Central Administrative Tribunal - Delhi
Dr Kishore Kumar Patru Madavi vs Govt. Of Nctd on 18 January, 2016
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
OA No-4552/2014
CP No.218/2015
MA No.2427/2015
Order Reserved on 17.08.2015
Order Pronounced on: 18.01.2016
Hon'ble Mr. Sudhir Kumar, Member (A)
Hon'ble Mr. Raj Vir Sharma, Member (J)
OA-4552/2014
Dr. Kishorkumar Patru Madavi
S/o Shri Patru Madavi,
R/o 1/12 Rattan Nagar, 1st Floor,
New Rohtak Road, Karol Bagh,
New Delhi-110 005. -Applicant
Versus
1. Govt. of NCT of Delhi
Through the Chief Secretary,
5th Floor, Delhi Sachivalaya,
New Delhi.
2. A & U Tibbia College,
Through its Principal,
Ajmal Khan Road, Karol Bagh,
New Delhi, Delhi-110005.
3. Union Public Service Commission,
Through its Secretary,
Dholpur House, Shahjahan Road,
New Delhi-110069.
4. Shri Banshidhar Behera
Son of Shri Pranabandhu Behera
B-1/3, Faculty Residence, University Campus
BPSMV, Khanpur Kalan
Haryana-131 305
5. Dr. Shalini Varshney
W/o Dr. Puneet Kumar Lohia
Kathgarh Pachpera, Near Yogayashala
Moradabad, Uttar Pradesh.
2
OA No-4552/2014
CP No.218/2015
MA No.2427/2015
6. Dr. Sangeeta Mishra
D/o Shri Shyammpurti Mishra
F-1/109, Police Line
Thana Kotawali-Shadol
Madhya Pradesh-484 001
7. Dr. Nitin Jindal
S/o Shri Satish Chandra Jindal
29/144, 2nd Floor, Near Gurudwara
West Patel Nagar,
New Delhi-110 008
8. Dr. Ravi Shankar Khatri
S/o Shri Ram Swaroop Khatri
C/o Chaya Singh, N-1/59-A-1
Shivpuri Colony Lanka
Varanasi-221005
9. Ms. Neelam Gupta
W/o Shri Shalabh Kumar Gupta
CL-8, Opposite Officers Colony
In front of District Judge Bungalow
Civil Lines-1, Shahjahanpur-242 001
10. Shri Prashant Lingram Rasale
S/o Shri Lingaram G Rasale
Post- Kini, Tehsil-Bhokar
District- Nanded, Mahastra-431 801.
-Respondents
CP-218/2015
Dr. Kishorkumar Patru Madavi
S/o Shri Patru Madavi,
R/o 1/12 Rattan Nagar, 1st Floor,
New Rohtak Road, Karol Bagh,
New Delhi-110 005. -Applicant
Versus
1. Shri Kewal Kumar Sharma
Chief Secretary, GNCTD of Delhi,
5th Floor, Players Building
Delhi Secretariat, I.P. Estate,
New Delhi.
2. Shri Sanjay Gihar
3
OA No-4552/2014
CP No.218/2015
MA No.2427/2015
Principal,
A & U Tibbia College,
Ajmal Khan Road, Karol Bagh,
New Delhi, Delhi-110005.
3. Shri Awadhesh Thakur
Secretary,
Union Public Service Commission,
Dholpur House, Shahjahan Road,
New Delhi-110069. -Respondents
(By Advocate: Shri Ajesh Luthra, for applicant
Shri N.K. Singh for Mrs. Avnish Ahlawat, for Respondents
Shri Amit Yadav for Mr. Ravinder Aggarwal for
UPSC
Ms. Sriparna Chatterjee, R-4 to R-10)
ORDER
Per Sudhir Kumar, Member (A):
O.A. No.4552/2014 The applicant of this OA is aggrieved by the respondents having notified for filling up a post of Lecturer/Assistant Professor (Ayurveda) in 'Rachna Sharir' at the Ayurveda & Unani (A&U, in short) Tibbia College and Hospital of Govt. of National Capital Territory of Delhi (GNCTD, in short) through the Employment News dated 23-29.08.2014, Item No. 14 of Annexure A-1, on direct recruitment basis, as a vacancy reserved for Other Backward Classes. The applicant's grievance is that this ought to have been a vacancy reserved for ST category, to which he belongs and is fully eligible as per the Recruitment Rules (RRs, in short), and is also working against the said post since long on contractual basis. In the result, he had prayed for the following reliefs and interim reliefs:-
"Reliefs:-4
OA No-4552/2014 CP No.218/2015 MA No.2427/2015 "a) Quash and set aside the impugned advertisement of the respondents vide which the respondents seek to fill up the post of Assistant Professor/Lecturer (Ayurveda) in the discipline of 'Rachna Sharir' as an OBC reserve post;
b) Direct the respondents to forthwith advertise the said post for purposes of regular appointment by way of direct recruitment as post/vacancy reserved for ST category as per reservation policy of the Govt. of India enabling the applicant to present his candidature and compete for the appointment to the said post; and
c) pass any other order/direction which this Hon'ble Tribunal deem fit and proper in favour of the applicant and against the respondents in the facts and circumstances of the case".
Interim Reliefs:-
Pending disposal of OA, this Hon'ble Tribunal may graciously be pleased to:
"Stay the selection process to the post of Assistant Professor/Lecturer (Ayurvedic) in the subject/discipline of 'Rachna Sharir' Direct the respondents to continue the applicant's contractual engagement to the said post;
By way of an ex parte ad interim order".
2. The Interim Relief prayed for by the applicant was considered by a Coordinate Bench on 26.12.2014 when it was ordered that the respondents may go ahead with the selection process, but would not declare the result of the interview, and it was further ordered that in the meanwhile services of the applicant shall not be substituted by another 5 OA No-4552/2014 CP No.218/2015 MA No.2427/2015 contractual employee. Later on, the applicant filed CP No. 218/2015, and on 31.03.2015 it was ordered for issuance of notice in that C.P. That very day notice had also been issued in MA No.1100/2015, and the respondents were directed not to act upon any results, which may have been prepared, in the meanwhile.
3. Later, MA No. 2426/2015 was filed by certain intervenors, seeking their impleadment as Respondents No. 4 to 10 in the OA, which was not opposed by the learned counsel for the original applicant, and was allowed on 03.08.2015. Another MA No.2427/2015 had also been filed by the private respondents/intervenors, praying for modification of the interim order dated 26.12.2014 and 01.04.2015 (sic. 31.03.2015) passed by this Tribunal, in which also notice was issued on 03.08.2015, but no counter reply was filed by either the applicant or the official respondents to either of these two MAs 2426/2015 & 2427/2015.
4. MA No. 2426/2015 was allowed on 03.08.2015, and the applicants of that M.A. were allowed to be impleaded as Respondents No.4 to 10 of this OA, but MA No.2427/2015 for interim relief has now become infructuous, as the case was heard and reserved for final orders.
5. The case of the applicant is that he was appointed as Assistant Professosr (Ayurveda) in the subject of 'Sharir Rachna' on contract basis by the official respondents, through an offer of appointment dated 6 OA No-4552/2014 CP No.218/2015 MA No.2427/2015 06.05.2013 (Annexure A-3). This appointment was on the basis of the walk-in-interview held pursuant to an advertisement Annexure A-5 issued in December, 2012, by the Respondent-GNCTD, in which the post of 'Rachna Sharir' had been shown to have been reserved for ST category. The contractual engagement of the applicant had then been extended w.e.f. 03.02.2014 till 31.12.2014, or till the regular candidate selected by UPSC joins, whichever being earlier, vide order dated 09.04.2014 (Annexure A-6).
6. The applicant has submitted that even earlier also, in the year 2005, when the various posts of Lecturer (Ayurveda) were advertised by UPSC, followed by a Corrigendum thereto issued in 2008, the post of Assistant Professor (Ayurveda) in 'Rachna Sharir' was shown to be a reserved post for ST category in that Corrigendum of 2008 produced at Annexure A-7. The result of that earlier selection process was declared in the year 2008, and candidates for the posts of Assistant Professor/Lecturers in other subjects were selected, but none was found suitable for the ST post in 'Rachna Sharir' discipline. Since the vacancy had remained unfilled on regular basis, the Respondent-GNCTD sought to fill the same on contract basis, and had issued an advertisement in the month of November, 2008, whereafter the vacancy came to be filled up by the contractual engagement of one Shri Sandeep Lahange, an SC candidate. The said Shri Sandeep Lahange left the job sometime in the year 2010, because of which the respondents advertised for filling up the 7 OA No-4552/2014 CP No.218/2015 MA No.2427/2015 said post on contract basis once again, again showing that post as being reserved for the ST category, in the year 2011 through Annexure A-10. When even thereafter, once again, this post could not be filled up on a regular basis, yet another advertisement was issued by the Respondent- GNCTD in February, 2012, to fill up the post on contractual basis through Annexure A-5, in which also that post was shown as reserved for ST category. The applicant came to be engaged and appointed on contract basis only in 2013 against that post.
7. However, when, thereafter, the respondents again advertised the said post through Annexure A-4 in August 2014, they had shown the post of Assistant Professor/Lecturer in 'Rachna Sharir' to be an 'OBC' category post, and sought to fill up the same on regular basis through UPSC, as already stated above. The applicant represented against the same through Annexure A-11, but the respondents carried on with their actions as notified.
8. The process of selection/recruitment which had been undertaken earlier had been challenged. The validity of recruitment process of the vacancies at Sl. Nos.10 and 12 of the same advertisement was challenged by four persons, including the present applicant, in OA No.3108/2014, and they had claimed regularisation. However, the applicant had later got his own name deleted from that OA with liberty to file a fresh OA, which had been permitted vide order dated 05.12.2014 passed in MA 8 OA No-4552/2014 CP No.218/2015 MA No.2427/2015 No.3790/2014 at Annexure A-13. The applicant has alleged that the respondents cannot be permitted to act in an illegal manner, and defy the reservation policy of the Govt., and deny the benefits due to him, by wrongly showing the post which he seeks to be reserved for OBC category, instead of ST category.
9. In making his submissions, the applicant had taken the ground that from the past, in so many advertisements, the vacancy in question had been shown as reserved for the ST category, to which he belongs, and is fully qualified, and for which he aspires for the post by way of direct recruitment on regular basis, while he is already occupying that post on contractual basis. He further took the ground that ST category vacancy had been wrongly characterized and shown as OBC reserved category by the respondents, just to be able to deprive him from being considered for regular appointment against the said post, which he is already occupying on contractual basis. In Para-6, "Details of Remedies Exhausted", the applicant had mentioned as follows:-
"That the applicant had earlier filed an OA bearing No.3108/2014 as a co-applicant of unreserved candidate challenging the advertisement for other posts also and claiming regularization. However, vide proceedings in his MA No. 3790/2014 vide order dated 5.12.2014, the applicant has been deleted from the said OA and allowed to file a fresh OA".
10. The respondents filed their counter reply on 26.05.2015 admitting that since the concerned A&U Tibbia College, Karol Bagh is having shortage of regular teaching staff, the College is compelled to recruit 9 OA No-4552/2014 CP No.218/2015 MA No.2427/2015 teaching staff on contractual basis, till regularly selected candidates for the posts are appointed. They admitted that the applicant had been engaged as Lecturer (Ayurveda) in the subject of 'Sharir Rachna' vide letter of appointment dated 06.05.2013, purely on contractual basis, for a period of 11 months till 01.02.2014, on a consolidated remuneration of Rs.53,000/- per month, as per the prescribed terms and conditions of that contractual appointment.
11. However, as regular appointments to the posts were taking time, due to administrative reasons, the applicant's services had to be extended w.e.f. 03.02.2014 till 31.12.2014, on the same terms and conditions as laid down in the original offer of appointment, but after giving a compulsory break in such contractual appointment before his re-joining for his another fresh contractual term.
12. It was further submitted that prior to May 2013, RRs for the concerned institution had been notified only for the entry grade of Lecturers/Asstt. Professors, and no RRs existed in respect of the higher posts, like Readers/Associate Professors & Professors. Therefore, at that time it was not possible to promote/recruit anyone against the higher posts of Readers/Associate Professors & Professsors, which were vacant. It was submitted that in this backdrop, as a stop gap arrangement, in the interest of the students of the College & patients of the attached Hospital, a working roster had been prepared, combining all the 10 OA No-4552/2014 CP No.218/2015 MA No.2427/2015 sanctioned teaching posts, starting from Lecturers/Assistant Professors- Readers/Associate Professors till Professors, and the vacancies which arose in the process, were filled up by making contractual appointments as a stop gap arrangement.
13. In May 2013, the RRs in respect of the entire hierarchy for Indian System of Medicines (ISM, in short) cadres of A&U Tibbia College, Karol Bagh, were notified through Annexure R-1. After the RRs for all categories of teaching cadre posts of ISM came into existence, steps were taken to finalise the respective reservation rosters, keeping in mind the sanctioned posts, separately for each stage of the entire hierarchy of the ISM cadre and the Ayurvedic stream of medicine of this institution, and for doing this, the task was entrusted to a Committee constituted only to revise the reservation rosters. It was submitted that that Committee has now revised the cadre/post-wise reservation rosters, keeping in mind the hierarchy of each category of posts separately, as per the DoP&T guidelines, after taking into account the following factors:-
"1) The existing faculty including 16 adhoc/contractual teachers who are covered by cabinet decision No. 1403 dated 12.05.2008 of the Government under the provisions of the Rule 6(iii) of the RR's of Teaching Cadre of ISM annexed as Annexure R-1 above.
2) Allocation of subjects has been done as per the latest minimum standards prescribed by CCIM. The college has already 11 OA No-4552/2014 CP No.218/2015 MA No.2427/2015 applied to the Deptt. of AYUSH to start post graduation courses in Dravyaguna and Shalya tantra due to which the posts of Assistant Professors have been re-allocated in the subjects of Dravyaguna and Shalya.
3) Instead of combined reservation roster for the posts of Associate Professor and Professor, now separate reservation roster has been prepared as per UPSC's advice for the aforesaid posts.
4) As in earlier rosters there was no provision for reservation of PH category and now in respects of the posts identified u/Group A category, reservations are made in the subjects Maulik Siddhant & Samhita (Ayurveda) & Kulliyat (Unani) on the analogy of Ayurveda subjects".
14. It was submitted that the concerned Committee had decided to strictly follow the prescribed reservations in respect of SC, ST, OBC & PH category candidates, in respect of the Post-based Rosters in all the three levels of hierarchy in the teaching cadre, i.e., Lecturers/Assistant Professors-Readers/Associate Professors- Professors after taking into account the existing strength of the faculty, and the 16 adhoc/contractual teachers, who are covered by Cabinet decision No. 1403 dt. 12.05.08 of the Government, under the provisions of the Rule 6(iii) b of the RR's of Teaching Cadre of ISM, because of which there is a 12 OA No-4552/2014 CP No.218/2015 MA No.2427/2015 resultant change in the newly formed post based rosters, and no fault can be found with the same. It was, therefore, submitted that changes in the reservation points in respect of various categories of posts, after implementing the Committee's recommendation, was, therefore, quite obvious.
15. Offering Para-wise remarks, the respondents submitted that while factually it was a correct position prior to May 2013, when the notified RRs were not at all in existence for all category of posts, that the subject of 'Rachna Sharir' had been identified and reserved for ST category only, but now that the RRs for all the categories of posts had been notified separately, and a Post-based roster has been prepared for each category separately on the basis of sanctioned number of posts of each category, which has been prepared by Reservation Roster Finalisation Committee, constituted as per DoP&T guidelines, the vacancy demarcated for the discipline of 'Rachna Sharir' falls in OBC category only, and it has been advertised through UPSC accordingly, to be filled up through a regularly selected candidate.
16. It was also submitted that a parallel vacancy which now falls in ST category has also been advertised at Sl. No. 17 of the said advertisement, in respect of Assistant Professor (Ayurveda) in Swasthyavritta, with the intention to fill up the same by a regularly selected candidate. It was submitted that respondents have not done anything irregular or illegal, 13 OA No-4552/2014 CP No.218/2015 MA No.2427/2015 and the latest Post-based roster has been framed as per DoP&T guidelines, and in accordance with the recommendations made by a duly constituted Reservation Roster Finalization Committee, and as such the question of favouring anybody, or depriving anybody, does not arise.
17. It was further submitted that the applicant had sent a representation to various authorities, including National Commission for SC/ST, where also parallel proceedings are going on (Annexures R-3, R- 4, R-5 & R-6). With regard to not extending the applicant's contractual employment beyond 31.12.2014, it was submitted that the process to extend the services of the applicant on contractual basis, along with other similarly situated teaching staff members for a further period of 11 months, or till the regularly selected candidate joins, whichever is earlier, after giving them a compulsory break, had been adopted in respect of all categories of such contractual posts, and the applicant is only adopting dilatory tactics, even attempting to stop/delay the selection process. It was, therefore, submitted that there is no merit in the OA, and it was prayed that the OA may be dismissed.
18. The entire set of RRs newly notified through Gazette dated 03.05.2013 had been filed by the official respondents as Annexure R-1. At Annexure R-2 the respondents had filed the recommendations of the Reservation Roster Finalization Committee. The respondents had also filed through Annexure R-6, a copy of the Minutes of the Meeting held on 14 OA No-4552/2014 CP No.218/2015 MA No.2427/2015 08.12.2014 in respect of the reservation roster of the teaching faculty of the A&U Tibbia College, which meeting had been held just about 11 days prior to the filing of the present OA on 09.12.2014. We shall discuss the contents of this later.
19. The applicant filed a rejoinder to the reply of official respondents more or less reiterating his contentions. It was denied that the RRs of cover the entire hierarchy for the ISM cadre of A&U Tibbia College, Karol Bagh, after taking into account the roster. It was further denied that when earlier the adhoc/contractual appointments were being made, only a consolidated roster had been prepared, and now after notification of RRs for all the different posts in hierarchy, the post based rosters have been prepared separately.
20. It was submitted that there has been no change, as RRs for the posts of Lecturers only existed prior to May 2013 also, which posts have now been given a new designation as Asstt. Professors, and the rest are the same, and that the respondents have deliberately suppressed the earlier roster, and its implications, because even if the respondents had earlier committed a wrong by including the higher posts in the existing roster for the posts of Lecturers/Asstt. Professors then that mistake ought to be rectified in a manner that the original roster is brought back in place only by severance of the persons who did not belong to that level of posts.
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21. The applicant had thereafter filed a complete certified record of the said OA No.1105/2008 as Annexure P-1 of his rejoinder, but he did not annex the order of this Tribunal as passed in that OA. It is seen that one of the Annexures of that earlier OA No.1105/2008 dated 08.12.2005 was a judgment of the Delhi High Court in W.P. (C ) No. 5408-5412/2004 Dr. Mohd. Saleem vs. Govt. of NCT of Delhi & Ors., and three other connected Writ Petitions. He had also annexed a copy of another judgment of the Delhi High Court pronounced one week later, dated 15.12.2005, in W.P. (C) No. 5368-73/2004 Dr. Praveen Kumar & Ors. vs. Govt. of NCT of Delhi & Ors.
22. It has now been alleged that the respondents have actually played mischief in the preparation of the reservation roster deliberately, so as to accommodate the already existing contractual Doctors who had been regularized in the garb of initial constitution of service. However, it was submitted that if the reservation roster for the posts of Lecturers/Asstt. Professors had earlier existed, and if it had got polluted due to consolidation of persons holding higher posts also in that roster, then the rectification of errors caused due to such consideration could be done by severing the erroneous part, and bringing the earlier roster itself to its original shape, in a lawful manner. However, it has been alleged that the respondents had given a complete go-by to the existing reservation roster, and had gone on to prepare a fresh reservation roster illegally, 16 OA No-4552/2014 CP No.218/2015 MA No.2427/2015 when such fresh preparation of roster was not required at all, when it is trite law that roster has to be prepared only once, and it has to be a Post- based roster, which will continue for all times to come. It was, therefore, submitted that the respondents had prepared another roster unlawfully, deliberately and mischievously, which cannot be countenanced in law, whereby the position of the post falling in the subject of 'Rachna Sharir' has fallen in another reservation point, different than it had been in the original roster.
23. We shall record the arguments advanced before us, and our findings upon the pleadings and arguments placed before us a little later. Before doing that, in fact, it is essential for us to examine the facts and the pleadings of the connected Contempt Petition case also, which was heard together with this O.A. CP No.218/2015
24. The connected CP No.218/2015 had been filed by the applicant of the OA No.4552/2014 as a petitioner, stating that while vide interim/daily order dated 26.12.2014, this Tribunal had permitted the respondents to go ahead with the selection process, but it was ordered that they would not declare the result of the interview. In the CP, it has been alleged that the Respondent No.R-3-UPSC has, however, on 26.03.2015, published the result of the interview, and had even informed 17 OA No-4552/2014 CP No.218/2015 MA No.2427/2015 the selected candidates of the result, and had forwarded the dossiers of the selected candidates to R-1 GNCT of Delhi, and to R-2 the Director/Principal, A&U Tibbia College, in the second week of March, 2015, even before any reply to the OA had been filed by either of those respondents. It was alleged that respondents have thus wilfully and deliberately disobeyed and disrespected the interim orders of this Tribunal, and it was prayed to initiate contempt proceedings against the respondents, and to punish them accordingly, in the event of their failure to purge themselves of their contumacious act.
25. The respondents filed two affidavits in this C.P. The first affidavit filed on 15.07.2015 was on the affidavit of one Shri Sunil Kumar, working as Under Secretary, UPSC, who is not a named respondent/alleged contemnor in the C.P., but is a subordinate of R-3 of the CP. He had submitted that the petitioner had wrongly impleaded UPSC as a party, and that the U.P.S.C. has neither deliberately nor intentionally violated any orders passed by this Tribunal, and that a copy of the interim order dated 26.12.2014, passed by this Tribunal, was never served upon the respondent No.3-UPSC, and as such the Commission was not at all aware of the interim directions issued by this Tribunal on that date. He had, therefore, prayed that since no appointments have so far been made by the Appointing Authority, therefore, the applicant of the OA/petitioner of the CP, has not suffered any prejudice so far, and it was pleaded for the CP to be dismissed. 18
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26. The second affidavit filed on 21.07.2015 was in the form of an affidavit from Shri Amit Yadav, a counsel associated with Shri Ravinder Agarwal, learned Nodal Counsel for UPSC. He had submitted in his affidavit that on 26.12.2014, he had appeared on behalf of the Respondent-No.3-UPSC during the hearing of the OA, when this Tribunal was pleased to pass an interim order, and direct that the Respondent No.3-UPSC can continue with the recruitment process, but, however, the result shall not be declared till further orders. He had submitted that he could not comprehend the precise order as had been dictated by the Tribunal, and as such the interim directions given by this Tribunal were not communicated by him to the Respondent No.3 Commission, and that the Commission was, therefore, not at all aware of the interim directions issued by this Tribunal. The deponent counsel Shri Amit Yadav has submitted that the error on his part was inadvertent, and for this he had tendered an unconditional apology. A counsel is an officer of the Court, and we have to give due/proper weightage to his submission on oath, in the form of an affidavit.
27. A case of contempt arises only if there is a contumacious act on behalf of respondents, which means wilful disobedience of the orders of this Tribunal, after having known about those orders. In this case the learned proxy counsel who was present before the Bench on 26.12.2014 has himself stated on oath that he could not comprehend the precise 19 OA No-4552/2014 CP No.218/2015 MA No.2427/2015 order dictated by the Tribunal, and as such the interim directions issued by the Tribunal that day were not communicated by him to the Respondent No.3-UPSC, and, therefore, Respondent No.3-UPSC was not at all aware of the directions issued by this Tribunal. It appears that in the absence of any knowledge about the specific directions issued by this Tribunal on 26.12.2014, the respondent No.3 U.P.S.C. cannot be said to have wilfully disobeyed the orders of this Tribunal. The petitioner of the C.P. did not serve a copy of that interim order upon all the three Respondents of his O.A. Therefore, he cannot be allowed to plead that the Respondent No.3- UPSC was ware and still went ahead and acted in disobedience of those orders. And, in any case, he has not alleged any disobedience, wilful, or otherwise, of those interim directions of this Tribunal on the part of Respondents No.R-1&2 of the O.A.
28. As had been held in the case of Churchman vs. Joint Shop Stewards Committee (1972) 1 WLR 1094, in holding that there has been a contempt, by breach of an order, personal service of that order upon the respondent/alleged contemnor is actually necessary to be first established. It was further held in Re-Bramblevale Ltd. (1970) Ch. 128, through Lord Denning M.R. stating that due service of the order alleged to have been disobeyed is necessary, so that the breach itself could be clearly established. It was further held in Heaton's Transport vs. T.G. W.U. (1973) AC 15; Stancomb, v. Trowdribge Urban District Council (1910) 2 Ch. 190, and in Govindaswamy vs. Subba Reddy, 20 OA No-4552/2014 CP No.218/2015 MA No.2427/2015 Asst. Commissioner of Endowments (1986) 1 AL 81 (NRC), that when a prohibited act is done, unless it is accidental, the contempt is established. In such cases, it is not necessary to prove that the act was contumacious, i.e., deliberately intended to disobey the order, and mens rea, therefore, need not be proved. But, it was further held in these cases that want of mens rea may be taken as an extenuating factor. It has been held in Narappa Reddy vs. Chandra Mouli AIR (1955) All. 483, that for establishing/making out a case of contempt, no specific criminal intent is required to be established beyond disobedience of the order, after knowing of its existence. However, knowing about the existence of the order was held to be essential. It was further held in Suresh vs. Tewari (1983) Cr. LJ 537 (All) Full Bench Aligarh Municipality V.B.T. Mazdoor Union AIR (1970) SC 1767 that notice only to the standing Counsel of the Government is not sufficient notice to the Government to impute mens rea to it.
29. In view of these specific findings of the British Courts, as well as Indian Courts, when the Counsel who was present in the Court has stated on oath that he did not even inform the respondents about the directions issued by the Tribunal, and the petitioner-applicant also did not serve copies of those interim orders upon the Respondents, it cannot be termed that there was sufficient notice to the Respondent No.3 UPSC, in order to be able to impute mens rea to it. Since the use of the word willful introduces an element of mens rea even in the definition of civil 21 OA No-4552/2014 CP No.218/2015 MA No.2427/2015 contempt, any wrongful act will be punishable under the Contempt of Courts Act only if the intention to act against the order after its having been communicated, or the mens rea, is superadded to it, without which it cannot be alleged that there has been a wilful disobedience to the orders of the Court, as had been explained by Bramwell, L.J., in Lewis vs. The Great Western Railway Company (1877) 3 QBD 195.
30. In the case of Worthington vs. Ad-lib Club, Ltd. (1897) WN 7 Stirling, J., had come to the conclusion that for enforcing any judgment or order, it was necessary to establish a contumacious disregard of an order communicated to the authority concerned. It was further held by Chitty, J., that any disobedience, which was worse than casual, accidental or unintentional, must alone be regarded as willful, as held in Attorney General vs. Walthamstow Urban District Council (1895) 11 TLR 533. Browen, L.J., had in Young and Harston's Contract (1855) 31 Ch. D. 168, held that willful has the same meaning in the law of contempt as in the other branches of the law, which is that for which a compulsion, or ignorance, or accident, cannot be pleaded as an excuse, and it has to be intentional, or deliberate, after knowledge of that order having been passed by the Court.
31. We find that in this case since the learned counsel for the Respondent No.R-3 UPSC had not intimated the contents of the order dated 26.12.2014 to the Respondent No.R-3 UPSC, as per the affidavit 22 OA No-4552/2014 CP No.218/2015 MA No.2427/2015 filed by him, and as per the affidavit filed on behalf of UPSC on 15.07.2015 also, in which any knowledge of the said direction dated 26.12.2014 has been denied on behalf of R-3 UPSC, we accept the submission of the learned counsel Shri Amit Yadav, and on the basis of his affidavit, and in view of the case law as decided by the British and Indian Courts as cited above, the Contempt Petition is closed, and the notices issued in the CP No.218/2015 are discharged. Discussion on the OA No.4552/2014
32. We have had occasion to peruse the file of OA No.3108/2014, which is still pending adjudication before this Tribunal. In that O.A., the present petitioner/applicant had joined as applicant No.4, praying firstly for quashing and setting aside the impugned advertisement itself, and then seeking directions upon the respondents to consider the cases of the four applicants, who had initially joined together in filing that OA, for their regularization on their respective posts, in view of the policy of the Central Council of Indian Medicines (CCIM in short), keeping in view their past meritorious services, and records, and also further seeking directions that the services of the applicants shall not be discontinued, and they should be granted all the benefits as granted to the regular employees in terms of the orders passed by this Tribunal on 08.05.2000 in OA NO.2108/1999. The prayer of those four applicants for joining together had initially been allowed.
23
OA No-4552/2014 CP No.218/2015 MA No.2427/2015
33. But then MA No.3790/2014 was filed by the present applicant in that still pending No.3108/2014, on the ground that even though he was a co-applicant in that OA, he has more grounds in his favour than those which had been raised in that OA, since he is an ST candidate, which ground is not available to the other three applicants (A-1 to A-3), as they are UR candidates. He had, therefore, prayed through that M.A. No.3790/2014, for being permitted to withdraw from that OA, in order to enable him to file a separate and better OA, and he had prayed for deletion of his name from that OA, by allowing him to withdraw himself from that OA, and file a fresh OA. That MA had been considered by a Coordinate Bench on 05.12.2014, and for the reasons stated therein, that MA was allowed, and the name of the present applicant had been deleted from the array of parties in that OA, though, most of the portions of the prayers as made out in the present OA are the same as the prayers in that earlier OA also, from which the present applicant got his name deleted.
34. An MA-2426/2015 came to be filed thereafter by seven intervenors, seeking to be impleaded as opposite party respondents in this O.A. It was submitted by the seven applicants of that M.A. that since the grievance and the claims of the applicant of the present O.A. related only to the post of Assistant Professor/Lecturer (Ayurveda) in the discipline of 'Rachna Sharir', and did not pertain to the rest of the selections in the other different disciplines of the Respondent College, this Tribunal could 24 OA No-4552/2014 CP No.218/2015 MA No.2427/2015 not have actually intended to direct the respondents through its interim orders in the O.A. not to declare the result of the interviews of the selection in respect of the other disciplines, and, subsequently, the results have been declared by the respondents, which had led to the filing of the CP No.218/2015, already disposed of above. It was submitted that while in the present original application, the order passed by this Tribunal at the admission stage related to the applicant's services in his discipline alone, the interim order passed in CP No.218/2015 on 01.04.2015 had had a greater impact than the original interim order of the stay granted in the O.A., as the respondents were now restrained from acting upon any results whatsoever.
35. They had pointed out that 9 posts of Assistant Professors in various disciplines had been advertised through a single advertisement, and the case of the applicant related to a single post in the discipline of 'Sharir Rachna', and in the OA also there is no contention, allegation or challenge with regard to the other 8 Medical disciplines, and, therefore, it was submitted that the intervenors are suffering, as the official respondents are not allowing them to join, in view of the order passed by this Tribunal dated 01.04.2015 (supra). It was also submitted that the rights of the proposed respondents/intervenors are being affected on account of the pendency of the present OA, and the C.P., and, therefore, they are necessary and proper parties for being impleaded as party respondents, as, otherwise, irreparable harm will be caused to them, and 25 OA No-4552/2014 CP No.218/2015 MA No.2427/2015 it had been prayed that they may be impleaded as Respondents No.4 to 10 in the present OA. This MA was allowed on 03.08.2015, but, however, the interim orders as passed in the CP on 01.04.2015 were not modified.
36. Heard. Through the judgment dated 08.12.2015 passed by the Delhi High Court in W.P (C) No. 5408-5412/2004, and three other sets of related Writ Petitions in Dr. Mohd. Saleem vs. Govt. of NCT of Delhi & Ors., (supra), the High Court had decided and laid down the law on certain points.
The first issue settled by the High Court was as follows:-
"6..............It was held that since the appointment letter had stipulated that the tenure was for a period of six months or till regular appointments were made, and as the Petitioners were aware and always conscious of that fact, they could not claim any right to regular appointment. In view of these findings, the claim for regularization was declined. However, the Court decided that in view of the fact that many of the Petitioners had worked upto 7 years or so their cases for age relaxation, were required to be considered. It was also directed that in case the Petitioners competed in regular selection, the fact that they had worked for 7 years with the Respondents and rendered their valuable services would also have to be taken notice of at the time of considering their cases, along with all other eligible candidates.
7 to 12 xxxxxxxxxxxx(Not reproduced here).
The second issue settled by the High Court was as follows:-
13. The first issue here in these proceedings is whether the Petitioners can claim regularization. The decision of this Court in WP (C ) NO.8218/2002 and 26 OA No-4552/2014 CP No.218/2015 MA No.2427/2015 WP (C) No.6738/2002 both dated 17.08.2005 stares them at the face. The Court there was concerned with a claim for regularization of doctors who had been appointed on contract basis, similar to the Petitioners in identical circumstances of the Petitioners on a consolidated salary of Rs.6,000/- (per month). The contracts of appointment also stipulated that the tenure would be for a fixed period or till the regular appointments were made. Later, the regular recruitment process was initiated. The Court in Doctor Pankaj Kumar and Others vs. Govt. of NCT of Delhi in WP (C) No.8218/2002 had stated as follows:-
"We, however, cannot accept the aforesaid contentions for in the appointment letter itself it is stated that the petitioners were appointed on contract basis for a period of six months or till regular appointment are made, whichever is earlier. The petitioners were aware and always conscious of the fact that their appointments were for temporary period and only till regular selections are made. The petitioner cannot claim any right to regular appointment, once they have joined with open eyes and on clear understanding that their appointments are for a temporary period only. Now, after framing of the recruitment rules, regular appointments have been made as per the recruitment rules by the Union Public Service Commission. The petitioner cannot be allowed to continue in preference to the rights of persons selected in accordance with the recruitment rules after proper competitive exam and selection process. Some of the petitioners have participated in the selection tests conducted by Union Public Service Commission as per the Recruitment Rules but they have not been successful. Other petitioners did not even bother to appear in the tests.
In that view of the matter and in terms of the settled position of law, we cannot direct regularization of the services of the petitioners in a manner which is not recognized by the provisions of the recruitment rules. We, therefore, do not find 27 OA No-4552/2014 CP No.218/2015 MA No.2427/2015 any infirmity in the order passed by the learned Tribunal".
14. In view of the above findings, we are of the opinion that the Petitioners cannot claim the relief of regularization. However, like in that case the Petitioners' period of service ought to be taken into account while considering their eligibility along with the other eligible candidates in the regular recruitment process.
The third issue settled by the High Court was follows:-
"15. The second contention raised is that the rules framed in the year 2000 were inapplicable. Prior to the year 2000 admittedly there were no rules in existence in accordance with proviso to Article 309 of the Constitution of India. It is no doubt true that for making appointments, to vacancies, there is no pre-condition that rules have to exist. That can be on the basis of executive instructions. Nevertheless the executive authority or agency concerned has to conform with fair procedure and adopt process, which is in accordance with Article 14 and 16 of the Constitution of India. Further, every civil post under the Government or connected with the affairs of the State or a Union Territory has to be filled in consultation with the UPSC unless the rules otherwise exempt such posts or category of posts. This is by virtue of Article 320 of the Constitution of India. Hence, the Respondents are under an obligation to fill regular vacancies by involvement of the UPSC, they have done so in the subsequent process by notifying vacancies and consulting that body, which has been set up specifically for the purpose. We are, therefore of the opinion that there is no merit in the contention of the Petitioner that in the absence of rules under proviso to Article 309 of the Constitution of India there was no requirement of the UPSC to fill up posts. We see no infirmity in the finding of the Tribunal in this regard.
The fourth issue settled by the High Court was as follows:- 28
OA No-4552/2014 CP No.218/2015 MA No.2427/2015
"16. As far as the last contention with regard to the validity of the rules is concerned, the finding of the Tribunal was that there is no substance in the allegation that the rules had diluted the standards of the education. It was held that the plea could not be raised by the Petitioners as experts such as Medical Council of India and the Central Council of Indian Medicines, charged with the responsibility of prescribing necessary qualifications, existed for the purpose. It was also found that the Respondents notified the rules under the rule making power which could not be interfered with in judicial review proceedings. The Tribunal had relied upon the decision in V.K. Sood vs. Secretary Civil Aviation, 1993, Supp. (3) SCC 9 to say that the Court cannot enter the realm of decision making and say that whether a particular qualification for a post would be appropriate or not.
17. The grievance articulated by Mr. Mittal that the Tribunal did not act, even after taking note of a Cabinet decision to our mind cannot be a legitimate reason to interfere with the findings. The decision to regularize or otherwise, the services of the Petitioners, and the manner to be adopted is not within the scope of judicial review. Hence, if there exists any cabinet decision, in the absence of any policy or rule embodying that position it would be appropriate to comment on it. We therefore refrain from recording another finding in that regard, we are in any case of the opinion that the Tribunal did not fall into an error in that regard.
18. In view of the above findings, these petitions have been dismissed. However, following the orders made earlier in W.P. (C) No.8218/2002 and W.P. (C) No.6738/2002, we direct the Respondents to consider the relaxation the age of the Petitioners any of them had applied and participated in the selection process and pass appropriate orders. The Petitioners shall likewise be entitled to reckon the period of their services put in by them as contract employees at the time of consideration of their cases along with all other eligible candidates. It is further directed that preference would be given to the Petitioners who had worked with the Respondents on contract basis in case the Respondents again wish to 29 OA No-4552/2014 CP No.218/2015 MA No.2427/2015 make appointment on contractual basis. The petitions are accordingly dismissed subject to the above directions. No costs".
(Emphasis supplied)
37. In CWP No. 5368-73/2004, judgment dated 15.12.2005 Dr. Praveen Kumar & Ors. vs. Govt. of NCT of Delhi & Ors (supra), the High Court reiterated its Findings on these issues as follows:-
"10. The first issue here in these proceedings is whether the Petitioners can claim regularization. The decision of this Court in WP (C) NO.8218/2002 and WP (C) No.6738/2002 both dated 17.08.2005 stares them at the face. The Court there was concerned with a claim for regularization of doctors who had been appointed on contract basis, similar to the Petitioners in identical circumstances of the Petitioners on a consolidated salary of Rs.6,000/- (per month). The contracts of appointment also stipulated that the tenure would be for a fixed period or till the regular appointments were made. Later, the regular recruitment process was initiated. The Court in Doctor Pankaj Kumar and Others vs. Govt. of NCT of Delhi in WP (C) No.8218/2002 had stated as follows:-
"We, however, cannot accept the aforesaid contentions or in the appointment letter itself it is stated that the petitioners were appointed on contract basis for a period of six months or till regular appointment are made, whichever is earlier. The petitioners were aware and always conscious of the fact that their appointments were for temporary period and only till regular selections are made. The petitioner cannot claim any right to regular appointment, once they have joined with open eyes and on clear understanding that their appointments are for a temporary period only. Now, after framing of the recruitment rules, regular appointments have been made as per the recruitment rules by the Union Public Service Commission. The petitioner cannot be allowed to continue in preference to the rights of persons selected 30 OA No-4552/2014 CP No.218/2015 MA No.2427/2015 in accordance with the recruitment rules after proper competitive exam and selection process. Some of the petitioners have participated in the selection tests conducted by Union Public Service Commission as per the Recruitment Rules but they have not been successful. Other petitioners did not even bother to appear in the tests.
In that view of the matter and in terms of the settled position of law, we cannot direct regularization of the services of the petitioners in a manner which is not recognized by the provisions of the recruitment rules. We, therefore, do not find any infirmity in the order passed by the learned Tribunal".
11. In view of the above findings, we are of the opinion that the Petitioners cannot claim the relief of regularization. However, like in that case the Petitioners' period of service ought to be taken into account while considering their eligibility along with the other eligible candidates in the regular recruitment process.
12. The second contention raised is that the rules framed in the year 2000 were inapplicable. Prior to the year 2000 admittedly there were no rules in existence in accordance with proviso to Article 309 of the Constitution of India. It is no doubt true that for making appointments, to vacancies, there is no pre-condition that rules have to exist. That can be on the basis of executive instructions. Nevertheless the executive authority or agency concerned has to conform with fair procedure and adopt process, which is in accordance with Article 14 and 16 of the Constitution of India. Further, every civil post under the Government or connected with the affairs of the State or a Union Territory has to be filled in consultation with the UPSC unless the rules otherwise exempt such posts or category of posts. This is by virtue of Article 320 of the Constitution of India. Hence, the Respondents are under an obligation to fill regular vacancies by involvement of the UPSC, they have done so in the subsequent process by notifying vacancies and consulting that body, which has been 31 OA No-4552/2014 CP No.218/2015 MA No.2427/2015 set up specifically for the purpose. We are, therefore of the opinion that there is no merit in the contention of the Petitioner that in the absence of rules under proviso to Article 309 of the Constitution of India there was no requirement of the UPSC to fill up posts. We see no infirmity in the finding of the Tribunal in this regard.
13. The grievance articulated by Mr. Bhardwaj that the Tribunal did not act, even after taking note of a Cabinet decision to our mind cannot be a legitimate reason to interfere with the findings. The decision to regularize or otherwise, the services of the Petitioners, and the manner to be adopted is not within the scope of judicial review. Hence, if there exists any cabinet decision, in the absence of any policy or rule embodying that position it would be in-appropriate to comment on it. We therefore refrain from recording another finding in that regard, we are in any case of the opinion that the Tribunal did not fall into an error in that regard.
14. In view of the above findings, these petitions have been dismissed. However, following the orders made earlier in W.P. (C) No.8218/2002 and W.P. (C) No.6738/2002, we direct the Respondents to consider the relaxation the age of the Petitioners any of them had applied and participated in the selection process and pass appropriate orders. The Petitioners shall likewise be entitled to reckon the period of their services put in by them as contract employees at the time of consideration of their cases along with all other eligible candidates. It is further directed that preference would be given to the Petitioners who had worked with the Respondents on contract basis in case the Respondents again wish to make appointment on contractual basis. The petitions are accordingly dismissed subject to the above directions. No costs".
(Emphasis supplied)
38. Therefore, now the issues which still remain to be settled by us in the present OA are quite limited. Since it has been already held by the 32 OA No-4552/2014 CP No.218/2015 MA No.2427/2015 High Court that the respondents were fully within their rights to prescribe new RRs, and thereby change the roster in respect of each category of posts, it is not possible for us to accept the contentions of the applicant that the roster could not have been revised by the respondents, and that the previous roster, which was applicable in respect of a combined cadre of all levels of posts, ought to be, and must be continued, even after separate RRs have been prescribed for different level of posts, and separate roster has been prepared for different posts. The applicant has not been able to make out a case that the respondents have in any way violated any of his Fundamental Rights in prescribing the rosters in this manner.
39. The posts concerned related to different Medical specializations, and while prescribing the roster, the posts in a particular specialization came to be classified for a particular category. We find that this is fully permissible under the law, and it cannot be a case of the applicant that a separate roster should be prescribed for all the posts in each of the Medical disciplines. A roster can be prescribed only for a level of posts, and a sequencing of posts can be followed, and an appropriate reserved category person can be selected and appointed, if the post for his or her discipline has been earmarked to be the reserved post.
40. In the instant case, the law on all the points has already been laid in the above cited judgments of the High Court. We do not have to add 33 OA No-4552/2014 CP No.218/2015 MA No.2427/2015 any more to that. It has just so happened that the earmarking of the reserved category posts has worked to the disadvantage of the applicant before us. But, the posts of Assistant Professors/Lecturers (Ayurveda) being all equal, we cannot direct that a separate reservation roster should be followed for the post of Assistant Professor/Lecturer (Ayurveda) in 'Sharir Rachna' discipline only. The applicant cannot be allowed to claim discipline-wise reservation, and reservations have only to be Post-based and cadre-wise, and all the posts of Assistant Professors/Lecturers (Ayurveda) in various disciplines would constitute a single cadre for the purpose of prescription of reservation, which may be prescribed to be followed in a particular manner.
41. However, we may conclude from this discussion that there ought to be more clarity in the respondents' policy of prescribing reservations against the posts in various disciplines within the same cadre of say Assistant Professors/Lecturers/Associate Professors and Professors, which cadres now stand separated, so that in future the earmarking of posts can be done properly accordingly. We may also note here that the Hon'ble Supreme Court has in a recent judgment reiterated its directions that the policy of prescribing reservations in appointments should not be followed for super-speciality Medical discipline posts. Since the organizations in Ayurveda & Unani, and various other Medical disciplines coming under the AYUSH, are in a very small number, to our 34 OA No-4552/2014 CP No.218/2015 MA No.2427/2015 mind, all the Medical disciplines in that are super-specialities in themselves.
42. Therefore, it is directed that the respondents should examine their policy in the context of the observations made and the law as laid down by the Supreme Court, which would then allow only those SC/ST and OBC category candidates to be selected, who make the cut off on merit basis under the law as laid down by the Supreme Court. However, since that exercise would involve a detailed administrative examination of the RRs and procedures of the respondents, in accordance with the observations and the law as laid down by the Supreme Court, we cannot issue any directions on that aspect of the matter, which does not fall within the limited powers of this Tribunal for judicial review.
43. The OA is, therefore, rejected, but there shall be no order as to costs. The C.P. has already been ordered to be closed, in para 31 above.
(Raj Vir Sharma) (Sudhir Kumar) Member (J) Member (A) cc.