Central Administrative Tribunal - Ernakulam
Midhun Raj.C.U vs Union Of India on 10 January, 2017
Author: P.Gopinath
Bench: P.Gopinath
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No.180/00042/2016
Tuesday, this the 10th day of January, 2017
CORAM:
HON'BLE Mr.U.SARATHCHANDRAN, JUDICIAL MEMBER
HON'BLE Ms.P.GOPINATH, ADMINISTRATIVE MEMBER
1. Midhun Raj.C.U.,
S/o.Upendran,
Peon (Adhoc),
Central Administrative Tribunal, Ernakulam Bench.
Residing at Chullikkattil House,
Vadakkekara P.O., Neendoor, North Parur.
2. Reneesh.A.R.,
S/o.A.N.Rajan,
Peon (Adhoc),
Central Administrative Tribunal, Ernakulam Bench.
Residing at Alungal House,
Thundiparambil, Palathuruthy,
Elamkulam, Cochin - 682 020.
3. Joshy Mathew,
S/o.M.G.Mathew,
Peon (Adhoc),
Central Administrative Tribunal, Ernakulam Bench.
Residing at Mundappillil House, Perumbavoor P.O.,
Perumbavoor - 683 542.
4. Shanoj P Ajayan,
S/o.P.V.Ajayan,
Peon (Adhoc),
Central Administrative Tribunal, Ernakulam Bench.
Residing at CPWD Quarters, C-42, Block - 15,
Kunnumpuram, Kakkanad - 682 030.
5. Deleted as per order dated 10.3.2016 . . . Applicants
(By Advocate Mr.M.R.Hariraj)
Versus
1. Union of India
represented by Secretary to Government of India,
Department of Personnel and Training,
New Delhi - 110 001.
2. The Chairman,
Central Administrative Tribunal,
Principal Bench, Copernicus Marg,
New Delhi - 110 001.
3. Head of the Department,
Central Administrative Tribunal,
Ernakulam Bench, Sastha Temple Road,
Kochi - 682 017.
4. The Principal Registrar,
Central Administrative Tribunal,
Principal Bench, Copernicus Marg,
New Delhi - 110 001.
5. The Registrar,
Central Administrative Tribunal,
Ernakulam Bench, Sastha Temple Road,
Kochi - 682 017. . . . Respondents
(By Advocate Mr.T.C.Krishna,Sr.PCGC)
This application having been heard on 7 th December 2016, the
Tribunal on 10th January, 2017 delivered the following :
ORDER
HON'BLE Ms.P.GOPINATH, ADMINISTRATIVE MEMBER Applicants are aggrieved by refusal of the respondents to regularize their services. In the year 2010 there were three regular and two adhoc vacancies in the grade of MTS under the 3rd respondent. Applicants argue that the shortage in the said grade caused administrative inconvenience. Therefore the 5th respondent requested guidelines from the 2 nd respondent for filling up the available vacancies. The 2 nd respondent on 21.10.2010 directed that till amendment of the Recruitment Rules of erstwhile Group D cadre in the Tribunal, the existing rules may be followed and the vacancies in these posts may be filled up at Bench level locally through local employment exchange and also by considering applications received directly. Hence clear advice was received to fill up the posts as per existing Recruitment Rules and procedure.
2. On 17.2.2011 5th respondent issued notification to fill up vacant posts. Later, on 12.7.2011 one more vacancy of Peon resulting from promotion of an official to the post of Jamadar was added. Applicants were selected and on acceptance of such selection by the 2 nd respondent they were appointed to the post of Peon for a period of 6 months. The said appointment is extended many times and they are still continuing based on such extensions issued as approved by the 2nd respondent.
3. The representations submitted by the applicants for regularization on 10.6.2014 were forwarded to the 4th respondent requesting that the matter may be placed before the 2nd respondent and orders regarding constitution of DPC to consider their regularization be issued. On 4.7.2014 the 4 th respondent directed that the matter regarding regularization in respect of the applicants may be placed before the DPC constituted with the approval of the 3rd respondent and the minutes of the DPC, approved by the 3 rd respondent be sent for approval/ratification of the 2 nd respondent. On 13.10.2014 DPC recommended that the applicants be regularized in the grade of Peon. However, on 30.10.2014 2nd respondent desired to know whether the principles laid down in various pronouncements of Hon'ble Apex Court in making initial appointment in Government cadre and provisions of Recruitment Rules were followed while making appointment on adhoc basis. It was informed that the Recruitment Rules were followed and that vacancies were notified both to the employment exchange and on the office notice board. The 2nd respondent however on 12.11.2014 observed that notice for filling up the post must have been published in newspaper in view of various pronouncements of the Hon'ble Apex Court. Attempt was thereafter made to again notify the vacancies in the newspaper. However, the cost of the said publication was not approved by the 2 nd and 3rd respondents. The applicants have from time to time made detailed representations requesting that they be regularized.
4. The applicants argue that they have been appointed after a regular and widely publicized selection process. The recruitment was not limited only to the candidates sponsored by employment exchange. The requirement of the Hon'ble Supreme Court judgments starting from The Excise Superintendent, Malkapatnam, Krishna District, Andhra Pradesh Vs. KBN Visweswara Rao & Others (1996 (3) SCC 216) is that there should be sufficient publicity enabling those interested in applying for the vacancies to make an application. Hence candidates who applied directly are also considered along with the candidates sponsored by employment exchange. Hence giving a chance to those desirous of employment but had not registered with the Employment Exchange. All candidates who were qualified were called for selection and from among those who appeared for selection the most meritorious were selected.
5. Applicants submit that there is no justification to fault the method of selection and recruitment at this distant point of time. Opportunity was given for all interested to apply and as laid down in rules the selection procedure was followed. The applicants cannot be labelled as backdoor entrants, as they are appointed after a regular selection procedure. The refusal of the respondents to subsequently conduct a selection after publication in newspaper, for the reason that such publication is costly indicates that the original procedure followed was reasonable.
6. The applicants also argue that they have been working under the Tribunal for long years without giving any room for complaint. The duly constituted DPC as per the directions of the 2 nd respondent has found applicants fit for regular absorption. Hence, there is no reason not to accept the said recommendation and to consider the applicants for regularization. The vacancies to which the applicants were appointed are all vacancies which were available prior to the promulgation of the new Recruitment Rules which now warrant recruitment through the Staff Selection Commission. Prior to the said rules, the requirement was only for making local recruitment through employment exchange with permission to candidates applying directly to participate in the selection. After considering those who were qualified from amongst those who applied, the applicants found most suitable by the selection committee, were appointed. Hence the selection procedure was followed and the selection so made was right as per Recruitment Rules applicable when the vacancies arose. Reliefs sought by the applicants are to quash Annexure A-17 MTS vacancy notification to the extent it relate to the vacancies of Peons available in the Ernakulam Bench of the Central Administrative Tribunal occupied by them and to direct the respondents to consider them for regularization in service based on Annexure A-10 and Annexure A-11. Further to direct the respondents to permit them to continue in service as Peon, in preference to freshers and juniors.
7. Respondents in their reply submit that applicants were appointed as MTS on adhoc basis initially for a period of six months from the date of joining duties or till the posts were filled up on regular basis, whichever is earlier. The said adhoc appointments were made purely as stop gap arrangement till the posts are filled up on regular basis. In the offer of appointment issued to the applicants, among other things, it was clearly mentioned that the adhoc appointment will not bestow on them any claim whatsoever for regular appointment and the service rendered on adhoc basis would not count for the purpose of seniority in the grade and for eligibility for promotion to the next higher grade. The amended Recruitment Rules of MTS of Central Administrative Tribunal was notified vide gazette dated 30.4.2015. On 5.2.2015 the Department of Personnel and Training had also issued an Office Memorandum reiterating that the posts of MTS were required to be filled up through Staff Selection Commission only. It was under the above circumstance the Principal Bench vide Annexure A-17 letter approached the Staff Selection Commission to take appropriate action for filling up the available 11 vacancies of MTS in various Benches of the Tribunal. A proposal for regularization of 39 MTS including applicants working in various Benches of the Tribunal was taken up with the Government which was not agreed to. However, vide letter dated 15.1.2016 the Government intimated to take further course of action in the matter as per instructions contained in their previous Office Memorandums dated 23.7.2001 and 3.4.2013 as advised earlier vide letter dated 9.12.2015.
8. Heard both sides and perused the written submission made. Respondents bring to our notice that regularization of adhoc employees has been considered in several judgments of the Hon'ble Supreme Court. In the case of R.N.Nanjundappa Vs. T.Thimmaiah & Others (AIR 1972 SC 1767), the Hon'ble Supreme Court observed that regularization is not itself a mode of recruitment and any act in the exercise of executive power of the Government cannot override rules framed under 309 of the Constitution. In K.C.Joshi Vs. Union of India (AIR 1991 SC 284), the Supreme Court observed that the adhoc appointees cannot be put on a higher pedestal over the candidates who stood the test of merit and became successful in a competitive recruitment and secured ranking according to the merit in the approved list of candidates. In the case of Dr.M.A.Haque Vs. Union of India (1993 [2] SCC 213), the Supreme Court held that the Recruitment Rules made under Article 309 of the Constitution have to be followed strictly and not in breach. If a disregard of the rules and the bypassing of the Public Service Commission are permitted, it will open a back door for illegal recruitment without limit. In the case of Dr.Arundhati A Pargaon and another Vs. State of Maharashtra (AIR 1995 SC 962), the Apex Court has held that a continuous service by itself do not give rise to the claim of regularization. Respondent does not deny that the engagement of the applicants was made as per Recruitment Rules in existence at the particular point in time, and extended from time to time on the terms and conditions of service to which they were initially appointed. Applicants were appointed to a particular vacant posts by following the laid down appointment procedure. Applicants continued working for a fairly long period and it cannot be termed as a case of fortuitous or stop gap appointment.
9. Applicants argue that the vacancies to which they were appointed are in fact those which arose much before the promulgation of new Recruitment Rules. The new rules do not state that they have any retrospective application and the same cannot form the basis for the rejection of their claim. Applicants bring to our notice Annexure A-21 and Annexure A-22 RTI documents wherein the personnel appointed in Group D, (MTS) posts were regularized in the Tribunal. Applicants argue that even after 2011 ie., date of appointment of the applicants, the respondents have regularized the services of adhoc hands and the applicants are entitled to be similarly treated as per treatment extended to similarly placed persons who were regularized. The applicants argue that they are not backdoor entrants as they were recruited after regular selection procedure in accordance with the Recruitment Rules and norms prevailing when they were initially inducted to service. The only reason for terming their appointment as adhoc initially was because the Recruitment Rules were being proposed to be revised. However any such Recruitment Rules finalized can have prospective effect and cannot be made applicable retrospectively argue the applicants.
10. This is a case where applicants have been appointed by following the procedure laid down in the Recruitment Rules. The recruitment was nomenclatured adhoc as the Recruitment Rules were under revision. The vacancies, however, occurred during the currency of the old Recruitment Rules and the recruitment was also made when old Recruitment Rules were in operation. There is no doubt, as held by Tribunal in various cases that the new Recruitment Rules is applicable only with effect from the date of notification unless specifically stated otherwise. So it is not a case of backdoor entry as the procedure laid down for recruitment had been adhered to.
11. Though newspaper advertisement for the posts were not made, applicants during argument brought to our notice that for 5 posts notified 214 persons had applied. Hence the ratio of applicants to posts was 42:5 which is sufficient to have made a reasonable selection. Hence labelling this as back door would not be appropriate as there was sufficient participation to engage in a proper selection. Here the applicants bring to our notice the case of Buddhadeb Ruidas Vs. State of West Bengal, (2013) 12 SCC 221, wherein the Hon'ble Supreme Court has held that when there has been participation of 57,437 candidates as against 1446 vacancies, the lack of publication in newspapers could not be a justification to set aside the selection as a whole. The requirement of publication in media cannot be treated as a mandatory condition, the violation of which will vitiate the selection of the applicants as long as sufficient participation for the selection was available. The Hon'ble Apex Court in Buddhadeb Ruidas's case has examined a similar matter wherein 57000 and odd candidates participated and competed for 1446 posts. The ratio of participation of candidates vis-a-vis the number of posts in Ruidas's case was 1446:39 which was less than such ratio observable in this O.A. The Apex Court had held that though advertisement was essential, given the peculiar and special features of the case where such a large number of persons participated, the quashing of recruitment by Tribunal and High Court on the singular ground of not advertising was set aside. The Apex Court in para 12 of its judgment held as follows :
'12. There can be no scintilla of doubt that there was requirement of advertisement for inviting the names. However, as we perceive, the present case projects a totally different picture. The number of posts available was 1446 in Group D category. For the said posts more than 57000 candidates competed. On a query being made the learned counsel for the State would admit that the vacancies have not been filled up because of pendency of litigation. Regard being had to the special features of the case, we are inclined to set aside the order of the High Court and that of the Tribunal and we do so. We further direct the State Government to fill up the posts available from among the select list......'
12. The special features cited by Apex Court in above judgment, we note are discernible in this case before us also. The applicants in this O.A are similarly or better placed as the competition for selection was 42 candidates per post whereas in the case cited above the competition was less ie., 39 candidates per post. The recruitment sought in this O.A is challenged by respondents on the same ground of lack of newspaper advertisement like in Buddhadeb Ruidas's case. But given the fact that applicants in this O.A were selected from the point of a wider arena of competition, ie., 42 candidates per post they cannot be treated as having been selected from a lesser range of competition. They were recruited following all the terms of the Recruitment Rules pertinent and prevailing at the time of selection and appointment. The intention of resorting to newspaper advertisement as a mode of notifying vacancies, besides employment exchange and notice board, is to ensure wide participation so that a proper competition for selection can be gendered. However, we note that wide participation was not a lacuna in this case. In Buddhadeb Ruidas's case as well as in this O.A the common factor ie., newspaper advertisement was not issued for the post while selection was made will not be an impediment in the selection process in this case as a wide participation already existed. We observe that the posts attracted more than a reasonable participation thereby putting to rest the scepticism of inadequate participation.
13. The Apex Court in Y.V.Rangaiah & Ors. Vs. J Sreenivasa Rao & Ors. (AIR) 1983 SCC 852 has categorically held that vacancies which occurred prior to amended rules would be governed by old rules and not by new rules. The relevant portion of the judgment reads as under :
'9. Having heard the counsel for the parties, we find no force in either of the two contentions. Under the old rules a panel had to be prepared every year in September. Accordingly, a panel should have been prepared in the year 1976 and transfer or promotion to the post of Sub-Register Grade II should have been made out of that panel. In that event the petitioners in the two representation petitions who ranked higher than the respondents Nos. 3 to 15 would not have been deprived of their right of being considered for promotion. The vacancies which occurred prior to the amended rules would be governed by the old rules and not by the amended rules. It is admitted by counsel for both the parties that henceforth promotion to the post of Sub-Registrar Grade II will be according to the new rules on the zonal basis and not on the State-wide basis and, therefore, there was no question of challenging the new rules. But the question is of filling the vacancies that occurred prior to the amended rules. We have not the slightest doubt that the posts which fell vacant prior to the amended rules would be governed by the old rules and not by the new rules.' Hon'ble Apex Court in State of Rajasthan Vs. R.Dayal & Ors. (1997) 10 SCC 419 has held that :
'8. b�&...............An appointment made, after selection as per the procedure, to the vacancies existing prior to the amendment, is valid. But the question is: whether selection would be made, in the case of appointment to the vacancies which admittedly arose after the amendment of the Rules came into force, according to the amended Rules or in terms of Rule 9 read with Rules 23 and 24-A, as mentioned hereinbefore? This Court has considered the similar question in paragraph 9 of the judgment above cited. This Court has specifically laid that the vacancies which occurred prior to the amendment of the Rules would be governed by the original Rules and not by the amended Rules. Accordingly, this Court had held that the posts which fell vacant prior to the amendment of the Rules would be governed by the original Rules and not the amended Rules. As a necessary corollary, the vacancies that arose subsequent to the amendment of the Rules are required to be filled in in accordance with the law existing as on the date when the vacancies arose.......' (emphasis applied) And finally as recently as in (2008) 3 SCC 641 in the case of A.Manoharan & Ors. Vs. Union of India & Ors. the Hon'ble Apex Court has held that :
'16. Furthermore, Regulations have been amended only with effect from 11.08.2004. It would have a prospective effect. It cannot be applied retrospectively. Any vacancy which has arisen prior to coming into force of the said amended regulation must be filled up in terms of the law as was existing prior thereto.'
14. The question that stares at us is whether a proper selection was made with adequate participation on account of the fact that newspaper advertisement was not made. We note that the 4 th respondent in Annexure A-5 had issued permission for appointment of two candidates and had not used the term engagement. The 5 th respondent going by the term 'appointment' used, selected the applicants by following all the prescribed procedure as laid down in the Recruitment Rules for appointment and not for mere engagement. We note that the initial appointment was made as if it was being made for a regular vacancy following the provisions of Recruitment Rules in vogue and against existing regular vacancies which arose on account of promotion etc. Hence it was not an attempt to gain backdoor entry or an illegal appointment or made against non-existant posts. The applicants were again cleared by a DPC on 13.10.2014 for regularization which held that applicants fulfill the requisite qualification and conditions for appointment on regular basis. Such appointments were regularized vide Annexure A-21, Annexure A-22, Annexure A-23 and Annexure A-24 orders.
15. We find that even after 2011 ie., date of appointment of the applicants, the respondents have regularized the services of adhoc hands and the applicants argue that they are entitled to be similarly treated as per treatment extended to similarly placed persons who were regularized. It appears that it was not the intention of any respondent to deny the applicants an appointment as seen from the correspondence exchanged and placed on record. They appear to be restricted by the pending arrival of the new Recruitment Rules. But we note that the vacancies arose and existed when the old Recruitment Rules were in operation and the applicants were also selected as per terms of old Recruitment Rules applicable at the point of their selection. Hence, we do not note any fault or lacuna in their selection as per conditions laid down in old Recruitment Rules.
Accordingly the prayer in the O.A is allowed. Applicants be regularized in service with effect from the date of Annexure A-10 DPC with all consequential benefits within a period of three months from the date of receipt of a copy of this order. No costs.
(Dated this the 10th day of January 2017)
(P.GOPINATH) (U.SARATHCHANDRAN)
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
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