Central Administrative Tribunal - Delhi
Sangh Lata Kaushal vs Govt. Of Nctd on 2 April, 2024
1
OA No.3319 of 2018
Court No.2 (item No.42)
Central Administrative Tribunal
Principal Bench
OA No. 3319/2018
Reserved on:28.02.2024
Pronounced on : 02 .04.2024
Hon'ble Shri R.N. Singh, Member (J)
Hon'ble Dr.Chhabilendra Roul, Member (A)
Sangh Lata Kaushal (Aged about 34 years)
D/o Sh. Raj Kumar
Working as Staff Nurse in O/o Medical Director
Lok Nayak Hospital ,
Establishment-III, New Delhi.
.. Applicant
(Through Advocate:Mr. T.N. Tripathi)
Versus
1. GNCT of Delhi , Through Secretary
Department of Health and Family Welfare,
H.R. Section 9th Level
„A‟ Wing, Delhi Secretariat,
New Delhi-110002.
2. The Medical Director
Lok Nayak Hospital,
Establishment -III
New Delhi.
3. Delhi Subordincate Services Selection Board,
Through its Secretary,
FC-18, Institutional Area,
Karkardooma, Delhi-110092
4. Manju (Aged about 26 years)
D/o Sh. Bhagwan,
R/o 8/610, Shastri
Nagar
Line Par, N.N. Road, Bahadurgarh,
Distt. Jhajjar (Haryana).
(Through Advocate: Ms.Purnima Maheshwari )
2
OA No.3319 of 2018
Court No.2 (item No.42)
ORDER
By Hon'ble Dr.Chhabilendra Roul, Member (A):-
The present Original Application has been filed by the applicant, seeking the following:-
"(a) set-aside/quash the order of the respondent No.3 dated 21.03.2018, whereby the respondent No.3 has called back the dossier of the applicant from the respondents No.1&2, and recommended for cancellation of the appointment of the applicant.
(b) set-aside/ quash the order of the respondent No.1 & 2 whereby the respondents no.1& 2 dated 23.07.2018 and 14.08.2018, whereby the respondents No.1 & 2 has issued an office order, whereby given notice to the applicant that the services of the applicant shall stand terminated w.e.f. the date of the expiry of the period of one month from the date of receipt of this order.
(c) direct the respondent not to terminate the service of the applicant after 14.08.2018 in pursuant to aforesaid order dated ANNESURE -A 1(Colly). The applicant is even ready to work in MCD on the post of Nurse 'A' Grade.
(d) Pass any such other order(s) which this Hon'ble Tribunal may deems -fit and proper in the interest of justice.
2. The factual matrix of the present case is as follows:
2.1 Based on the requisition received from the Department of Health and Family Welfare, GNCT of Delhi, DSSSB published the Advertisement No. 01/2013 for the post code no. 20/2013 for the post of Staff Nurse. A written examination was conducted for the said post code on 09.06.2016. On base of written examination and considering the educational 3 OA No.3319 of 2018 Court No.2 (item No.42) qualification and age etc., as per the Advertisement and Recruitment Rule, the name of the present applicant with Roll Number 020135351 was listed as waitlisted candidate at Sr. No.18, vide result notification dated 26.07.2016 under SC category. As significant number of dossiers were returned by the user department under different categories after cancellation of the candidature for the post of Staff Nurse and requesting the DSSSB for sending fresh dossiers, the latter forwarded 15 dossiers in the SC category including that of present applicant, whose name was at Sr. No. 15 with the 66.75 marks. One Ms. Manju filed OA No.1611/2015 applied for both post code No.20/2013 for Staff Nurse in G.N.C.T of Delhi and post code No.21/2013 for Nurse „A‟ Grade in M.C.D. In her OA, she stated that the candidates having lesser marks have been appointed to post code No.20/2013 whereas she was having with higher marks has been given appointment in postcode no.
21/2013. As per her merits & preferences she should have been got appointment for the Staff Nurse for post code no.20/2013 in G.N.C.T of Delhi. This Tribunal vide its order dated 04.01.2017 directed the 4 OA No.3319 of 2018 Court No.2 (item No.42) respondents to appoint the applicant therein i.e. Ms. Manju to the post of Staff Nurse in G.N.C.T. of Delhi. 2.2 The present applicant has joined as Staff Nurse in pursuance to the order dated 01.01.2018 on the same date. In pursuance to the order dated 04.01.2017 of this Tribunal the matter regarding eligibility of appropriate post to the petitioner in the OA No. 1611/2015 i.e. Ms. Manju was considered and she was offered appointment vide result notification dated 21.03.2018 under SC category. In this regard, one dossier which was stood at last provisionally selected candidate i.e. Ms. Sangh Lata Kaushal, the present applicant, was called back from user department due to high merits in the respective category by Ms. Manju and the candidature of Ms. Sangh Lata Kaushal who was provisionally selected candidates was got cancelled vide order dated 14.08.20018. Being aggrieved, the applicant has filed the present OA, seeking the aforementioned relief.
3. On admission of the OA, notices were issued to the respondents and they have filed their counter affidavit 5 OA No.3319 of 2018 Court No.2 (item No.42) to which the applicant has also filed rejoinder to the same.
4. The applicant in her OA as well as through her learned counsel during arguments has undertaken the following grounds in supports of relief sought by her. 4.1 The applicant has already joined service on 01.01.2018 and served the respondents satisfactorily till the issuance of the cancellation order dated 14.08.2018. The respondents themselves found the present applicant as eligible to join as Staff Nurse and accordingly they have offered appointment in terms of the Recruitment Rules and Advertisement. The present applicant was eligible in all aspects for the post of Staff Nurse.
4.2 The respondents have erroneously invoked the rule 5 of the CCS (Temporary Service) Rules, 1965. The said Rule is not applicable in the case of the present applicant as the applicant was not a temporary employee as she was regularly appointed against regular vacancy based on the terms and conditions for such appointment. The applicant was not a party in the OA No. 1611/2015 wherein Ms. Manju was given 6 OA No.3319 of 2018 Court No.2 (item No.42) the benefits. The respondents have incorrectly interpreted the order dated 04.01.2017. The Tribunal has not given any adverse order against any existing candidates who have been appointed earlier. They have only given relief to the applicant therein and she should have been given and offered appointment to the post of Staff Nurse as per the merits and preferences. When there were vacant posts and six candidates of SC category did not join the duties, the present applicant should not have been removed from the service of the respondents. The applicant had joined the respondents after resigning from the Railways and now she has become overage. Considering the facts and circumstances of the present case and considering the facts that there were still vacancies and the respondents were operating the waiting list subsequent to the cancellation of the candidature of the present applicant, they should have not cancelled the candidature and they should have allowed the present applicant to continue in the service.
5. Per contra, the learned counsel for the respondents referred to the order dated 04.01.2017 passed in respect of OA No. 1611/2015. As this Tribunal has 7 OA No.3319 of 2018 Court No.2 (item No.42) given benefits to Ms. Manju to be appointed to the post of Staff Nurse, who have secured 98.50 marks, they have to cancel the last selected candidate in the SC category to accommodate Ms. Manju. Learned counsel for the respondents states that the present applicant secured only 66.70 marks whereas Ms. Manju secured 98.5 marks. The learned counsel for the respondents further avers that rule 5 of the CCS (Temporary Service) Rules, 1965 is very much applicable in the instant case as the applicant was under probation and her services were not confirmed. When any Government Servant is under probation, his/her services are governed under the CCS (Temporary Service ) Rules 1965 and there is no irregularity in the order dated 14.08.2018 (Annexure A-1 impugned order).
6. In rejoinder, the learned counsel for the applicant states that the respondents have adopted the practice of pick and choose in cancelling the candidature in case of the present applicant. He refers to candidature, namey, Kabul Chand (Roll No. 02007812; marks secured 66.50), Renu Rani (Roll No. 02019856; marks secured 65.5), and Sanjiv Kumar (Roll No. 02021216 8 OA No.3319 of 2018 Court No.2 (item No.42) marks secured 65.25) are still working with the respondents‟ hospital as Staff Nurse though they have secured the less marks than the applicant. It is clear that keeping in the vacancy position the respondents have allowed the candidates with lesser marks than the applicant to be appointed to the post of Staff Nurse. Accordingly, the cancelling applicant‟s appointment is in violation of Article 14 & 16 of the Constitution of India. Moreover, the respondents have included 45 candidates in the waiting list whereas only six candidates had joined the duties. Hence, there is amply clear that there was number of vacancies are still lying vacant with the respondents in respect of the post code No.20/2013.
7. We have heard the arguments carefully and have gone through the records thoroughly. This case was initially heard on 12.12.2023 and it was reserved for orders. Subsequently it was re-listed on 18.12.2023 as „For Being Spoken To‟ seeking the following clarifications from the respondents, which is reproduced as under:
(i) Whether the Selection Committee has formally decided to create a waiting list in respect of Post Code 20/13 and the period of validity of 9 OA No.3319 of 2018 Court No.2 (item No.42) the said waiting list. If so, the waiting list with the signature of the Selection Committee shall be produced.
(ii) If there was no formal order regarding the validity of the waiting list, the relevant DoP&T or other appropriate circular of NCT of Delhi shall be produced regarding the validity of operation of any waiting list in respect of a particular selection.
(iii) It was stated by the respondents that the 17th candidate in the waiting list pertaining to the concerned category had been offered appointment and the present applicant stands at waiting list no. 18. The respondents are directed to clarify the dates on which each of the candidates in the waiting list was offered appointment and how many of them joined against such offer letters issued to the candidates in the waiting list; and
(iv) The respondents have stated that the validity of the waiting list has expired. What is the date on which the validity expired and how?
The clarifications as furnished by the respondents vide their additional affidavit dated 30.01.2024 are as follow:
"1. XXXXX 2 That for the Post Code 20/13, Post Name: Staff Nurse the final closure report dated 30.08.2017 is enclosed as Annexure R-1.
3 That perusal of the same would reflect that the waitlist panel for SC & ST candidate was declared vide Order No. 513 dated 26.07.2016 and the validity of the same was upto 25.07.2017. Copy of the Order No. 513 dated 26.07.2016 is enclosed as Annexure A-5 (page 31 of OA).
4. That as per the policy of DSSSB, validity of waitlist panel is one year from the declaration or result and the waitlist panel which is in the said case 26.07.2016. Copy of the Policy as applicable then is enclosed as Annexure R-2.
5. That vide letter dated 8.06.2017, the user deptt i.e. H&FW, asked for 15 SC candidates as replacement candidates, to DSSSB in lieu of the cancelled dossiers. Hence, DSSSB sent the name of candidates from waitlist panel vide letter dated 12.09.2017 Copy of the same is enclosed as Annexure A-14 (page 53 of OA).
6. That the name of Applicant was at Sr. No. 15 in waitlist candidates name sent vide letter dt. 12.09.2017. However, in compliance of order dated 04.01.2017 the names of candidates who scored more in the merit list were added as a result of which the candidature of the Applicant dropped to Sr. No. 18 in the waitlist candidates and her selection was cancelled. The Office order dated 21.03.2018 in this regard is enclosed as Annexure A-1 (at Page 13 of OA).
7. That the details of the waitlist candidates Sr. No.l to 17 are as follows:
S.No Name Date of joining Status as on date
1. Rakesh Bairwa 09.06.2017 Presently posted in DDU Hospital 2 Rakesh Kumar Bairwa 09.06.2017 Presently posted in LBS Hospital 3 Dharam Raj Bairwa 09.06.2017 Presently posted in LBS Hospital 4 Aashish Aswal 03.01.2018 Presently posted in LN Hospital 10 OA No.3319 of 2018 Court No.2 (item No.42) 5 Rahul Jajoria 08.03.2018 Presently posted in LN Hospital 6 Shobhag Mal 24.02.2018 Presently posted in LN Hospital
7. Narendra Mahawar 01.01.2018 Presently posted in LN Hospital 8 Jugal Kishore Verma 01.01.2018 Presently posted in LN Hospital 9 Yogesh Kuldeep --- Not Joined, Dossier returned 10 Priya Bairwa --- Not Joined, Dossier returned 11 Manish Kheriwal 02.04.2018 Presently posted in LN Hospital 12 Rajesh Kumar --- Record not traceable 13 Gurwinder Kaur --- Not Joined, Dossier returned 14 Sonia Record not available Joined LN Hospital 15 Swati Singh 02.07.2019 Joined LN Hospital but resigned 16 Arun Kumar Regar --- Not Joined, Dossier returned 17 Rajeev Kumar --- Presently posted in BSA Hospital"
8. From the perusal of the additional affidavit as furnished by the respondents, it is clear that the validity of the waiting list is for one year from the declaration of the result. The first declaration of the result in respect of post code No.20/2013 was on 26.7.2016. At that time the present applicant was at Sr. No. 18 of the select waiting list candidates for SC category. However, the respondents issued a corrigendum of the result on 07.07.2017 which can be taken as declaration of the result. Accordingly one year could have ended on 26.07.2018. The respondents vide their order dated 21.03.2018 has accepted this extended period of waiting list till 26.07.2018 by offering of candidature to the post of 11 OA No.3319 of 2018 Court No.2 (item No.42) Staff Nurse to Ms. Manju in pursuance to C.A.T‟s order 04.01.2017 in OA No. 1611/2015. It implies on the date when Ms. Manju was offered appointment as Staff Nurse, the revised waiting list was still valid till 26.07.2018. As there were vacancies in respect of post code No.20/2013 under SC category at the time of offering of appointment to Ms. Manju on 21.03.2018, the present applicant could have been accommodated by operating the said extended waiting list. This is amply clear from the additional affidavit filed by the respondents vide which they have stated given the names who secured more merit were added to the result. The applicant dropped to at Sr. No.18 in the waiting list candidates In paragraph 7 of the additional affidavit the respondents have admitted that even after cancellation of the candidature of the present applicant on 21.03.2018 two more candidates have joined with the respondents. Manish Kheriwal at Sr. No. 11 and Ms. Swati Singh at Sr. No.15 in paragraph 7 of the additional affidavit joined even after cancellation of the candidature of the present applicant. The candidates at Sr. No. 9,10,13 and 16 did not join despite they were offered appointment from 12 OA No.3319 of 2018 Court No.2 (item No.42) the waiting list of candidates. In one case at Sr. No.12, the respondents have stated that the records are not traceable. From the aforementioned additional affidavit, it is clear that the respondents have operated the waiting list beyond the period of one year from the date of final declaration of the result i.e. the corrigendum dated 07.0.2017. It is also amply clear at the time of cancellation of candidature of the present applicant, the wait list was still operational i.e. till 26.07.2018. Thirdly, there are still vacancies which have not filled up in the SC category in respect of post code No. 20/2013 in pursuance with the Advertisement No. 01/2013.
9. In view of the above analysis, the present O.A. is allowed with directions to the respondents that (i) the cancellation order of the candidature qua the present applicant is quashed. (ii) the respondents are directed to offer appointment to the present applicant for post of Staff Nurse under the SC category within a period of eight weeks from the date of receipt of a certified copy of this order. No order as to the costs.
(Dr. Chhabilendra Roul) (R.N.Singh)
Member (A) Member (J)
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OA No.3319 of 2018
Court No.2 (item No.42)
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