Central Administrative Tribunal - Ernakulam
Tuesday This The 10Th Day Of January vs ) The Executive Engineer on 10 January, 2017
Author: P. Gopinath
Bench: P. Gopinath
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
ORIGINAL APPLICATION NO. 181/00072 of 2016
Tuesday this the 10th day of January, 2017
CORAM
Hon'ble Mr. Justice N.K.Balakrishnan, Judicial Member
Hon'ble Mrs. P. Gopinath, Administrative Member
1 Saifulla.K., Oilman,
Electrical Section, Chetlat,
Union Territory of Lakshadweep-682554.
2 Saifurrahiman S.M, Oilman
Electrical Sub Division, Kiltan,
Union Territory of Lakshadweep-682558.
3 Abdul Mukthar K, Oilman
Electrical Sub Division, Kavaratti
Union Territory of Lakshadweep -682555.
... Applicants
(By Advocate Mr. B. Unnikrishna Kaimal through Mr. PK
Madhusoodhanan)
Versus
1) The Executive Engineer,
Department of Electricity, Kavaratti
Union Territory of Lakshadweep-682555.
2) The Administrator,
Union Territory of Lakshadweep,
Kavaratti-682555.
. . . Respondents
(By Advocate Mr. S. Manu)
This application having been finally heard on 03.01.2017, the Tribunal on
10th January, 2017 delivered the following:
ORDER
Per: Justice N.K. Balakrishnan, Judicial Member The three applicants in this case have sought for a direction to be issued to the first respondents to count the service rendered by them without break and also for a direction to modify Annexure A9 check list treating that the applicants were qualified as per the Recruitment Rules. The applicants were recruited as Oilmen and they were appointed by Annexures A1 and A2 orders. They joined in service on 16.2.2009, 27.1.2009 etc. While so by Annexure R1(a) judgment the Hon'ble High Court set aside the selection process and the Administration was directed to complete the selection process on the basis of the notification already issued. It was further directed that the vacancies for the three recruitment years shall be filled separately after conducting separate selection process from among the eligible applicants who had applied for the post for the respective recruitment years. Consequent thereto the first respondent issued notice to all the appointees stating that their services will stand terminated on the appointment of the newly recruited Oilmen in the respective places without further notice, vide Annexure A3. Consequent on finalization of the revised selection process in compliance with the judgment of the Hon'ble High Court the applicants were included as Sl.Nos.5, 3 and 6 respectively vide Annexure A4. The first applicant was hence relieved from the post of Oilmen on the afternoon of 7.3.2013 and was reappointed on 8.3.2013. The 2nd applicant was thus relieved from the post on 3.3.2013 and was reappointed to the said post on 4.3.2013. The third applicant was relieved and was reappointed without any break in service as per Annexure A4 order. Thus the applicants contended that they continued to be in service though as per Annexure A4 order they were relieved on 7.3.2013 but they continued since they joined on 8.3.2013 itself. Subsequently applications were invited for filling up the post of Chargeman. The educational qualification essential for that post was Diploma in Electrical/Electronics/Mechanical Engineering of a recognized institution or equivalent and (a) SSLC pass (b) ITI/ITC National Trade Certificate etc vide Annexure A6. The notification was issued for filling up 5 posts on regular basis from the qualified local candidates of Lakshadweep Islands. The applicants applied for that post since they were well qualified for the post of Chargeman (Electrical). Annexure A9 is the Check List issued after verification of the records relating to educational qualification etc. The names of the applicants were shown in the check list. But in the check list as against the applicants it is noted as 'not qualified as per RR'. Representations were given but it was not corrected. Hence they have approached this Tribunal.
2. In the reply statement the respondents raised the following contentions:
The department invited applications by Annexure A6 notification dated 24.8.2015 for fresh appointment to five posts of Construction Foreman/Chargemann etc. The essential educational qualification is diploma in electrical/electronic/mechanical engineering of a recognized institution or equivalent or SSLC Pass and ITI/ITC National Trade Certificate etc. with five years practical experience in the relevant field under the Central/State Government undertaking. (The other portions are omitted as unnecessary). Pursuant to Annexure A6 notification 79 applications were received and after scrutiny 19 candidates were found to be qualified as per the Recruitment Rules. On 5.1.2016 the department published Annexure A9 check list. 15 days time was given to the candidates for comments. In response to Annexure A9 the first applicant submitted A10 representation on 11.1.2016 stating that he was appointed as Oilmen and joined service on 16.2.2009 and hence the remarks in the check list against his name as not qualified as per RR is incorrect. In 2009 the applicants were appointed as Oilmen in the Department of Electricity vide Annexures A1 and A2 order. However, in 2012 pursuant to the judgment of the Hon'ble High Court in WP(C) 7679/2010 and connected cases, the service of the applicants will stand terminated on the appointment of the newly recruited Oilmen. Orders were accordingly issued by the respondents. Therefore, continuous service of 5 years required for appointment as Chargeman as mentioned in Annexure A6 notification is not satisfied. The applicants applied for the post of Chargeman as departmental candidates, after obtaining no objection certificate from the department. The request made by them to grant them the benefit of service they had rendered after the appointment in 2009 cannot be allowed since that appointment was declared by the Hon'ble High Court as Illegal and invalid. Hence the applicants cannot claim any benefit out of such a service which was declared as invalid. Since the earlier select list was quashed, the entire action pursuant to that selection process must be treated as null and void. Since the select list itself was quashed by the Hon'ble High Court the applicant cannot contend that the previous service rendered by them should be reckoned for the purpose of getting appointment.
3. The point for consideration is whether the service rendered by the applicant as Oilmen (prior to the order issued pursuant to the judgment of the Hon'ble High Court) should be counted as regular service so as to enable them to be considered for appointment as Chargemen as per Annexure A6 notification issued by the respondents?
4. We have heard the learned counsel appearing on both sides. We have also gone through the pleadings and documents produced by the parties.
5. There is no dispute regarding the fact that the applicants were earlier selected and appointed. That was challenged before the Hon'ble High Court by filing Writ Petition No. 7679 of 2010. Th contention vehemently advanced by the learned counsel for the respondents is that since by Annexure R.1(a) judgment the entire selection done earlier was set aside the applicants cannot bank upon the service rendered by them pursuant to the appointment orders issued to them based on the selection process which was subsequently quashed by the Hon'ble High Court. But the applicants would submit that first of all the applicants were not parties to Anenxure R.1(a) judgment. Even if the directions contained in Annexure R.1(a) are binding on the applicants as well, since it is binding on the Administration, the fact remains that pursuant to the orders of appointment the applicants joined service on the respective dates as mentioned earlier and they continued to be in service as on the date of Annexure R1(a) and the subsequent orders passed by the Administration. Annexure R1(a) judgment was passed by the Hon'ble High Court on 30.5.2011. Annexure A3 is the order issued by the 2 nd respondent in the light of Annexure R.1(a) judgment. The applicants and others (altogether 10 appointees) were informed that their services will stand terminated on the appointment of the newly recruited Oilmen/Mazdoor in the respective places without further notice. According to the applicants Annexure A3 itself will make it clear that they were not relieved immediately but were allowed to continue in service till the appointment of the newly recruited Oilmen. It is the admitted case that all the three applicants were again got appointment and pursuant thereto again appointment orders were issued. To set the record in order, the first applicant was relieved on 7.3.2013 and he took charge again as Oilmen on 8.3.2013. Similar is the case with respect to the 2nd applicant who stood relieved on 3.3.2013 and was reappointed to the same post on 4.3.2013 again. With respect to the third applicant the position is stated to be the same. (The particulars with respect to the third applicant are not seen clearly mentioned in the Original Application).
6. The crucial question for consideration is whether there was a break in service and whether the service rendered by the applicants pursuant to the original order of appointment till they were relieved as per Annexure A4 order should be totally excluded from counting the period of service. The third applicant appears at Sl.No.6 in Annexure A4 order. The learned counsel for applicants would submit that the fact that based on Annexure R1(a) judgment the earlier selection and appointment were set side is not a ground to say that the service rendered by the applicant should be totally excluded while reckoning the total period of 5 years for the purpose of getting selected as Chargeman based on Annexure A6 notification. It is a case where these applicants were appointed after following the procedure prescribed as per the recruitment rules. The mistake committed by the 2nd respondent in the conduct of the test or examination or in the selection process cannot affect the applicants since there was no fault on their part. The very fact that those applicants were again selected and were appointed will prove positively that there would be nothing wrong in reckoning the service rendered by them as per the original order of appointment which continued till 7.3.2013/4.3.2013 as the case may be. Since on the next day itself they rejoined it should be treated that there was no break in service at all. Negation of the same would lead to injustice, the learned counsel for the applicants submits.
7. Considering the factual scenario and the further fact that the applicants were not at all at fault and since they were again selected and appointed and also because Annexure A6 notification for the post of Chargeman only requires 5 years practical experience in the relevant field under Central/State Government undertaking and since the applicants had satisfied 5 years practical experience in the relevant field; namely in the post of Oilman, the applicants must be deemed to have completed 5 years of service as required in Annexure A6 notification. If so, the rejection of the applicants' candidature on the premise that they did not have the required practical experience of five years cannot be accepted. So much so, column 6 of the check list where it is noted as against the applicants 'not qualified as per RR' has to be set aside, which we do so. The applicants must be held to have acquired the qualifying practical experience of five years. Annexure A9 check list shall be corrected accordingly and consequential orders passed holding that the applicants are eligible to be considered to the post of Chargeman as notified in Annexure A6. The recruitment process shall be finalized accordingly within two months from the date of receipt of a copy of this order. OA is allowed accordingly. No order as to costs.
(Mrs.P.Gopinath) (N.K. Balakrishnan) Administrative Member Judicial Member kspps