Central Administrative Tribunal - Cuttack
A Kumar vs Ordnance Factory on 30 September, 2021
1
CENTRAL ADMINISTRATIVE TRIBUNAL
CUTTACK BENCH: CUTTACK
O.A. No. 260/00445 OF 2019
Date of reserve:08.09.2021 Date of pronouncement:30.09.2021
CORAM
THE HON'BLE MR. B.V.SUDHAKAR, MEMBER(ADMN.)
THE HON'BLE MR. SWARUP KUMAR MISHRA, MEMBER (J)
1. Ashish Kumar, aged about 28 years, S/o. Sh. Rambabu
Tripathi, resident of Village-Devmanpur, PO. Paras,
Tehesil/PS. Ghatampur, Dist. Kanpur Nagar, Uttarpradesh-
250404.
2. Rekharaj Meena, aged about 24 years, S/o. Sh. Ram Swarup
Meena, resident of Village-Lavakush Kunj, Dist. Swai,
Madhopur, Rajasthan-322023.
3. Harikesh Meena, aged about 25 years, S/o. Sh. Dhanpal
Meena, resident of Village-Ataunkalam, Sawai Madhopur,
Ataun Kalam, Rajasthan-322001.
4. Omprakash Meena, aged about 29 years, S/o. Sh. Sitaram
Meena, resident of Tehlka, Uniyra, PO. Aminpura, Hedripura,
Dist. Tonk, Rajasthan-314023.
5. Abhisek Kumar, aged about 31 years, S/o. Sh. Jawahar Chanda
Nandi, residente of Rajoun, Bhusia, Banka Rajourn, Bihar-
813107.
6. Ghamandilal Meena, aged about 31 years, S/o. Sh. Devpal
Meena, resident of 219, Charoda-Kidhani, Gambhirra,
Swaimadhapur, Rajsthan-322001.
7. Rajesh Kumar Meena, aged about 31 years, S/o. Sh. Budharam
Meena, resident of Sitod, Bamanwas, Sowaimadhopur,
Rajasthan-322214.
8. Pawan Kumar Dharmik, aged about 31 years, S/o. Sh. Kamlesh
Dharmik, resident of Old Bus Stand, Kashyap Colony,
Geetanjali Nagar, Lane-4, Bilaspur, Chhatisgarh-495 001.
9. Ranjeet Meena, aged about 24 years, S/o. Sh. Sitaram Meena
resident of 74, Chopad, Mohalla-Atoonkalan, Swaaimadhopur,
Rajasthan-322001.
10. Mahesh Chand Meena, aged about 31 years, S/o. Sh. Kripal
Meena, resident of Village/PO. Bhandouri Tehsil-Malakhera,
Dist. Alwar, Rajasthan-301414.
2
11. Jitendra Kumar Meena, aged about 24 years, S/o. Sh. Prahalad
Meena, resident of Village/PO. Bhandouri, Tehsil-Malakheera,
Dist. Alwar, Rajasthan-301414.
12. Bhoor Singh Meena, aged about 31 years, S/o. Sh. Banwari Lal
Meena, resident of Village/Po. Bhajera, Tasil-Toda Bhim,
District-Karauli, Rajasthan-321610.
13. Balaram Meena, aged about 31 years, S/o. Sh. Shyokaran
Meena resident of Village-Girdharpura, Post-Binjhari, The
Chauth Ka Barwara, Dist. Sawai, Modhour, Rajsthan-322701.
14. Pramod Kumar Bairwa, aged about 25 years, S/o. Sh.
Nathuram Bairwa, Resident of Binawala Dausa, Sainthal,
Rajasthan-303507.
15. Samanjay Kumar, aged about 23 years, S/o. Sh. Permanand
Singh resident of Bhadaura, Munger, Bihar-811211.
16. Ranjeet Meena, aged about 29 years, S/o. Rsh. Ramphool
Meena, resident of Suryakhi, PO. Bahdurpur, Tehsil-Sapotra,
Dist. Aroli, Rajasthan-322249.
17. Gandrapu Suresh Kumar, aged about 31 years, S/o. Sh.
G.Subbarao, resident of House No. 1-19-360, B.C.Colony,
V.T.Argaharam, Opp. District Coiurt, Vizianagaram,
Andhrapradesh-535004.
.....Applicants
Through Legal practitioner: Mr.S.Das, Counsel
-Versus-
1. Union of India represented through its Secretary, Ministry of
Defence Production, South Block, Central Secretariat, New
Delhi-110 001.
2. The General Manager, Ordnance Factory, Bolangir (P), PO.
Gandapatrapali, Saintala, Dist. Bolangir-767032, Odisha.
3. The Director General of Ordnance Factory, Government of
India, Ministry of Defence Ordnance Factory Board, 10-A,
S.K.Bose Road, Kolkata-700001.
4. The Director, O.F.R.C, Ambajhari, Nagpur-440021.
5. Sanjeev Kumar Patel, presently working as Danger Building
Worker in Ordnance Factory, Bolangir (P) Gandapatrapalli,
Saintala, Dist. Bolangir.
6. Madhu Bhoi, presently working as Daner Building Worker
in Ordnance Factory, Bolangir (P), Gandapatrapalli,
Saintala, Dist. Bolangir.
3
7. Manish Sabharwal, presently working as Danger Building
Worker in Ordnance Factory, Bolangir (P), Gandapatrapalli,
Saintala, Dist. Bolangir.
8. Guru Charan Majhi, presently working Danger Building
Worker in Ordnance Factory, Bolangir (P), Gandapatrapalli,
Saintala, Dist. Bolangir.
9. Deepti Dubey, presently working as Danger Building
Worker in Ordnance Factory, Bolangir (P), Gandapatrapalli,
Saintala, Dist. Bolangir.
10. Ahay Singh Solanki, presently working as Danger Building
Worker in Ordnance Factory, Bolangir (P), Gandapatrapalli,
Saintala, Dist. Bolangir.
11. Shri Gedam Krishna Asaram presently working as Danger
Building Worker in Ordnance Factory, Bolangir (P),
Gandapatrapalli, Saintala, Dist. Bolangir.
12. Sunny Rkaesh Malik, presently working as Danger Building
Worker in Ordnance Factory, Bolangir (P), Gandapatrapalli,
Saintala, Dist. Bolangir.
13. Kalpati Kailash Natthu, presently working as Danger
Building Worker in Ordnance Factory, Bolangir (P),
Gandapatrapalli, Saintala, Dist. Bolangir.
14. Chaudhary Nikhil Govinda presently working as Danger
Building Worker in Ordnance Factory, Bolangir (P),
Gandapatrapalli, Saintala, Dist. Bolangir.
15. Pawan Vicky Balu, presently working as Danger Building
Worker in Ordnance Factory, Bolangir (P), Gandapatrapalli,
Saintala, Dist. Bolangir.
16. Sachin Prakash Kambale presently working as Danger
Building Worker in Ordnance Factory, Bolangir (P),
Gandapatrapalli, Saintala, Dist. Bolangir.
17. Bhoyar Shishir Nilakanth presently working as Danger
Building Worker in Ordnance Factory, Bolangir (P),
Gandapatrapalli, Saintala, Dist. Bolangir.
18. Kuber Kumar, presently working as Danger Building
Worker in Ordnance Factory, Bolangir (P), Gandapatrapalli,
Saintala, Dist. Bolangir.
19. Praveen Raj, presently working as Danger Building Worker
in Ordnance Factory, Bolangir (P), Gandapatrapalli,
Saintala, Dist. Bolangir.
4
20. Amrit Dayal, presently working as Danger Building Worker
in Ordnance Factory, Bolangir (P), Gandapatrapalli,
Saintala, Dist. Bolangir.
21. Tribhuvan Kumar presently working as Danger Building
Worker in Ordnance Factory, Bolangir (P), Gandapatrapalli,
Saintala, Dist. Bolangir.
22. Ashutosh Kumar presently working as Danger Building
Worker in Ordnance Factory, Bolangir (P), Gandapatrapalli,
Saintala, Dist. Bolangir.
23. Pappu Kumar presently working as Danger Building Worker
in Ordnance Factory, Bolangir (P), Gandapatrapalli,
Saintala, Dist. Bolangir.
24. Niranjan Kumar Das, presently working as Danger Building
Worker in Ordnance Factory, Bolangir (P), Gandapatrapalli,
Saintala, Dist. Bolangir.
25. Sakaldeep Kumar presently working as Danger Building
Worker in Ordnance Factory, Bolangir (P), Gandapatrapalli,
Saintala, Dist. Bolangir.
26. Deepak Kumar Choudhury presently working as Danger
Building Worker in Ordnance Factory, Bolangir (P),
Gandapatrapalli, Saintala, Dist. Bolangir.
27. Suman Kumar Thakur presently working as Danger Building
Worker in Ordnance Factory, Bolangir (P), Gandapatrapalli,
Saintala, Dist. Bolangir.
28. Subhash Kumar presently working as Danger Building
Worker in Ordnance Factory, Bolangir (P), Gandapatrapalli,
Saintala, Dist. Bolangir.
29. Nitesh Kumar presently working as Danger Building Worker
in Ordnance Factory, Bolangir (P), Gandapatrapalli,
Saintala, Dist. Bolangir.
30. Randhir Kumar presently working as Danger Building
Worker in Ordnance Factory, Bolangir (P), Gandapatrapalli,
Saintala, Dist. Bolangir.
31. Sonu Kumar presently working as Danger Building Worker
in Ordnance Factory, Bolangir (P), Gandapatrapalli,
Saintala, Dist. Bolangir.
32. Nitesh Kumar presently working as Danger Building Worker
in Ordnance Factory, Bolangir (P), Gandapatrapalli,
Saintala, Dist. Bolangir.
5
33. Manikant Mani presently working as Danger Building
Worker in Ordnance Factory, Bolangir (P), Gandapatrapalli,
Saintala, Dist. Bolangir.
34. Niraj Kumar presently working as Danger Building Worker
in Ordnance Factory, Bolangir (P), Gandapatrapalli,
Saintala, Dist. Bolangir.
35. Ganesh Vilas Tayade presently working as Danger Building
Worker in Ordnance Factory, Bolangir (P), Gandapatrapalli,
Saintala, Dist. Bolangir.
36. Tayade Shubham Yashwant presently working as Danger
Building Worker in Ordnance Factory, Bolangir (P),
Gandapatrapalli, Saintala, Dist. Bolangir.
37. Ninama Vijayakumar Babuibhai presently working as
Danger Building Worker in Ordnance Factory, Bolangir (P),
Gandapatrapalli, Saintala, Dist. Bolangir.
38. Vinod Kumar presently working as Danger Building Worker
in Ordnance Factory, Bolangir (P), Gandapatrapalli,
Saintala, Dist. Bolangir.
39. Rajendra Kumar Meena presently working as Danger
Building Worker in Ordnance Factory, Bolangir (P),
Gandapatrapalli, Saintala, Dist. Bolangir.
40. Abilash, presently working as Danger Building Worker in
Ordnance Factory, Bolangir (P), Gandapatrapalli, Saintala,
Dist. Bolangir.
41. Jitendra Birwa presently working as Danger Building
Worker in Ordnance Factory, Bolangir (P), Gandapatrapalli,
Saintala, Dist. Bolangir.
42. Ram Singh Bheel, presently working as Danger Building
Worker in Ordnance Factory, Bolangir (P), Gandapatrapalli,
Saintala, Dist. Bolangir.
43. Buddhi Prakash Meena, presently working as Danger
Building Worker in Ordnance Factory, Bolangir (P),
Gandapatrapalli, Saintala, Dist. Bolangir.
44. Narendra Kumar Jain, presently working as Danger Building
Worker in Ordnance Factory, Bolangir (P), Gandapatrapalli,
Saintala, Dist. Bolangir.
45. Tapas Kumar Nayak, presently working as Danger Building
Worker in Ordnance Factory, Bolangir (P), Gandapatrapalli,
Saintala, Dist. Bolangir.
46. Rajeeb Mahato presently working as Danger Building
Worker in Ordnance Factory, Bolangir (P), Gandapatrapalli,
Saintala, Dist. Bolangir.
6
47. Ashok Kumar Pradhan, presently working as Danger
Building Worker in Ordnance Factory, Bolangir (P),
Gandapatrapalli, Saintala, Dist. Bolangir.
48. Jayant Mallick, presently working as Danger Building
Worker in Ordnance Factory, Bolangir (P), Gandapatrapalli,
Saintala, Dist. Bolangir.
Through legal practitioner: Mr.R.K.Kanungo, Counsel
ORDER
MR.SWARUP KUMAR MISHRA, MEMBER (JUDICIAL):
Shorn of unnecessary details, it would suffice to state that Respondents-Department invited on line applications vide advertisement No. 1021/11/0209/1718 (Annexure-A/1) for 252 posts (UR-126, OBC-28, SC-42 and ST 56) of Danger Building Worker (in short 'DBW') fixing the last date of submission of application as 10/07/2017. The minimum essential qualification was provided as 'Matriculation with National Trade certificate/National Apprentice Certificate issued by National Council of Vocational Training (in short 'NCVT') in the Attendant Operator Chemical Plant (in short 'AOCP) or Process Plant Operator (in short 'PPO) Trade'.
As large number of candidates applied for the posts, before scrutinizing their candidatures, all the candidates were called upon to appear at the written test conducted on 10/09/2017. Based on the result of the said written test, provisional list was published and accordingly the candidates, whose names appeared in the said provisional list, were called upon for verification of documents/trade test. For this purpose a Committee was constituted. The Committee carried out the document verification at Ordnance Factory Chanda (Maharashtra) from 18/01/2018 to 24/01/2018 and provisionally selected 47 candidates to appear at the trade test for the post of DBW. Finally, OFRC provisionally published a final select list of 7 319 in various trades including names of 47 candidates who were allowed to face the trade test for the post of DBW and the names of Applicants were also there within the said 47 candidates. The reason of making the final list provisional was that the Committee was not in a position to confirm whether the education qualification (Trade Certificates) obtained by the candidates were at par/equivalent with the qualification provided in the advertisement. Thus, before issuance of the offer of appointment, vide letter dated 06/10/2018 clarification was sought from the Directorate General of Training (DGT), New Delhi to the above extent. The DGT, New Delhi vide letter dated 12/10/2018 clarified the matter. Thereafter, a Committee was again constituted at Ordnance Factory, Badmal to verify the documents of the said provisionally selected candidates. Out of 47 candidates whose names appeared at the provisional select list for the post of DBW, the Committee found 16 candidates eligible to be appointed. Being aggrieved by the said action of the Respondent- Department, 17 applicants submitted representation dated 01/11/2018 before the authority concerned. Alleging no action, the Applicants filed OA No. 542 of 2018 which was disposed of on 06/12/2018 with direction to consider and dispose of the said representation. Respondents considered the representation but rejected the same being devoid of any merit and communicated the reason of rejection to the Applicants vide letter dated 11/07/2019. Challenging and impugning final result published under Annexure-A/6, order under Annexure-A/13 dated 05/04/2019 and the executive instruction issued under Annexure-A/16 dated 17/10/2013 the instant OA has been filed by 17 (seventeen) Applicants jointly inter alia seeking the following reliefs:
"(a) Allow the OA and quash the final result (Annexure-A/6) order dated 05/04/2019 (Annexure-A/13) and the executive instruction dated 17/10/2013 8 (Annexure-A/16) and declare the same as illegal arbitrary and not sustainable in the eye of law being contrary to SRO No. 185 Rules.
(b) The Respondents be further directed to re-draw the final select list keeping in view the eligibility criteria prescribed in the SRO Rule 185 under Annexure-A/14 and the marks secured by the applicants in the written examination vis-à-vis all other candidates within a reasonable time to be stipulated by this Hon'ble Tribunal;
( c) Direct the respondents to correct the said irregularities and select the applicants as against the said posts of Danger Building Worker lying vacant at Ordnance Factory, Bolangir within a reasonable time to be stipulated by this Hon'ble Tribunal;
(d) Grant any other or further appropriate relief as deemed just, fit and proper by this Hon'ble Tribunal."
2. Despite due opportunities, private Respondent Nos. 5 to 48 have neither entered appearance nor filed any counter.
3. Respondent Department filed counter, inter alia contesting the case of the Applicants which would be stated while discussing the arguments advanced by the parties.
4. Applicants have also filed rejoinder more or less reiterating the stand taken in the OA and also trying to show as to how the stand taken in the counter filed by the Respondent-Department would not stand on the way of allowing the relief sought in the O.A which would be discussed infra.
5. Heard learned counsel for both sides through VC, perused the records and the citations relied upon by the parties..
6. Before dealing with the arguments advanced by respective parties, we would like to place on record the relevant provisions of the Rules and orders as under.
Relevant portion of the SRO 185 of 94
Sl.No. HEADINGS EXISTING SRO 185 of 94
1 Name of post Semi Skilled Workmen (list of trades at
Annexure-A&B)
2 Number of posts 16005 (1994)
9
Subject to variation dependent on work load 3 Classification Civilian in Defence Service Group D Industrial 4 Scale of pay Rs.800-15-1010-EB-20-1150 5 Whether selection or non Non selection post selection post 6 Whether benefit of added Not applicable years of service admissible under Rule 30 of CCS (Pension) Rules, 1972 7 Aged limit for direct Recuirts 30 years
8. Educational & other For the trades at Annexure-A qualificaotni required for National Council of Trades for Vocational Direct Recruits Training Certificate in the relevant trade failing which by ITI or equivalent diploma certificate holder.
9 Whether age and educational No qualification prescribed for Direct Recruits will apply in the case of promotes.
10 Period of probation if any For promotes: Nil For Direct Recruits: 2 years 11 Method of recruitment (i) For trades listed at Annexure-A-
whether by direct recruitment 80% by transfer failing which by or by deputation, absorption direct recruitment. 20% by and percentage of the posts to promotion for each trade including be filed. allied trades after adjustment of surplus;
(ii) For trades at Annexure-B-100% by
promotion for each trade including
allied trades after adjustment or
surplus and transfers. In any trade
(such as new trade on failure of
recruitment by promotion by
transfer failing which by direct
recruitment.
12 In case of recruitment by Transfer on passing trade test.
promotion/deputation/transfer
grades from which
promotion/deputation/transfer
to be made.
13 If a DPC exists what is its Not applicable
Composition
14 Circumstances in which Not applicable.
UPSC is to be consulted in
making recruitment
7. In the advertisement under Annexure-A/1 it was specifically mentioned that the candidate shall print and retain the application forms with themselves only to be produced by her/him at the time of document verification/trade test. Candidates are not required to send hard copy of application forms to the respective factory/OFRC/OFB. In so far as educational qualification is concerned it was provided as under:
Name of trade/post Qualification
Semi Skilled Workman Matriculation + National Trade
Certificate (NTC/National
Apprentice Certificate (NAC)
issued by National Council of
Vocational Training.
10
Educational and other Qualifications notified in the
advertisement under Annexure-A/17 for the post of DBEW as under:
Note: National Council of Trades for Vocational Training (NCVT) certificate in the relevant trade.
NCVT Trades relevant for the above mentioned Posts are as follows:
S.No. Codes Posts Relevant NCVT Trades
07 DAN Danger Attendant Operator (Chemical Plant)
Building Maintenance Mechanic (Chemical Plant)
Worker (SS) Auto Electrician Boiler Attendant Cable Jointer,
Carpenter, Furniture and Cabinet Maker,
Electrician, Electronics Mechanic, Instrument Mechanic (Chemical Plant), Instrument Mechanic Machinist, Mason, Mechanic Industrial Electronics, Mechanic Machine Tool, Maintenance (Millwright), Mechanic Motor Vehicle, Pipe Fitter, Fitter, Plumber, Refrigeration and Air Conditioning Mechanic, Rigger, Sheet Metal Worker, Switch Board Attendant, Tractor Mechanic, Turner, Welder, Winder (Armature), Wireman.
The letter No. 800/SRO/A/I/245 dated 17/10/2013 (Annexure-A/15) reads as under:
"Sub: Clarification regarding Educational qualification for Direct Recruitment in Semi Skilled Grade.
Ref: (i) OFB letter No. 570/A/I(PT)/54/Vol.IV/294 dated 06.01.2011;
(ii) OFB circular No. 800/SRO/A/I/245 dated 21.10.2011.
In continuation of OFB circular No. 800/SRO/A/I/245 dated 21.10.2011, it is hereby intimated that in the advertisement for Direct Recruitment to Semi Skilled Posts of Annexure-A Trades, the requisite educational qualification should be mentioned as "Matriculation + NAC/NTC issued by NCVT" without mentioning the failing which clause in the existing SRO.
2. It is once again clarified that NAC are to be treated at par for all recruitment purposes and that Diploma in Engineering without possessing NAC/NTC cannot be accepted as qualification for direct recruitment.
3. In partial modification to para 6(A) of OFB Circular No. 570/A/I(PT)/54/Vol.IV/294 dated 06.01.2011, it is intimated that wherever applications 11 for direct recruitment are being invited online, even the trade apprentices of Ordnance Factories would be required to apply on line. It is should be made amply clear in the text of the advertisement notice.
4. This issues with the approval of DGOF & Chairman."
The Letter dated 12/10/2018 (Annexure-R/4) of DGT, Govt. of India, New Delhi reads as under:
"Please refer to letter No. 1013/Manpower/Estt./OFBL/2018 dated 06.10.2018 in this regard it is informed that training programme with one year BBBT +6 months advanced module + 6 months specialized module is considered equivalent/suggested to conventional ITI trade under Craftsman Training Scheme (CTS). National Trade Certificate (NTC) in Broad Based Basic Training of 1 years duration followed by NTC Advanced modular courses of 6 months duration and certificate of specialized module in same sector of 6 month duration makes the candidates eligible Craftsman in his relevant sector duly having compatibility with the similar trades offered under Craftsman Training Scheme. The matching of NCVT approved certificates in respect of CoE scheme and Craftsman Training Scheme is as under:
S.No. Name of Trades Suggested
trade under
NCVT
National Trade 2 year of
Certificate (NTC) of One trade
year BBBT in sector of "Attendant
Chemical COE + NTC in Operator
Advance Module of any Chemical
of the following 6 Plant
months course advance (AOCP)
module in
Attendant Operator
Certificate in Specialize
Module of 6 months in
same sector.
It is observed that the copies of certificates of 47 candidates which have forwarded vide letter no. 06.10.2018 to this Directorate not indicate the completion of training. Some of the candidates has attached only NTC issued for one year while some of candidates have enclosed only NTC issued for 6 months advanced courses.
Trade 'Attendant Operator Chemical Plant (AOCP)' with duration of 2 years has suggested to equivalent only those who have completed all modules of training i.e. One year BBT + 6 months advanced module and 6 months specialized.
It is further informed that National Trade Certificate (NTC)/National Apprentice Certificate (NAC) issued for the trade 'Attendant Operator Chemical Plant (AOCP) is a recognized qualification for purpose of recruitment to subordinate pots and services under Central and State Government. However, National Apprentice Certificate (NAC) is higher qualification than National Trade Certificate (NAC)."
12
The order rejection under Annexure-A/13 dated 05/04/2019 prior to the order of this Bench in No. 542/2018 reads as under:
Point No. Comments
1 No comments
2 No comments
3 No comments
4 No comments
5 No comments
6 Final select list was declared on website of Ordnance Factory
Board on 03.08.2018 subsequently trade wise category wise and factory wise cut off marks were also declared on same web site;
7 Ordnance Factory Recruitment Centre had no role to play n change of venue for conduction of trade test from Ordnance Factory Bolangir to Ordnance Factory Chanda. Due to constraints faced by Ordnance Factory Bolangir, they sought official consent form Ordnance Factory Board for change of venue to Ordnance Factory, Chanda.
8 Central Administrative Tribunal, Cuttack order with OA No. 260/542/2018 was not received at OFRC, Ambajhari Nagpur. 9 The cut off marks for the ibid exam was published on 08.01.2019 and this had no bearing on the final select list which was already published on 03.08.2018.
10to16 Clause no. 4.1 of Advertisement No. 10201/11/0209/1718 had mentioned following:
"EDUCATOINAL QUALIFICAITONS NOTE-2:
- Trade wise relevant NAC/NTC certificates required for Direct Recruitment of Industrial employees are enclosed at Annexure-B. Further as per Annexure-B of the ibid advertisement, candidates only having NAC/NTC in Attendant Operator Chemical Plant/Process Plant Operator were eligible for the post of DBW (Danger Building Worker), and same was approved by Ordnance Factory Board. The ibid Annexure-B had details of relevant NAC/NTC qualifications required by a candidate to be eligible for all trades/post, including DBW, as published in the ibid advertisement.
- Thus, as per the ibid advertisement, a candidate could apply for the post of DBW (Danger Building Worker) only, if he possessed NAC/NTC in Attendant Operator Chemical Plant (AOCP) or Process Plant Operator (PPO) trades. However, many candidates had applied against vacancies of DBW (Danger Building Worker) posts, despite not possessing NAC/NTC in AOCP or PPO trades. It may also be noted that document verification was done only at the time of the Trade Test in the respective factories and candidature of all candidates who had failed to produce the requisite NAC/NTC certificates as per Annexure-B of the ibid advertisement were cancelled. As per the ibid advertisement only candidates with NAC/NTC in Attendant Operator Chemical Plant (AOCP) or Process Plant Operator (PPO) were eligible for DBW (Danger Building Worker) trade while the candidates with NTC/NAC in any other trade were uniformly disqualified during document verification/Trade Test.13
- It may be noted that even though all the applicants, who had signed in the ibid representation, may have scored higher marks than the cut off marks, but due to non possession of NAC/NTC certificate as per Annexure-B of the ibid advertisement these applicants were disqualified during their respective trade test/document verification.
- Further the advertisement no. 1021/11/0209/1718 is independent of previous advertisements and the ibid recruitment process, was solely based on the clauses of advertisement No. 1021/11/0209/1718, Rules and Regulations of Government of India and guidelines of Ordnance Factory Board;
- Moreover as per point no.4 of the advertisement, the candidates applying against the ibid advertisement were meant to ensure that they fulfill all eligibility conditions for the post/trade they were applying for. Their admission at all the stages of the selection procedure was meant to be purely provisional and subject to them satisfying the prescribed eligibility conditions. Mere issue of admit card to the candidate for the written examination was not meant to imply that his/her candidatures has been finally accepted by OFRC/OFB. Verification of eligibility conditions with reference to original documents was meant to be done only at the time of trade test in the respective factories.
- As per clause III of para 3 of the provisional call letters, all the candidates were 4required to bring NAC/NTC certificates for respective trades, they had applied for, as mentioned in the Annexure-B of the ibid advertisement. Clause in respect of the cancellation of candidature was also clearly mentioned in Para 5 of the ibid provisional call letters were issued to those w ho had qualified for appearing in the Trade Test/Document Verification.
- It may be noted that it is stated that in the case of Rakesh Kumar Sharma Vs Government of NCT of Delhi & Ors - [Civil Appeal No. 6116 of 2013]- Supreme Court had stated that :'It also needs to be noted that like the present applicant appellant there could be large number of candidates who were not eligible as per the requirement of rules/advertisement since they did not possesses the required eligibility on the last date of submission of the application forms. Granting any benefit to the Appellant would be violated of the doctrine of equality (Article 14), a backbone of the fundamental rights under our Constitution. A large number of such candidates may not have applied considering themselves to be ineligible adhering to the statutory rules and the terms of the advertisement.
11 and 12 It may be noted tht the advertisement No. 1021/11/0209/1718 is independent of all previous advertisements;
13 The recruitment against advertisement no.
1021/11/0209/1718 was indeed held in accordance with extant Rules & Regulations of Government of India and Guidelines of Ordnance Factory Board. Further, the ibid recruitment process had honoured the judgment of Hon'ble Madurai Bench of Madras High Court (M.Sabarinathan vs The General Manager Trichy case (WA (MD) No. 316 of 2007) 14 14 Equal opportunity was indeed provided to all the similarly qualified candidates especially Ex Trade Apprentices of Ordnance Factories; irrespective of their place of training. Further Ex trade apprentices of Ordnance Factories were indeed treated preferentially by allocation of additional 5 marks to the candidates who were Ex Trade Apprentices of Ordnance Factory. Non Ex-Trade Apprentices were also considered but afore mentioned additional 5 marks were not allocated to the candidates, who were Non Ex Trade Apprentices of Ordnance Factories.
15 Regarding instruction issued by OFB vide letter No. 800/SRO/A/245 dated 21.10.2011 please note that the same was further clarified by Ordnance Factory Board, Kolkata vide letter No. 800/SRO/A/I/245 dated 17/10/2013 that "the requisite educational qualification should be mentioned as 'Matriculation + NAC/NTC issued by NCVT without mentioning the failing which clause in the existing SRO". The ibid letter are available in public domain i.e. on website of Ordnance Factory Board. After receipt of the order in OA No. 542/2018 the Applicants was intimated vide order dated 11/07/2019 as under:
"O R D E R Whereas, Shri A. Kumar & 16 others had filed an OA No. 542/2018 before Hon'ble CAT, Cuttack Bench seeking following relief/interim relief:
'(i) To direct the Respondents to re-conduct the document verification Trade Test as per notification under Advertisement No. 10201/11/0209/1718;
(ii) During pendency of this OA, direct the Respondent No.1 to dispose of the representation dated 01/11/2018.
2. And whereas, the Hon'ble CAT, Cuttack Bench vide its order dated 06/12/2018 disposed of the said OA with following directions:
"We dispose of this OA without expressing any opinion on the merit as well as the issue of delay directing Respondent No.1 to consider and dispose of the representation of the applicants dated 01/11/2018 by passing a reasoned and speaking order which shall be communicated to the applicants within a period of three months from the date of receipt of this order."
3. And Whereas, the petitioners in their representation dated 01.1.2018 submitted that -
i) As per advertisement, verification of eligibility condition with reference to original documents is to be done only at the time of trade test in the respective factories;
ii) They had applied for the post of Danger Building Worker (DBW) in Ordnance Factory, Badmal, Orissa.
iii) By changing the venue of document verification/trade test, ordnance Factory Badmal (OFBL) clearly violates the advertisement and is beyond the power of 15 the authority who had conducted the verification/trade test at Ordnance Factory, Chanda, Maharashtra.
iv) No Corrigendum was published for change in the venue of document verification/trade test;
v) The authorities concerned in the recruitment process are adopting methods to make the recruitment for Danger Building Worker (DBW), a process for their self interested candidates by changing the venue of document verification/trade test unilaterally without obtaining the consent from OFB.
4. And whereas, factual position was ascertained from Ordnance Factory Board (OFB) as given below:
i) An advertisement was published for filling up vacancies/posts of Semi Skilled grade Industrial Employees (IEs) Group 'C' in different trades and Labour Group 'C' in various Ordnance Factories located across India. In the said advertisement, it was stated that verification of original documents will be done only at the time of Trade Test in the respective factories.
ii) Due to mass agitation organized by local people over different issues at Badmal, Orissa, the situation of normalcy could not be restored around the factory premises.
iii) On the direction of OFB vide their FAX dated 23.11.2017, Ordnance Factory, Badmal was asked to make necessary arrangements for conduct of Trade Test/Document Verification of the said posts at Ordnance Factory, Chanda, Maharastra in r/o those candidates who had qualified in the written examination so as to conduct the whole process smoothly without causing any inconvenience to the candidates;
iv) Accordingly, an online link was established in the first week of January, 2018 for the candidates (including petitioners of the said OA ) who had qualified the written examination to download their admit card for Trade Test/Document verification with deals of venue, date and time.
v) At that time, the petitioners of the said OA did not represent against the change of venue of Trade Test/Document verification and appeared for the document verification at Ordnance Factory, Chanda, Maharashtra;
vi) Since the petitioners were not in possession of the relevant Trade Certificates as per the said advertisement, they were declared ineligible for the post applied. Their candidature was rejected and they were not allowed to appear in the Trade Test. The change in venue of Trade Test/Document Verification had no bearing on the selection of the candidates including the petitioners.
16
5. AND WHEREAS, after having carefully considered the representation dated 01.11.2018 of the applicants and comments furnished by OFB thereon, it is observed that:
(i) The venue of document verification/Trade Test was changed in public interest with prior permission of OFB;
(ii) The applicants were well informed in advance of the change in the venue of Document Verification/Trade Test;
(iii) The candidates including the petitioners appeared for Document Verification/Trade Test at Ordnance Factory Chanda, Maharastra on the prescribed date and time. They did not challenge the issue of change in venue of Trade Test/Document Verification at that time.
(iv) Candidatures of the petitioners was cancelled due to non possession of the requisite Trade Certificate;
(v) The recruitment process has since been finalized by Ordnance Factory Recruitment Centre (OFRC).
6. NOW THEREFORE, the request of the applicants (i.e. Shri A.Kumar & Ors) to re conduct the Document Verification/Trade Test at Ordnance Factory, Badmal, Bolangir cannot be acceded to as it is devoid of merit. Accordingly, the representation dated 01.11.2018 of the applicants is disposed of as per the directions given by Hon'ble CAT, Cuttack Bench in 542/2018 on 06.12.2018.
7. This has the approval of Secretary (DP)."
8. The main thrust of the applicants is that the posts of Danger Budling Worker (DBW) belong to Semi Skilled to Skilled and as per the Rules framed under article 309 of the Constitution of India (SRO 185 of 94) the essential qualification for the posts, in question is NCTVT certificate in the relevant trade failing which candidates having ITI or equivalent Diploma Certificate can be considered. There is no restriction for consideration of the candidature of a candidate having no NTC/NAC certificate. Since advertisement has been issued giving the conditions stipulated in SRO No. 185 i.e. Ordinance Factories Group C and Group D Industrial Posts Recruitment Rule, 1994, the candidature of the Applicants ought not to have been rejected on the ground of lacks essential qualification. It has been contended that the authorities failed to appreciate the law that an executive instruction cannot override the statutory 17 provisions. The SRO 245 dated 17.10.2013 issued by Ministry of Defence, Ordnance Factory Board is an executive instruction and the said executive instruction cannot override the statutory provisions provided under OF Group C and Group D Industrial Posts Recruitment Rule, 1990 issued under Article 309 of the Constitution of India and therefore the rejection of the candidature of applicants is not sustainable in the eye of law. By drawing our attention to the information obtained under RTI Act, 2005, placed at Annexure-16, it has been contended that rejection of candidature of applicants based on the conditions stipulated in the executive instruction under Annexure-A/15 dated 17/10/2013 is not sustainable. The sum and substance the case of the Applicants is that in the Rule (SRO 185) the essential qualification for the post of DBW is provided as 'National Council of Trades for Vocational Training Certificate in the relevant trade failing which by ITI or equivalent Diploma certificate holder whereas in the advertisement it was mentioned 'National Council of Trades for Vocational Training (NCVT) certificate' which is contrary to Rules. It has been stated that although the applicants are having the qualification as provided in the SRO 185 and secured more than the cut off marks in the selection, Respondents rejected their case on the ground of lacking essential qualification and appointed private respondents which is bad in law. In support of their claim, they have placed reliance on the decision rendered by the Bombay Bench of the Tribunal in similar matters in OA No. 404 of 2012 disposed of on 28/01/2014 (Shri Indrapal N. Pazare and Ors vs UOI and others).
8.a On the other hand, learned counsel appearing for the Respondents have opposed the contentions advanced by the learned counsel for the Applicants and submitted that it is within the domain of the 18 Respondents to decide as to what should be the essential qualification/criteria and procedure/manner of selection for any posts. The applicants with open eyes based on the educational qualification provided in the advertisement applied and appeared at the selection. When it was found that the Applicants are lacking of the essential qualification as provided in the advertisement their candidatures were rightly rejected and, therefore, the Applicants are estopped under law to challenge on the ground that the qualification mentioned in the advertisement was contrary to the qualification provided under SRO 185. According to the Respondents the applicants cannot question violation of conditions stipulated in the advertisement before they are appointed to the posts. In so far as the decision of Hon'ble Mumbai Bench in the case of Shri Indrapal N. Parzare (supra) is concerned, by placing materials on record it has been stated that in pursuance of the order of the Hon'ble Bombay Bench the respondent- department reconsidered the case of the applicants therein and rejected the same. The said order of rejection have again been challenged before the Hon'ble Mumbai Bench in OA No. 680 of 2014 and the Mumbai Bench of the Tribunal dismissed the said OA vide order dated 28/10/2016. The Applicants challenged the said order of dismissal in WP No. 163 of 2017 before the Hon'ble High Court of Bombay which was dismissed on 22/09/2017 and again Misc. Civil Application No. 710/2018 filed by the Applicants was also dismissed on 27/07/2018. Accordingly, it has been submitted that this OA being devoid of any merit is liable to be dismissed.
9. In order to overcome the first limb of objection of the Respondents regarding locus standi of the applicants, Learned Counsel for the Respondents have placed reliance on the decision of the Hon'ble Apex 19 Court in the case of Dr. (Major) Meeta Sahai vs State of Bihar and Others in Civil Appeal No. 9482 of 2019 (Arising out of Special Leave Petition (Civil) No;. 12245 of 2017) disposed of on 17/12/2019 (Para 17 &
18). Relevant portion is quoted herein below:
"17. It is well settled that the principle of estoppel prevents a candidate from challenging the selection process after having failed in it as iterated by this Court in a plethora of judgements including Manish Kumar Shahi v. State of Bihar, observing as follows:
"16. We also agree with the High Court that after having taken part in the process of selection knowing fully well that more than 19% marks have been earmarked for viva voce test, the appellant is not entitled to challenge the criteria or process of selection. Surely, if the appellant's name had appeared in the merit list, he would not have even dreamed of challenging the selection. The appellant invoked jurisdiction of the High Court under Article 226 of the Constitution of India only after he found that his name does not figure in the merit list prepared by the Commission. This conduct of the appellant clearly disentitles him from questioning the selection and the High Court did not commit any error by refusing to entertain the writ petition."
The underlying objective of this principle is to prevent candidates from trying another shot at consideration, and to avoid an impasse wherein every disgruntled candidate, having failed the selection, challenges it in the hope of getting a second chance.
18. However, we must differentiate from this principle insofar as the candidate by agreeing to participate in the selection process only accepts the prescribed procedure and not the illegality in it. In a situation where a candidate alleges misconstruction of statutory rules and discriminating consequences arising therefrom, the same cannot be condoned merely because a candidate has partaken in it. The constitutional scheme is sacrosanct and its violation in any manner is impermissible. In fact, a candidate may not have locus to assail the incurable illegality or derogation of the provisions of the Constitution, unless he/she participates in the selection process."
10. In the above case we find that the Government of Bihar issued advertisement inviting applications from eligible candidates for filling up of vacant posts of General Medical Officer in Bihar. In the advertisement it was specifically mentioned that the process of selection will be conducted and marks will be awarded in accordance with the Rules. The Applicant applied for the General Medical Officer and appeared at the interview but declared failed, as no mark was awarded for her work experience as she 20 lacked experience in a hospital run by the Govt. of Bihar which action was challenged and the Hon'ble Apex Court holding as under:
26. In addition to this, adopting the respondents' interpretation would increase uncertainty and create practical difficulties. When Rule 2(a) is applied to 'Government hospital' there is substantial ambiguity created as to whether or not hospitals run by instrumentalities of the Government, which are not strictly owned by the Government of Bihar would be included within Rule 5. When a pointed question was put forth to learned counsel for the respondents as to whether a hospital established by the municipality or one run by an institute substantially funded by State money would be included in their definition, no clear answer was forthcoming. Such issues are bound to arise repeatedly in any selection process. Given how there is no simple answer to such questions, the rigid interpretation adopted by the Government would only lead to friction in the system and cause interpretative chaos which would undermine the fair and just right to compete for public employment."
11. In the instant case we find that the Respondents have specifically mentioned in the advertisement that the candidate must have essential qualification of National Council of Trades for Vocational Training (NCVT) certificate in the relevant trade for the post of DBW. Admittedly, the Applicants do not have such qualification. Since Applicants have participated in the process of selection knowing fully well about the required educational qualification through advertisement without any demur and subsequently it was found that the applicants do not have such qualification, the Respondents have rightly rejected their candidatures. It is trite law that each case has its own fragrance. Thus, the factual matrix of the decision relied on by the Applicants being distinct and different the same is not applicable to the present case. In the above circumstances, the Applicants are estopped under law to challenge that the conditions stipulated in the advisement was contrary to the provision of the RRs. Our said views are fortified by the decisions of the Hon'ble Apex Court in the 21 cases of Chandra Prakash Tiwari v. Shakuntala Shukla, (2002) 6 SCC 127 wherein the Hon'ble Apex Court in no uncertainty term held that when a candidate appears at an examination without objection and became unsuccessful, he is precluded from challenging the same process.
12. In so far as shifting the place of verification of documents and suitability list is concerned, we find that the reason for which the shifting of place of verification was necessitated was justified and calls no interference on the same especially because of the participation of the applicants at the new place. This point is hardly of any help to get the selection annulled when the applicant did not have the requisite qualification as per the advertisement.
13. In the case of Public Service Commission v. Hiranyalal Dev and Ors. , AIR 1988 1069 the Apex Court has held that it is the exclusive function of the selection committee as to how to categorize in the light of the relevant records and which norms to apply, in making the assessment and the Court cannot make a conjecture as to how the selection committee would have acted and as to what norms are to be applied for this purpose.
14. In the case of Praveen Singh v State of Punjab and Ors (2000) 8 SCC 633, the Hon'ble Apex Court held that in the matter of employment i.e. selection and appointment, the authority concerned has unfettered power in procedural aspect. The courts should not interfere unless the appointments so made are found to have been made at the cost of fair play, good conscience and equity which is also not the case in hand.
15. The letter dated 17/10/2013 (Annexure-A/15) was a clarification of the conditions stipulated in the Rules. In the case of A.B.Krishna and Ors v State of Karnataka and Ors, AIR 1998 SC 1050 it was held by the 22 Hon'ble Apex Court that if any matter is not touched by the Rules, the executive is competent to either issue execution instruction or to make rules under Article 309 of the Constitution of India in respect of that matter.
16. As is said 'Dura leg sed lex' which means 'the law is hard but it is the law. Even if provision causes hardship to some people, court has to implement the same. In so far as the decision of the CAT, Bombay Bench, relied on by the Applicants is confined in view of the subsequent development the same is hardly of any help to the Applicants.
17. It is trite law that when a Selection Committee recommends selection of a person, the same cannot be presumed to have been done in a mechanical manner in absence of any allegation of favouritism or bias. A presumption arises in regard to the correctness of the official act. The party who makes any allegation of bias or favouritism is required to prove the same. In the instant case, no such allegation was made. The selection process was not found to be vitiated. No illegality was brought to our notice. In this view of the same, we are of the opinion that by securing of more marks by any candidate cannot be accepted as a better candidate than the private respondent herein when the applicants did not possess the essential qualification as per the advertisement (Union of India v. Bikash Kuanar,(2006) 8 SCC 192 ).
18. Further from the facts it appears that the Applicants were very much vigilant about Rules etc even then they appeared in the process of selection with the existing conditions stipulated in the advertisement. When he could not be selected due to lack of essential qualification the applicants challenged the conditions made in the advertisement which is not permissible in law. It is also seen that no prayer has been made for 23 quashing the conditions stipulated in the advertisement. It is also seen that in the order of rejection the Respondents have dealt into all the submissions of the Applicants leaving no scope for this Tribunal to interfere with the same.
19. For the discussions made above, we find no irregularity not to speak of any iota of illegality in the matter of selection and appointment to the posts of DBW or the rejection of the candidature of the Applicants. Hence this OA stands dismissed by leaving the parties to bear their own costs.
(Swarup Kumar Mishra) (B.V.Sudhakar) Member (Judicial) Member (Admn.) saddis