Central Administrative Tribunal - Delhi
Rajesh Kumar vs Navodya Vidyalaya Sanghathan on 3 April, 2018
1 OA 1700/16
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
O.A.NO.1700 OF 2016
New Delhi, this the 3rd day of April, 2018
CORAM:
HON'BLE SHRI RAJ VIR SHARMA, JUDICIAL MEMBER
AND
HON'BLE MS.PRAVEEN MAHAJAN, ADMINISTRATIVE MEMBER
..............
Rajesh Kumar,
s/o Shri Ram Dayal,
R/o H.No.D-II/304, Madangir,
New Delhi 110062 .......... Applicant
(By Advocates: Ms. Jyoti Singh, Senior Advocate, with Mr.Amandeep
Joshi,Advocate)
Vs.
1. Navodaya Vidyalaya Samiti,
Through its Commissioner,
B-15, Institutional Area,
Sector-62,
District-Gautam Budh Nagar,
Uttar Pradesh 201309
2. Ministry of Human Resources Development,
Department of School Education & Literacy,
Through its Secretary,
Shastri Bhawan, New Delhi 110001....... Respondents
(By Advocate: Mr.S.Rajappa for respondent no.1)
.........
ORDER
Per RAJ VIR SHARMA, MEMBER(J):
This Original Application under Section 19 of the Administrative Tribunals Act, 1985, was filed on 11.5.2016 by the applicant, who was a General category candidate for selection and recruitment to the Page 1 of 10 2 OA 1700/16 post of Post Graduate Teacher (PGT) in Geography pursuant to the recruitment notice/advertisement issued by the respondent-Navodaya Vidyalaya Samiti (NVS) in the year 2014, seeking the following reliefs:
"8.1 Allow the OA and direct the respondents to declare the 2nd merit list of selected candidates and give an offer of appointment to the applicant with all consequential benefit as he is 0.5 marks short from the cut off marks which are 125.
8.2 AND this Hon'ble Tribunal may be pleased to pass such other and further orders as deemed fit and proper in the circumstances of the case to meet the ends of justice."
2. A counter reply has been filed by respondent-NVS resisting the O.A. The applicant has filed a rejoinder reply refuting the stand taken by respondent-NVS. Respondent no.2 has neither appeared nor filed counter reply.
3. We have carefully perused the materials available on record and have heard Ms.Jyoti Singh, learned Senior Advocate for the applicant, and Mr.S.Rajappa, learned counsel for the respondent-NVS.
4. Brief facts of this case, which are relevant for the purpose of deciding the issue involved in the present proceeding and are not disputed by either side, are as follows:
4.1 Respondent-NVS invited online applications from eligible candidates for drawing up a panel for filling up 514 posts of PGT in different subjects and 423 posts of Trained Graduate Teacher (TGT) in different subjects on direct recruitment basis in Jawahar Navodaya Vidyalayas (JNV) located in various districts of the country, by publishing Page 2 of 10 3 OA 1700/16 recruitment notice/advertisement in the Employment News 25th - 31st January, 2014. The subject-wise and category-wise breakups of tentative vacancies in the posts of PGT and TGT were indicated in the advertisement.
The total vacancies in the post of PGT (Geography) were indicated as 33, out of which 17 were for UR, 6 for OBC, 6 for SC and 4 for ST. As regards the mode of selection, it was stipulated in the advertisement that candidates would be shortlisted on the basis of their performance in written examination and interview put together. The NVS reserved the right to decide the cut off marks in written examination and interview. Based on the performance in written examination and also keeping in view the number of vacancies, the candidates would be called for interview.
4.2 The written examination for the recruitment was held on 1.6.2014, followed by interview on and from 22nd December 2014 to 1st January, 2015. Respondent-NVS fixed cut off marks at 45% for UR and OBC candidates, and 40% for SC/ST/PH candidates in the written examination and interview for the said recruitment. On the basis of performance of the candidates in written examination and interview put together, merit lists were prepared and total 227 candidates for PGT posts against 514 were shortlisted for appointment and were allotted to 8 Regional Offices for issuance of offer of appointment in their favour. To fill 17 vacancies in the post of PGT (Geography) under UR category, merit list up to the candidates who obtained 125 marks was exhausted. The applicant Page 3 of 10 4 OA 1700/16 having scored 124.50 marks (92.50 marks in written examination and 32 marks in interview) was not shortlisted for appointment. 4.3 The offer of appointment issued in favour of Ms. Renu Rai (General) was withdrawn by the respondent-NVS on 19.12.2015. Mr.Ganesh Ram Parekh (General) sent his refusal letter on 1.4.2016. No offer of appointment was issued by respondent-NVS to Mr.Sandeep Tiwari due to non-submission of documents. Thus, three General category selected/shortlisted candidates, namely, (1) Ms. Renu Rai, (2) Mr.Ganesh Ram Parekh, and (3) Mr. Sandeep Tiwari, out of 17 General category candidates, who were shortlisted for appointment as PGT (Geography), did not join the service, and three out of seventeen UR vacancies notified in the advertisement remained unfilled.
5. In the above context, it has been submitted by Ms.Jyoti Singh, learned Senior Advocate for the applicant that as per the practice followed by the respondent-NVS, a 2nd list of candidates, who had scored cut off marks in the written examination and interview and were otherwise eligible, but could not be shortlisted for appointment as PGT (Geography) in view the number of vacancies advertised, ought to have been prepared by the respondent-NVS and offers of appointment issued to the applicant and others against the three unfilled vacancies in the post of PGT (Geography). In support of her contention, Ms.Jyoti Singh, learned Senior Advocate, has drawn our attention to the copies of 2nd, 3rd and 4th merit lists of selected Page 4 of 10 5 OA 1700/16 candidates for appointment as PGT and TGT against the unfilled vacancies in the eventuality of non-joining of some candidates in the 1st , 2nd and 3rd merit lists pursuant to the advertisements issued by respondent-NVS in the years 2009 and 2011, in which selection procedure was same as in the advertisement issued in the year 2014. Ms.Jyoti Singh, learned Senior Advocate, has also drawn our attention to the Department of Personnel & Training's, O.M.No.41019/18/97-Estt. (B), dated 13.6.2000, wherein it has been stipulated that in the event of a vacancy occurring by non-joining of a selected candidate within stipulated time or where the candidate joins and resigns or dies within one year, reserve panel must be utilized to fill up the post if fresh panel is not available by then, and that such vacancies should not be treated as fresh ones. Thus, it has been submitted by Ms.Jyoti Singh, learned Senior Advocate, that the respondent-NVS has acted arbitrarily and unreasonably in not publishing the 2nd merit list of the selected candidates for appointment as PGT (Geography) and in not appointing the applicant and other candidates in order of their merit against the three unfilled vacancies. To buttress her submission, Ms. Jyoti Singh, learned Senior Advocate, has relied on the judgment of the Hon'ble Single Judge of the Hon'ble High Court of Punjab & Haryana in the case of Arun Singh and others vs. State of Haryana and another, CWP No.25682 of 2014, decided on 13.11.2017, wherein it has been held that in the event of non-joining of the selected candidates, it is incumbent upon the Department to have gone down on the Page 5 of 10 6 OA 1700/16 merit list and offered appointment to those next in line, and the Department cannot take a decision not to fill the notified vacancies without any valid reason. In Arun Singh and others vs. State of Haryana and another (supra), the Hon'ble Single Judge, besides relying on the judgment dated 5.5.2010 passed by another Hon'ble Single Judge in CWP No.13215 of 2009( Gajraj Singh vs. State of Haryana and others), which has been upheld by the Division Bench in LPA No.716 of 2011, vide judgment dated 20.4.2011, has also followed the principle laid down by the Hon'ble Supreme Court in Shankarsan Dash vs. Union of India, 1991(2) SCR 567 that the State has no license to act in an arbitrary manner and the decision not to fill the vacancies is to be taken bona fide for appropriate reasons.
6. Per contra, it has been contended by Mr.S.Rajappa, learned counsel appearing for the respondent-NVS that for the Recruitment Drive- 2014, the respondent-NVS did not prepare any reserve panel. The DoP&T's OM dated 13.6.2000(ibid) is not applicable to the present case. Therefore, the applicant's claim for appointment as PGT (Geography) pursuant to the Recruitment Drive-2014 is baseless.
7. After having given our thoughtful consideration to the rival contentions, we have found considerable merit in the contentions of Ms.Jyoti Singh, learned Senior Advocate appearing for the applicant.
8. Indisputably, the applicant had scored the cut-off marks in the written examination and interview, but he was not included in the merit list Page 6 of 10 7 OA 1700/16 of 17 General category candidates shortlisted for appointment, because the applicant had scored 124.50 marks in written examination and interview put together, and the merit list of candidates shortlisted for appointment got exhausted up to the last General category candidate who had scored 125 marks in written examination and interview put together. On a perusal of the records, we have found that in the year 2009, the respondent-NVS had initiated the process of recruitment for filling 224 vacancies in the post of PGT (Computer Science) and prepared a list of shortlisted candidates for appointment. Consequent upon withdrawal of offer of appointment given in the said list, the respondent-NVS had prepared a 2nd list of 38 candidates for appointment against the unfilled vacancies. Then, again, consequent upon withdrawal of offers of appointment issued in the 1st and 2nd lists, the respondent-NVS had prepared a 3rd list of 17 candidates for appointment against the unfilled vacancies. Then, again, consequent upon withdrawal of offer of appointment/resignation candidates shortlisted in 1st , 2nd and 3rd lists, respondent-NVS had prepared a 4th list of candidates for appointment against the unfilled vacancies. Similarly, the respondent-NVS, after conducting the recruitment process for filling vacancies in the post of TGT in different subjects in the year 2011, had prepared a list of candidates shortlisted for appointment against the notified vacancies. Consequent upon the vacancies created on account of withdrawal of offer of appointment issued pursuant to the said list, the respondent-NVS had prepared a 2nd list of Page 7 of 10 8 OA 1700/16 candidates for appointment to the post of TGT in different subjects against the unfilled vacancies. Likewise, the respondent-NVS, after conducting after conducting the recruitment process for filling vacancies in the post of PGT in different subjects in the year 2011, had prepared a list of candidates shortlisted for appointment against the available vacancies. Consequent upon the vacancies created on account of withdrawal of offer of appointment issued pursuant to the said list, the respondent-NVS had prepared a 2nd list of candidates for appointment to the post of PGT in different subjects against the unfilled vacancies. All this goes to show that the respondent-NVS had been adopting and following the practice of preparing additional list(s) of candidates in order of merit, when the vacancies notified/available for the relevant year remained unfilled consequent upon withdrawal of offers of appointment issued to the candidates shortlisted in the main merit list/succeeding merit list(s). The respondent-NVS has not assigned any reason, far less any justifiable reason, as to why for the recruitment drive initiated in the year 2014, which is the subject-matter of the present proceedings, the well established practice of preparation of additional/2nd merit list has not been followed by them when admittedly three out of seventeen UR vacancies notified in the recruitment notice/advertisement remained unfilled. The respondent-NVS has also not placed before this Tribunal any material showing any decision to have been taken by the competent authority not to follow the well established practice for the Page 8 of 10 9 OA 1700/16 recruitment process initiated in the year 2014. The respondent-NVS's plea of non-preparation of any reserve panel or 2nd merit list of candidates, who had scored the cut off marks in the written examination and interview and were otherwise eligible, is a clever ruse not to fill all the notified vacancies thus and thereby denying appointment to the candidates in order of their merit who had scored cut off marks in the written examination and interview and were otherwise eligible to be shortlisted for appointment against the three unfilled vacancies but could not be empanelled in the merit list of 17 General category candidates shortlisted for appointment against 17 UR vacancies. The respondent-NVS cannot be allowed to act according to their whims and fancies and to take the plea of non-preparation of any reserve panel when their action/inaction is challenged before any judicial forum. In the above view of the matter, we have found substantial force in the contention of Ms.Jyoti Singh, learned Senior Advocate for the applicant that the respondent-NVS has acted arbitrarily and unreasonably in not preparing a 2nd list of candidates shortlisted for appointment to the post of PGT (Geography) against the three unfilled vacancies falling under UR category and in not offering them appointment before initiating the subsequent recruitment drive and publishing the panel of selected candidates pursuant thereto.
9. In the light of our above discussions, and following the decision of the Hon'ble Supreme Court in Shankarsan Dash vs. Union of India Page 9 of 10 10 OA 1700/16 (supra) and the decision of the Hon'ble High Court of Punjab & Harnaya High Court in Arun Singh and others vs. State of Harayana and another (supra), we direct the respondent-NVS to prepare a 2nd merit list of UR category candidates, who had scored the cut-off marks in the written examination and interview and were otherwise eligible, for appointment against the three unfilled vacancies in the post of PGT (Geography) under UR category and to issue offer of appointment to them accordingly within a period of three months from today. In case the applicant figures in the 2nd merit list and comes in the zone of consideration for appointment against the said three unfilled vacancies in the post of PGT (Geography) and is otherwise eligible, the respondent-NVS shall issue offer of appointment to him. Considering the facts and circumstances of the case, we make it clear that preparation of the 2nd merit list and appointment of any of the candidates pursuant thereto, as directed in this order, will not entitle any of those candidates to claim any financial or service benefits with retrospective effect.
10. Resultantly, the O.A. is partly allowed to the extent indicated above. No costs.
(PRAVEEN MAHAJAN) (RAJ VIR SHARMA) ADMINISTRATIVE MEMBER JUDICIAL MEMBER AN Page 10 of 10 11 OA 1700/16 Page 11 of 10