Central Administrative Tribunal - Delhi
Madan Gopal vs Union Of India on 5 December, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A. No.4199/2013 Reserved On:28.11.2014 Pronounced On:05.12.2014 HONBLE MR. G. GEORGE PARACKEN, MEMBER (J) HONBLE MR. SHEKHAR AGARWAL, MEMBER (A) Madan Gopal S/o Shri Bhikari Lal R/o WZ-160 Madipur Village, New Delhi-110063. Applicant By Advocate: Shri Ranbir Yadav. Versus 1. Union of India Through its Secretary, Ministry of Labour, Sharam Shastri Bhavan, Rafi Marg, New Delhi. 2. Director General, ESI Corporation, Panchdeep Bhavan, CIG Marg, New Delhi-110002. 3. Joint Director (Recruitment) ESI Corporation, Panchdeep Bhavan, CIG Marg, New Delhi-110002. 4. Director (Medical) Delhi ESI Scheme Dispensary Complex, Tilak Vihar, Tilak Nagar, New Delhi-110018. ..Respondents By Advocate: Shri Murari Kumar. ORDER
G. George Paracken, Member(J) The contention of the Applicant in this case is that the Respondents have denied him appointment as a Dresser by invoking a clause in the advertisement for the said post that the experience gained by the candidates should have been after completion of requisite educational qualification.
2. The brief facts of the case: The Respondents issued an advertisement on 17.01.2012 inviting applications to fill up 24 different posts like Staff Nurse, Physiotherapist, Radiographer, Pharmacist, Nursing Order, Dresser, Laboratory Technician etc. Applicant applied for the post of Dresser. As he had the requisite qualification of pass in Secondary/Matriculation Examination, he was allowed to compete in the examination for the said post and he qualified the same with first position securing 64 marks. The final result was declared on 22.02.2013 but his name was withheld. Later on, vide letter dated 05/10.04.2013, the Respondents informed the Applicant that his result has been withheld as he had submitted the experience certificate issued from Daya Hospital, Paschim Vihar, New Delhi as Dresser for the period from 07.05.2008 to 12.07.2010 but as per conditions of advertisement, he should have gained experience after obtaining the necessary educational qualification. However, he got his experience before passing the 10th class in the year 2011. Applicant, vide his letter dated 29.04.2013, explained to the Respondents that while he was working as a Dresser in Daya Hospital during the period from 07.05.2008 to 12.07.2010 he was preparing for his 10th class examination from open school and he passed the same in the year 2011. However, the Respondents, vide the impugned letter 29/30.05.2013, rejected his request stating the same reason. He has also stated that since he was doing his course from the Open School, he has sufficient time to work and gain experience. As the Respondents have not responded to his aforesaid representation, he made representations dated 21.06.2013 and 30.08.2013 to the Respondents to give him appointment as Dresser. Since the Respondents have not considered his request, he has filed this Original Application seeking a direction to the Respondents to quash and set aside the impugned letter dated 29/30.05.2013 and a further direction to the Respondents to appoint him to the post of Dresser immediately. In this regard, the learned counsel for the Applicant has relied upon a judgment of the Honble Supreme Court in the case of Subhash S/o Shri Ram Dhonde Vs. State of Maharashtra and Another 1995 Supp.3 SCC 232 wherein it has been held that Tribunal has committed an error relying upon a Circular to find the Applicant unqualified merely because he had acquired the experience before acquiring the Diploma. The Supreme Court also held that the Circular could not have replaced the rules framed under Article 309 of the Constitution of India. The facts of the case were that Applicant/Appellant had acquired the working experience of one year prior to acquisition of the basic qualification, namely, Diploma in Automobile Engineering. However, according to the relevant rules, the Motor Vehicles Department (Recruitment) Rules, 1991 a mere possession of working experience of at least one year in a reputed Automobile Workshop is enough. The Supreme Court has held that the rule did not make any difference between acquisition of such experience prior to or after the acquisition of the basic qualification. Accordingly, the Applicants case was allowed. Being a short order, the same is reproduced below:-
2. The tribunal has dismissed the appellant's application only on the ground that the appellant had acquired the working experience of one year prior to acquisition of the basic qualifications which in this case is diploma in Automobile Engineering. For this purpose, the tribunal relied upon the circular issued by the government. The rules, namely, the Motor Vehicles Department (Recruitment) Rules, 1991 framed under Article 309 of the Constitution show that a mere possession of the working experience of at least one year in a reputed Automobile Workshop as mentioned under Rule 3(c) is enough. The rule does not make any difference between acquisition of such experience prior to or after the acquisition of the basic qualification. What is further, the record shows that even after the acquisition of the basic qualification as mentioned in Rule 3(c), the appellant has acquired the additional experience of one year in a reputed Automobile Workshop as required even by the said circular. The tribunal has committed an error in relying upon the circular which cannot replace the rules framed under Article 309 of the Constitution. We are, therefore, of the view that the tribunal's decision is incorrect. Since the appellant satisfies the qualifications required by the rules, the decision of the tribunal has to be set aside. We accordingly set aside the impugned decision of the tribunal and direct the respondent to consider the appellant for appointment, if otherwise he satisfies the requisite qualifications including the marks obtained in the written test and the interview already held. The appeal is allowed with no order as to costs.
3. The Respondents have filed their reply reiterating their position in the impugned letter dated 29/30.05.2013. The learned counsel for the Respondents has also submitted that the Applicant has not challenged the advertisement in which a clause contrary to the Recruitment Rules was included.
4. We have heard the learned counsel for the Applicant Shri Ranbir Yadav and the learned counsel for the Respondents Shri Murari Lal. There are cases where experience can be gained only after the basic qualification is obtained. But there are also very many cases where the experience and the qualification has no relevance e.g. the experience of a Lawyer, a Medical Professional etc. can be considered as valid experience only after he/she possessed the basic qualification. But there are posts like Dresser, Laundry Operator/Assistant, Cook/Cook Mate etc. advertised by the Respondents which have no connection with the educational qualification of passing Secondary/Higher Secondary. Such experience can be obtained by anyone without having even a formal education. Therefore, the Respondents ought to have applied its mind to see whether the experience gained by the Applicant as a Dresser had anything to do that with educational qualification of passing Secondary/Higher Secondary examination. We, therefore, find that the judgment of the Apex Court in the case of Subash (Supra), squarely applies in the case of the Applicant. Accordingly, this OA is allowed and we direct the Respondents to declare the result of the Applicant notwithstanding the fact that the experience gained by him was prior to completion of requisite educational qualification. If the Applicant is found qualified, he shall be appointed as Dresser in ESIC Scheme Directorate (Medical) against the vacancy advertised on 17.01.2012 with all consequential benefits except back wages. The aforesaid direction shall be complied with, within a period of 2 months from the date of receipt of a copy of this order. However, we make it clear that in the facts and circumstances of the case, if fresh vacancies of Dresser are available with the Respondents, the candidates who have already been appointed in terms of the aforesaid advertisement dated 17.01.2012 need not be disturbed.
5. There shall be no order as to costs.
(SHEKHAR AGARWAL) (G. GEORGE PARACKEN) MEMBER (A) MEMBER (J) Rakesh