Central Administrative Tribunal - Delhi
Mercy Thomas vs M/O Health And Family Welfare on 13 September, 2017
1 OA No.3323/2013
Central Administrative Tribunal
Principal Bench
OA No.3323/2013
Order reserved on :07.09.2017
Order pronounced on :13.09.2017
Hon'ble Mr. V. Ajay Kumar, Member (J)
Hon'ble Ms. Nita Chowdhury, Member (A)
1. Mercy Thomas
D/o Mr. A. K. Thomas
R/o 177E, J3, Jay Apartments,
Ward no.2, Mehrauli, New Delhi.
2. Monica Tiwari
W/o Mr. S. K. Tiwari
R/o 375 A, Shakti Khand,
Indirapuram, Gaziabad, UP.
3. Veena Balooni
D/o Mr. Shalig Ram
R/o L-74A, Malviya Nagar,
New Delhi.
4. Rekha Rani
D/o Mr. Jagdish Saran
R/o 198D/18C, Shri Ram Nagar,
Shahdra, Delhi. ...Applicants
(By Advocate: Shri R.K. Jain)
Versus
1. Union of India
Through Secretary,
Ministry of Health & Family Welfare,
North Block, New Delhi.
2. All India Institute of Medical Science
Through its Director,
Ansari Nagar, New Delhi.
2 OA No.3323/2013
3. Sh. Shekhar Chandra
4. Mrs Anjoo Kher (Nee Misri)
5. Ms Savita Prabha Mahendru
6. Mrs Grace Yohaunan
7. Sh. Anupam Jackson Lall
8. Sh.Willam R.Masih
9. Sh.Vineet Sharma
10. Sh.Jyotish Kumar Jha
11. Sh. Surender Singh
12. Sh. Bhim Singh Bisht
13. Sh. Rakesh Chawla
14. Sh. Manoj Kumar Gupta
15. Sh. Pankaj Kumar
16. Sh. Nishchal Tyagi
17. Sh. Pankaj Kumar
18. Sh. Mahavir Singh
19. Sh. Mohan Lal Sharma
20. Sh, Ashok Kumar
21. Sh. Harish Chandra Singh Rana
22. Sh. Manish Mittal
23. Sh. Ajay Kumar
3 OA No.3323/2013
24. Sh. Sushil Kumar Pandey
25. Sh Keshav Dev
26. Ms. Shiji Binu (Nee Varghese)
27. Sh. Suresh Kumar
28. Sh. Ravi Shanker Belwal
29. Ms. Sangita Joshi
30. Sh. Jitender Kumar Sharma
31. Sh. Vikas Sachdev
32. Ms. Bimla Bahuguna
33. Ms. Shalini Singhal
34. Ms. Kamlesh Tharkoti
35. Sh.Omander Kumar
36. Sh. Rajiv Kumar
37. Ms.Sushma Singh
38. Ms.Om Vati Vats (Nee Sharma)
39. Sh. Kirpal Singh Bisht
40. Sh. Sanjay Tiwari
41. Ms.Pooja
42. Ms Yogita Dixit
43. Sh.Leslie James
44. Sh. Praveen Kumar Bhardwaj
45. Sh. Kapil Shastri
4 OA No.3323/2013
46. Mrs. Chanda Panwar
47. Sh. Govind Pal
48. Mrs. Savita Saini
49. Ms. Esther Philip
50. Ms.Saroj Rana
51. Sh Rajender Kumar
52 Sh. Jitendra Kumar
53. Sh. Fateh Singh
54. Sh. Raj Kumar
55. Sh. Sudhanshu Shekhar Pd.
56. Sh. Vijay Prakash
57. Sh Mukesh P.Nayak
58. Sh. Upendra Singh
59. Sh. Khoob Chand
60. Sh. Mukesh Kumar
61. Sh. Mohd. Iftekhar Alam
62. Sh. Rakesh Kumar
63. Sh. Riyaz Ahmed Bakshi
64. Sh. Rajendra Singh
65. Mrs. Chandni Yadav
66. Mrs. Neelima Prasad
67. Sh. Ajit Singh
5 OA No.3323/2013
68. Sh. Rajib Borah
69. Sh. Virender Rana
70. Mrs. Nazmeen Pathan
71. Sh. Ajay Prakash
72. Sh. Amit Yadav
73. Sh. Pradeep Kumar
74. Sh. Sudhir Sharma
75. Sh Sumit Kumar Gola
76. Sh. Raj Singh
77. Ms Komal
78. Ms Purnima Gola
79. Sh. Dharmendra Kumar
80. Sh. Vivek Johri
81. Sh. Arvind Debas
82. Ms Aradhna Malhotra (Nee Bhola)
83. Ms. Chitra Sharma
84. Sh. Jitender Singh
85. Sh Anand Kumar
86. Sh. Nizamuddin
87. Sh. Harpal
88. Sh. Rajiv Kumar
89. Ms. Kirti Rao
6 OA No.3323/2013
90. Sh. Ved Pal
91. Sh. Tomer Manjeet Kumar
92. Mohd. Salauddin
93. Ms. Rinku Saini
94. Sh. Ashwani
95. Sh. Praveen Chaudhry
96. Sh. Sanjeev Yadav
97. Sh. Sanjeev Kumar
98. Sh. Ajay Drall
99. Ms. Jyoti P.
100. Ms Rajni Bathla
[Respondents no.3 to100 to be served through
respondent no.2] ...Respondents
(By Advocate: Shri R.K. Gupta)
ORDER
Hon'ble Ms. Nita Chowdhury, Member (A) This Original Application has been filed by the applicants claiming the following reliefs:-
"(1) To quash and set aside the seniority list dated 17.10.2011 upto the extent that the applicants have been placed below their juniors in the seniority list and order dated 14.05.2013 and direct the respondents to put the applicants in the seniority as per their respective merit in the select list, over and above the private respondents as mentioned in para 5.12 above.
(ii) Cost of the proceedings may also be awarded to the applicants.
(iii) Any other relief which this Hon'ble Tribunal may also be passed in favour of the applicants".7 OA No.3323/2013
2. Facts, in brief, are that the applicants were working with the official respondent No.2-All India Institute of Medical Sciences (AIIMS) as Laboratory Technicians on ad hoc basis since 23.02.1995, 14.12.1996, 13.05.1997 and 22.03.2000 respectively and continued in the same capacity till they were appointed on regular basis. In the year 2004, AIIMS issued an advertisement calling for the application for appointment to the post of Laboratory Technicians through direct recruitment. All the applicants had applied for the same as they were eligible and moreover, they were already working with the respondent No.2 on ad hoc basis. Further, the official respondents had declared the result for selection to the above said post. However, the result of 29 candidates was withheld by the respondents. Immediately thereafter, the respondents had given appointment to 20 of the above mentioned candidates, whose result had been withheld by the respondents.
3. In the year 2005, some persons who were working as Laboratory Attendants Grade-II with the respondents, had filed W.P. ( C) No.183-224/2005 before the Hon'ble High Court of Delhi challenging the above selection on the ground that there should be quota for promotion to the post of Laboratory Technician and it should not be 100% through direct recruitment and they should be considered under promotion quota for the post of Laboratory 8 OA No.3323/2013 Technician. On 25.01.2005, the Hon'ble High Court had directed as follows:-
"The respondents are directed to keep the aforementioned 8-9 posts vacant. In case there are any other persons from the 122 candidates who have not joined till date those posts upto a total of 24, should also be kept vacant.
The petitioners shall implead all the persons affected by these orders within one week from today. Particulars of the persons likely to be affected by these Orders shall be made available by the Respondents to the petitioner. Notice to issue to these persons also".
By the above order, High Court has directed the official respondents to keep 8-9 posts vacant and further directed the petitioners therein to implead persons affected by these orders. Applicants herein were impleaded as respondents in the above said writ petition and during the proceedings of the above writ petition, the applicants came to know that their result had been withheld on the ground that they are not having the requisite Diploma in MLT from recognized institute. On 5.7.2005, it was decided by the Governing Body to offer the post to the applicants by relaxing the condition of having requisite qualification from recognized institute as the applicants have obtained the same from reputed institute. It was further decided that this will be only as a one time measure and may not be quoted as a precedent.
9 OA No.3323/2013
4. Applicants have further submitted that in the above said Writ Petition, the Hon'ble High Court of Delhi clarified the order passed on 25.01.2005 and passed the following order on 25.10.2005:-
"1. There was no appearance on behalf of the petitioner. Several respondents are present pursuant to the publication.
2. Mr. Rajeev Sharma, Advocate represent respondents 12, 28, 41, 51, 62, 79, 108 and 109. Mr. B.B. Gupta, Advocate represent respondent No.102. Mr. Mukul Gupta, representing the respondent AIIMS submits that the total cadre of Lab Technicians is 335. Of these, 207 are in position and that there are 128 vacancies. My attention is also drawn to a previous order dated 25th January, 2005 which had required that 24 posts should not be filled up, including 8-9 posts (for which selections were made).
3. In the light of these, it is clarified that the respondent AIIMS is at liberty to fill all the posts and ensure that a total number of 24 posts should remain unfilled. While calculating the 24 posts, the 8-9 posts which were stated to remain vacant shall also be included. It is therefore open to the respondent AIIMS to ensure while issuing appointment letters of all the selected candidates, 24 posts are left vacant".
They have thus submitted that even though the Governing Body had decided to give the appointment to the applicants and the Hon'ble High Court had clarified the same in its interim order, the respondents did not issue the appointment letters to the applicants. On 21.05.2007, applicants were issued offer of appointment by the respondents and they joined on the said post immediately. They have further submitted that the Hon'ble High Court of Delhi finally disposed of the Writ Petition on 21.05.2007, which reads as under:- 10 OA No.3323/2013
"Both the counsel appearing for the parties state that this matter can be disposed of at this stage itself in view of the fact that recruitment rules have been amended by the respondent whereby 25% reservation has been made for the promotees from the feeder cadre of Lab Assistant to the higher post of Lab Technician. Rest 75% quota shall be for direct recruitees. Counsel for the petitioner states that the respondent in their reply to CM No.7249/2007 has not disputed the position. Counsel for the petitioner states that the respondent/AIIMS has amended the rules giving 25% quota to the promotees and has already held DPC for the selection of Lab Technicians amongst the promotees. Therefore, the grievance of the petitioner stands satisfied in view of such decision on the part of the respondent. Both the counsel also state that 9 candidates who were earlier selected in 2004 for the said post of Lab Technician can now be given the offer of appointment in accordance with the recruitment rules.
The present petition is thus disposed of with direction to respondent/AIIMS to declare the result of the DPC after completing the selection process for appointment to the post of Lab Technicians within a period of three weeks. The appointment of 9 candidates against whom the stay was operating shall also be made within the same period. At the time of disposing this matter, the controversy has arisen regarding the 9 direct recruitees selected in 2004 pursuant to the selection process undertaken by AIIMS. Counsel for the petitioner contends that as per own admission of AIIMS, these 9 persons have again participated in 2006 selection and on account of these 9 persons have waived their right of having been selected in the year 2004. On the other hand, Mr. S.K. Dubey, counsel for the respondent/AIIMS states that these recruitment rules have been amended in the year 2007 and the present petitioner who were promotees, they can derive their right against 25% quota under the amended recruitment rules and, therefore, these petitioners cannot agitate against 9 persons who were selected against direct quota in the year 2004 Similar is the contention of Mr. Rajeev Sharma, Advocate who is representing these 9 candidates. Interim stay was granted against these 9 candidates vide order dated 25.01.2005 and directions were given to the respondent to keep 8-9 posts vacant for these direct recruitees. The Court further gave 11 OA No.3323/2013 directions that if any persons from the list of 122 selected candidates have not joined till date on the said post of Lab Technician, then post upto total of 24 could be kept vacant. It is not in dispute that selection of total 122 candidates took place and at that point of time there was no promotional quota for the promotees and the appointment on the said post under the earlier recruitment rules was only against direct recruitment. Out of 122 candidates, the grievance was made in the present petition against 8-9 direct recruits who were selected but did not join the service and these candidates subsequently could not join due to the operation of interim order in the present case. I agree with the contention of counsel appearing for the respondents that there will be hostile discrimination against these candidates who although selected but could not join only on account of operation of the interim order in the present case, although the other candidates who were at par with these 9 candidates had joined prior to filing of the present writ petition.
Once these 9 candidates were selected in the year 2004 when the recruitment rules were not yet amended and promotional quota having come into effect under the amended recruitment rules in the year 2007, I do not find any substance in the argument of counsel for the petitioner that these 8-9 candidates should only be considered now under the amended recruitment rules after their having participated in the recent selection. Let the respondent/AIIMS takes a decision strictly in accordance with law but without any hostile discrimination against these 9 candidates. Interim order stands vacated.
With these directions, the writ petition stands disposed of."
5. The applicants further aver that on 17.10.2011 respondent No.2 had issued a provisional seniority list of the Laboratory Technician, in which the names of the applicants stand at Sl.No.117, 119, 118, and 123 respectively, much below the private respondents, who were lower in the merit in the select list. It may 12 OA No.3323/2013 be mentioned that the names of the applicants have been included in the impugned seniority list as per the date of their joining and not as per their original merit in the merit list, whereas there was no fault on the part of the applicants in late joining. Hence the applicants made representation against the aforesaid seniority list, which was rejected by the respondents on 14.05.2013. They have thus prayed that the OA be allowed and they should be assigned seniority with effect from 2004.
6. The respondents have filed their reply and have submitted that Selection Committee for the post of Laboratory Technician in its meetings held between 3.7.2004 and 4.12.2004 at AIIMS had recommended 120 candidates for the post including these 9 candidates those who were working on ad hoc basis in the said post. Out of 120 selected candidates, the result of these 9 candidates whose Diploma in MLT was in question for recognition was withheld at that time. Meanwhile, the Laboratory Attendant/Assistant filed W.P. 183-224/2005 in the Hon'ble High Court of Delhi and on 25.01.2005, following order was passed:-
"The respondents are directed to keep the aforementioned 8-9 posts vacant. In case there are any other persons from the 122 candidates who have not joined till date those posts upto a total of 24, should also be kept vacant.
Subsequently, a proposal for offering the appointment to 9 selected candidates for the post of Lab. Technician in relaxation of requirement of Diploma in MLT from "Recognised Institutions" as a 13 OA No.3323/2013 one time measure which will not be quoted as a precedent was placed before the Governing Body in its meeting held on 05.07.2005. The Governing Body vide Item No.GB/14 decided as under:-
"The proposal was approved in respect of personnel already employed in the Institute, as one time measure".
Thereafter, the High Court passed their judgment in the Writ Petition on 25.10.2005, which reads as under:-
"In the light of these, it is clarified that the respondent AIIMS is at liberty to fill all the posts and ensure that a total number of 24 posts should remained unfilled. While calculating the 24 posts, the 8-9 posts which were stated to remain vacant shall also be included. It is, therefore, open to the respondent-AIIMS to ensure while issuing appointment letters of all the selected candidates, 24 posts are left vacant".
Further, the Hon'ble High Court vide their judgment dated 28.10.2005 held as under:-
"Learned counsel for the applicant/petitioner relies upon certain averments in the petition as well as judgment of the Division Bench, a copy of which has been annexed with the petition being W.P. ( c) No.5396- 98/2005 decided on 27.4.2005. The appointments if made by the respondents No.1 and 2 shall be subject to the final outcome of these proceedings".
7. The respondents further submitted that as per court directions and approval of the competent authority, fresh recruitment action was initiated in January, 2006, for which interview was conducted by the Examination Section on 18/19.11.2006. Before declaring 14 OA No.3323/2013 the result of the Selection Committee for the post of Laboratory Technician, an urgent application bearing No.CM-1400B-10/2006 in W.P. 193-224/06 titled as Sanjiv Gaur and Others VS. AIIMS was moved by the incumbents to the posts of Laboratory Attendants/Laboratory Assistants against the interviews held for the post of Laboratory Technician to restrain the recruitment action to fill up the posts of Laboratory Technician in which the following order was passed on 15.11.2006:-
"List the matter for arguments on 11.12.2006. Process of selecting the people may go on but posting orders be not issued save with the permission of the court".
Thereafter, the matter came up for hearing in the High Court on 21.5.2007. On the basis of the affidavit filed by the AIIMS in the Hon'ble High Court on 18.05.2007, the applicants had also filed a supplementary affidavit in the Hon''ble High Court expressing their satisfaction about the action taken by the AIIMS by granting promotional quota to Sr. Laboratory Attendants/Laboratory Attendant Grade-I and make a request before the Court for vacating all the interim orders in the case. After hearing the counsel of applicants and petitioners, the High Court passed the following orders:-
"All the interim orders issued Hon'ble High Court in the matter will stand vacated".
Finally, the following actions were taken in May, 2007:- 15 OA No.3323/2013
(i) Appointment letters of 9 candidates who had qualified the selection process in 2004 but were not issued offers of appointment to the post was issued in the year 2007 and they had joined the post of Laboratory Technician on regular basis in the year 2007.
(ii) Promotion orders to the Departmental candidates who had been promoted as Laboratory Technician in accordance with the revised Recruitment Rules (RRs) for the post were also issued under the mode of 25% promotion quota.
8. They further submitted that candidates who were appointed to the post in relaxation of RRs as a special case, they were placed in the seniority list of Laboratory Technician below the candidates who had joined previously. In this connection it is submitted that a provisional seniority list for the post of Laboratory Technician was circulated vide OM dated 17.10.2011 and objections, if any, were also invited, within a period of 15 days from the date of issue of the provisional seniority list. Against the said OM, Ms. Mercy Thomas and Others had represented that as per DOP&T OM dated 3.7.1986 the relative seniority of all direct recruits is determined by order of merit in which they are selected for such appointment on the recommendations of selecting authority. The applicants, therefore, prayed that they be assigned seniority from 2004.
9. Further, the competent authority considered the objections raised by the applicants, Ms. Mercy Thomas and Others and observed that as per DOP&T OM dated 3.3.2008, it was clarified 16 OA No.3323/2013 that "when appointment against unfilled vacancies are made in subsequent year or years either by direct recruitment or promotion, the persons so appointed shall not get seniority of any earlier year (viz. year of vacancy/panel or year in which recruitment process was initiated) but should get the seniority of the year in which they are appointed on the substantive posts". The applicants were informed accordingly.
10. The respondents in reply to para 4.11 submitted that the recommendations of the Selection Committee were approved by the competent authority on 8.12.2004 only to appoint 111 candidates who fulfil the requisite qualification for the post as laid down in the RRs. The submission made by the respondents is that since applicants were not fulfilling the requirement of Diploma MLT from recognized Board/University, their results were withheld. However, as a one time measure, relaxation was granted by the competent authority in its meeting held on 5.7.2005 to all the personnel working in the AIIMS but this was not implemented due to pending court cases. They have thus prayed that the OA be dismissed.
11. The respondents have relied upon the judgment of the Hon'ble Supreme Court in the case of Pawan Pratap Singh and Others Vs. Reevan Singh and Others 2011 (3) SCC 267.
12. We have heard the learned counsel for the parties, gone through the pleadings & record and judgments relied upon by the respondents.
17 OA No.3323/2013
13. The issue involved in this case is with regard to date from which the seniority is to be assigned to the applicants. Actually applicants had obtained Diploma from unrecognized institute and their results were withheld. But subsequently, as a one time measure, the competent authority granted relaxation but at that time court case was pending in the High Court of Delhi, so they could not join. They were finally issued offer of appointment on 21.05.2007 and joined the said post. Moreover, applicants case is also covered by the OM of DOP&T dated 03.03.2008 wherein it was held that, "when appointment against unfilled vacancies are made in subsequent year or years either by direct recruitment or promotion, the persons so appointed shall not get seniority of any earlier year (viz. year of vacancy/panel or year in which recruitment process was initiated) but should get the seniority of the year in which they are appointed on the substantive posts". Hence, applicants cannot claim that they should be assigned seniority from the year 2004, which cannot be granted as held by the Apex Court in the case in Pawan Pratap Singh (supra), that "no retrospective promotion can be granted nor any seniority can be given on retrospective basis from a date when an employee has not even born in the cadre". The relevant part of the said order reads as under:-
"41. This Court emphasized in the case of Uttaranchal Forest Rangers' Association (Direct Recruit) Vs. State of U.P. (2006) 10 SCC 346 that no retrospective promotion can be granted nor any seniority can be given on retrospective basis from a date when an employee has not even born 18 OA No.3323/2013 in the cadre. In this regard, the Court relied upon earlier decisions of this Court in State of Bihar & Ors. v. Akhouri Sachindra Nath & Ors. and Jagdish Ch. Patnaik (1991 (suppl.) 1 SCC 334.
42. In the case of State of Uttaranchal Vs. Dinesh Kumar Sharma (2007) 1 SCC (L&S) 594, this Court was concerned with U.P. Agriculture Group `B' Service Rules, 1995 and the 1991 Rules. With reference to rule 8 of the 1991 Rules, this Court held that seniority cannot be reckoned from the date of occurrence of the vacancy and should be reckoned only from the date of substantive appointment to the vacant post under the Rules and not retrospectively from the date of occurrence of vacancy".
14. Thus seen from any angle, this OA is without any merit and is dismissed. No costs.
( Nita Chowdhury) (V. Ajay Kumar) Member (A) Member (J) Rakesh