3 for relaxing the essential qualification. It is further averred that the relaxation of qualification is at the discretion of Staff Selection Commission/Competent Authority in case of candidate otherwise qualified. Despite their submitting representations, the Respondents have not decided the same till date. However, it is seen from the pleadings that the Respondents have intimated to Applicant No.1 vide letter dated 6.12.2010 (Page-35) that his candidature has been cancelled as he does not meet the essential qualification (EQ) III specified in the advertisement. In case of Applicant No.2, the reason for candidature cancellation has been indicated on 6.12.2010 (Page-36) that she does not fulfill EQ-I & II. In the meantime, the Applicant No.1 requested for relaxation of Essential Qualification in her letters dated 16.12.2010 (Page-44), dated 30.12.2010 (Page-47) to Respondent No.2 and in his letter dated 5.4.2011 (Pages 45-46) to Respondent No.3. Similar letters were also sent by the Applicant No.2 which are at pages 48 to 51 of the Paper Book. The Applicant No.1 also filed RTI application bearing letter No.220705 on 30.03.2011 seeking information regarding the selection and recruitment criteria for Assistant Archivists to which he received letter dated 5/6.04.2011 (Page-37) from the Respondent No.3 informing them that the interview for the said post is scheduled to be held on 21.04.2011 along with the list of candidates called for interview. The names of the Applicants did not find in the list of candidates called for interview. Feeling aggrieved, both the Applicants have jointly approached this Tribunal seeking the relief(s), as mentioned above.
4. We heard Shri Gagan Mathur, learned Counsel for the Applicant. At the motion stage on 20.04.2011, the Counsel for the Applicant urged for orders on the interim relief, as the interview was slated for 21.04.2011. Shri S. M. Arif, learned Counsel, representing the Respondents took notice of the case and submitted that if the case could be taken up in the afternoon on 20.04.2011, he would argue the case orally without filing any reply as the Applicants are seeking interim relief to appear in the Interview scheduled to be held on 21.04.2011. As the opposite side had no reservation on the same, the Counsel for the Respondents was allowed to seek instructions in the case. Thus, the hearing in the OA was taken up at 2:00pm on 20.04.2011.
5. Shri Gagan Mathur contends that the Applicants have been working with Respondent No.2 on contract basis in the post which has been advertised. As their candidature was cancelled by the Respondent No.3 they represented to the Respondents to grant relaxation in the EQ. Shri Mathur further elaborated that Applicant No.1 though could not meet the Essential Qualification No.(iii) but as the Applicant has got experience as Archivist Assistant (on contract) besides Masters Degree in Modern History with BA Hons. in History and Diploma in Archives and Records, not having the essential qualification No.(iii) (one should have passed English as one of the subjects at Degree level from a recognized University or equivalent), the Respondent No.3 should be directed to grant relaxation. In case of Applicant No.2, his contention is that the Applicant has Master in Arts in Ancient History, possessed Degree in Ancient History and Diploma in Archives and Record Management but the Respondents have rejected her application as she could not meet the Essential Qualifications No.(i) and (ii). His contention is that Note No.(1) in the advertisement clearly specifies that the qualifications are relaxable at the discretion of the Staff Selection Commission (Respondent No.3)/Competent Authority (Respondent No.2), in case of the candidates otherwise well qualified. His further contention is that both the Applicants being otherwise well qualified, the relaxation should have been extended by the Staff Selection Commission and Applicants should have been called for interview scheduled to be held on 21.04.2011. In this regard, he placed his reliance on the judgment delivered by this Tribunal in OA No.942/2006 with MA No.777/2006 decided on 16.05.2007 in the case of Forum of Research Associates and Fellows of Indian Agricultural Research Institute and Anr. vs. Union of India and Others, upheld by Honble High Court of Delhi in WPC No.2097/2008 decided on 28.09.2010 to submit that relaxation in age and essential qualification could be granted by the Respondents for contract employees.
6. Per contra, Shri S. M. Arif, learned Counsel for the Respondents submits that the Respondents vide their letter dated 6.12.2010 have clearly intimated to both the Applicants that their candidature was cancelled and reasons for such cancellation have been clearly spelt out in the said memorandum. Referring to the relaxation claimed by the Applicants, subsequently through letter dated 5.4.2011, Shri Arif took us through the pleadings and submitted that the Respondents have indicated to the Applicants in their letter dated 6.04.2011 that out of 226 candidates applied for the post of Assistant Archivist, 60 candidates have been found provisionally eligible as per the essential qualification published in the advertisement and called for interview. The relaxation would have arisen if adequate number of candidates were not available as per the essential qualification specified in the advertisement. He, therefore, submitted that the Respondents would not be in a position to extend any relaxation either in essential qualification No.(iii) in respect of Applicant No.1 and essential qualifications No.(i) & (ii) in respect of Applicant No.2. He further submits that the Advertisement conforms to the Provisions in the Recruitment Rules and no deviation is admissible for the Applicants. Further, he contends that the judgment in the Forum Research Associates case (supra) has no applicability in the present OA as facts are different. He, therefore, submits that the OA should be dismissed at the admission stage itself.
7. Due to urgency expressed by the Counsel for the Applicants, we heard both the parties at a great length. As the OA has all relevant facts and the Counsel for the parties argued on the controversies there has been no need to wait for the affidavit to be filed by the Respondents. Having heard the rival contentions, we went through the pleadings with their assistance.
8. We note that the Applicants have applied for the post of Assistant Archivist and the advertisement clearly specifies the essential qualification. The relevant part of the advertisement is extracted below:-
EQ: (i) Masters Degree in History with an optional paper in Indian History of post-1750 period of a recognized University or equivalent.
(ii) Diploma in Archival Studies OR Two years experience of Research in Modern Indian History in the period from 1750 onwards/teaching of Modern Indian History in a recognized educational institution/work in a Government Records Office.
(iii) English as one of the subjects of study at degree level of a recognized University or equivalent.
DQ: Experience of Research in Modern India History/teaching of Modern Indian History in a recognized educational institution (For diploma holders in Archival studies).
Note 1: Qualifications are relaxable at the discretion of the Staff Selection Commission/competent authority in case of candidates otherwise well qualified.
Note 2: The qualifications regarding experience is relaxable at the discretion of SSC in the case of candidates belonging to Scheduled Castes or Scheduled Tribes, if at any stage of selection the SSC is of the opinion that sufficient number of candidates from these communities possessing the requisite experience are not likely to be available to fill up vacancies reserved for them.
It is noted that EQ is Essential Qualification and DQ is Desirable Qualification.
9. Admittedly, the essential qualifications indicated above form part of the Recruitment Rules. The Staff Selection Commission would have no authority to deviate from the Recruitment Rules by granting relaxation of EQ/Age or by allowing the Applicants to appear in the interview as the Applicants themselves are not eligible. De hors the advertisement and the Recruitment Rules, the Applicants could not be directed even to appear provisionally before the Interview.
10. It is also noted that adequate number of candidates (60 candidates provisionally eligible as per the essential qualification) are available for the interview to select and fill up 21 number of posts advertised. It is also seen that 166 candidates candidature has been cancelled/rejected on various grounds. We are in agreement with the contentions of the Counsel for the Respondents that granting interview even provisionally to the Applicants by relaxing the EQ would open up the whole issue of re-examination of the candidates whose cases have been cancelled/rejected by the Respondents and have not been called for interview.
11. On perusal of the judgments relied on by the Counsel for the Applicants in the Forum of Research Associates case (supra) the controversy dwelt therein was the upper age limit relaxation which was impediment for regularization of temporary employees (Research Associates and Research Fellows) who worked for 10 to 15 years. Relevant part of the order of this Tribunal dated 16.03.2007 is extracted below :-
13. The Research Associates and Research Fellows though join Projects and continue as temporary employees from time to time, their erstwhile service is rendered when they get employment as Research Associates in Projects and are within the age limit, as such by virtue of rendering service for a long period, in the present case, for more than 10 to 15 years, now subjecting them for regularization as per the age limit under the rules would be arbitrary and inequitable.
14. We find from the rejoinder that similarly circumstanced project employees were given age relaxation at Jodhpur. Non-accord of the same treatment to applicants, when they form the same class, would be an invidious discrimination. We do not find any intelligible differentia with the object sought to be achieved, which is to get the best of the talent in the IARI, applicants having proved their worth by continuing in Projects and rendering their excellent service, the same has to be the criteria for relaxation in age.
15. In the result, for the foregoing reasons, we partly allow this OA. Respondents are directed to reconsider according age relaxation to applicants as accorded at Jodhpur and other places, as referred to ibid, whenever the claim of applicants arise against available vacancies for appointment/absorption in Research Projects. No costs. The above order upheld by High Court relates to regularization whereas the present OA is on fresh recruitment. Hence, the said judgment is clearly distinguishable.
12. Another issue raised by the Counsel for the Applicants relates to the relaxation to be granted as the Applicants are otherwise well qualified. We find that each Applicant is just qualified in some of 3 EQs prescribed. They cannot be assessed as otherwise well qualified for the purpose of relaxation. Applicant No.1 just meets the EQ(i) and (ii). Applicant No.2 possesses qualification only EQ.(iii) and she got her Diploma in Archives and Records Management only on 20.04.2010 (Examination being held in October, 2009) whereas she should have EQ (ii) on or before 22.09.2009 (closing date for inviting Applications). They have not demonstrated as to how they are otherwise well qualified.
13. Therefore, we are of the considered view that de hors the Recruitment Rules and the advertisement, the directions cannot be issued to the Respondents to consider the case of the Applicants for relaxation as they have not convinced us in the matter to allow the Applicants to appear in the interview as they are not prima facie eligible as per the published essential qualifications. Taking into account the full facts of the case and the essential qualification specified in the advertisement, we are of the considered opinion that it is not a fit case to issue any direction to the Respondents even to reconsider the representation and the application of the candidates for any relaxation as they do not possess the essential qualification specified in the advertisement. Accordingly, the Original Application is dismissed. There is no order as to cost.
(Dr. Dharam Paul Sharma) (Dr. Ramesh Chandra Panda) Member (J) Member (A) /pj/