Central Administrative Tribunal - Chandigarh
Ashok Kumar Gauri Son Of Sh. Devi Ram Age ... vs Union Of India Through The Secretary on 4 October, 2016
CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
CHANDIGARH
Date of filing:31.12.2015
Pronounced on:04.10.2016
Reserved on : 30.09.2016
OA No. 063/00187/2015
Coram: Honble Mr. Justice L.N. Mittal, Member(J).
Honble Mrs. Rajwant Sandhu, Member(A).
1. Ashok Kumar Gauri son of Sh. Devi Ram age 46 years working as Assistant Technical Officer
2. Gajanan Ganga Ram Naranje son of Sh. Ganga Ram Naranje age 49 years working as Assistant Technical Officer
3. Sumir Rai Bhalla son of Late Sh. K.R. Bhalla age 47 years working as Assistant Technical Officer
4. Sanjeev Kumar son of Sh. Ram Lal Bhagat age 47 years working as Technical Officer
5. Sushil Kumar Sahu son of Sh. Bhagwan Dass, age 48 years working as Technical Officer
6. Fagulal Vishnu Kumbhare son of Sh. Vishnu Ramji Kumbhare, age 45 years working as Assistant Technical Officer
7. Manish Kumar Verma son of Sh. Sant Ram Verma age 48 years working as Assistant Technical Officer
8. Sajiv Sood son of Sh. Onkar Chand Sood age 46 years working as Assistant Technical Officer
9. Samay Singh Meena son of Sh. Chiranji Lal Meena age 46 years working as Assistant Technical Officer
10. Priti Thakur wife of Sh. Devanand Thakur age 44 years working as Assistant Technical Officer
11. Pradeep Naithani son of late Sh. Harish Naithani age 45 years working as Assistant Technical Officer
(All are working in the office of Central Research Institute, Kasauli, District Solan, Himachal Pradesh)
..Applicant
By Advocate : Sh. P.M. Kansal, proxy counsel for Sh. D.R. Sharma
Versus
1. Union of India through the Secretary, Ministry of Health & Family Welfare (Department of Health), Nirman Bhawan, New Delhi.
2. Union Public Service Commission through its Secretary, Dholpur House, New Delhi.
3. The Director General of Health Services, Directorate General of Health Services, EPI Section, Nirman Bhawan, New Delhi 110 011.
4. The Director, Central Research Institute, Kasauli, Solan, H.P.
..Respondents
By Advocate : Sh. R.L. Gupta for respdts. No. 1, 3 & 4
Sh. K.K. Thakur for respdt. No. 2
O R D E R
By Honble Mrs. Rajwant Sandhu, Member(A):-
1. This OA has been filed under Section 19 of the Administrative Tribunals Act, 1985 seeking the following relief:-
(i) The impugned advertisement No. 10/2015 qua inviting online recruitment applications for filling up various nine (9) posts of Deputy Assistant Directors (Non-Medical) in Central Research Institute, Kasauli (listed at Sr. No. 5 under Vacancy No. 15081005208 in the advertisement) be quashed and set aside, in the interest of justice.
(ii) The respondents be directed to consider and decide the representations preferred by the applicants in a time bound manner.
(iii) The applicants be held entitled to all consequential benefits and reliefs, in the interest of justice.
2. It is stated in the OA that the applicants joined the Central Research Institute, Kasauli as Technical Supervisors and later on were promoted to the post of Assistant Technical Officer Group B (Non-Gazetted). Applicants No. 4 & 5 have further been promoted to the post of Technical Officer Group B (Gazetted). Some Assistant Technical Officers like applicants filed OA No. 486-HP-1997 and OA No. 545-HP-1997 in this Tribunal and the same were disposed of vide order dated 19.10.2000 (Annexure A-7) directing the respondent No. 4 therein i.e. the Secretary to Government of India, Ministry of Finance, New Delhi to consider and to take a decision on the proposal of revival/recreation of 10 posts of Deputy Assistant Director (Non-Medical). In case the said posts are revived, they were to be filled up strictly in accordance with the rules. The applicants could be considered against the promotion quota as also direct recruitment quota as per their eligibility and suitability. The official respondents were also directed to decide the case of relaxation of age limit. On 29.05.2014 (Annexure A-6), the Ministry of Health & Family Welfare (Department of Health) conveyed approval of Ministry of Finance (Department of Expenditure) for revival of various posts including 9 posts of Deputy Assistant Director (Non-Medical). Vide office order dated 29.07.2015, the department promoted five Assistant Technical Officers to the post of Deputy Assistant Directors (Non-Medical) Group A Gazetted at Central Research Institute (CRI), Kasauli (Annexure A-5). The proposed Recruitment Rules (Annexure A-4) for the post of Deputy Assistant Director provide for filling 66-2/3 % posts by Direct Recruitment and 33-1/3% by promotion.
3. In response to requisition sent by CRI, Kasauli through Director General, Health Services, Government of India, the respondent No. 2, UPSC, issued Advertisement No. 10/2015 (Annexure A-1) inviting online applications for filling up various posts by Direct Recruitment including nine posts of Deputy Assistant Directors(Non-Medical) in CRI, Kasauli. The posts of Deputy Assistant Directors (Non-Medical) are listed at Sr. No. 5 under Vacancy No. 15081005208 in the advertisement. The last date for submission of applications online was 27.08.2015.
4. It is further stated that the applicants represented on 18.08.2015 (Annexure A-3) against the advertisement submitting that as per prevailing Recruitment Rules, an ATO with an experience of five years is eligible for the post of DAD. No meeting of DPC had been conducted since 1986 despite the fact that the posts were lying vacant. This resulted in a stagnating feeder cadre for promotion to the post of DAD (Non-Medical). No direct recruitment was also carried out. Majority of TOs/ATOs became overage for direct recruitment. Their online applications were not accepted. Applicants represented on 15.09.2015 and 16.10.2015 for filling up the said nine posts of DAD from amongst the senior most TOs/ATOs of the Institute (Annexure A-2 colly). No response has been received by the applicants from the side of respondents. Hence this OA.
5. In the grounds for relief, it has, interalia, been stated as follows:-
(i) The recruitment under advertisement is by selection. But the advertisement is ambiguous and impracticable as to what will be selection method/procedure in respect of vacancy No. 5 in question (9 vacancies of DAD posts). The advertisement did not clearly spell out as to how selection to the posts of DAD at vacancy No. 5 will be made i.e. whether it will be on the basis of interview only or any test or both test and interview.
(ii) It is settled law that the Rules of game cannot be changed once the game has started. Therefore, it is necessary that all norms including the norms of selection should not only be clearly spelt out but also disclosed before the selection process is initiated. Once the rules of the game, meaning thereby, that the criteria for selection cannot be altered by the authorities concerned in the middle or after the process of selection has commenced the action of respondents in not disclosing the clear-cut the selection method/procedure for the nine posts of Deputy Assistant Director (Non-Medical) listed at Sr. No. 5 under Vacancy No. 15081005208 in the advertisement is arbitrary, illegal and unsustainable in the eyes of law.
(iii) The minimum level of suitability in interviews and/or in Recruitment Test is not indicated. In what case what will be applied and decided by the Commission, is not clear. On the other hand, in the advertisement, the Important Note No. 4 provides that date for the interview on which the shortlisted candidate is required to bring the printout of his/her online application alongwith other documents at UPSC shall be intimated separately. But, on the other hand, Note III to Instruction No. 3 under heading Minimum Essential Qualifications provide in the Instructions and Additional information to candidates for recruitment by Selection provide that the category-wise minimum level of suitability in interviews, irrespective of whether the selection is made only by interview or by Recruitment Test followed by interview, will be UR-50 marks, OBC-45 marks, SC/ST/PH-40 marks, out of the total marks of interview being 100. It is further provided in Clause No. (ii) that in cases where selection is made by Recruitment Test followed by interview, the candidate will have to achieve minimum level of suitability in their respective category at both stages i.e. Recruitment Test as well as Interview. The minimum level of suitability in case of RT shall be decided by the Commission on case to case basis.
(iv) Short-listing criteria if the applications for such posts are enormous in number with reference to the number of posts available to be filled up, cannot be made basis/method of making final selections until and unless expressly provided in the advertisement.
6. In the written statement filed on behalf of the respondents No. 1, 3 & 4, the facts of the matter have not been disputed. It has further been stated that the representation of Technical Officer/Assistant Technical Officers, CRI, Kasauli have been examined as per Dte. letter dated 01.12.2015 (Annexure R-6) conveying that request for age relaxation for consideration to the post of Dy. Asstt. Director (NM) to be filled up by UPSC by direct recruitment had been forwarded to MoHFW for taking up the matter with UPSC. Regarding representation for filling up the nine posts of D.A.D. (NM) by senior most TO/ATO, it has been conveyed that UPSC will fill up the post by direct recruitment following prescribed procedure, and as per provisions of the existing recruitment rules. This has been informed to the applicants on 04.01.2016 by enclosing copy of Annexure R-6. Besides, UPSC is an independent body for recruitment of Group A posts and has its own parameters and procedure to short list the candidates for selection and appointment. The respondent department has no interference in the modus operandi of the UPSC and allowing/rejecting the candidature of any candidate is entirely in the ambit/purview of UPSC and respondent department has nothing to interfere with the selection process of nodal agency i.e. UPSC.
7. In the short reply affidavit filed on behalf of respondent No. 2, UPSC, it is stated that the Commissions advertisement No. 10/2015 (Annexure A-1) is self explanatory and also contains necessary instructions and additional information for the candidates and in view of the same, none of the grounds taken in para 5 of the OA is valid. It is also well settled law that in the discharge of its constitutional obligations, the UPSC is vested with the power to devise its mode of functioning and procedures. The Commission sets in motion the process of recruitment by advertising the posts strictly in conformity with the notified RRs framed under Article 309 of the Constitution of India and inviting applications. When the number of eligible applicants is substantially more than the number of posts, the Commission restricts the number of candidates to be called for interview on the basis of a reasonable classification. These powers of the respondent No. 2 for reasonable classification have been upheld by way of various judicial authorities including the Apex Court. M.P. Public Service Commission Vs. Navnit Kumar Potdar, 1994 (6) SC 302 has been cited in this regard.
8. It is further stated that the issues involved in the instant OA concern the Ministry of Health and Family Welfare and no relief has been sought against the Commission. In fact, the representations dated 18.08.2015, 15.09.2015 and 16.10.2015 were preferred by the applicants to the respondent No. 1 only and the answering respondent has no role in this matter. In the written statement, it has also been conveyed that recruitment action for the post of Deputy Assistant Director had been completed by the UPSC after the interviews were held in the Commission from 22.02.2016 to 26.02.2016. Recommendation letter for the post of Deputy Assistant Director was issued to the Ministry of Health and Family Welfare on 18.03.2016.
9. Arguments advanced by learned counsel for the parties were heard when learned counsel for the applicant pressed that CRI, Kasauli had not filled the posts in the feeder category for promotion to the post of Deputy Assistant Director for almost twenty years. Even Direct Recruitment to these posts as well as to the post of Deputy Assistant Director was not held. The applicants who were otherwise eligible for these posts were rendered overage for direct recruitment for the post of Deputy Assistant Director. The applicants had submitted representations in this regard to the respondents, but to no avail and they could not file their online applications for the advertised vacancy of Deputy Assistant Director to be filled by Direct Recruitment on being overage. The applicants had thereby effectively been eliminated from the zone of consideration. Learned counsel also pressed that in the advertisement issued for Direct Recruitment of Deputy Assistant Directors, there was no clarity as to the criteria for short listing and if the Commission prescribed any such criteria after receiving the applications, this would amount to changing the rules of game midway and this was not permissible under the law.
10. Sh. Ram Lal Gupta, learned Sr. CGSC for respondents No. 1, 3 & 4 stated that after the respondent CRI, Kasauli was conveyed the revised sanction for filling the post of Dy. Assistant Director, the promotions to this post as per the RRs had been effected. Two third of the posts were earmarked for Direct Recruitment and in view of this provision, requisition was sent to the UPSC for recommending suitable candidates for selection. The upper age limit prescribed for the post of Dy. Assistant Director was 35 years while the applicants were considerably overage and hence, were not eligible to apply. Moreover, the UPSC had already completed the selection process for the post of Dy. Assistant Director and recommended the names of the selected candidates to the Ministry of Health and Family Welfare for issuing the appointment letters.
11. Sh. B.B. Sharma, learned counsel for respondent No. 2, UPSC, adopted the arguments put forth by Sh. Ram Lal Gupta.
12. We have given our careful consideration to the matter. It has been clarified in the written statement filed on behalf of the respondents No. 1, 3 & 4 that decision on the representations of the Technical Officers/Assistant Technical Officers, CRI, Kasauli for filling up the nine posts of Dy. Assistant Director (N/M) by senior most TO/ATO had already been conveyed to the applicants that the posts would be earmarked for direct recruitment, would be filled as per the prescribed procedure and in accordance with the existing RRs. The applicants had been informed in this regard on 04.01.2016 (Annexure R-6). So far as the procedure for selection from amongst eligible candidates who applied for the post of Dy. Assistant Director online in response to advertisement No. 10/2015, it is observed that the applicants have no locus standi in this regard as they could not file their applications for the post in view of being overage. The applicants were not even within the age prescribed as per advertisement if they were to avail relaxation of five years allowed in respect of in service/departmental candidates. It is also noticed that of the 14 sanctioned posts of Dy. Assistant Director (N/M) (that included nine posts for which sanction was revised), 33-1/3rd posts were to be filled through promotion of eligible ATOs with five years service in the grade and these promotions have been already effected. The remaining nine posts had to be filled under Direct Recruitment quota through UPSC and this has been done. The OA filed by the applicants appears to be completely misconceived since in view of their age, they were not eligible for applying for the direct recruitment vacancies.
13. In view of the discussion above, we find no merit in the OA and the OA is rejected. No costs.
(RAJWANT SANDHU) MEMBER(A) (JUSTICE L.N. MITTAL) MEMBER(J) Dated:
ND* 1 OA No. 063/00187/2015