Central Administrative Tribunal - Delhi
Mr. Sushil Kumar S/O Mr. Dalbir Singh vs Govt. Of Nct Of Delhi on 13 February, 2014
Central Administrative Tribunal
Principal Bench, New Delhi
O.A.No.2049/2012
Thursday, this the 13th day of February 2014
Honble Mr. A.K. Bhardwaj, Member (J)
Honble Mr. P.K. Basu, Member (A)
1. Mr. Sushil Kumar s/o Mr. Dalbir Singh
r/o H.No.46, Narela Road, Bawana, Delhi-39
2. Mr. Jagparvesh Chander
s/o Mr. Randhir Singh
r/o Village Liwan Post, Rathdhana
Dist. Sonipat, Haryana
..Applicants
(By Advocate: Mr. Ajesh Luthra for Ms. Jyostna Kaushik)
Versus
1. Govt. of NCT of Delhi
Through the Chief Secretary
5th Floor, Delhi Sachivalaya, New Delhi
2. Delhi Subordinate Services Selection Board
Through its Chairman
Govt. of NCT of Delhi, F-18 Karkardooma
Institutional Area, Delhi-92
3. Delhi Jal Board
Through its Chief Executive Officer
Varunalaya, Phase II
Karol Bagh, New Delhi-5
4. Union of India through
Director General of Employment & Training
National Council for Vocational Training
Ministry of Labour & Employment
Shram Shakti Bhawan, New Delhi-1
5. Director of Training & Technical Education
Through Principal Secretary
(GNCT of Delhi)
Muni Maya Ram Marg
Pitam Pura, Delhi
6. Sumit s/o Mr. Balwan Singh
r/o A-335, Vijay Vihar
Phase I, Near Sec 5, Rohini, Delhi-85
7. Parveen Kumar Verma
s/o Mr. Dharampal Verma
H.No.T-113, Gali No.4
Shivaji Nagar, Narela, Delhi-40
8. Deepak Kumar s/o Mr. Subhash Chand
r/o A-5, Vishwas Park
Uttam Nagar, New Delhi-59
9. Pankaj Khatri
s/o Mr. Jaipal Singh
r/o H.No.78, Vill. Singhola
PO Tikri, Narela, Delhi-40
10. Pardeep Kumar s/o Mr. Nafe Singh
r/o H.No.1564
V & PO Karala, Delhi-40
11. Guldeep s/o Mr. Jai Bhagwan
r/o H.No.606, Near Mini Stadium
Alipur, Delhi-36
12. Manish Kumar s/o Mr. Ranjeet Singh
r/o H.No.166
Vill & PO Nangal Thakaran, Delhi-39
..Respondents
(By Advocates: Mr. B N P Pathak for respondent Nos. 1 & 2,
Mr. Nishakant Pandey for respondent 3,
Mr. Satish Kumar for respondent No.4,
Mr. Ashish for Mr. Yogesh Sharma for
Respondent Nos. 6 to 12 None for respondent No.5)
O R D E R (ORAL)
Mr. A.K. Bhardwaj:
Respondent Nos. 1 & 2 advertised certain number of vacancies of Assistant Sanitary Inspector under post code No.74/09 as per the details given below:-
Post Code Department Total vacancies Category 74/09 Delhi Jal Board UR : 23 SC : 08 ST : 03 OBC : 15 EXSM: 05
2. The last date for submission of application forms was 15.1.2010. The Part I and Part II (main exam) were conducted on 4.9.2011. The result of Part I was declared on 28.11.2011 and final result was declared on 20.4.2012. The final statistics of the selection, as mentioned in the counter reply filed on behalf of respondent Nos. 1 & 2, read as under:-
Post code Category Vacancies Vacancies filled Pending Vacant 75/09 UR 23 11
-11
SC 08 07 01
-
OBC 15 15 NIL
-
Total 46 34 01 11
3. According to Mr. B.N.P. Pathak, learned counsel for respondent Nos. 1 & 2 though as per the Result Notice No.5 dated 20.4.2012, both the applicants scored 100 marks and were in the zone of consideration but since they did not fulfill the eligibility condition inasmuch as they did not possess the requisite Sanitary Inspector diploma, their candidature was rejected.
4. Mr. Ajesh Luthra, learned proxy counsel for applicants submitted that both the applicants possessed the National Trade Certificate / Trade Certificate in the trade of Health & Sanitary Inspector issued by the National Council for Vocational Training / State Council for Vocational Training, Delhi (pages 51 and 54 of the paper book). According to him, the Government of India, Ministry of Labour & Employment and Director of Training & Technical Education issued clarification No.DGET-7 (2)/2006-CD dated 1.6.2007 to the effect that the National Trade Certificates awarded to the trainees would be recognized equivalent to diploma in Craftsmanship.
5. Relying upon a communication No.F.23 (58)/Trg. (E)/2007/50 dated 9.5.2012, learned proxy counsel for applicants submitted that the Government of Delhi (Department of Training & Technical Education) itself has made it clear that the National Trade Certificate should be treated equivalent to diploma. He also placed reliance upon the order passed by this Tribunal in Gaurav Shankhdhar v. Union of India & others (O.A.No.2236/2008) decided on 25.5.2009 and the judgment dated 22.12.2009 of the Honble High Court of Delhi in W.P. (C) No.13732/2009 whereby the aforesaid order of the Tribunal was upheld.
6. Confronting with said submissions, Mr. B.N.P. Pathak, learned counsel for respondent Nos. 1 & 2 submitted that as far as two decisions relied upon by the applicants are concerned, the same would have no application in the present case for the simple reason that in the said matter, the eligibility condition included one year vocational training certificate issued by the National Industrial Training Centre, while in the present case, it is not so.
7. Mr. Nishakant Pandey, learned counsel for respondent No.3 categorically submitted that in view of letter dated 9.5.2012 (ibid) the Delhi Subordinate Services Selection Board (DSSSB) ought to have not rejected the candidature of the applicants. He also submitted that the Delhi Jal B0ard is running short of Assistant Sanitary Inspectors and the view of respondent Nos. 1 & 2 is further depriving it of the sufficient staff.
8. Relying upon the communication dated 31.7.2012 (page 80 of the paper book), Mr. Nishakant Pandey submitted that even the Office of the Assistant Commissioner (G)-II, Delhi Jal Board has also made it clear that the diploma in Craftsmanship awarded by the Director General of Resettlement and Employment (now Directorate General of Employment & Training) or National Industrial Training Centre will be deemed to be equal to the National Trade Certificate awarded under the aegis of National Council for Vocational Training.
9. We heard the learned counsels for the parties and perused the records.
10. It is stare decisis that the appointment to a post need to be regulated in terms of the Recruitment Rules in vogue. Even the Selection Committee / Board / Commission are also under an obligation to follow the Recruitment Rules while conducting the selection. The Recruitment Rules under Article 309 of the Constitution of India are issued either by the President of India or the Governor are framed by the concerned legislatures. It may be so that in certain cases before framing the Recruitment Rules or amending the same, the Union Public Service Commission or other recruiting agency need to be consulted. Nevertheless, as and when the issue of interpretation of the qualification or the eligibility condition mentioned in the Recruitment Rules arises, the user Department or the cadre controlling authority would have the final say in the matter. It is settled position of law that the selection process or method of recruitment is prescribed in the Recruitment Rules and cannot be evolved by the recruiting agency. In Dr. Krushan Chandra Sahu & others v. State of Orissa & others, JT 1995 (7) SC 137, it has been held thus:
33. Now, power to make rules regulating the conditions of service of persons appointed on Govt. posts is available to the Governor of the State under the Proviso to Art. 309 and it was in exercise of this power that the present Rules were made. If the statutory Rules, in a given case, have not been made, either by the Parliament or the State Legislative, or, for that matter by the Governor of the State, it would be open to the appropriate Government (the Central Government under Art. 73 and the State Government under Art. 73 and the State Government under Art. 162) to issue executive instructions. However, if the Rules have been made but they are silent on any subject or point in issue, the omission can be supplied and the rules can be supplemented by executive instructions. [See Sant Ram v. State of Rajasthan, (AIR 1967 SC 1910)].
34. In the instant case, the Government did neither issue any administrative instruction nor did it supply the omission with regard to the criteria on the basis of which suitability of the candidates was to be determined. The members of the Selection Board, of their own, decided to adopt the confidential character rolls of the candidates who were already employed as Homeopathic Medical Officers, as the basis of determining their suitability.
35. The members of the Selection Board or for that matter, any other Selection Committee, do not have the jurisdiction to lay down the criteria for selection unless they are authorised specifically in that regard by the Rules made under Art. 309. It is basically the function of the rule making authority to provide the basis for selection. This Court in State of Andhra Pradesh v. V. Sadanandam, AIR 1989 SC 2060 observed as under (para 16, at pp. 2065-66 of AIR):-
"We are now only left with the reasoning of the Tribunal that there is no justification for the continuance of the old Rule and for personnel belonging to either zones being transferred on promotion to offices in other zones. In drawing such conclusion, the Tribunal has travelled beyond the limits of its jurisdiction. We need only point out that the mode of recruitment and the category from which the recruitment to a service should be made are all matters which are exclusively within the domain of the executive. It is not for judicial bodies to sit in judgment over the wisdom of the executive in choosing the mode of recruitment or the categories from which the recruitment should be made as they are matters of policy decision falling exclusively within the purview of the executive".
(Emphasis supplied)
36. The Selection Committee does not even have the inherent jurisdiction to lay down the norms for selection nor can such power be assumed by necessary implication. In Ramachandra Iyer v. Union of India, (1984) 2 SCR 200 : (AIR 1984 SC 541), it was observed (para 44, at p.562 of AIR):-
"By necessary inference, there was no such power in the ASRB to add to the required qualifications. If, such power is claimed, it has to be explicit and cannot be read by necessary implication for the obvious reasons that such deviation from the rules is likely to cause irreparable and irreversible harm".
37. Similarly, in Umesh Chandra Shukla v. Union of India, 1985 Suppl (2) SCR 367 : (AIR 1985 SC 1351), it was observed that the Selection Committee does not possess any inherent power to lay down its own standards in addition to what is prescribed under the Rules. Both these decisions were followed in Sh. Durgacharan Misra v. State of Orissa, (1987) 2 UJ (SC) 657 : (AIR 1987 SC 2267) and the limitations of the Selection Committee were pointed out that it had no jurisdiction to prescribe the minimum marks which a candidate had to secure at the viva voce test.
38. It may be pointed out that rule making function under Art. 309 is legislative and not executive as was laid down by this Court in B.S. Yadav v. State of Haryana, AIR 1981 SC 561. For this reason also, the Selection Committee or the Selection Board cannot be held to have jurisdiction to lay down any standard or basis for selection as it would amount to legislating a rule of selection.
39. If it were a mere matter of transition from one service to another service of similar nature as, for example, from Provincial Forest Service to All India Forest Administrative Service, the confidential character rolls could have constituted a valid basis for selection either on merit or suitability as was laid down by this Court in Pervez Qadir v. Union of India, 1975(2) SCR 432 : AIR 1975 SC 446 : (1975) 4 SCC 318 which has since been followed in R.S. Dass v. Union of India, AIR 1987 SC 593. But in the instant case, appointments are being made on posts in an entirely new service, though the educational qualifications required to be possessed by the candidates are the same as were required to be possessed in their earlier service.
40. A candidate in order to be suitable for appointment on a teaching post must have at least three qualities; he should have thorough knowledge of the subject concerned; he should be organised in his thoughts and he should possess the art of presentation of his thoughts to the students. These qualities cannot possibly be indicated or reflected in the confidential character rolls relating to another service, namely, the service in the Health Department as Homoeopathic Medical Officers where the character rolls would only reflect their integrity, their punctuality, their industry and their evaluation by the Reporting or the Accepting Officer recorded in the annual entries. True it is that the candidates being already serving officers, their character rolls have to be looked into before inducting them in the new service but this can be done only for the limited purpose of assessing their integrity etc. These character rolls, however, cannot form the SOLE basis for determination of their suitability for the posts of junior teachers in the Medical Colleges. Then, what formula or method should be adopted to assess these qualities is the question which next arises. This Court in Liladhar v. State of Rajasthan (1981) 4 SCC 159 : AIR 1981 SC 1777 pointed out (at p. 1778 of AIR) :-
"The object of any process of selection for entry into a public service is to secure the best and the most suitable person for the job, avoiding patronage and favouritism. Selection based on merit, tested impartially and objectively, is the essential foundation of any useful and efficient public service. So, open competitive examination has come to be accepted almost universally as the gateway to public services".
11. In the present case, we find that not only the Government of India but also the Government of NCT of Delhi and the Delhi Jal Board recognized the parity of diploma in Craftsmanship awarded by the Directorate General of Resettlement and Employment or National Industrial Training Centre with the certificate issued by the National Trade Certificate awarded under the aegis of National Council for Vocational Training. In the letter dated 1.6.2007 (ibid), Government of India, Ministry of Labour & Employment issued the following clarification:
Subject: Clarification for Diploma / Certificate in National Trade Certificate regarding their equivalency.
Sir, I am directed to refer to your letter seeking clarification on the subject mentioned above.
In this regard it is intimated that Government of India has decided to recognize for the purpose of recruitment subordinate posts and service under the Central government, the Diploma in Craftsmanship awarded to trainees admitted under the Craftsman/ Displaced Persons Training Schemes before February 1959 and the National Trade Certificates awarded thereafter in the trades. The Diploma in Craftsmanship awarded by the Directorate General of Resettlement and Employment (now Directorate General of Employment and Training) will be deemed to be equal to the National Trade Certificate awarded under the aegis of National Council for Vocational Training.
It is further intimated that presently training under Craftsmen Training Scheme, implements through it is/ITCs is imparted in 107 trades including Health Sanitary Inspector trade & NTC issued to pass out trainees which is a recognized qualification for the purpose of recruitment subordinate posts and services under the Central government.
12. The letter dated 9.5.2012 (ibid) issued by the Government of Delhi, Department of Training & Technical Education, relied upon by Mr. Ajesh Luthra, learned proxy counsel for applicants in this regard, reads as under:-
Sub: Clarification for Diploma / Certificate in National Trade Certificate / State Council for Vocational Training Certificate regarding their equivalency.
Sir, This has been brought to our knowledge that few of the students who have undergone training in Health & Sanitary Inspector trade and subsequently issued National Trade Certificate / State Council for Vocational Training Certificate by our department has been detained for the selection in the employment for the post of Assistant Sanitary Inspector, post code No.74 / 09 by your good office, due to the reason that they hold National Trade Certificate / State Council for Vocational Training Certificate in place of Diploma.
This is to inform you that in regards to subject cited above a letter No.DGET 7 (2) / 2006 CD dated 1st June 2007 has already been issued (copy enclosed).
Further it is pertinent to mention here that the validity and equivalency of National Trade Certificate with that to Diploma has been dealt and decided by the Honble Central Administrative Tribunal as well as Honble High Court of Delhi. Copy of the judgment is enclosed herewith for your reference and perusal.
This letter has been issued on the request of Sh. Sushil Kumar S/o Sh. Dalbir Singh holding NTC (No.211092) in Health & Sanitary Inspector trade for further necessary action at your end please.
13. In order dated 25.5.2009 passed by this Tribunal in Gaurav Shankhdhars case (supra), it could be viewed as under:-
9. In the above scenario, we are not encroaching upon in any manner the qualification laid down by the respondents but we find, on the basis of the qualification possessed by the applicant, i.e., certificate, which is not being issued by the Railways but by the Ministry of Labour & Employment under National Industrial Training Centre. These authorities are the competent in law to vouch for these certificates and to lay down equivalence as to the qualification in diploma and certificate. Being an expert body, once it has been ruled that diploma since being discontinued, a certificate is an apt qualification and an information to this effect once having been conveyed to the Railways, their hurry and undue haste in canceling the candidature of the applicant even without waiting the opinion of an expert body, which they have voluntarily sought from the Ministry of Labour & Employment, shows that cancellation of applicants candidature was neither reasonable nor in good faith.
10. Insofar as the qualification is concerned, the Apex Court in Basic Education Board, U.P. v. Upendra Rai & others, 2008 (1) SCC (L&S) 771 ruled that any equivalence in the matter of qualification, the policy cannot be interfered as an administrative authority laying down qualification for equivalence is the prerogative of the Ministry of Labour & Employment and National Industrial Training Centre.
11. As we are satisfied that the applicant in equivalence of the rules was qualified, being eligible to be considered for the post of Health Inspector III / Malaria Inspector III and non-consideration of his candidature and cancellation in turn by the respondents is not apt in law and this omission and commission on their part is to be set aside.
14. In the order passed by the Honble High Court of Delhi upholding the order of the Tribunal, following view could be taken:-
The Tribunal also noted that the petitioners had cancelled the candidature of respondent No.1 even without waiting for the opinion of the Ministry of Labour and Employment (which is the expert body) which had categorically communicated its opinion that the diploma had been discontinued since 1959 and the certificate issued in its place was equivalent to the diploma issued by National Industrial Training Centre in respect of certain trades.
The petitioners have impugned the Tribunal's order contending, inter-alia, that diploma course is still continuing and the certificate course is valid from the year 2008. It is contended that the certificate shall be valid from the year 2008 and, therefore, the benefit of the diploma course cannot be granted to the respondent No.1, who is a certificate holder. They have contended that only the candidates who had passed one year diploma course in Health/Sanitary Inspectors were eligible in 2006 for direct recruitment against the post of Health and Malaria Inspector Grade III.
The petitioners did not contend before the Tribunal that the diploma course had not been discontinued since 1959 which is apparent from the reply filed by Shri Shailendra Kumar, Chairman Railway Recruitment Board, Gorakhpur. The respondent no.1 had passed the prescribed trade test in the trade of Health Sanitary Inspector in July, 2005 after undergoing training from August, 2004 to July, 2005 and he was awarded 82% marks and a certificate dated 16th November, 2005 was issued to him by Directorate of Training and Technical Education, Government of N.C.T of Delhi. The Deputy Director of Training, Government of India, Ministry of Labour and Employment, D.E.G.E.& T in her letter dated 1st June, 2007 has categorically stated that the purpose of recruitment to the subordinate posts and services under the Central Government, the Diploma in Craftsmanship, awarded to trainees admitted under the Craftsman/Dispatched Persons Training Scheme before February, 1959 and the National Trade Certificate awarded thereafter in the Trades, is recognized.
The respondent no.1 was found eligible for the post of Health Inspector on contract basis by the Central Railway, Divisional office, Personnel Branch, Mumbai pursuant to respondent no.1's application dated 9th January, 2008 which was communicated to the petitioners vide letter dated 15th January, 2008.
The learned counsel for the petitioners have failed to give any rational or valid reason as to why the certificate was not valid prior to 2008 even though the Ministry of Labour and Employment was categorical in its communication dated 1st June, 2007 that the certificate is valid after 1959. Petitioners' plea is not that the certificate course has undergone any major structural changes since 2008, and therefore it cannot be equivalent to the Diploma Course, or that prior to 2008, there had been major differences in the courses of Diploma and Certificate.
The petitioners cannot contend that the certificate is valid only after 2008 and not prior to 2008 because according to the concerned authorities, the diploma has been done away with since 1959 and in place certificate is issued in certain trades which is equivalent to diploma. In the circumstances, the plea of the petitioners that the certificate issued prior to 2008, contrary to the opinion of Ministry of Labour and Employment, is not equivalent to Diploma course cannot be accepted nor are the petitioners entitled to such interference by this Court against the impugned order of the Tribunal. The writ petition is, therefore, without any merit and it is dismissed.
15. In view of the clarifications issued by the Government of India, Government of NCT of Delhi and the Delhi Jal Board (ibid), we are of the view that respondent Nos. 1 & 2 are not justified in canceling the candidatures of the applicants for the post of Assistant Sanitary Inspector on the ground that the National Trade Certificate issued by the National Council for Vocational Training and Trade Certificate issued by the State Council for Vocational Training, Delhi, as produced by the applicants respectively, are not equivalent to diploma. The decision taken by respondent Nos.1 & 2 treating the applicants ineligible for the post in question under post code No.74/09 is quashed. The said respondents are directed to forward the candidatures of the applicants to respondent No.3 Delhi Jal Board along with relevant documents for their appointment as Assistant Sanitary Inspector (post code No.74/09), within a period of four weeks from the date of receipt of a copy of this order and thereafter respondent No.3 would do the needful within four weeks. No costs.
( P.K. Basu ) ( A. K. Bhardwaj ) Member (A) Member (J) February 13, 2014 /sunil/