Central Administrative Tribunal - Kolkata
Bharati Bhushan Xess vs Revenue on 21 February, 2023
CENTRAL ADMINISTRATIVE TRIBUNAL KOLKATA BENCH, KOLKATA O.A./351/10/2015 Date of Order: 21:02 202° Coram: Hon'ble Mr. Jayesh V. Bhairavia, Judicial Member Hon'ble Mr. Suchitto Kumar Das, Administrative Member BHARTI BHUSHAN XESS, aged about 37 years, son of Shri Carlus Xess, residing at C/o. A.S.C.G. Enclave Mirred Accommodation, PANIF, No. B-7/2, Haddo, Port Blair- 744102; veces Applicant - Versus - 1. UNION OF INDIA, service through the Secretarty, Ministry of Home Affairs, North Block, Central Secretariat, New Delhi-110001. 2. THE LIEUTENANT = GOVERNOR, Andaman & Nicobar Islands, Raj Niwas. Port Blair-744101; 3. ANDAMAN & THE NICOBAR ADMINISTRATION through =the ~-- Chief Secretary, Secretariat, Port Blair-744101; 4. THE DEPUTY COMMISSIONER, South Andaman District, Port Blair-744101; 5. THE ASSISTANT DIRECTOR (Administration), office of the Deputy Commissioner. South Andaman District, Port Blair-744101; 6. DEEPANKAR MAZUMDAR, working to the post of Chainman under the control and authority of Deputy Commissioner, South Andaman District, Port Blair- 744101; 7. ARUMUGAM, working to the post of Chainman under the control and authority of Deputy Commissioner, South Andaman District, Port Blair-744101. 8. SHABBIR SAYYED, working to the post of Chainman under the control and authority of Deputy Commissioner, South Andaman District, Port Blair-744 101. 9, RANJAN KUMAR MAHALDAR, working to the post of Chainman under the control and authority of Deputy Commissioner, South Andaman District, Port Blair- 744101. 10. A. ASHRAF, working to the post of Process Server under the control and authority of Deputy Commissioner, South Andaman District, Port Blair-744101. 11. K. NIZAMUDDIN, working to the post of Process Server under the control and authority of Deputy Commissioner, South Andaman District, Port Blair-744101. 12. A. ABDUL SALAM, working to the post of Peon under the control and authority of Deputy Commissioner, South Andaman District, Port Blair-744101. benno Respondents For the Applicant(s): Mr. P. C. Das; Counsel For the Respondent(s): Mr. R. Kumar, Counsel Mr. G. B. Kumar, Counsel (for private respondents) ORDER
Jayesh V. Bhairavia, Judicial Member In the instant O.A., aggrieved by selection of private respondent to the post of "Chainman" vide order dated 27.6.2014 (Annexure A/12) and non- 'nelusion of his name in the said selection/appointment order, the applicant has filed the present O.A. under Section 19 of the Administrative Tribunals Act, 1985 seeking following reliet:-
"(a) To quash and/or set aside the impugned office order No.645 dated 27th June 2014 (Annexure A-12) in respect of appointment of the private respondents from SeriatNo.3 to 9 of the said office order which were appointed against the OBC category although their castes were not included in the OBC category at the time of conducting the selection process by the Andaman & Nicobar Administration in terms of the Central List for OBCs for Union Territory of Andaman & Nicobar Istands which was effected with effect from 16th June, 2011 and in terms of the Gazette Notification dated 16th June, 2011 of the Government of India being Annexure A-15 of this original application and in view of the decisions passed by the Hon'ble High Court of Dethi at New Dethi dated 3rd August, 2007 and 28th July, 2005;
(b) To pass an appropriate order directing upon the respondent authority to go ahead with the earlier selection process where your applicant was participated and declared successful after completion of written examination and proper assessment of marks of the present applicant and to consider his appointment on the basis of written examination in the light of the decision made by the Hon'ble High Court at Calcutta, Circuit Bench at Port Blair dated April §, 2013 in W.P.C.T. No.610 of 2012 and in view of the judgment and order passed by the Hon'ble Supreme Court dated April 2, 2014 in Civil Appeal No. 4255-58 of 2014 and if the applicant is found suitable after completion of written examination he may be given appointment to the said post
(c) To pass an appropriate order directing upon the respondent authority to act in accordance with law;
(d) To pass an appropriate order directing upon the respondent authority to produce all the records in respect of Caste Certificates of the private respondents before this Hon'ble Tribunal so that on perusal of the same the conscionable justice may be administered."
The brief facts of the case as pleaded by the applicant are as under:
2.1. The respondent No. 2 had notified the recruitment rules for the recruitment of Gr. 'D' post in the Establishment of Deputy Commissioner under A&N, the said rules called as "THE ANDAMAN & NICOBAR ADMINISTRATION ESTABLISHMENT OF THE DEPUTY COMMISSIONER (GROUP 'D') RECRUITMENT RULES.
2001" (Annexure A/2) 2.2. Pursuant to the Employment Notice No. 5-92/2007-Estt./46 dated 29,1.2008 and subsequent corrigendum order dated 30.12.2008 published in Daily Newspaper in the year 2009 (Annexure A/2 & Annexure A/4 respectively) for filling up the post of "Chainman" the applicant participated in the selection process conducted by the Office of the Deputy Commissioner, South Andaman District, Port Blair. The 'i applicant belongs to Scheduled Tribe category, however, he has participated in the recruitment process against General quota post. 2.3. After the applicant was declared successful in the written test as well as the viva-voce test conducted by the respondents he was offered an appointment to the post of "Chainman" vide letter dated 3.2.2009. (Annexure A/6) and issued office order dated 5 February, 2009 whereby applicant was appointed on temporary basis in the scale of pay Rs. {S-4440-7440 along with other candidates (Annexure A/7). However, aggrieved by the said appointment order of the applicant one Mr. K. Nizamuddin challenged the same before this Tribunal by filing O.A./351/124/2010 (Annexure A/8). This Tribunal vide order dated 21.8.2012 had quashed and set aside the appointment order of the applicant and in the said order it was further directed that the post should be re-advertised and the selection process should be strictly in terms of the Recruitment Rules.
2.4. Aggrieved by the order passed by this Tribunal dated 21.8.2012, the applicant herein had approached the Hon'ble Calcutta High Court (Circuit Bench at Port Blair) by way of filing W.P.C.T. 610/2012. The other candidates who were also aggrieved by the order passed by this Tribunal had approached the Hon'ble High Court (Circuit Bench at Port Blair) by filing separate WPCT. The said Writ Petitions were partly allowed by the Hon'ble High Court vide common order dated 05.04.2013 (Annexure A/9) and directed the respondents to proceed with the process of selection of the candidates from the stage after the completion of the written test and they shall adhere to the rules framed Nv.
for the recruitment to the posts- in- question
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3. 2.5. Aggrieved by the aforesaid judgment dated 5.4.2013 passed by the Hon'ble Calcutta High Court (Circuit Bench at Port Blair), the petitioners therein including the applicant herein, approached the Hon'ble Apex Court by way of filing Civil Appeal bearing, no. 4255- 58/2014. The said appeal came to be dismissed by the Hon'ble Apex Court vide order dated 02.04.2014 (Annexure A/!0).
2.6. After the aforesaid order passed by the Hon'ble Apex Court the A & N Administration vide order dated 22.7.2013 terminated the service of applicant.
2.7. In compliance of order passed by Hon'ble Apex Court in the case of Bishnu Biswas & ors. v. GOI & ors. the respondent No. 4 herein with respect to Employment Notice No. 5-92/2007-ST1T/46 had issued impugned order No. 645 dated 27.06.2014 whereby 09 candidates 1.e. private respondents herein were appointed to the post of "Chainman" (now Revenue Field Assistant / Process Server / Peon (both now Multi Tasking Staff) (Annexure A/12), the said appointment order of the private respondent is impugned herein in the present O.A. Mr. P.C. Das, Ld. Counsel for the applicant would submit that the respondents have not followed the direction issued by the Hon'ble High Court in its true spirit. It is contended that in their reply, the respondents have admitted that the applicant has received 39 marks in the written examination.
Therefore, the respondents ought to have offered appointment to the applicant by including the marks allotted to the applicant in viva-voce test as per the decision of the Selection Committee dated 31.01.2009, 01.02.2009 and 02.02.2009. In this regard, Id. Counsel would refer to para 6.9 of the reply filed by the respondents dated 10.03.2016 and would submit that, in fact, the name of the private respondent Mr. K. Nizamuddin was not there in the said Q, merit list. However, the respondents arbitrarily offered appointment to said Mr. K. Nizamuddin by way of impugned order.
3.1. Further, Ld. Counsel would submit that in para 6.1 of the reply filed by the respondents wherein they have admitted that there were 4 posts of "Chainman" in the OBC category and 2 posts in the Un- reserved category. The applicant herein had applied under the Unreserved category. Ld. Counsel would also refer to the Recruitment Rules (Annexure A/2), as well as the employment notice and submit that the applicant herein fulfilled the essential qualification prescribed for the post of Chainman.
Further, it is submitted that the respondents have not carried out any fresh process nor published any merit list after the order passed by the Hon'ble High Court and have arbitrarily appointed the private respondents.
3.2. Ld. Counsel objected to the averment of the additional reply filed by the official respondents and submits that the merit list relied upon by the respondents to justify the impugned order has been prepared based on the first merit list of the written test and without there being publication of any fresh merit list in light of directions issued by the Hon'ble High Court. In other words, Ld. Counsel for the applicant submits that the respondents have not followed the directions issued by the Hon'ble High Court and as such has not published any fresh merit list and the impugned appointment order has been issued based on the old merit list and without any new process having been undertaken by the respondents. According, to the Ld. Counsel, the applicant herein, who is a meritorious candidate, should be offered appointment to the post of Chainman.
Further, he would argue that the private respondent No. 6 has been offered appointment vide impugned order. The A&N Administration had erroneously issued caste certificates of OBC category to the said private respondent No. 6 and as far as other private respondents are concerned their OBC certificates were effected w.e.f. the year 2007 and same ought not to have been accepted by the respondents. Therefore, the appointment order in favour of the respondents are bad in law and applicant who is a meritorious candidate has been deprived from consideration and appointment and as such he is entitled for appointment to the post of "Chainman".
4. Per contra, official respondent have filed their reply as well as additional reply and denied the claim of the applicant.
Mr. R. Kumar, Ld. Counsel for the official respondent would submits that in the initial stage, the official respondents, after declaration of the marks of the written examination, had also thought it fit to take an interview of the candidates, and, as per the performance in the interview/viva voce test and by considering the combined marks of both the test i.e. written as well as viva- voce, the merit list was prepared and same was operated for appointment of the candidate in which initially the name of applicant was included. However, the said selection process was not approved by this Tribunal and same was quashed and set aside and were directed to re-advertise the post. Challenge to the said order before the Hon'ble High Court, the said order passed by the Tribunal was quashed and set aside and the Hon'ble High Court had directed to carry out the selection process from the stage of declaration of the marks of the written examination. Further challenge to the said judgment, the Hon'ble Apex Court has also upheld the said direction issued by the Hon'ble High Court.
Accordingly, in compliance of the directions issued by the Hon'ble Apex Court if the competent authority based on the marks in the written examination considered the merit of candidates and issued the impugned appointment order. He pointed out that the written examination held by the respondents for filling up the post in question as well the result of the said written test has not been disturbed by any court of law in the present case, not only that the respondents were directed to proceed further from the stage of said written examination. Further, it is submitted that as per the recruitment rules for filling up the post of Group 'D' the merit in the written examination is required to be considered for selection of the candidates. Since the marks obtained by all the candidates in the written examination was very much available with the respondents, the Selection Committee, by excluding the marks of the interview and solely based on the marks of the written examination, appointed the most meritorious candidate vide impugned order.
According to the respondents herein, the selected candidates have received higher marks in the written examination, whereas, the applicant has received only 39 marks in the same, and, therefore, he does not fall under any zone of consideration. Ld. Counsel would submit that the order impugned herein is hence just and proper.
5. On behalf of the private respondents, Mr. G. B. Kumar Ld. Counsel would endorse the aforesaid submissions of the official respondents on the point that the candidate who has received higher marks in the written examination has been selected by the respondents. Ld. Counsel would place reliance on the judgment passed by the Hon'ble Apex Court in the case of Vijendra Kumar Varma yv. Public Service Commission Uttarakhand & ors. reported in (2011) I SCC 150 and submits that the applicant herein who participated in the selection process and remained unsuccessful to meet with higher merit in the written examination, therefore, it is not open for him now to "
challenge the selection process being wrong: and without jurisdiction. The applicant has no vested right to challenge the appointment of the private respondent. Further, by relying upon judgment passed in the case of Madras Institute of Development Studies & anr. v. Dr. K. Sivasubramaniyan & ors. reported in (2016) I SCC 454 Ld. Counsel Mr. Kumar submits that the applicant herein was aware about the recruitment rules and had participated in the selection process in General Category. As per the provision of Rule and conditions stipulated in the advertisement, there was no provision to conduct viva-voce examination. Therefore, it is not open for the applicant once he had taken part in the selection with full knowledge of the terms and condition of the rules as well the conditions stipulated in the advertisement. The competent authority had issued the caste certificate in favour of the respondents which cannot be challenged by the applicant in the present proceeding. ven otherwise he had no vested right to challenge it since he had applied in General Category and not in OBC category. The private respondent has been awarded higher mark in written test than the applicant herein and accordingly the appointment order has been issued in favour of the said private respondent which is just and proper.
5.1. Ld. Counsel, Mr. Das for the applicant would object to the submission of Ld. Counsel for the private respondents that unsuccesstul candidate cannot challenge the selection process. In this regard he submits that initially the said private respondent, who was not successful in the selection process had challenged the appointment order issued in favour of the applicant before this Tribunal.
6. Per contra, Ld. Counsel for the private respondents submits that at the initial stage of selection process and the appointment order was issued by respondents contrary to the provision of rules, and the said grievance of the in lu private respondent was accepted by court of law as argued hereinabove and the same was upheld by the Hon'ble Apex Court. In the present O.A., applicant is not able to state any violation of rules or condition of the public advertisement, therefore, he is not entitled for any relief as prayed for.
7. Heard the Ld. Counsels at length and perused the materials on record.
8. It emerges from the record that the respondent No. 2 Le. the Lieutenant Governor, Andaman & Nicobar Island, Port Blair in exercise of the power conferred by the proviso to Article 309 of the Constitution read with Government of India, Ministry of Home Affairs notification dated 11.4.1960 and in supersession of A&N Administration's notification dated 24.12.1975, amended the recruitment rules for the recruitment of Gr. 'D' post in the Establishment of Deputy Commissioner under A&N, the said rules called "The Andaman & Nicobar Administration Establishment of the Deputy Commissioner (Group 'D') Recruitment Rules. 2001". In the said rules the method of recruitment, age limit, qualification and other matters stipulated in the Schedule. According to it, the candidate who has essential qualification of -- "1 Middle School (8"" Pass); Further desirable skills are --
"i, Training in basic and refresher course in Home Guard and Civil defence; 1. Knowledge in Hindi; iii. Cycle riding." And
2. Should qualify in the written examination to be conducted by the Department/Administration." be offered appointment to the post of Group *D'.
9. It can be seen that the aforesaid rules only prescribe the written examination for filling up posts of Group *D' in the Establishment of Deputy Commissioner, A&N Administration. There is no provision or condition stipulated in the said recruitment rules for conducting any viva-voce test in addition to the written examination. As noted hereinabove, initially the respondents in contravention of aforesaid rules published the merit list of the i ii candidates who participated in selection process held for filling up Group *D' posts pursuant to Employment Notice No. 5-92/2007-Estt./46 in the year 2008- 2009. The respondents had conducted written examination as well the viva- voce test and by considering the total marks obtained by the candidate in said tests had published the merit list as well offered appointment to the candidate from the said merit list which include the name of applicant. In this regard, we refer the first appointment order of the applicant issued by the respondents dated 3/5.2.2009. Since the said selection process and appointment order issued by the respondents was in contravention of the provision of recruitment rules came to be challenged by the private respondents before this Tribunal in O.A. No. 124/AN/2010. This Tribunal vide order dated 21.8.2012 quashed and set aside the said selection process as well the appointment order of the applicant herein mainly on the ground that respondents have not adhered to the provision of rules and had further directed the respondents to re-advertise the post. Aggrieved by it, the applicant along with other had approached the Hon'ble Calcutta High Court (Circuit Bench at Port Blair) by way of filing W.P.C.T. 610/2012. By way of common judgment dated 5.4.2013 passed by the Hon'ble High Court partly allowed the said petitions with the following findings and direction:
"So far as the written test ts concerned we find that it is not at all a case of either of the parties that there was an illegality in the matter of holding the written test. So the order of the Ld. Tribunal for re-advertisement for the entire selection process, in our view, cannot be sustained. The appointing authorities should be directed to proceed with the selection process from the stage of the written iP .12
test. They shall be directed to adhere to the rules that were advertised for the recruitment.
The question is, thus, answered. Accordingly, we are of the view that this application should be allowed and the order of the Ld. Tribunal should be modified to the extent indicated above. The application is, therefore, allowed accordingly. The impugned order dated 24.8.2022 passed by the Ld. Tribunal in O.A, No. 124/AN/2010 whereby the Ld. Tribunal had directed the appointing authorities to re-advertise the posts - in -- question is hereby set aside and quashed. The appointing authorities are directed to proceed with the process of selection of the candidates from the stage after the completion of the written test and they shall adhere to the rules framed for the recruitment to the posts- in- question."
10. Aggrieved by the aforesaid judgment passed by the Hon'ble High Court, the applicant along with others approached the Hon'ble Apex Court by way of Civil Appeal No. 4255-58/2014 (Bishnu Biswas & ors. v. Union of India & ors. ), the said appeal filed by the applicant along with others came to be dismissed vide judgment dated 2.4.2014 wherein the Hon'ble Apex Court while upholding the directions issued by the Hon'ble Apex Court observed as under:-
"20. In the instant case, the rules of the game had been changed after conducting the written test and admittedly not at the stage of initiation of the selection process. The marks allocated for the oral interview had been the same as for written test i.e. 50% for each. The manner in which marks have been awarded in the interview to the 13 candidates indicated lack of transparency. The candidate who secured 47 marks out of 50 in the written test had been given only 20 marks in the interview while large number of candidates got equal marks in interview as in the written examination. Candidate who secured 34 the marks in the written examination was given 45 marks in the interview. Similarly, another candidate who secured 36 marks in the written examination was awarded 45 marks in the interview. The fact that today the so called selected candidates are not in employment, is also a relevant factor to decide the case, finally. If the whole selection is scrapped most of the candidates would be ineligible at least in respect of age as the advertisement was issued more than six years ago.
Thus, in the facts of this case the direction of the High Court to continue with the selection process from the point it stood vitiated does not require interference. In view of the above, the appeals are devoid of merit and are accordingly dismissed. No costs."
(emphasis supplied)
11. Further it is noticed that in compliance of the aforesaid judgment passed by Hon'ble Apex Court as well by adhering to the Recruitment Rules, 2001 the respondents had issued impugned order dated 27.6.2014 whereby the candidate who have received higher marks in the written lest conducted by the respondents with respect to the Employment Notice for filling up the post Group "D" have been appointed to the post of ~Chainman" (now MTS).
12. In view of the aforesaid factual matrix, we are of the considered opinion that there is substantial force in the submission of the official respondents as well as the ptivate respondents that the respondents have considered the marks obtained by the candidate in the written examination has been considered only in terms of the Recruitment Rules of 2001 as well as the directions issued by the Hon'ble High fy 14 Court and the Hon'ble Apex Court. The Hon'ble High Court had directed the respondents to continue with the selection process from the stage of completion of the written test. Admittedly, the applicant herein had obtained only 39 marks in the said written examination and as such he stood at Srl. No. 165 in the merit list of the written test prepared by the selection committee in the year 2009 which is much below in rank than the private respondent. The submission of the Ld. Counsel for the applicant that the respondents have not followed the directions issued by the Hon'ble High Court and failed to publish fresh merit list from the stage of written examination held for filling up the post of Group -D' as well the submission that the respondents had erroneously issued the impugned appointment order in favour of the private respondent based on the old merit list is concerned, the said submission in our considered view is not tenable in light of the directions issued by the Hon*ble High Court vide judgment dated 5.4.2013 in WPCT 607/2012 as well in WPCT No. 610/2012. As noted hereinabove, as per the direction issued by the Hon'ble High Court the respondents have only considered the marks obtained by the candidate in the written examination held in the year 2009. In other words, by excluding the mark of viva-voce test allotted to the candidate the respondents have considered only the marks obtained by the candidates in the written test and found the present private respondent to be more meritorious in the said written examination and accordingly issued appointment order in their favour. The said decision making process of the respondents in our considered view is in consonance with the recruitment rules as well in terms of the direction issued by the Hon'ble High Court as well as the Hon'ble Apex Court. Therefore, the claim of the applicant that initially his name was included in the merit list and the name of private respondents was not therein, therefore, he should have been considered for appointment, the said submission lacks merit and same is not tenable. We do not find any legal infirmity in the impugned order since same is based on the basis of higher marks obtained by the candidate in the written test and i.e. the mandate issued by the Hon'ble High Court as referred hereinabove.
py' ' 13. In view of the aforesaid discussion, we (lo not find any justifiable reason to '--D' dated interfere with the impugned order of appointment for the post of Group 27 6.2014. Thus the O.A. is dismissed accordingly. No costs.
ys (Suchitto Kumar Das ) (Jayesh V. Bhairavia) Administrdtive Member Judicial Member US