Central Administrative Tribunal - Delhi
Kothamangala Bhavani vs Union Public Service Commission on 12 October, 2023
Item No. 30, 62 to 66 (C-4) 1
OA No. 1502/2021 with
OA 1539/2021 & batch
Central Administrative Tribunal
Principal Bench: New Delhi
OA No. 1502/2021
with
OA No. 1539/2021
OA No. 1629/2021 & MA No. 2198/2021
OA No. 1636/2021
OA No. 1637/2021 & MA No. 3882/2022
OA No. 1686/2021
OA No. 1687/2021
Order reserved on: 27.09.2023
Order pronounced on: 12.10.2023
Hon'ble Mr. Manish Garg, Member (J)
Hon'ble Dr. Anand S Khati, Member (A)
OA No. 1502/2021
1. Veena Vijan,
D/o Shreeram Vijan,
R/O Quarter No.-3140, Sector-8/D,
Bokaro Steel City. Bokaro,
Jharkhand-827009.
2. Midhun Kumar Duddu, S/O Raman Duddu
R/O 48-174, Main Road, Mandal- Srungav arapukota,
Village- Seethampeta, Srungavarapukota,
S.Kota, Vizianagaram, Andhra Pradesh- 535145.
3. R. Aarthy, D/O- M. Radhakrishnan,
R/O 11B/1, Vinayaga Nagar 1st Street, Melamadai,
Gandhi Nagar, Madurai, Tamil Nadu- 625060.
4. Nagendra Kumar, S/O Raj Narayan- Shah
R/OVillage & Post- Saray, Saral Patna, Bihar- 801113.
5. Banoth Venkateswarlu
S/O Balu, R/O- 3-57, Gangaram Thanda,
Anantharam Panchaithi
Julurupadu Mandalam, Kakarla, Khammam,
Andhra Pradesh- 507166.
Item No. 30, 62 to 66 (C-4) 2
OA No. 1502/2021 with
OA 1539/2021 & batch
6. Bodapati Kamala, D/O Shri Bodapati Venkata
Apparao, R/O 42-17-33. Pallapu Veedhi, Near
Railway Gate, Kotha Peta, Rajahmundry
(URBAN), East Godavari, Andhra Pradesh - 533101.
...Applicants
(By Advocates: Mr. Mayank Kshir Sagar with Mr. Rakesh
Mishra)
Versus
1. Union Public Service Commission
Through Its Secretary
Dholpur House, Shahjahan Road,
New Delhi-110003
2. Director General
Central Drugs Standard Control Organisation
(CDSCO) .
Directorate Of General Of Health Services,
Ministry Of Health & Family Welfare Govt. Of
India, FDA Bhawan, Ito, Kotla Road, New Delhi- 110002.
3. The Secretary ,
Ministry Of Health And Family Welfare
Nirman Bhawan, New Delhi.
... Respondents
(By Advocates: Mr. Naresh Kaushik with Mr. Manoj Joshi
Ms. Shikha John, Mr. Ashok Kumar)
OA No. 1539/2021
Kothamangala Bhavani, D/o K. Narayana Swamy,
R/o 17-144D3, Jagajjanani Nagar, Park Road,
Opposite Line to Water Tank,
Nandyal, Kurnool, Andhra Pradesh-518501
...Applicant
(By Advocates: Mr. Mayank Kshir Sagar with Mr. Rakesh
Mishra)
Versus
1. Union Public Service Commission
Through Its Secretary
Dholpur House, Shahjahan Road,
New Delhi-110003
Item No. 30, 62 to 66 (C-4) 3
OA No. 1502/2021 with
OA 1539/2021 & batch
2. Director General
Central Drugs Standard Control Organisation (CDSCO)
Directorate Of General Of Health Services,
Ministry of Health & Family Welfare,
Govt. Of India, FDA Bhawan, ITO, Kotla Road,
New Delhi- 110002.
3. The Secretary
Ministry of Health and Family Welfare
Nirman Bhawan, New Delhi
... Respondents
(By Advocates: Mr. Naresh Kaushik with Mr. Manoj Joshi
Ms. Shikha John, Mr. Ashok Kumar)
OA No. 1629/2021 & MA No. 2198/2021
1. Nasare Mahesh Kishor,
Plot No. 19 & 20, Sai Nilayam
Flat No. 201, Near Bachpan Play School,
Hanuman Nagar, Kondapur,
Hyderabad - 500084, Telangana
2. Lohithasu Duppala
House No. 5-22
Near Matta Street
Vijaya Nagara Colony
Srikakulam 532001
Andhra Pradesh
3. Anjan Goud Pendem
F.No. 102,Vanamali Pearl Homes,
Near Saroornagar Post Office,
Lingojiguda, Saroornagar,
Hyderabad - 500035, Telangana
...Applicants
(By Advocates: Mr. Somanatha Padhan with Ms. Saqya and Mr.
Akash, Mr. Mayank Kshir Sagar with Mr. Rakesh Mishra)
Versus
1. Union Public Service Commission
Through Secretary
Dholpur House, Shahjahan Road, New Delhi
2. Director General
Directorate Of General Of Health Services,
Item No. 30, 62 to 66 (C-4) 4
OA No. 1502/2021 with
OA 1539/2021 & batch
Ministry of Health & Family Welfare,
Govt. Of India, FDA Bhawan, ITO, Kotla Road,
New Delhi
... Respondents
(By Advocates: Mr. Naresh Kaushik with Mr. Manoj Joshi
Ms. Shikha John, Mr. Ashok Kumar)
OA No. 1636/2021
Yeshpal Singh S/o Munshiram
Aged about 34 years
R/o H.No. 41, VPO Rasulpur,
Tahsil & District - Palwal
Haryana - 121102
Roll No. 000683
...Applicant
(By Advocates: Mr. Hitendra Nath Rath, Mr. Somanatha
Padhan with Ms. Saqya and Mr. Akash, Mr. Mayank Kshir Sagar
with Mr. Rakesh Mishra)
Versus
1. Union Public Service Commission
Through Secretary
Dholpur House, Shahjahan Road,
New Delhi-110069
2. Director General
Central Drugs Standard Control Organisation (CDSCO)
Directorate Of General Of Health Services,
Ministry of Health & Family Welfare,
Govt. Of India, FDA Bhawan, ITO, Kotla Road,
New Delhi- 110002.
3. Drug Controller
Drug Control Department
Health and Family Welfare Department
Govt. of National Capital Territory of Delhi
F-17, Karkardooma, New Delhi - 110032
... Respondents
(By Advocates: Mr. Naresh Kaushik with Mr. Manoj Joshi
Ms. Shikha John, Mr. Ashok Kumar)
OA No. 1637/2021 & MA No. 3882/2022
Satveer Singh
Item No. 30, 62 to 66 (C-4) 5
OA No. 1502/2021 with
OA 1539/2021 & batch
S/o Avtar Singh
Aged about 35 years
R/o WZ 23, Third Floor, Plot No. 7,
Gali No. 1, New Sahib Pura, Tilak Nagar,
West Delhi - 110018
Roll No. 012110
...Applicant
(By Advocates: Mr. Hitendra Nath Rath, Mr. Somanatha
Padhan with Ms. Saqya and Mr. Akash, Mr. Mayank Kshir Sagar
with Mr. Rakesh Mishra)
Versus
1. Union Public Service Commission
Through Secretary
Dholpur House, Shahjahan Road,
New Delhi-110069
2. Drug Controller
Drug Control Department
Health and Family Welfare Department
Govt. of National Capital Territory of Delhi
F-17, Karkardooma
New Delhi - 110032
... Respondents
(By Advocates: Mr. Naresh Kaushik with Mr. Manoj Joshi and
Ms. Shikha John, Mr. Ashok Kumar)
OA No. 1686/2021
Rishi Kumar, S/o Sh. Mange Lal,
Age about 38 years
Post : Drugs Inspector (Group -C)
R/o 1343, Ujha Road,
Ekta Vihar Colony, Ward No. 13,
Panipat, Haryana - 132103
...Applicant
(By Advocates: Mr. Hitendra Nath Rath, Mr. Somanatha
Padhan with Ms. Saqya and Mr. Akash, Mr. Mayank Kshir Sagar
with Mr. Rakesh Mishra, Mr. Mahesh Srivastava)
Versus
1. Union Public Service Commission
Through Secretary
Item No. 30, 62 to 66 (C-4) 6
OA No. 1502/2021 with
OA 1539/2021 & batch
Dholpur House, Shahjahan Road,
New Delhi-110069
2. Director General
Central Drugs Standard Control Organisation,
Directorate Of General Of Health Services,
Ministry of Health & Family Welfare,
Govt. Of India, FDA Bhawan, ITO, Kotla Road,
New Delhi- 110002.
3. Union of India
Through the Secretary
Ministry of Health & Family Welfare
Nirman Bhawan, New Delhi.
... Respondents
(By Advocates: Mr. Naresh Kaushik with Mr. Manoj Joshi and
Ms. Shikha John, Mr. R.K. Jain)
OA No. 1687/2021
Satya Bhagath Gorityala S/o Prasad Gorityala
Aged about 33 years
R/o H.No. B-6112, PTS NTPC, Jyothinagar,
Ramagundam, Karimngar,
Telangana State, Roll No. 0000062
...Applicant
(By Advocates: Mr. Hitendra Nath Rath, Mr. Somanatha
Padhan with Ms. Saqya and Mr. Akash, Mr. Mayank Kshir Sagar
with Mr. Rakesh Mishra)
Versus
1. Union Public Service Commission
Through Its Secretary
Dholpur House, Shahjahan Road,New Delhi-110069
2. Director General
Central Drugs Standard Control Organisation (CDSCO)
Directorate Of General Of Health Services,
Ministry of Health & Family Welfare,
Govt. Of India, FDA Bhawan, ITO, Kotla Road,
New Delhi- 110002.
... Respondents
(By Advocates: Mr. Naresh Kaushik with Mr. Manoj Joshi
Ms. Shikha John, Mr. Ashok Kumar)
Item No. 30, 62 to 66 (C-4) 7
OA No. 1502/2021 with
OA 1539/2021 & batch
ORDER
Hon'ble Mr. Manish Garg:
1. With the consent of all the counsels for the respective parties in OA , the OA No.1502/2021 is taken up as lead case to adjudicate upon the issues raised in all other connected cases as the controversy revolves around identical points and all the applicants are similarly situated.
2. Learned counsel for the applicants argues that the applicants have been allowed to participate in the examination process provisionally. We also noticed that initially, the present OA was dismissed vide order dated 15.12.2021 and the same was recalled vide Order dated 21.09.2022.
3. The applicants have filed an amended OA, which was allowed vide the Tribunal's Order dated 25.07.2023. The reliefs sought in the amended OA are as under :-
"a. To quash and set aside the communication/order dated 08.07.2016 communicated via e-mail by UPSC to the applicants.
b. To direct the respondents to consider the candidature of the applicants as eligible candidates and consider the applicants for further processes of selection and considering them on merits for appointment.
c. To direct the respondents to appoint the Applicants as Drugs Inspector along with all consequential benefits as has been granted by this Hon'ble Tribunal vide order dated 23.03.2018 passed in OA No. 2390 of 2016; and d. Pass such other (s) as this Hon'ble Tribunal may deem fit and necessary in the interest of justice."Item No. 30, 62 to 66 (C-4) 8
OA No. 1502/2021 with OA 1539/2021 & batch
4. The sum and substance of the argument of learned counsel for the applicants is that the applicants are similarly situated and no differential treatment can be given qua others in earlier litigation(s) which was taken up-to the Hon'ble Apex Court. He would further argue that even the said fact has to be noticed from the angle that they have already filed an impleadment application(s) and the same was disposed off, while the SLP preferred by the respondents was dismissed. 4.1 Learned counsel for the parties do not dispute that pursuant to the implementation of the Order dated 22.03.2018 passed by the Tribunal in OA 2390/2016 and compliance of Order dated 05.04.2021 of Hon'ble Apex Court, a Revised notice for interview dated 09.08.2021 was issued by the respondents calling upon only the applicants, who were the original applicants in OA 2390/2016 to participate in the selection process.
4.2 Aggrieved by the said action, the applicants have approached the Tribunal where they were allowed to participate in the selection process provisionally. It is also highlighted that no order was passed by the Hon'ble Apex Court in the pending applications as well as caveators.
Item No. 30, 62 to 66 (C-4) 9
OA No. 1502/2021 with OA 1539/2021 & batch 4.3 We observe that the following order was passed by the Hon'ble Apex Court in the SLP No. 3437-3456/2021 on 05.04.2021:-
"We are not inclined to interfere with the orders passed by the High Court. The Special Leave Petitions are dismissed. Pending application(s), if any, shall stand disposed of."
5. Learned counsel for the respondents, opposing the grant of relief, submits that the applicants are fence sitters and they waited for a quite long. Therefore, they are not entitled for any reliefs in the present OA. He would further argue that the said decision was rendered in personam by this Tribunal which was upheld by the Hon'ble High Court and implemented by the respondents by virtue of the subsequent order passed by Hon'ble Apex Court.
5.1 Learned counsel for the respondents relied upon the judgments passed by the Hon'ble Apex Court, which are as under:-
(a) Chairman/Managing Director, U.P. Power Corporation Ltd.
& Others vs. Ram Gopal in Civil Appeal No. 852/2020 [Arising out of Special Leave Petition (Civil) No. 36253 of 2016].
(b) State of Uttar Pradesh vs. Arvind Kumar Srivastava (2015) 1 SCC 347 dated 17.10.2014.
Item No. 30, 62 to 66 (C-4) 10
OA No. 1502/2021 with OA 1539/2021 & batch
(c) J.S. Yadav vs. State of U.P. and Ors. (2011) 6 SCC 570 dated 18.04.2011.
(d) Secy., UPSC vs. S. Krishna Chaitanya in Civil Appeal No. 6349 of 2011 (Arising out of SLP (C) No. 11779 of 2011) dated 05.08.2011.
5.2 Learned counsel for the respondents would further argue that the original applicants in the earlier round of litigation in OA No. 2390/2016, ought to have been impleaded as a necessary and proper party.
5.3 Learned counsel for the respondents also pointed out that various representations were made by the applicants herein, only in the year 2021, for which an appropriate response was given on 29.06.2021 via e-mail, which reads as under :-
"I am to refer to your representation dated 22.05.21 and to say that the Commission has decided to implement the order dated 22.03.2018 of the Hon'ble CAT in Original Application No. 2390/2016 and connected matters in compliance of order dated 05.04.2021 of the Hon'ble Supreme Court of India. However, due to the prevailing conditions caused by the Novel Corona Virus (COVID - 19), the claims of the applicants would be examined by the Union Public Service Commission post normalization of the COVID-19 situation. Further details will be informed in due course of time."
5.4 We find that Annexure A-10 (colly) similarly dealt with all the applicants.
Item No. 30, 62 to 66 (C-4) 11
OA No. 1502/2021 with OA 1539/2021 & batch 5.5 Countering the arguments put forth by learned counsel for the respondents, learned counsel for the applicants in the rejoinder would argue that there is no mandate in law that the original applicants in earlier round of litigation have to be impleaded as a necessary and proper party as the result of the said applicants are yet to be declared by the UPSC, which has to be strictly as per the merit position secured by each individual candidate and not to be based on directions of the Tribunal subject to number of remaining vacancies to be filed. They have been allowed to participate in the selection process, no doubt, provisionally, but the applicants' impleadment application(s) were also pending adjudication before the Hon'ble Apex Court. 5.6 Further, learned counsel for the applicants would strengthen his arguments by referring to the reply given by Department, which reads as under :-
"It is most respectfully submitted that if the impugned order is not set aside, then as communicated by UPSC vide its letter dated 30.04.2020 to the petitioner Ministry, that if the impugned order remains un- assailed, then in pursuance of the Order, the Commission may need to revoke the recommendations of the candidates thereby jeopardizing the entire recruitment process for the post of the Drugs Inspectors in CDSCO. Further, the recommended candidates so appointed, subsequent to the advertisement dated 28.02.2015, who joined as "Drug Inspectors" and now have been appointed to the statutory post of "Inspectors" having the desired experience as stipulated in the advertisement and Recruitment Rules, 2010, will stand cancelled. This will result in cancellation of candidature of appointed candidates, who by have Item No. 30, 62 to 66 (C-4) 12 OA No. 1502/2021 with OA 1539/2021 & batch gained experience of more than 3 years now, and are critical in various legal proceedings pending in various courts all over India by virtue of being inspectors. It is to further submit that the impact of cancellation of candidature of appointed candidates based on invalidity of Recruitment Rules, 2010 as erred by the Hon'ble Court, may have very impact on CDSCO as, since on the said Recruitment Rules, 2010; appointment has previously been done in the year 2013 also and are serving the CDSCO. It is to submit that pursuant to the amended Central Drugs Standard Control Organisation (Drugs Inspector) Recruitment Rules, 1990, published through GSR 588 dated 14.11.1994, only experienced candidate has been appointed as a Drugs Inspectors to cater the need of the Organisation. Hence the present Special Leave Petition."
5.7 Similar contentions were urged by learned counsel for the UPSC before the Hon'ble Apex Court , which reads as under:-
"B. BECAUSE if the impugned order is not set aside, then the UPSC will have to cancel the recommendations provided by them to the petitioner ministry and the candidates so appointed, subsequent to the advertisement dated 28.02.2015, who joined as "Drug Inspectors" and now have been appointed to the statutory post of "Inspectors" having the desired experience as stipulated in the advertisement and Recruitment Rules, 2010, will stand cancelled. This will result in cancellation of candidature of appointed candidates, who by have gained experience of more than 5 years now, and are critical in various legal proceedings pending in various courts all over India by virtue of being Inspectors."
5.8 It is not disputed that persons already appointed pursuant to the Advertisement in the year 2015 has joined the services and are working.
Item No. 30, 62 to 66 (C-4) 13
OA No. 1502/2021 with OA 1539/2021 & batch 5.9 Learned counsel for the applicants also contended that in OA No. 2561/2018, one Shri Ankur Sharma, has been granted similar relief and was also allowed to participate in the selection process and he has been considered and was not objected to by the respondents in the ground of delay. He would also contend that as can be seen if the qualification itself was quashed by the Tribunal and done away with by the Tribunal, the judgement cannot be said to be in personam.
5.10 Learned counsel for the applicants also relied upon the judgments passed by the Hon'ble Apex Court, in support of their contention. The relied upon judgement(s) are as under:-
(a) Tukaram Kana Joshi and others vs. Maharashtra Industrial Development Corporation and others (2013) 1 SCC 353 dated 02.11.2012
(b) State of Uttar Pradesh & Ors. vs. Arvind Kumar Srivastava & Ors. in Civil Appeal No. 9849/2014 [Arising out of SLP (C) No. 18639 of 2012].
6. No other points have been urged by the learned counsel for the parties.
7. ANALYSIS 7.1 In present case, the controversy revolves around to see whether the action of the respondents in calling the applicants Item No. 30, 62 to 66 (C-4) 14 OA No. 1502/2021 with OA 1539/2021 & batch only for interview who were parties to the earlier round of litigation, is just and reasonable to deny the present applicant(s) chance to participate in selection process. In alternative, can it be said that the present applicant(s) are fence sitters. 7.2 The dictionary meaning of "fence-sitting" ( as per Merriam-Webster) is state of indecision or neutrality with respect to conflicting positions. Incorrect administrative decision cannot by any stretch of imagination construed to be having an element of fence sitting at all. 7.3 To examine the issue, we roll ourselves back to initial Judgment dated 22.3.2018 passed by the Hon'ble Tribunal in batch of cases OA No.2390/2016 and re-produce the relevant extracts of the same as under:-
"17. In view of the dictum of the aforesaid judgment and the interpretation of the statutory rules, we are of the considered opinion that the experience laid down as an essential qualification in the advertisement is without any sanction of law. Such experience is not an essential qualification/eligibility condition for the post of Drug Inspector. The only essential qualification which is to be applied for purposes of selection/appointment to the post of Drug Inspector is as prescribed under Rule 49 of Drugs and Cosmetics Rules, 1945. Any additional qualification, even if, prescribed under the recruitment rules would not operate. The rejection of the candidatures of the applicants on the strength of the recruitment rules and advertisement is unjustified, unwarranted and non est in the eyes of law.
18. These OAs are accordingly allowed. (i) The impugned rejection notices are hereby quashed. Respondent No.1 is directed to reexamine the claims of Item No. 30, 62 to 66 (C-4) 15 OA No. 1502/2021 with OA 1539/2021 & batch the applicants for selection/appointment to the post of Drug Inspector without applying the experience as notified in the advertisement (Recruitment Rules) as an eligibility condition. (ii) Since all the applicants were allowed to appear/participate in the examination, respondent No.1 would determine the merit of the applicants on the basis of marks secured by them in the written examination and interview, and such of the applicants who come within the merit, i.e., secured more marks than the cut off marks would be recommended for appointment within a period of two months from the date of receipt of copy of this order. On receipt of recommendations from respondent No.1, the respondent No.2 would issue necessary offers of appointment to the selectees/recommendees within a period of one month from the date of receipt of recommendations from UPSC and (iii) All those candidates who may be selected/appointed are entitled to the benefit of their appointment from the date the final result was notified. They will also be entitled to the notional benefit of appointment including notional fixation of their pay, increments and seniority on the basis of their merit in the selection process. They will be entitled to actual financial benefits from the date of appointment/joining."
7.4 Finally, the Hon'ble High Court in WP (C) No.2475/2019 and connected matters, while up-holding the decision of the Tribunal vide judgement dated 18.2.2020 was pleased to observe as under:-
"16. With the benefit of the above Full Bench judgment, a careful reading of Rule 49 leaves no room for doubt that as far as the eligibility criteria for appointment of an Inspector is concerned, an Inspector must have (i) Degree in Pharmacy or (ii) Degree in Pharmaceutical Science or
(iii) Degree in Medicine with specialization in Clinical Pharmacology or Microbiology from a University established in India by law. As far as the provisos are concerned, the same relate to those inspectors who are to be allowed to test substances and inspect establishments that manufacture certain drugs. The requirement of experience as stipulated in Rule 49 applies only after appointment and for the purpose of deciding whether a Item No. 30, 62 to 66 (C-4) 16 OA No. 1502/2021 with OA 1539/2021 & batch Drug Inspector is authorized to test specified substances and inspect the manufacturer of substances specified in Schedule 'C'. It is therefore impermissible in law to amend Recruitment Rules 2010 to make the requirement of experience an essential qualification for the purpose of recruitment and appointment, when such experience is not an essential qualification stipulated in Rule 49 of the Drugs and Cosmetics Rules, 1945. The inclusion of requirement of experience in the advertisement, on the strength of the Recruitment Rules, 2010 is therefore equally untenable. It would appear that by amending its Recruitment Rules, the petitioner has in a sense, amended Rule 49 which is a statutory rule. This is clearly impermissible in law.
17. In our view therefore, the Tribunal has correctly analyzed the position based upon the interpretation given in the judgment of the Full Bench of the Allahabad High court and has correctly addressed the matter.
18. To be sure, we may add that insofar as the UPSC is concerned, there is no error in their actions in relation to the recruitment process, since the UPSC is government body which only carries-out recruitment as per the mandate of the employer i.e. the user department. We may also note that no separate submissions were made in these matters by the user department, which adopted the stand of the UPSC.
19. We accordingly find that there is no merit in the writ petitions; and the same are dismissed.
7.5 The SLP against the said decision(s), was dismissed in limine vide Order dated 5.4.2021.
7.6 Even though, the respondent sought to implement the judgment(s) as stated herein, we observe that it is manner in which same is being implemented in question. We find the manner in which the decision(s) sought to be implemented is wherein the administrative decision went into an error. It cannot be said the same was just a human error but manifestly an error Item No. 30, 62 to 66 (C-4) 17 OA No. 1502/2021 with OA 1539/2021 & batch of their own making which is not only discriminatory but also arbitrary, irrational and illogical confining the same to persons who had approached the Tribunal, giving a benefit of doubt to the respondents that same might perhaps be short of deliberate and malafide intentions on following counts:-
7.6.1 The above decisions rendered by the Tribunal as well Hon'ble High Court had done away clause of essential experience. While dealing with said issue we reiterate that the Hon'ble High Court had in para 18 had observed as follows:-
18. To be sure, we may add that insofar as the UPSC is concerned, there is no error in their actions in relation to the recruitment process, since the UPSC is government body which only carries-out recruitment as per the mandate of the employer i.e. the user department. We may also note that no separate submissions were made in these matters by the user department, which adopted the stand of the UPSC.
7.6.2 Thus, there are no observations by the Hon'ble High Court confining relief(s) only to the applicants who had knocked the doors of the Court.
7.6.3 As a corrective measure, the interview call ought to have been extended to persons who stood qualified after written examination and were not shortlisted for interview for want of clause of essential experience, which already noted above was quashed and set-aside.Item No. 30, 62 to 66 (C-4) 18
OA No. 1502/2021 with OA 1539/2021 & batch 7.6.4 The respondents do not contest the claim of the applicant(s) that they initially had qualified the written examination but were not shortlisted due to the earlier stand of the respondents that they lacked requisite experience. The said requirement of requisite experience sought by the respondents was repelled till Supreme Court. In fact, the respondents agreed to implement the order(s) of the Hon'ble High Court. 7.6.5 The respondents inaction does not end up here, what we observe that the applicants cannot be said to be fence sitters and as such onus is casted upon the respondents as model employer cannot be shifted to them. More peculiar is the stand of the respondents response(s) on 29.06.2021 via e-mail, which reads as under :-
"I am to refer to your representation dated 22.05.21 and to say that the Commission has decided to implement the order dated 22.03.2018 of the Hon'ble CAT in Original Application No. 2390/2016 and connected matters in compliance of order dated 05.04.2021 of the Hon'ble Supreme Court of India. However, due to the prevailing conditions caused by the Novel Corona Virus (COVID - 19), the claims of the applicants would be examined by the Union Public Service Commission post normalization of the COVID-19 situation. Further details will be informed in due course of time."
7.6.6 Even if we were to hold that the present matter is hit by delay and latches, we find that recall order dated 21.9.2021 ought to have been challenged by the respondents before appropriate Item No. 30, 62 to 66 (C-4) 19 OA No. 1502/2021 with OA 1539/2021 & batch fora. Even Order dated 25.7.2023 allowing the amendment has not been challenged till date.
7.6.7 In facts of present case, if we go by the plain and simple interpretation of "fence sitter" we would come to a conclusion that it the respondents who had been fence sitting (un-decided) all along over decision as reflected and suggested by the respondents themselves "as the further details which were to be informed in due course of time" is still to see the light of the day till date. The stand of respondent(s) stems from idiom from rather other way around that is supporting both sides in a disagreement because you cannot make a decision or do not want to annoy or offend either side. That is why actions motivated by administrative errors have a relatively short shelf- life.
8. CONCLUSION 8.1 In view of the above discussion, we quash and set aside the inactions/actions of the respondents qua the applicant(s). 8.2 As we have allowed the applicant(s) vide interim directions, to provisionally appear in interview process and such have appeared, we direct the respondents to consider the candidature of the applicant(s) only in present OA(s) as eligible candidates and consider the applicants for further processes of Item No. 30, 62 to 66 (C-4) 20 OA No. 1502/2021 with OA 1539/2021 & batch selection and considering them for appointment strictly on merits.
8.3 In the event , the applicant(s) along-with pending selection process in order of their merits against the remaining vacancies and to direct the respondents to appoint the Applicant(s) strictly on merits in their respective categories as Drugs Inspector, if otherwise found eligible, along with all consequential benefits as has been granted by the Hon'ble Tribunal vide order dated 23.03.2018 passed in OA No. 2390 of 2016 on notional basis only from date on which last candidate was selected. The actual benefit would accrue and payable from the date of joining. 8.4 We make it clear that we are not disturbing, the candidates who had already joined pursuant to Advertisement in the year 2015 as they had been working for quite long and have gained experience over the period of time.
8.5 We further clarify that there is no impediment to respondent authorities to adjust the applicants against any anticipated vacancies or increase the number of post of Drug Inspector qua the present selection process, which are lying vacant and had been stalled due to ongoing litigation. The said filling up of anticipated or increase in the post of Drug Inspector qua the present selection process, shall be in the exclusive domain of Executive.
Item No. 30, 62 to 66 (C-4) 21
OA No. 1502/2021 with OA 1539/2021 & batch 8.6 All OA (s) are allowed in aforesaid terms. No costs. 8.7 All pending MA(s), if any, disposed of.
(Dr. Anand S Khati) (Manish Garg)
Member (A) Member (J)
/akshaya/