Central Administrative Tribunal - Ernakulam
Vijayakrishnan vs Sree Chitra Tirunal Institute For ... on 6 June, 2017
Author: P.Gopinath
Bench: P.Gopinath
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No.180/00341/2016
Tuesday, this the 6th day of June, 2017
CORAM:
HON'BLE Mr. JUSTICE N.K. BALAKRISHNAN, JUDICIAL MEMBER
HON'BLE Ms.P.GOPINATH, ADMINISTRATIVE MEMBER
1. Vijayakrishnan,
Staff Nurse-B, Employee Code No.1776,
Sree Chitra Tirunal Institute for Medical Sciences & Technology,
Thiruvananthapuram - 695 011.
2. Girija.C.,
Chief Staff Nurse, Employee Code No.1012,
Sree Chitra Tirunal Institute for Medical Sciences & Technology,
Thiruvananthapuram - 695 011.
3. Elizabeth.T.,
Chief Staff Nurse, Chief Employee Code No.739,
Sree Chitra Tirunal Institute for Medical Sciences & Technology,
Thiruvananthapuram - 695 011. . . . Applicants
(By Advocate Mrs.K.P.Geethamani)
Versus
1. Sree Chitra Tirunal Institute for Medical Sciences & Technology,
represented by Director, Thiruvananthapuram - 695 011.
2. Smt.Leena.P.K., Ward Sister,
Sree Chitra Tirunal Institute for Medical Sciences & Technology,
Thiruvananthapuram - 695 011.
3. Smt.Gracy.M.P., Ward Sister,
Sree Chitra Tirunal Institute for Medical Sciences & Technology,
Thiruvananthapuram - 695 011.
4. Smt.Shani.S.D., Staff Nurse,
Sree Chitra Tirunal Institute for Medical Sciences & Technology,
Thiruvananthapuram - 695 011.
Residing at Peace Mount, House No.1, Anupama Nagar,
Nalanchira, Thiruvananthapuram. . . . Respondents
(By Advocates Mr.T.R.Ravi [R1]
& Mr.Vishnu S Chempazhanthiyil [R4])
This application having been heard on 1 st June 2017, the Tribunal on
6th June 2017 delivered the following :
ORDER
HON'BLE Ms.P.GOPINATH, ADMINISTRATIVE MEMBER The applicants in the O.A submit that they are stagnated in the entry cadre post of Staff Nurse in Sree Chitra Tirunal Institute for Medical Sciences & Technology for several years. The respondent institution vide Annexure A-1 invited application from among in service staff Nurses for being appointed to the promotion posts of Ward Sister and Theatre Sister on 21.5.2015. Only one post each in those two category posts were notified by Annexure A-1. The 1st and 2nd applicants applied for the post of Ward Sister and 3rd applicant applied for the post of Theatre Sister. On 5.3.2016 the respondent published Annexure A-2 rank list of Ward Sister and Annexure A-3 rank list of Theatre Sister. 1 st and 2nd applicants were not included in the rank list and 3rd applicant was rank No.2 in Annexure A-3. The notified posts were filled up by appointing the 1 st rank holders in Annexure A-2 and Annexure A-3 list. While so by Annexure A-5 notification dated 5.2.2016 the respondent again notified two posts of Ward Sister and one post of Theatre Sister (from SC community only). However, vide Annexure A-6 notification dated 15.2.2016 notification inviting applications for two Ward Sister's post by Annexure A-5 was cancelled, stating administrative reasons.
2. Applicants challenge the steps being taken by the respondent to fill up the already existing two promotion post of Ward Sister from Annexure A-2 rank list by cancelling Annexure A-6 and Clause 6 of Annexure A-5 notification to the extent it relates to the filling up of only vacancy of Theatre Sister by SC candidates. They submit that the action of the respondents in not issuing a fresh notification for filling up both Ward Sister and Theatre Sister post from among general category Staff Nurses is illegal.
3. Aggrieved they approach this Tribunal seeking the following reliefs :
1. To set aside Clause 6 of Annexure A-5 notice to the extent of inviting application to the promotion post of Theatre Sister from staff nurses belonging to SC community only.
2. To set aside Annexure A-6 notification cancelling the notice inviting application from staff nurse for appointment to the post of Ward Sister notified in Annexure A-5.
3. To direct the respondent to issue fresh notification inviting application and to make appointment to the post of Ward Sister and Theatre Sister arose in the institution after Annexure A-1 notification from among general category qualified Staff Nurses working in the institution based on the criteria laid down in Annexure A-8 decision.
4. To direct the respondent not to operate Annexure A-2 rank list for filling up the post of Ward Sister which arose in the institute after Annexure A-1 notification dated 21.5.2015.
5. To direct the respondent not to take any steps to fill up the post of Theatre Sister by SC candidates based on Annexure A-5 notification.
6. To direct the 1st respondent to issue notification to fill up the vacancies of Ward Sister arose after 1.4.2016 and conduct selection in accordance with the criteria laid down in Annexure A-8, A-9 and Annexure A-10 orders.
7. To set aside Annexures A-11 and A-12 appointment orders, since the same are issued in violation of the applicants' fundamental right under Article 14 and 21 of the Constitution.
4. The respondents in their reply submit that the rules and procedures for promotion and other service conditions of the employees of the Institute are contained in the Service and Personnel Conduct Rules (SPCR) of the Institute. As per SPCR the non academic staff including the Staff Nurse are granted promotion under the non vacancy linked Modified Flexible Complementary Promotion Scheme, on completion of a residency period of 7 years in each grade. According to the revised Recruitment Rules of the Institute implemented with effect from 1.7.2012, 4 th MFCP stage was introduced with residency period of 7,7,7,7 years ie. four grade promotions are given to an employee who enters in the service of the Institute as against the 10 year residency period required for each grade promotion to the Central Government employees. In addition to MFCP scheme, the employees including staff nurse are being promoted under Vacancy Oriented Promotion based on merit.
5. The qualification and experience prescribed for VOP posts of staff nurse are as follows :
Designation Eligibility criteria for promotion
Ward Sister Promotion from Staff Nurse cadre having 5 years
experience in the Institute.
Theatre Sister Promotion from Staff Nurse cadre having 5 years
experience in the Institute.
Nursing Supervisor 3 years as Ward Sister/Theatre Sister in the Institute
or 20 years as Staff Nurse in the Institute.
Dy. Nursing 3 years as Nursing Supervisor in the Institute or 10
Superintendent years as Ward Sister/Theatre Sister in the Institute.
Since amended as per order dated 25.5.2016 as 'ten
years Nursing experience in the Institute out of
which at least 3 years in supervisory capacity subject to ratification by Governing Body'.
Nursing Officer 3 years as Dy. Nursing Superintendent in the Institute or 7 years (combined or individual experience) as Dy. Nursing Superintendent/Nursing Supervisor in the Institute.
Since amended as per order dated 25.5.2016 as 'ten years Nursing experience in the Institute out of which at least 5 years in supervisory capacity subject to ratification by Governing Body'.
From the above it is evident that the staff nurse is getting promotion regularly after completing the minimum residency period and also on merit basis. Hence the respondents argue that the applicants contention that they are not having any promotion channel is misplaced.
6. Applications were invited on 21.5.2015 as per Annexure A-1 from the Staff Nurse of the Institute with prescribed experience, for filling one promotion post each (unreserved category) of Ward Sister and Theatre Sister. A revised notification was also issued on 27.8.2015 in order to ensure that none of the eligible employees had missed to apply for their respective posts. The revised notification was issued not only for the post of Ward Sister and Theatre Sister but also for all VOP posts coming under the purview of Senior Staff Selection Committee.
7. Selection process to the post of Ward Sister & Theatre Sister was conducted through SSSC on the 15 th of October 2015 and the Governing Body of the Institute approved the same on the 5 th of November 2015. The validity of the rank list is for one year. The 1 st and 2nd applicants applied for the post of Ward Sister and the 3 rd applicant applied for the post of Theatre Sister. Thirty three candidates applied for the post of Ward Sister of which 10 were short listed for interview after written test. Even though 1 st and 2nd applicants appeared for written test, only 1 st applicant qualified for interview. Candidates who secured more than 37 marks out of 50 were short listed for interview. Since the 2 nd applicant secured less than 37 marks she was not included in the list. After interview, rank lists of four candidates each of Ward Sister and Theatre Sister were published. The Rank lists were prepared based on the performance in interview. From the above said rank list, Smt.Hepzibah Sella Rani and Smt. Sosamma Philip were promoted as Ward Sister and Theatre Sister respectively. When a vacancy of another Ward Sister arose, the 2 nd rank holder in the rank list of Ward Sister was promoted.
8. In the mean time, by an inadvertent oversight, a fresh notification for the post of Ward Sister against expected vacancies in unreserved (open) category was issued on 5th February 2016, overlooking the fact that a rank list is in force. Since a valid rank list in UR (open) was already in force it was decided to cancel the notification for the post of Ward Sister. The post of Theatre Sister was notified in UR (open) category, which was filled by promoting Smt.Sosamma Philip. The 3 rd applicant who came 2nd in the interview for the post of Theatre Sister is a general candidate. A new vacancy arose in the post of Theatre Sister which is reserved for SC candidate. As per the Rules of the Institute, the validity period of the rank list for promotion posts is one year, ie. upto 4 th November 2016. With regard to the post of Theatre Sister, notified post was reserved for SC category. Even though a valid rank list exists for Theatre Sister, appointment cannot be made from UR category, argue the respondent. The 3rd applicant who is the 2nd in the rank list for Theatre Sister will be considered for the post as and when vacancy arises in UR category.
9. Respondents argue that as per the Recruitment Rules of the Institute, the rank list for promotion post will be valid for a period of one year and that of direct recruitment will be for two years. It is submitted that the rank lists are prepared for making appointments to the vacancies that may arise during its period of validity. Notifications inviting applications are issued stating the number of expected vacancies and not actual vacancies. It is possible that expected vacancies may increase during the currency of the rank list for several reasons. Vacancies arising within the currency period of the rank list will be filled from the existing rank list, provided reservation criteria is satisfied as per rules of the Institute and Government of India. Approved rank lists for the post of Ward Sister and Theatre Sister are in line with the rules of the Institute and would continue to be valid till November 2016. Fresh notification issued during the validity period of an existing rank list was not in order and hence the same was withdrawn. New notification will be issued after expiry of the existing rank list as was done in previous years. The respondent argues that they are strictly following the rules of the Institute and also rules of Government of India in recruitment and promotion.
10. The observations made by the Hon'ble Supreme Court while dismissing the Special Leave Petition No.28488 & 29248 of 2008 in Civil Appeal Nos.1133-1135 of 2010 vide judgment dated 1.2.2010 states as follows :
It is a settled legal proposition that vacancies cannot be filled up over and above the number of vacancies advertised as the recruitment of the candidates in excess of the notified vacancies is a denial and deprivation of the constitutional right under Article 14 read with Article 16(1) of the Constitution, of those persons who acquired eligibility for the post in question in accordance with the statutory rules subsequent to the date of notification of vacancies. Filling up the vacancies over the notified vacancies is neither permissible nor desirable, for the reason, that it amounts to improper exercise of power and only in a rare and exceptional circumstance and in emergent situation, such a rule can be deviated and such a deviation is permissible only after adopting policy decision based on some rational, otherwise the exercise would be arbitrary.' The Apex Court also observed that :
' any appointment made beyond the number of vacancies advertised is without jurisdiction, being violative of Articles 14 and 16 (1) of the Constitution of India, thus, a nullity, inexecutable and unenforceable in law. In case the vacancies notified stand filled up, process of selection comes to an end. Waiting list, etc. cannot be used as a reservoir, to fill up the vacancy which comes into existence after the issuance of notification/advertisement. The unexhausted select list/waiting list becomes meaningless and cannot be pressed in service any more.'
11. The issue that appears for consideration before the Bench is, whether the applicants are entitled for appointment post Apex Court judgment that filling up of vacancies over and above the notified vacancies is neither permissible nor desirable being violative of Articles 14 & 16 of the Constitution of India. Hence any appointment in excess of the vacancies notified in Annexure A-1 would be impermissible post Apex Court judgment.
12. The respondents during argument mentioned that, the posts being one which attracted overseas employment, a rank list was necessary to be maintained to cover vacancy contingencies and ensure smooth functioning of the hospital. The rank list had a validity of one year and hence for vacancies arising subsequent to notification, the rank list was operated as the respondent institution is a hospital. The Governing Body had approved the select list on 5.11.2015 ie. before Annexure A-8 was issued and the validity is upto 4.11.2016. Further Annexure A-8 notification clearly approved the revision of eligibility criteria of experience for future evaluation by the SSSC. Hence the select list of 5.11.2015 would not be affected by Annexure A-8 order revising experience criteria for future evaluation by Senior Staff Selection Commission (SSSC) and it was issued prior to Annexure A-8 amendment.
13. The 4th respondent in the O.A has filed two M.As (M.A.No.266/2017 & M.A.No.450/2017) for a direction to the respondents to post her as Ward Sister in terms of Annexure R-4(7) or in the alternative not to fill up the said post.
14. The issue that comes up for consideration before the Bench is whether it was necessary to operate the rank list for filling vacancies beyond the notified vacancies in Annexure A-1 vacancy notification. The Apex Court while delivering its judgment in Special Leave Petition No.28488 & 29248 of 2008 observed that filling up vacancies over and above the notified vacancies is neither permissible nor desirable as it amounts to improper exercise of power, and had also observed that only in a rare and exceptional circumstance and in emergent situation, such a rule can be deviated and such a deviation is permissible only after adopting policy decision based on some rational. Considering the fact that the respondent is a premier hospital attending to the needs of cancer patients such a deviation may be permissible and was available in the form of one year validity of rank list. Further, patient care in the absence of nurses would affect their treatment. We also note that Annexure A-1 notification challenged by applicants was for Theatre Sister and Ward Sister which positions would have been necessary to provide patient care for the respondent institution. We also note that the hospital Governing Body had approved the select list on 5.11.2015 and Annexure A-8 revised experience criteria was issued on 1.4.2016 and hence there was no malafide in operating the rank list as per one year prescribed validity period which had neither been amended or set aside. Hence a policy decision already existed in the matter of operation of rank list.
15. Further respondent brings to our notice that as per SPCR of the Institute the non academic staff including the Staff Nurse are granted promotion under the non vacancy linked Modified Flexible Complementary Promotion Scheme on completion of residency period of 7 years in each grade. That is four promotions are given on completion of seven years each, and hence there is no monetary loss to applicants and others similarly placed. Hence the operation of rank list, after Annexure A-8 amendment was introduced, cannot be challenged on the ground of validity of rank list as rank list was valid for one year and on the ground of introduction of Annexure A-8. Annexure A-8 was applicable to future evaluation ie. evaluation after 1.4.2016 and hence not applicable to the impugned select list which was approved by the Governing Body on 1.4.2016. Annexure A-8, was not applicable to the evaluation challenged by the applicants, in view of its future applicability. Since the validity of the rank list was for one year, the respondent has not erred in operating the list upto the validity period. Further, while Annexure A-8 contemplates future applicability of revised experience criteria by SSSC, it has nowhere said that past selections in operation upto validity period is set aside and, from the date of issue of Annexure A-8 it becomes inoperable.
16. The rank list has now finished its validity and is no longer operable. But being a premier health care institution, it would be covered by the Apex Court definition of exceptional circumstances and emergent situation, where operating select list beyond notified vacancies was intended to be deviated.
17. In the light of what is stated above, the Original Application is dismissed. M.A.No.266/2017 & M.A.450/2017 are closed. No costs.
(Dated this the 6th day of June 2017)
(P.GOPINATH) (N.K. BALAKRISHNAN)
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
asp