Central Administrative Tribunal - Bangalore
Dr K M Ponnuvel vs Central Silk Board on 29 November, 2023
1 OA 212/2022/CAT/BANGALORE BENCH
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BENGALURU
ORIGINAL APPLICATION NO.170/00212/2022
DATED THIS THE 29TH DAY OF NOVEMBER, 2023
HON'BLE MRS. JUSTICE S SUJATHA ...MEMBER(J)
HON'BLE MR.RAKESH KUMAR GUPTA ...MEMBER(A)
Dr. K.M.Ponnuvel,
S/o Muthusamy K.,
Aged about: 56 years,
Working as Scientist "D",
Seri-Bio Tech Research Laboratory,
Central Silk Board,
Ministry of Textiles,
Kodathi, Carmelaram,
Bangalore -560035.
Residing at: No.15/2. 3rd Cross,
Jawaharnagar, Thally Road,
Hosur -635109. ...Applicant
(By Advocate, Shri P.Kamalesan)
Vs.
1. Union of India,
Represented by Secretary,
Ministry of Textiles,
Government of India,
New Delhi - 110001.
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2. The Member Secretary,
Central Silk Board,
Ministry of Textiles,
Government of India,
CSB Complex,
BTM Layout,
Bangalore -560068. ...Respondents
(By Advocate, Shri Vishnu Bhat)
O R D E R (ORAL)
Per: Justice S.Sujatha ...........Member(J)
The applicant has filed this application under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:
"i. Quash the Ministry of Textiles notification vide GSR 312 (E) dated 19.04.2022, the recruitment rules for the post of Director schedule Col(6) prescribing age 50 years vide Annexure A7.
ii. Consequently direct the respondents to fill up the vacancies of directors in accordance with RRs of 1989 vide Annexure A1.
3 OA 212/2022/CAT/BANGALORE BENCH iii. Grant any other relief as deemed fit in the facts and circumstances of the case, in the interest of justice and equity."
2. The applicant is working as Scientist 'D' at Central Silk Board, Bangalore. The applicant submits that Government of India, Ministry of Personnel, Public Grievances and Pension, Department of Personnel and Training, New Delhi issued OM No.AB-14017/61/2008- Estt.(RR) dated 13.10.2015, regarding the proposal for framing/amending the existing Recruitment Rules. The Central Silk Board, Ministry of Textiles, Government of India issued a notification during October, 2019 vide Advertisement No.CSB/2/2019 inviting application for filling up one post of Director through direct recruitment, wherein the eligibility and other conditions were prescribed. In pursuance of the said notification, the applicant applied for the post of Director under the direct recruitment quota and he was intimated vide Central Silk Board (Ministry of Textiles, Government of India), Bengaluru to appear for interview on 08.07.2021 before the Selection Committee as per letter dated 23.06.2021. It is the grievance of the applicant that in pursuance of the said notification and interview held on 08.07.2021, no finalisation of selection to fill up the post of 4 OA 212/2022/CAT/BANGALORE BENCH Director has been made. However, Central Silk Board, Ministry of Textiles, Government of India vide notification GSR 312 (E) dated 19.04.2022, prescribed the eligibility criteria for the post of Director under direct recruitment quota, the age was reduced as 50 years from 53 years prescribed under 1989 Rules. Being aggrieved, the applicant has preferred this OA.
3. Learned Counsel Shri P.Kamalesan representing the applicant submitted that the applicant was promoted as Scientist 'D' from 26.02.2014 and completed five years of service and was eligible for promotion to the post of Director at Central Silk Board according to Recruitment Rules of 1989. In pursuance to the notification issued during October, 2019 inviting the applications for one post of Director under direct recruitment, the applicant applied being eligible. The applicant appeared before the selection Committee on 08.07.2021 but the results/selection were not notified. In the meantime, respondents notified new Recruitment Rules in supersession of 1989 Recruitment Rules by notification dated 19.04.2022. As per the amended Recruitment Rules of 2022, age limit was modified as 50 years for eligibility, which barred the applicant to apply afresh for the post of 5 OA 212/2022/CAT/BANGALORE BENCH Director. Learned Counsel further submitted that framing of new Recruitment Rules after issuing the notification inviting the application and conducting the interview, further issuing the new advertisement in terms of the amended Rules for filling up the vacancies for the post of Director without finalising the earlier recruitment process is illegal, arbitrary and unsustainable. Learned Counsel has placed reliance on the judgment of the Hon'ble Apex Court in Y.V.Rangaiah and Others vs. J. Sreenivasa Rao and others reported in AIR 1983 SC
852.
4. Learned Counsel Shri Vishnu Bhat representing the respondents submitted that the interview process of selecting the candidate for filling up the post of Director published vide Advertisement No. CSB/2/2019 dated 19.10.2019 was completed on 8th and 9th July, 2021 and a total of 30 candidates appeared for the interview out of which 29 were departmental candidates and only one candidate was from outside. Referring to Annexure R3 dated 14.09.2021 issued by the Ministry of Textiles, Government of India, learned Counsel argued that the Government directed to re-advertise the said post of Director under direct recruitment after due amendment 6 OA 212/2022/CAT/BANGALORE BENCH of Recruitment Rules, to give fair chance to everyone, in a time bound manner. Even if the Ministry approved the filling up the only post, a departmental incumbent vide application no.700026 who was selected for the only post would have jumped to join immediately and the applicant being at Sl.No.2 of the waiting panel had practically no chance for success and therefore there is no merit in the OA. Learned Counsel further submitted that the notification vide Advertisement No.CSB/6/2022 dated 24.09.2022 was issued inviting the applications for recruitment of five posts of Director and pursuant to such advertisement recruitment process being concluded, selected candidates have already been appointed. Placing reliance on the judgment of the Hon'ble Apex Court in the case of State of Himachal Pradesh and others vs. Rajkumar and others - 2022 Live Law (SC) 502, learned Counsel submitted that the decision of Y.V.Rangaiah supra, referred to by the learned Counsel for the applicant is no more a good law.
5. We have carefully considered the submissions of the learned Counsel for the parties and perused the material on record.
6. The moot questions that arise for our consideration are:
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1) Whether the action of the respondents in re-advertising the vacancy for the post of Director pursuant to the amended Recruitment Rules dated 19.04.2022 sans finalising the earlier recruitment process initiated vide Advertisement No.CSB/2/2019 dated 19.10.2019 for appointment of Director through direct recruitment, is justifiable?
2) Whether the recruitment process commenced under the amended Rules of 2022 would render the selection made as per the recruitment process initiated under Recruitment Rules 1989 illegal?
Reg. Point No.1: In terms of Advertisement No.CSB/2/2019 dated 19.10.2019, applications were invited for filling up of one post of Director by the Central Silk Board, Ministry of Textiles, Government of India, the age limit prescribed was below 53 years (as on the last date of filing online application for the post). Clause (iv) of the age limit and relaxations prescribed in the said advertisement provides that the Departmental candidates/Government servants with 3 years continuous service in Central Government in the same line or allied cadres where a relationship could be established that the service already rendered in a 8 OA 212/2022/CAT/BANGALORE BENCH particular post will be useful for the efficient discharge of the duties of the post are eligible for age relaxation of 5 years as per Rules. Pursuant to which the applicant herein being eligible has applied for the said post of Director. The applicant was called for the interview vide intimation dated 23.06.2021 (Annexure A6). Interview was held on 8th and 9th July, 2021. Proceedings of the selection Committee in connection with interview for filling one post of Director by direct recruitment held on 8th and 9th July, 2021 at Bangalore (Advertisement No.CSB-2/2019 dated 19.10.2019), a copy placed by the learned Counsel for the respondents before the Bench indicates that 31 candidates have been called for interview, out of the 31 candidates, 26 appeared before the Selection Committee for interview on 8th and 9th July, 2021. The Selection Committee examined the criteria proposed and suggested few modifications to capture the areas of research work done by the candidates in order to assess the overall contribution to Research and Development, the criteria was fine-tuned and the same was accepted by all the Members of the Selection Committee. On the basis of the academic qualifications, quality of research publications, awards, achievements, experience and based on overall assessment of performance of the candidates in the interview, the Selection 9 OA 212/2022/CAT/BANGALORE BENCH Committee recommended Dr.Sashindran Nair K. (Application No.700026) for appointment to the post of Director in Level-13 in the pay scale of Rs.123100-215900 of the Pay Matrix. Further, the Selection Committee recommends to keep the names of the following two candidates in the panel in the order of merit to consider their case for appointment in case the selected candidate fails to accept the offer of appointment for the post of Director:
1) Dr.Sathyanarayana K (Application No.700032)
2) Dr.Kangayam Muthusamy Ponnuvel (Application No.700029)
7. Paragraphs 6 and 7 of the said proceedings reads thus:
"6. As per the CSB (CONSOLIDATED) Recruitment Rules, 1989 (notified in February, 1990), the age limit prescribed for the Direct Recruits forthe postof Director is 53 years. As per the guidelines contained at Para-2 of the DoP&T O.M.NO.15012/8/87-Estt(D) dated 15.10.1987, the departmental candidates are eligible for relaxtion in the upper age limit by 5 years for Group 'A' & 'B' posts filled by direct recruitment. However, the DoPT Regulation does not apply automatically and for which amendment in the Recruitment Rules is necessary. However, the condition of age relaxation was also mentioned in the Advertisement No.CSB-2/2019 dated
10 OA 212/2022/CAT/BANGALORE BENCH 19.10.2019 inviting applications for the post of Director in CSB (copy enclosed).
7. In view of this, the Committee recommends that approval of age relaxation of 5 years in the upper age limit may be sought from the Ministry of Textiles in respect of all candidates interviewed and recommended for selection and appointment."
8. After selecting the panel surprisingly the Ministry has directed to readvertise the vacancy after due amendment of Recruitment Rules as deemed fit, to give a fair chance to everyone, in a time bound manner, as is evident from the letter of the Under Secretary, Government of India, dated 14.09.2021 addressed to the Member Secretary, Central Silk Board, Bengaluru, Annexure R3. It is manifestly clear that no amended Rules were available while taking this decision by the Ministry.
9. Amended Rules called as Ministry of Textiles, Central Silk Board, Director (Group 'A' Post) Recruitment Rules, 2022, came into force on 19.04.2022. As per the schedule appended thereto, age limit for direct recruits for the post of Director is prescribed as under:
11 OA 212/2022/CAT/BANGALORE BENCH "Not exceeding fifty years of age (Relaxable for the Government servants upto the age of five years in accordance with the instruction or orders issued by the Central Government)"
10. Readvertisement has been issued vide Advertisement No.CSB/06/2022 dated 24.09.2022 inviting the applications through Central Silk Board website for recruitment to the post of Director in Central Silk Board in Level-13 (Rs.123100-215900) in the 7th CPC Pay Matrix plus allowances as per Central Government Rules for the post prescribing the age limit as 50 years relaxable with 5 years for departmental candidates (Central Silk Board Employees) with 3 years continuous service in the same line or allied cadres and where a relationship could be established that the service already rendered in a particular post will be useful for the efficient discharge of the duties of post. Issuing of fresh advertisement after the recommendation of the Selection Committee changing the prescribed age limit sans finalising the commenced recruitment process is nothing but change in the Rule of the game which is not permissible once the recruitment process has commenced. On the other hand it gives an impression that in order to eliminate the selected panel for the reasons best known to the 12 OA 212/2022/CAT/BANGALORE BENCH respondent authorities, a fresh recruitment process has been initiated prescribing the age limit of 50 years for the post of Director reducing the age limit of 53 years prescribed earlier as per 1989 Recruitment Rules. which cannot be countenanced.
11. In Y.V.Rangaiah supra, the primary contention raised on behalf of the appellants therein, was that by the time the list was prepared in May, 1977, Rule 5 of the Andhra Pradesh Registration and Subordinate Service Rules was amended and the list prepared was in accordance with the rules then prevailing at the time of preparation, and therefore there was nothing wrong with the preparation of the panel. Secondly, candidates having not challenged the validity of the amendment to Rule 5 of the Andhra Pradesh Registration and Subordinate Service rules, it was not open to them to challenge the list prepared in May, 1977. The said issues have been addressed by the Hon'ble Apex Court. Para-9 of the judgement reads as under:
"9. Having heard the counsel for the parties, we find no force in either of the two contentions. Under the old rules a panel had to be prepared every year in September. Accordingly, a panel should have been prepared in the year 1976 and transfer or promotion to the post of Sub-Register Grade II should have been made out of that panel. In that event the petitioners in the 13 OA 212/2022/CAT/BANGALORE BENCH two representation petitions who ranked higher than the respondents Nos. 3 to 15 would not have been deprived of their right of being considered for promotion. The vacancies which occurred prior to the amended rules would be governed by the old rules and not by the amended rules. It is admitted by counsel for both the parties that henceforth promotion to the post of Sub-Registrar Grade II will be according to the new rules on the zonal basis and not on the State-wide basis and, therefore, there was no question of challenging the new rules. But the question is of filling the vacancies that occurred prior to the amended rules. We have not the slightest doubt that the posts which fell vacant prior to the amended rules would be governed by the old rules and not by the new rules."
12. In Rajkumar supra, the question that fell for consideration before the Hon'ble Apex Court is, whether appointments to public posts that fell vacant prior to the amendment of the Rules would be governed by the old Rules or the new Rules. The Hon'ble Apex Court considering the decision in the case of Y.V.Rangaiah supra, observed thus:
"5.1 The Petitioners in Rangaiah's case were working as LDCs in the Department of Registration and Stamps, Government of A.P. Under Rule 4(a)(1)(i) of the A.P. Registration and Subordinate Service Rules, appointments to 14 OA 212/2022/CAT/BANGALORE BENCH the promotional posts of Sub-Registrar Grade II from LDCs were to be made from the panel of "approved candidates" made under Rule 34 (c). The panel was to be prepared by the prescribed authority in the month of September every year and it could operate till a list for the subsequent year was prepared. Importantly, the list had to contain names of as many persons as there are vacancies. As the approved list was not prepared within the prescribed time, promotions could not take place in time. In the meanwhile, the amended rules came into force, as per which the petitioners lost their chance to be considered for promotion. They contended before this Court that their right to be considered for appointment for promotion would not be lost with the advent of new rules as the vacancies occurring prior to the amendment of the rules were to be filled under the unamended rules. In other words, the contention was that the mandatory requirement under the old rules was violated. It is in this context that the Court observed as under:-
"9. ....Under the old rules a panel had to be prepared every year in September. Accordingly, a panel should have been prepared in the year 1976 and transfer or promotion to the post of Sub- Registrar Grade-II should have been made out of that panel. In that event, the petitioners in the two representation petitions who ranked higher than respondents 3 to 15 would not have been deprived of their right of being considered for promotion. The vacancies which occurred prior to the amended rules would be governed by the old rules and not by the amended rules. It is 15 OA 212/2022/CAT/BANGALORE BENCH admitted by counsel for both the parties that henceforth promotion to the post of Sub-Registrar Grade II will be according to the new rules on the zonal basis and not on the State-wide basis and, therefore, there was no question of challenging the new rules. But the question is of filling the vacancies that occurred prior to the amended rules. We have not the slightest doubt that the posts which fell vacant prior to the amended rules would be governed by the old rules and not by the new rules."
5.2 The question that arose in Rangaiah's case related to the mandatory obligation under the old rules to prepare an approved list of candidates and also the number of persons to be placed in the list as per the vacancies available. It is in this context that the Court observed that the vacancies would be governed by the old rules. This decision is not to be taken to be laying down an invariable principle that vacancies occurring prior to the amendment of the rules are to be governed by old rules. It is important to note that the Court has not identified any vested right of an employee, as has been read into this judgment in certain subsequent cases.
5.3 However, as the observation in Rangaiah's case has been construed as a general principle that vacancies arising prior to the amendment of rules are to be filled only as per the old rules, it is necessary for us to examine the correct position of law. For this purpose, we will examine the constitutional 16 OA 212/2022/CAT/BANGALORE BENCH position and the status that governs the relationship between an employee and the State.
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36. A review of the fifteen cases that have distinguished Rangaiah would demonstrate that this Court has been consistently carving out exceptions to the broad proposition formulated in Rangaiah. The findings in these judgments, that have a direct bearing on the proposition formulated by Rangaiah are as under:
1. There is no rule of universal application that vacancies must be necessarily filled on the basis of the law which existed on the date when they arose, Rangaiah's case must be understood in the context of the rules involved therein.
2. It is now a settled proposition of law that a candidate has a right to be considered in the light of the existed rules, which implies the "rule in force" as on the date consideration takes place. The right to be considered for promotion occurs on the date of consideration of the eligible candidates .
3. The Government is entitled to take a conscious policy decision not to fill up the vacancies arising prior to the amendment of the rules. The employee does not acquire any vested right to being considered for promotion in accordance with the repealed rules in view of the policy decision taken by the Government. There is no obligation for the Government to make appointments as per the old rules in the event of 17 OA 212/2022/CAT/BANGALORE BENCH restructuring of the cadre is intended for efficient working of the unit. The only requirement is that the policy decisions of the Government must be fair and reasonable and must be justified on the touchstone of Article 14.
4. The principle in Rangaiah need not be applied merely because posts were created, as it is not obligatory for the appointing authority to fill up the posts immediately.
5. When there is no statutory duty cast upon the State to consider appointments to vacancies that existed prior to the amendment, the State cannot be directed to consider the cases."
13. The dispute in the present case is not relating to the applicability of the amended Rules to the vacancies occurring before the amendment. It is well settled that there is no right for an employee outside the Rules governing the services. However, in anticipation of the amendment of Rules annulling/stalling the recruitment process cannot be appreciated. In the guise of re-advertisement, the rules of the game cannot be changed pursuant to amendment of Recruitment Rules, which has come into force with effect from 19.04.2022.
Reg. Point No.2: After the announcement of the recruitment process in terms of the extant Rules of 1989 and the selection Committee forwarding the recommendations with the panel pursuant to the 18 OA 212/2022/CAT/BANGALORE BENCH interviews of the qualifying candidates, it is the legitimate expectation of the candidates to expect for the declaration of the results. Though by mere selection no vested right is created to a candidate, no employer can annul the recruitment process without issuing the cancellation order. No such order is available on record annulling the proceedings initiated vide Advertisement No.CSB/2/2019 dated 19.10.2019. By merely issuing readvertisement vide Advertisement No.CSB/06/2022 dated 24.09.2022, the earlier recruitment process cannot be held to be automatically wiped out/cancelled. The selection Committee consisting of six members (Chairman + five Members) have interviewed the candidates on 8th and 9th July, 2021. Marks awarded by the Selection Committee has also been made available by the respondents before this Tribunal along with the copy of the proceedings report of the Selection Committee. In the event, the condition of age relaxation was required as mentioned in Advertisement No.CSB/02/2019 dated 19.10.2019 and the guidelines contained at paragraph-2 of DOPT OM No.15012/8/87-Estt(D) dated 15.10.1987 and for that purpose amendment of the Recruitment Rules if was necessary, then the age relaxation would have been given, but not the curtailment of age prescribed earlier i.e., in the Advertisement No.CSB/02/2019 issued under the Recruitment Rules, 1989. The age 19 OA 212/2022/CAT/BANGALORE BENCH limit would not have been further narrowed down in the guise of giving a fair chance to everyone, in a time bound manner. Conversely the condition for age would have been relaxed to give a fair chance to the candidates who indeed had applied and selected in the panel recommended by the Selection Committee pursuant to the Advertisement No.CSB/02/2019. Hence we are of the considered view that even if the posts of the Director are filled up pursuant to the Advertisement No.CSB/06/2022 dated 24.09.2022 issued subsequent to the amendment of Rules, 2022, the procedure adopted by the respondents in not finalising the first recruitment process being illegal, we deem it appropriate to direct the respondents to finalise the recruitment process initiated in terms of Advertisement No.CSB/02/2019 dated 19.10.2019 by creating one supernumerary post of Director. Accordingly we pass the following:
ORDER
1) The respondents are directed to fill up the vacancy of one post of Director in accordance with the Recruitment Rules of 1989 vide Annexure A1 pursuant to the Advertisement No.CSB/02/2019 dated 19.10.2019 (Annexure A5) issued thereof by creating a supernumerary post of Director.
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2) Compliance shall be made in an expedite manner in any event not later than twelve weeks from the date of receipt of the certified copy of this order.
3) OA stands disposed of in terms of the above.
No order as to costs.
(RAKESH KUMAR GUPTA) (JUSTICE S.SUJATHA)
MEMBER(A) MEMBER(J)
sd.