Central Administrative Tribunal - Jodhpur
Gajendra Thakan vs Bharat Sanchar Nigam Ltd on 18 March, 2024
1- O.A. NO. 168/2009
CENTRAL ADMINISTRATIVE TRIBUNAL
JODHPUR BENCH, JODHPUR
Original Application No. 168/2009
Date of Reserve : 05th March, 2024
Date of Pronouncement : 18th March, 2024
CORAM
HON'BLE MR. JUSTICE RAMESHWAR VYAS, MEMBER (JUDICIAL)
HON'BLE DR. AMIT SAHAI, MEMBER (ADMINISTRATIVE)
Gajendra Thakan S/o Shri B.R. Thakkan, aged about 29 years, resident
of B-32, Arvind Nagar, Ratanada (Air Force), District Jodhpur,
Rajasthan at present working as TTA Trainee, RTTC, Jaipur.
.......Applicant
[By Advocate:Mr.K.K.Shah]
Versus
1. Bharat Sanchar Nigam Ltd., through its Chairman and Managing
Director, Corporate Office, Bharat Sanchar Bhawan, Harishchandra
Mathur Lane, Janpath, New Delhi - 110 001.
2. Assistant Managing Director (Recruitment), Office of the Chief
Managing Director, Bharat Sanchar Nigam Ltd. (BSNL), Sub-
Division, Jaipur, Rajasthan.
3. Divisional Engineer (Administration), RTTC, Office of the Chief
Managing Director, Bharat Sanchar Nigam Ltd.(BSNL), Jaipur,
Rajasthan.
4. Divisional Engineer (Administration), Office of the Chief
Managing Director, Bharat Sanchar Nigam Ltd. (BSNL), Jodhpur,
Rajasthan.
........Respondents
[By Advocate: Mr.Kamal Dave]
O R D E R
Per Rameshwar Vyas, Member (J) Being aggrieved by order dated 30.07.2009 (Annex.A/1) whereby training of the applicant for the post of Telecom Technical Assistant 2- O.A. NO. 168/2009 (TTA) was cancelled by the Divisional Engineer, BSNL, the applicant has preferred this O.A. with prayer to quash and set aside the above order and also prayed to direct the respondents to allow him to complete the training.
2. Facts of the case in brief are as under :-
Respondents, the Chief General Manager, BSNL, Telecom, Rajasthan Circle, Jaipur, vide Advertisement dated 06.10.2008 (Annex.A/2) invited applications for the post of TTA through open competitive examinations. For Jodhpur total number of vacancies advertised were eight, out of which three vacancies were for general category whereas, two vacancies were for OBC & SC each and one vacancy was reserved for ST. The applicant applied against the OBC category. After selection process, five candidates were included in the main list and rest of the candidates were kept in waiting list. The applicant's name figured at Sl. No. six for SSA, Jodhpur. It is the case of the applicant that the candidates at Sl. Nos. 1 and 2 of SSA, Jodhpur, qualified and selected in general category, did not join the service due to which two posts in general category fell vacant. Therefore, the applicant, who was at Sl. No. 6 of SSA, Jodhpur, was called for joining the training. In this regard, the respondents vide letter dated 06.05.2005 (Annex. A/4) and 27.05.2009 (Annex. A/5) provisionally selected the applicant for the post of TTA and directed to join training at RTTC, Campus Road No. 14, VKIA, Jaipur on 22.6.2009.
It is the grievance of the applicant that he resigned his private job for pursuing training. He joined training for the post of TTA and during the period of training, the applicant received an order dated 29/30.7.2009 (Annex.A/1), whereby, the respondents terminated the 3- O.A. NO. 168/2009 training as well as the candidature of the applicant. Being aggrieved by the above order, the applicant has filed this O.A. on the ground that he is a duly selected candidate and joined the training as TTA because two qualified candidates did not join the course and he being first candidate in the waiting list, was called to join the training by the respondents. Terming the action of the respondents as illegal and arbitrary and without any reason, the applicant prayed to quash and set aside the order dated 29/30.7.2009 (Annex.A/1) and also seeks a direction against the respondents to appoint him on the post of TTA as a regularly selected candidate.
3. It is the reply of the respondents that the applicant's selection was purely provisional and subject to completion of pre-appointment formalities. The name of the applicant was kept in waiting list under the OBC category. It is the reply of the respondents that under OBC category Sh. Sanjay Rathore and Sh. Babulal Choudhary respectively, were declared selected and completed pre-appointment formalities. There is no vacancy left in the OBC category. The applicant was sent for training against general category by mistake. Out of three posts under the unreserved category, two candidates did not turn up so two posts under unreserved category fell vacant. No candidate under waiting list in unreserved category, could qualify the examination with securing the minimum qualifying marks prescribed for the category and, therefore, these two posts were kept vacant. Applicant has no legal right to continue the training as order of training was issued by mistake and the same has been rectified by the impugned order. Justifying the issuance of impugned order, respondents prayed to dismiss the O.A.
4. In rejoinder, it is averred that respondents after giving relaxation in merit, declared the second list of selected candidates during the 4- O.A. NO. 168/2009 training of applicant. Applicant has filed a list of the candidates who were declared qualified after granting relaxation in the qualifying marks. The respondents also filed a letter regarding relaxation in qualifying marks on 01.06.2009, wherein, criteria for relaxation in qualifying marks for the direct recruitment examination for TTA, 2008, has been given. It is further averred that selection of the applicant was not a mistake but rather it was after following the regular procedure. The respondents also annexed a list of District-wise selected candidates after giving relaxation in the criteria. The applicant has successfully completed the pre-appointment training in the cadre of TTA and reported for resumption of duty vide letter dated 31.8.2009 (Annex.R/4), It is further averred in the rejoinder that in other districts the OBC candidates have been selected against the general posts and in this case also when such posts are available then there is no reason to deny appointment to the applicant. Reiterating the stand taken in the O.A., applicant prayed to allow the O.A.
5. Heard learned counsel for the parties and perused the material available on record.
6. It is contended by the learned counsel for the applicant that this O.A. was initially decided in favour of the applicant. The respondents preferred a Writ Petition before Hon'ble Rajasthan High Court against the order passed by this Bench wherein, Hon'ble Rajasthan High Court while setting aside the order passed by this Bench, restored the O.A. for adjudication afresh by this Bench. As per order of Hon'ble Rajasthan High Court the controversy was whether the applicant was justified in pleading that two OBC candidates empanelled against two posts reserved for OBC candidates, were required to be filled up in general category keeping in view the marks obtained by them and as a 5- O.A. NO. 168/2009 result the applicant became entitled to be offered the post as an OBC candidate.
It is contended that the first two candidates of general category did not join the service and two posts in general category fell vacant.
7. It is contended that as per initial requirement for general category candidates were required to obtain minimum 40% marks and for OBC, SC and ST candidates, it was 33% marks. The applicant scored 35% marks. Looking to the poor percentage of the candidates, the respondents issued a notification (Annex.R/2) whereby, the minimum qualifying marks were reduced by 10%. However, it was specified that successful candidates qualifying through normal standards in aggregate will rank en-block senior to those qualifying through relaxed standards in the merit/waiting list.
8. It is the submission of the learned counsel for applicant that after relaxation in qualifying marks, Sh. Sanjay Rathore and Sh. Babulal Chaudhary in the OBC, should have been treated in general category as they obtained more marks. It is contended that initially above two candidates were considered in the general category whereas, the applicant who was at Sl. No. 6 was considered in OBC category. Reserved category candidates were required to be considered against general category as they too had qualifying marks for general category. The general category vacancies were to be filled up by other category candidates who became qualified for competing with general category candidates after relaxed criteria. The learned counsel for the applicant placed reliance upon the following judgments passed by this Hon'ble High Court of Rajasthan in support of his arguments :
(1)DBC Writ Petition No. 14714/2013 BSNL and Anr. Vs. Sandeep Choudhary & Ors.6- O.A. NO. 168/2009
(2) S.B.C.Writ Petition No. 3170/1998 - Narendra Singh Vs. State of Rajasthan and Anr., decided on 01.06.2005.
(3)D.B.Civil Writ Petition No. 7074/2012 BSNL and Ors. Vs. Inder Mal & Anr. decided on 03.08.2012.
(4) S.B.C. Writ Petition No. 4948/2009 - Dinesh Kumar and Ors. Vs. State of Rajasthan and Ors., decided on 9.2.2011.
He has also cited an order of this Bench rendered in - (5) O.A. No. 159 / 2009 Sandeep Chaudhary Vs. BSNL & Ors. decided on 17.09.2013.
9. Relying upon the above judgments, the learned counsel for applicant prayed to allow this O.A. by transporting two candidates already placed in OBC category to the general category and giving appointment to the applicant in OBC category.
10. On the contrary, respondents have taken a stand that once appointments were made in OBC category, they could not be taken in the general category. Learned counsel for respondents submitted that applicant cannot go beyond his pleadings. The applicant has only challenged the order of terminating the training. Similarly situated persons filed O.A. No. 350/2009 [Raju Lal Barwa Vs. BSNL & Ors.] before Jaipur Bench of this Tribunal which was dismissed on 10.09.2009. The judgment passed by the Jaipur Bench is to be followed by this Bench. He further submits that in case, this bench takes a different view then the matter should be referred to a larger bench. Without impleading Sh. Sanjay Rathore and Babulal Chaudhary, as party respondent, their selection cannot be treated in general category. The applicant cannot compel the respondents to fill up the vacant post of general category, he contended.
7- O.A. NO. 168/200911. Learned counsel for the respondents has placed reliance upon the following judgments of Hon'ble High Court as well as of Hon'ble the Apex Court :
(1)Imran Khan Vs. UOI & Anr. [D.B.C.Writ Petition No. 13916/2013]. (2) K. Ajit Babu & Ors. Vs. UOI & Ors.[AIR 1997 SC 3277] decided on 25 July, 1997 (3)Micro Hotel Pvt. Ltd. Vs. Hotel Torrento (2012)10 SCC 290.
(4)Secretary, State of Karnataka Vs. Uma Devi [(2006) 4 SCC 1] (5) BSNL Vs. Ajit Kumar [(2008) 11 SCC 501].
(6) Ritesh Tiwari Vs. State of U.P. [(2010) 10 SCC 677. (7)Secretary, Board of Basic Education UP Vs. Rajendra Sharma [(2009) 17 SCC 452.
(8)V.C., University of Allahabad Vs. Anand Mishra [(1997) 10 SCC 264] (9) Rakhi Rey Vs. High Court of Delhi [(2010) 2 SCC 639. (10)Public Service Commission, Uttranchal Vs. Mamta Bist. [(2010) 12 SCC 204.
The counsel therefore, prayed that this Original Application be dismissed.
12. Having regard to the submissions made by learned counsel for the parties and after perusal of the material placed on record, it emerges that out of total eight vacancies advertised, three vacancies were for unreserved category. It is not in dispute that out of three selected candidates in general category, two candidates did not join the post on account of which two posts fell vacant. It is also relevant to mention that out of eight posts, two posts were meant for OBC category which were filled up by OBC candidates.
13. In the original pleadings, applicant's case was that since he was at number one in the waiting list, he was called for joining training which was a post final selection process, therefore, the respondents committed illegality in terminating his training. In the original pleading the applicant did not pray for his right to selection against a OBC category. In the rejoinder, it is averred by applicant that in all the Districts 8- O.A. NO. 168/2009 respondents selected OBC candidates more than the vacancies available. It is also averred that respondents selected so many persons of OBC category including the applicant in unreserved category.
14. After perusal of the pleadings made by the applicant, we note that applicant is claiming his appointment as TTA on the ground of alleged availability of two vacant posts in general category due to not joining the two selected candidates of general category. It is relevant to mention here that this O.A. was allowed by this Bench on 11.02.2010 against which, the BSNL preferred a D.B.C.Writ Petition before Hon'ble Rajasthan High Court. While setting aside the order passed by this bench, the Hon'ble Court directed for fresh adjudication by this bench. Hon'ble High Court in its judgment observed that controversy is whether two posts of general category were required to be filled up by candidates empanelled against two posts reserved for OBC candidates keeping in view the marks obtained by them and as a result the applicant became entitled to be offered as an OBC candidate.
15. After perusal of the pleadings, we find that applicant stands in merit below the merit obtained by two OBC candidates Sh. Sanjay Rathore and Babulal Chaudhary. It is an admitted position that they were given appointment against the posts reserved for the candidates of OBC category and are holding the post for last more than fifteen years. The applicant is seeking their transportation from OBC to general category after a delay of fifteen years. The applicant has not pleaded to the effect that above named two persons be treated in general category on account of their merit. In absence of pleadings to this effect and, without impleading the above two employees as party respondents, after fifteen years' of their working, it would not be appropriate to treat them in general category and direct the respondents to give appointment to 9- O.A. NO. 168/2009 applicant herein on the post fell vacant by shifting of above two candidates from OBC to general category.
16. It is pertinent to note that applicant has no right to get appointment against the two posts which fell vacant on account of not joining by selected candidates. The applicant never made any request at appropriate stage to shift two OBC candidates from OBC to general category. For the first time in written arguments, the learned counsel for applicant has made a contention to give appointment to the applicant against OBC category after transporting two candidates already placed from OBC category to the general category. We are unable to accept the above contention of learned counsel for applicant after a period of fifteen years of completion of selection process.
17. It is not correct on the part of the applicant to say that the training was a post selection process. In the judgment of Hon'ble Rajasthan High Court in the matter of BSNL and Ors. Vs. Indermal and Ors. (supra), relied upon by learned counsel for applicant, it has been propounded that appointments are made only after successful completion of training. In view of this, it is clear that applicant was not appointed against the post of TTA when he was sent for training by the respondent authorities.
18. We are of the view that sending the applicant for training, does not confer any right in his favour. There was no vacancy in the OBC category, therefore, the applicant could not be appointed in the OBC category. We are agreeable to the contention raised by the learned counsel for respondents that completion of the training on the strength of stay order, creates no right to the applicant.
10- O.A. NO. 168/200919. We are agreeable to contention of the learned counsel for the respondents that the respondents cannot be directed to fill up the vacant post of general category. In the present case, two posts fell vacant in the general category in the year 2009 and it is running 2024. There is no justification in directing the respondents to fill up two vacant general posts by transporting two candidates of OBC category. It is hard luck on the part of the applicant that he did not raise his grievance by making appropriate representation before the competent authority at appropriate time. Need not to say that the persons in waiting list, have no legal right to ask for appointment.
20. We are also agreeable to the contention made by learned counsel for respondents that mistake creates no right in favour of the applicant. Admittedly, no vacancy was available for accommodation of the applicant in the OBC category when the applicant was sent for training.
21. With regard to rectification of mistake, learned counsel for the applicant has placed reliance on the judgment of Hon'ble Apex Court in BSNl Vs. Ajit Kumar (supra) reported in 2008 (1) SCC 501.
22. In view of the above, we find no merit in this O.A., hence, the O.A. is dismissed with no order as to costs.
(AMIT SAHAI) (RAMESHWAR VYAS) Member(A) Member (J) mehta