Central Administrative Tribunal - Delhi
Gaurav Verma vs Mahanagar Telephone Nigam Limited on 1 August, 2024
1
Item No. 22 (C-3)
O.A. No. 4646/2015
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No. 4646/2015
This the 01st day of August, 2024
Hon'ble Mrs. Pratima K. Gupta, Member (J)
Hon'ble Dr. Chhabilendra Roul, Member (A)
1. Gaurav Verma, Aged about 38 Years,
S/o Sh. C.L. Verma,
R/o E 33 MTNL Staff Colony,
GH 17 Paschim Vihar,
New Delhi 110087.
2. Shudhanshu Kumar Mishra, Aged about 35 Years,
S/o Sh. Raj Kumar Mishra,
R/o B-406, Brahmputra Building,
BSNL Staff Quarter,
Near IIT Main Gate,
Powai, Mumbai - 4000076.
3. Dharamendra Narayan Singh, Aged about 33 Years,
S/o Sh. RN Singh,
R/o C-12, 6th Floor,
Panchpakhadi Tele. Exchg. Blgd.
Opp. Babubhai Petrol Pump, Thane (W) 400601.
4. Deepesh Kumar Aged About 34 Years,
S/o Bhagwan Swaroop,
R/o B-604 Teleco Staff Quarters,
Near Bhavani Petrol Pump,
IIT Main Gate, Powai, Mumbai - 400076.
5. Sachin Tyagi, Aged about 32 Years,
S/o Shri Onkar Tyagi,
R/o F-156, Street No - 3,
2
Item No. 22 (C-3)
O.A. No. 4646/2015
Ganga Vihar, Near Gokal Puri,
Delhi - 110094.
... Applicants
(By Advocate: Mr. Saurabh Sharma)
Versus
Through Managing Director,
Mahanagar Telephone Nigam Limited,
5th Floor, Mahanagar Doorsanchar Sadan,
9 CGO Complex, Lodhi Road,
New Delhi - 110003.
... Respondents
(By Advocate: Mr. Shashwat Sharma)
3
Item No. 22 (C-3)
O.A. No. 4646/2015
O R D E R (ORAL)
Hon'ble Mrs. Pratima K. Gupta, Member (J):-
The applicants participated in an examination conducted by the MTNL in pursuance of their advertisement for the post of Senior Management Trainee - Marketing and Senior Management Trainee - Telecom in November 2011.
The written examination was conducted and result thereto was announced in December 2012. While the applicants were awaiting their appointment in terms of their merit, they preferred an RTI on 04.12.2013 to seek the offer of appointment in pursuance of the result declared in December 2012. Learned counsel for the applicants confirms that the present applicants preferred an O.A. No. 1316/2014 to seek offer of appointment but the same was withdrawn on 08.12.2015 to assail order dated 16.04.2015 vide which the respondents had themselves scrapped the examination for administrative reasons. Learned counsel for the applicants states that during the pendency of the O.A. No. 1316/2014, interim orders were passed on 12.05.2014 (page 36) and in light of the said order, the applicants' rights were protected at the relevant point in time and therefore, 4 Item No. 22 (C-3) O.A. No. 4646/2015 the applicants still have a hope of consideration that in case the impugned order is quashed, the applicants would be given an offer of appointment.
2. Learned counsel for the respondents vehemently opposes the O.A. and states that since O.A. No. 1316/2014 was withdrawn by the applicants, the interim order has also become non-est. With respect to the impugned order he states that this precise issue has been conclusively decided by a coordinate Bench of this Tribunal in O.A. No. 2597/2015 on 30.10.2023. For the sake of better appreciation, the said order is reproduced below verbatim:-
"The instant OA has been filed by the applicants under Section 19 of the Administrative Tribunals Act 1985, seeking the following relief(s):-
"a) To quash and set aside the impugned order dated 16.04.2015 and declared the action of respondents in not finalizing MTNL Sr. Management Trainee (E5 Grade) as illegal and unjustified.
b) to direct the respondents to complete the recruitment process as initiated vide advertisement no. MTNL/SMT/2011 to make appointment to the post of Sr. Manager/Sr. Management Trainees (Telecom) and appoint the applicants/successful candidates to the aforesaid posts of Sr. Manager/ Sr. Management Trainees (Telecom) from the date of initiation of recruitment process i.e. 2011 5 Item No. 22 (C-3) O.A. No. 4646/2015 with all consequential benefits including arrears of pay.
c) to direct the Respondents to consider the applicants candidature for appointment as per advertisement / corrigendum dated 08.12.2011 being internal candidate and appoint them against the post of Sr. Manager/ Sr. Management Trainee (Telecom).
d) to direct the Respondents to ensure that 50% of the vacancies as advertised are given to internal candidates without restricting their right for appointment against general slot as per merit in the competitive examination.
e) to allow the OA with cost.
f) Pass such other and/or further orders as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case."
2. The main contention of learned counsel for the applicants is that initially OAs were preferred to challenge the recruitment process (OA No. 722/2012 and OA No. 643/2012) wherein it was held that the advertisement process and cumulative appointments were fully justified and the said OAs were dismissed vide a common order dated 23.12.2014. The said order dated 23.12.2014 was also challenged before the Hon'ble Delhi High Court by the Telecome Executives Association. The Hon'ble Delhi High Court vide its order dated 03.02.2016 has dismissed the petition and ordered as under:-
"The aforesaid pleadings, we observe, are vague and do not make out a specific case that the respondents had violated para XII of the Terms & Conditions for permanent 6 Item No. 22 (C-3) O.A. No. 4646/2015 absorption of DoT staff (A&B) in MTNL. In case there has been any violation and negation of the rights under paragraph XII, then the specific details with reference to a particular employee, with particulars, should have been highlighted and set out. Even if there are a large number of similarly situated employees, their details have to be so stated, for a specific answer.
Thus, while finding no merit in the present petition, we would observe that in case a particular employee or a group of employees are aggrieved and feel that para XII of the aforesaid Terms & Conditions has been violated, they would be at liberty to raise their claims and pleas as per law. It will be equally open to the respondents to raise all pleas and contentions, including the contention that the employee in question cannot rely on provisional Terms & Conditions. We express no opinion on the merits of these aspects.
With the aforesaid observations, the writ petition is dismissed. Consequently, CM No.8767/2015 too is dismissed."
3. The result was declared by the respondents. The applicant was selected in the said result. However, the respondents cancelled the selection process itself pursuant to the said advertisement vide impugned Office Order dated 16.04.2015 without assigning any reason. Learned counsel for applicants would draw attention to a decision of Coordinate Bench of this Tribunal in dated 01.02.2017 in OA No. 3941/2015, Puneet Kumar and Ors. Vs. The Chief Secretary, Govt. of NCT of Delhi & Ors.. He would draw reference to paras 8.1 and 9 thereof which read as under:-
7Item No. 22 (C-3) O.A. No. 4646/2015 "8.1 We, therefore, come to the conclusion that the action of the respondents in cancelling the entire selection process was arbitrary and unjustified. The respondents should have taken the selection process to its logical conclusion and offered appointment to those candidates, who were found to be meritorious and also free from blame. At the most, as a matter of abundant caution, the respondents could have offered appointments to innocent candidates subject to ongoing investigation.
9. We, therefore, allow this OA. and quash and set aside the order dated 15.03.2016. We further direct the respondents to finalize the selection process for Grade-II (DASS) post code 90/09 for which Tier-1 and Tier-ll have already been held on 29.06 2014 & 29 03.2015. This exercise may be completed within a period of 08 weeks from the date of receipt of a certified copy of this order. There will, however be no objection to making the appointments offered to successful candidates subject to outcome of the ongoing ACB investigation. No costs"
4. Countering the arguments put forth by learned counsel for the applicants, Mr. Shashwat Sharma, learned counsel for official respondents contends that due to administrative exigencies the selection process was cancelled. He draws reference to a detailed note at Annexure R-2 Board Discrepancies Observed in declared Result, which is quoted herein below:-
"1.0 As per advertisement published in Employment News, 30 vacancies for Sr. Management Trainee in Telecom Stream and 10 Vacancies for Sr. Management Trainee in Marketing stream were notified in the advertisement it was mentioned that reservation will be as per Gol guidelines, However, from the details given below, it is clear that while 8 Item No. 22 (C-3) O.A. No. 4646/2015 declaring the results, Gol Instructions w.r.t. reservations have not been adhered to-
Stream No. of Vacancies Vacancies kept
Vacancies which are reserved as per
required to be declared result
reserved as per
Roster
Telecom 30 General -(16 General - 18
posts) posts
SC - (4 posts) SC - 4 posts
ST- (2 posts) ST - 2 posts
OBC - (8 posts) OBC - 6 posts
Marketting 10 General - (7 General - 8posts
posts)
SC - 0 posts
SC- (1 posts)
OBC- 2 posts
OBC - (2 posts)
1.1 Further as per the laid down principle, if reserved category candidate qualify under merits, he is treated as qualify under General Category. However, Committee observed that the name of Sh. Anand Shekhar, SC category candidate who secured 5 Rank In General Merit (marketing Stream) did not appear in the declared successful candidates result/list (Copy of the Merit list declared by Mis EDCIL based on evaluation of answers sheets of candidates and declare results by MTNL are attached as Annex-VII and VIII respectively) in Marketing Stream, out of total 10 vacancies, no post was reserved for SC/ST Candidates Further it is observed that despite securing more marks by following SC/ST candidates than the marks obtained by some of the successful declared General Category candidates; their name was not included in successful candidates list -
Sh. Abhijeet Kashyap, SC Category (238- marks obtained), Sh. Anand Shekhar SC Category (Marks oblained =250) and 9 Item No. 22 (C-3) O.A. No. 4646/2015 Sh JBW Hongray, ST Category (Marks Obtained=227) 2.0 Other observations
(i) Smt Smriti Trivedi was having MBA(HR&Mktg) and she was working in HR/Administration section but applied for Sr. Manager Marketing for which she was not eligible as per provisions of the recruitment rules because she is having no experience of Marketing
(ii) Sh. Manish Kumar who was recruited as Asst. Manager (Mktg) in 2009, fell short of 04 years experience on the closing date of receipt of application Le 26.12.2011 which is required experience as internal candidate."
5. Further, as a matter of fact, reliance has been placed on the OA and the decision by the earlier round of litigation were entirely seeking different prayer altogether which is also evident from the detailed order passed by the Hon'ble High Court as highlighted hereinabove.
6. Further the respondents would contend that there is no discriminatory treatment met out to the applicants nor there is malafide intention ascribed to the Selection Committee. He further referred to decision rendered by the Hon'ble Apex Court in Dalpat Abasaheb Solunki & Ors. Vs. B.S. Mahajan & Ors. that the scope of judicial interference in the matter is limited.
7. In rejoinder, learned counsel for the applicants contends that there are two sets of examination, one for Marketting and other for Telecom. The applicants herein belongs to Telecom and therefore the reasons for cancellation of marketing cannot be equated with that for the Telecom and that too after six years of selection process.
8. Mr. Subhash Gosain, leaned counsel for proforma respondents submits that he will adopts the submission put forth by official respondents.
9. Heard learned counsels for the parties carefully and perused the records of the case thoroughly.
10Item No. 22 (C-3) O.A. No. 4646/2015
10. It was the duty of the indenting organization and/or the organization to specify the number of posts reserved for various categories of reservation both vertical as well as horizontal. The advertisement No. MTNL/SMT/2011 mentions the total number of vacancies but regarding reservation, it state:
(a) Reservation of posts for SC/ST/OBC (non-cream layer)/PH categories will be as per Govt. rules in force.
(b) In respect of physically handicapped persons with following physical disability will be permitted.
(i) Hearing impairment - particularly deaf
(ii) Locomotive impairment - One arm or one leg or both legs affected. (The minimum degree of disability is 40% in order for a person to be eligible for any concession/benefits)
11. By not specifying the number of reserved posts under each category, the organization left it to the Selection Committee to decide the number of posts as its sweet will. This has vitiated the selection process. Secondly, the respondents have produced Annexure R-2 which is Appendix-I of some report which furnishes the broad discrepancies in the declared results. It has observed that in absence of any specification of posts in respect of vertical and horizondal reservation, the selection Committee should have observed the general reservation formula as applied in case of recruitment to government services. Applying that yardstick, the report states against 16 posts under general category, 18 were selected and against 8 post for OBC (non-creamy layer), only 6 candidates selected for the Telecom Stream. Similarly, in the marketing stream, instead of 7 posts for general category, 5 candidates were selected and against 1 post for SC, none was selected. Moreover, 3 SC candidates who secured more marks than the general category candidates, were not considered against unreserved posts and were not selected. Two candidates who were ineligible because of essential qualification, were selected.
11Item No. 22 (C-3) O.A. No. 4646/2015
12. Now, the question arises, whether the selection process was vitiated due to the aforementioned irregularities. The Hon'ble Apex Court in Civil Appeal No. 639/640 of 2021 as well as the SLP(C) No. 5785- 5786/2020 in Sachin Kumar Vs. DSSSB and Ors. vide order dated 03.03.2021 discussed the gamut of issues related to the cancellation of selection process when the results are already been declared. Paras No. 2 and 57 of the same read as under:-
"2 This judgment visits a familiar conundrum in service jurisprudence. The constitutional values which undergird Articles 14 and 16 mandate that selection processes conducted by public authorities to make recruitments have to be fair, transparent and accountable. All too often, human fallibility and foibles intrude into the selection processes. Selection involves intense competition and there is no dearth of individuals who try and bend the rules to gain an unfair leap in the race. Irregularities in the process give rise to misgivings over whether the process has denied equal access to all persons. The sanctity of the selection process comes under a cloud. The detection of individual wrongdoing by candidates may result in action being taken to exclude those whose credentials or performance is tainted. But when the entire process is tainted, the authority in charge of conducting it may decide to cancel the selection as a whole. Judicial review is then invoked to challenge the decision to cancel the entire process. The guiding principles have evolved over the past five decades as new challenges emerged and novel attempts to suborn the legitimacy of recruitment processes have come to the fore. The Delhi High Court in the present case upheld the view of the Central Administrative Tribunal ("Tribunal") that the cancellation of the entire process was invalid but it confined the relief to six candidates who had moved the proceedings before the Tribunal in the first instance. Like other cases of its genre, this batch of appeals calls the court to balance two competing considerations : the need to preserve public WWW.LIVELAW.IN LL 2021 SC 128 PART A 5 confidence in and the sanctity of selection to public posts and the requirement of observing fairness to candidates who invest time and resources in attempting to clear through a selection. Both these considerations have a constitutional foundation going beyond service and administrative law principles. The issue has travelled to the court for resolution and the path ahead requires us to revisit and evolve the law on the subject.12
Item No. 22 (C-3) O.A. No. 4646/2015 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX X 57 Recruitment to public services must command public confidence. Persons who are recruited are intended to fulfil public functions associated with the functioning of the Government. Where the entire process is found to be flawed, its cancellation may undoubtedly cause hardship to a few who may not specifically be found to be involved in wrong-doing. But that is not sufficient to nullify the ultimate decision to cancel an examination where the nature of the wrong-doing cuts through the entire process so as to seriously impinge upon the legitimacy of the examinations which have been held for recruitment. Both the High Court and the Tribunal have, in our view, erred in laying exclusive focus on the report of the second Committee which was confined to the issue of impersonation. The report of the second Committee is only one facet of the matter. The Deputy Chief Minister was justified in going beyond it and ultimately recommending that the entire process should be cancelled on the basis of the findings which were arrived at in the report of the first Committee. Those findings do not stand obliterated nor has the Tribunal found any fault with those findings. In this view of the matter, both the judgments of the Tribunal and the High Court are unsustainable."
13. In view of above, we find that the action of the respondents in canceling the recruitment process is justifies because of the significant irregularities in respect of reservations. The deserving candidates from reserved categories would have qualified in the unreserved categories were not selected though they secured more marks than the general category candidates who were selected. As it has been mentioned in the report (Annexure R-2) there are other significant irregularities found in the entire selection process. In view of this, the entire selection process has become vitiated and for the sake of inspiring public confidence, in the selection process, the action undertaken by the respondents is legitimate. In view of this, the OA lacks merit and hence is dismissed. Pending MA, if any, also stands disposed of. No costs."
3. We have gone through the facts of the present case as also the order dated 30.10.2023 passed in O.A. 2597/2015.
13Item No. 22 (C-3) O.A. No. 4646/2015 According to us, the two O.As. are not just similar but also identical. In fact the order dated 16.04.2015 which is impugned in the present O.A. is the order assailed in O.A. No. 2597/2015. Judicial propriety and discipline binds us not to take a divergent view.
4. In view of what has been discussed and detailed hereinabove, the O.A. stands dismissed as being devoid of merit.
(Dr. Chhabilendra Roul) (Pratima K. Gupta)
Member (A) Member (J)
/dd/