Central Administrative Tribunal - Mumbai
Minakshri Babu Sikotariya vs Ut Of Daman And Diu on 28 March, 2024
pa OA Nos. 168/17, OA. 442/16 & OA AIG/16 Central Administrative Tribunal, Mumbai Bench, Mumbat. O.A.168/2017 with O.A.442/2016 and O.AA19/2016 'day oof Mareh, 2024. Coram: Ms.Harvinder Kaur Oberoi, Member (3 adicial) Mr.Shri Krishna, Member (Administrative). O.A.168/2017 Tejashkumar Ratilal Shrimali, Aged about 34 years, Presently working as ; Branch Manager, Dena Bank, Dapada, Silvassa DNH-396230 and presently R/at: D-405, Radha Madhav Residency, Dunatha, Nani Daman -- 396 210. .. Applicant. Yersus i. The Administrator, Union Territory of Daman & Diu, Sachivalaya, Fort Area, Daman-396220, * The Secretary (Education), Union Territory of Daman and Diu, Sachivalaya, Fort Area, Daman-396220. 3, The Director of Education, Union Territory of Daman and Day, Secretariat, Daran-396 220. .. Respondents. O.A442 2016 Hemant Karsan Chauhan, Aged about 28 years, Presently working as Accountant on contract basis at National Health Mission, 1* Floor, Community Health Centre, Fort Area, Moti Daman ~ 396220, and residing at: House No. 1-953, Gandhipara, Diu (U.T.) 362 520... Applicant. Versus LL The Administrator, 2 OA Nos. 168/17, OA 492/16 & OAF1916 Union Territory of Daman & Dix, Secretariat, Fort Area, Moti Daman-396220. 2. The Secretary (Education), Union Territory of Daman and Diu, Secretariat, Fort Area, Moti Daman-396220. 3. The UMrector of Education, Union Territory of Daman and Diu, Secretariat, Moti Daman-396 220. 4. Rahulkumar Ranubhai Thakur, B-2/2, B-Quarter, Near Light House, Fort Area, Moti Daman -- 396 220. 5. Subhashbhai Gopalbhai Patel, House No.15/120, Patel Falla, Khariwad, Nani Daman -- 396 210. .. Respondents. O.AALS/2016 Minakshri Babu Sikotariya, Aged about 32 years, Presently Housewife, and residing at: House No.8/2, Vadi Sheri, Vanakbara, Diu (U.T.) 362 370. . Applicant, Versus 1. The Administrator, Union Territory of Daman & Din, Sachivalaya, Fort Area, Daman-396220. 2. The Secretary (Education), Union Territory of Daman and Diu, Sachivalaya, Fort Area, Daman-396220. 3, The Director of Education, Union Territory of Daman and Diu, Secretariat, Daman-396 220. A, Devangibahen Ramanial Baria, DGGP 54/7, Bariawad, Dholar, Moti Daman -- Daman (U.T,)-396 220. 5. Mrs. Mitab $57 nik. Parmar, had OA Nos. 168/17, OA S42/16 & OAAIIIG Assistant Teacher, Nagar Seth Residency, Near Trivent Hotel, Noida Road, Diu --- 362 520. 6 Nikunj Dipakbhai Vyas, Block No.39, Room No.463, Near Rameshwar Temple, Anand Nagar, Bhavnagar ~ Gujrat-364 QOL, .. Respondents. Appearances ; Shri $.R.Atre, learned counsel for the applicants in all the OAs. Dr. V.S.Masurkar, leamed counsel for the respondents in all the OAS. Order reserved on 22.02.2024 Order pronounced on36,03,2024 ORDER
Per : Harvinder Kaur Oberoi, Member (3) With the consent of all the parties, the 3 OAs were heard together and are being decided together as the similar issues have been raised in these Applications.
2. Facts common in all the 3 OAs are that the three applicants are aspirants for the post of a Teacher in various subjects in the UT. Respondents had oublished a Newspaper advertisement dated 25.09.2014, whereby applications were invited to fill up the posts of Assistant Teacher in the Union Territory of Daman & Diu as under:
"Assistant Teacher (Group 'B' Non-Gazetted) having the pay scale of Rs.9300-34800 (GP 4600/-)"
As per the advertisement ® vacancies were to be filled for Gujarati, 4 for Hindi, 18 for English, 12 for Sanskrit, 8 for Social Science, if 4 OA Nos. 168/17, OA 542/16 & OASIOI6 for Maths and 13 for Science & Technology.
3. The applicant in O.A.419/2016 was an aspirant for the vast of Assistant Teacher (Sanskrit) in the OBC category. Applicant in 0.4.168/2017 is an aspirant for the post of Assistant Teacher (Maths) in SC category out of the 14 posts advertised in the pay scale of Rs.9300-34800 with Grade Pay of Rs.4600/-. Applicant in ©.A.442/2016 is an aspirant for the post of Teacher Grade-l (Accounts) which is also a Group 'B' Non-Gazetted post. A separate advertisement for this post was issued on 25.09.2014, and 6 posts in the Accounts subject were advertised.
4. Counsel on behalf of the applicants submits that the applicants in pursuance to this advertisement being eligible submitted their applications giving their full details regarding OFS educational and other qualifications as per time frame fixed in the notification. The applicants were subjected to written online examination subject-wise as per the notification dated 16.12.2015. Online examination was conducted on two dates on 26.12.2015 and 27.12.2015. The applicants appeared in the said examination.
5, On 16.01.2016, a list of selected candidates was declared subject-wise and the applicant in O.A.419/2016 found her name in the selected candidates under the OBC category at SpNo.1i. Similarly applicant in O.A.442/2016 found his name in 5 OA Nos. 168/17, OA 442/16 & OASIING the list of selected candidates in Assistant Teacher Grl. Applicant in O.A.168/2017 could not Gnd his name in the list as he was not selected.
& Tt was clarified in the notification that the selection list of the eligible candidates is only provisional and subject to verification of relevant original documents, medical fitness and other verification required as per rules. On 11.05.2016, another provisional list was issued and in the said list names of the applicants in O.A419/2016 and O.4.442/2016 stood deleted. The applicants preferred their representation against their deletion, however, no response Was received. Ultimately the Original Applications were fied. However, during pendency of the OAs, the final selection list for the 77 posts of Assistant Teacher was published on 10.02.2017. The applicants in order to challenge the final list and subsequent developments sought permission to amend the G.A. Permission was granted by the Tribunal. In these ojroumstances the following reliefs have been sought :
"8CA). 'This Hon'ble Tribunal be pleased to eall for the record and proceedings of the present case and afler examining the legality anc propriety thereof, quash and set aside the impugned list of candidates dated 11 of May, Z016 superseded by Order/Final Notification dated 10% of February, 2017, wherein the Applicant's candidature for the post of Assistant 'aacher in Sanskrit, has been rejected by the Respondents by denying her the right to be o OA Nos. 168/17, OA SS2/16 & OA ALOI6 considered against OBC category and she ts deprived of the same by illegally adjusting Respondent Nos.4,5 and 6 in the impugned Select List in which they are not entitled to be included.
(B). This Hon'ble Tribunal be pleased to hold and declare that the action on the part of the Respondents in adjusting Respondent Nos.4, 5 and 6 in the Select List for appointment of Assistant Teacher in Sanskrit vide Order dated 1i® May 2016 superseded by Order/Final Notification dated 10® of February, 2017, is illegal and bad in law and the Respondents deserve to be directed to appoint the Applicant, an OBC category candidate, in Sanskrit as had been declared by the Respondents vide Select List dated 16" of January, 2016.
(C). Pass any such Order and/or Orders as this Hon'ble Tribunal deems fit and proper in the facts and circumstances of the present case.
(BD) Costs of the present application be provided for."
me At the outset, counsel for the applicants submitted that the applicant of O.A.419/2016 and O.A.442/2016 are to be treated similarly as both of them had been initially selected in their respective posts Le. Assistant Teacher (Sanskrit) in O.A.419/2016 and Teacher Gri (Accounts) in O.AAS2/2016. He submitted that the result was published initially in 16.01.2016. Their names were in the select list, however, without any reason they have been denied appointment. He submitted that the similar issue came up before this Tsibunal in G.AAT2016 decided on O7 42.2019. We + A Nos.168/17, OA. 442/16 & OASI916 have perused the order passed by the Tribunal above.
8. We find that all the aspects and arguments of the two A's referred above have been raised and considered by the Tribunal in the order. As such 0,A.419/2016 and O.A442/2016, they are fully covered by this Tribunal's order and, therefore, we reproduce the same -
" This application was filed on 29.01.2016 by the applicant under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliets:- | "8(a). This Han'ble THibunal may graciously be pleased to call for the records of the respondents and afler examining the same quash and set aside the Dnpugned Select List dated 11.05.2016 to the extent of exclusion of the name of the applicant and inclusion ef names of Respondents No. i te 6 thereim.
(b) This Hon'ble Tribunal may further be pleased io hold and declare that the applicant is selected against one of the three reserved vacancies af SC of Teacher Grade I in the selection convened vide Advertisement dated 25.99.2014 and the Respondent No.2 be directed to appoint the applicant as Teacher Grade I forthwith from the date of appointment of other candidates along with all consequential benefits of backwages, Seniorily €le., faa} This Hon'ble Tribunal may graciously be pleased to quash and set aside the Final Select fist dated 10.02.2017 to the extent of Ron inclusion of name of applicant therein.
hb) This Hon'bie Tribunal may gracionsiy be pleased fe guash and set aside the advertisement dated 25.09.2014 to the extent of allogment of only 3 vacancies of Teacher Grade-
I for SC categery and direct the respondents 16 8 OA Nos. 168/17, OA S82/16 & OA ATE allot & vacancies of teacher Grade-[ for SC category.
fc) Costs of the application be provided for (dj. Any other and further order as this Hon'ble Tribunal deems fit in the nature and circumstances of the case be passed."
2. Weard Shri S.V.Marne, learned counsel for applicant and Shri V.S.Masurkar, learned counsel for official Respondent No.l and 2. 9 Shri A.S Hapati, learned counsel for private respondents was not present at the time of final hearing. The learned counse! for official respondents states that he had served notice on the other Respondents Nos.3 to 8 but there is no representation on their behalf despite of service.
3. This applicant was appointed on contractual basis as Primary Teacher from 2007 and as an Assistant Teacher in Sarva Shiksha Abhiyan in 2013. The respondents had published a newspaper advertisement dated 25.09.2014 (Annexure A-3) and conducted written examination for 35 yaoancies advertised out of which five vacancies were reserved for Scheduled Castes, three for Scheduled Tribes, nine for Other Backward Classes and one for Physically Handicapped category. A select list was published on the website adopting the roster system previously got approved by the Social Welfare Department with the concurrence of the administrator, on 16.01.2016 prior to this OA and during the pendency of this OA, this list was modified and amended list was published on 11.05.2016 which was further amended and a final panel with roster was published on the website and Notice Board on 10.02.2017. However, in the first list, the applicant whose subject is Hindi and was otherwise eligible for the post Teacher Grade-l (Junior College, Group B post) was selected, she did not find a place in any of the final (amended) select list.
ad, in this OA, the applicant has stated that at the Q OA Nos 168/17, OAASU16 & OA S196 time of advertisement, five vacancies were reserved for Scheduled Caste category to which the applicant belongs but no indication was given as to the subject of reservation. The subject-wise reservation was not considered in any of the three lists published by the respondents. During arguments, the learned counsel for respondents gave a detailed presentation of the Hnal roster that was adopted for third and final panel where all the posts in direct recruitment category were filled adopting a roster system taking the entire set of posts for Teacher Grade-I as one unit to be filled up with appropriate reservation in the roster or as prescribed by the Central Government, Government of India. They assert that the applicant had scored high marks in the Hindi category of 60.65 (60.65 includes 20 matks for domicile} in the first list but this was subsequently revised to 60.46 marks (20 marks for domicile), in the second and third lists which became the final panel. Applicant could not secure a place by virtue of the fact that by following this modified roster system, the post for Hindi was filled up by one unreserved and one physically handicapped candidates.
5 The jeamed counsel for applicant and respondents has been heard at length on the method adopted for this recruitment process. They were enquired as to how they would consider their applicability of the judgment of the Hon'ble High Court of Allahabad vide order and judgment dated 07.04.2017-
"Th case Writ ~ A No43260 of 2016 of Vivekanand Tiwari And Anr. Vs Unton of India And 5 Ors. on 7 April, 2017."
iO. Writ Petition No.39334 of 2012 "DpNarendra Singh & Others Vs. State of UP & Others decided on 18.02.2014.
10 OA.Nos. 168/17, OA 442/16 & OAFIO éIt is clear from the above judgments that the proposition of law laid down consistently with regard to the application of reservation in teaching posts of the University is that reservation is to be applied department-wise or subject-wise treating it as a 'Unit' and not the University as a 'Unit'.
As already recorded above the reservation has been applied by way of Executive Instructions and not by way of any Legislation. The Executive Instructions and guidelines framed by the UGC are in direct conflict and in violation of the law laid down by the Apex Court and different High Courts consistently from 1990 till date. We also find that in all the cases referred to above, the Courts have quashed the advertisements issued and appointments made by the different Universities but in none of the cases the guidelines framed by the University Grants Commission in 2006 providing for reservation treating the University as a "Unit' had been quashed. All Universities and Institutes of higher education and learning are governed by the policy' guidelines/ directions/ standards determined by the UGC. They could be State or Central Universities and Institutes. There is ne distinction amongst them. The guidelines of UGC of 2006 impuened in this petition also apply to all Universities in the country, be it State or Central without any modification or variance. All the judgments delivered so far on the question as to how reservation is to be applied in Universities and Institutes relate to State Universities. However as the policy and guidelines issued by UGC are the same for the State and Central managed and funded Universities the judgments referred to above would apply with equal force to Central University and to BHU which is a Central University The State of UP wide Notification No.6/2015-16/Sattar-1-2015-17C13 V1995 following various judgments has already directed all State Universities to apply reservation on different levels of teaching treating the department/subject as a Unit, z g Prom the guidelines framed by the UGC Hl "s«OA.Nos. 168/17, OA. 442/16 & OA 419/16 regarding application of reservation in teaching posts we find that the UGC has applied it in a blanket manner. There is no consideration as to why non- interchangeable posts have been clubbed in for treating them as a cadre/unit. No exercise apparently has been carried out by the UGC. The direction contained in the order of the Minister of HRD dated 06.12.2005 did not contain any direction to the UGC to make blanket reservation or to treat the University as a 'unit. UGC being the Apex bady to consider the matter relating to Universities and Institutes involved in imparting higher education ought to have considered and taken an overall conspectus.
We may also record here that in the teaching posts, the qualifications of teachers for each departinent/subject is different.
The qualification of the candidate must be possessing Master's Degree, Ph.D, Research Wok and NET (being suitability test} for the subject for which the post is advertised. Thus for Assistant Professor of different subjects the qualification would be in different subjects. Similarly the qualification as per the UGC Guidelines for appointment as Reader/Associate Professor, Professor is also in addition to the educational qualifications the minimum prescribed period of teaching in the lower level be it Assistant Professor, Associate Professor in the relevant subject for which the post is available. An Assistant Professor in subject 'A' cannot be an applicant for direct appointment as Associate Professor or Professor in subject 'B','C' or 'D', He can only apply for the post in the subject 'A'. The seniority for becoming Head of the Department would be of the teachers in teh same subject. There is no interse competition between the teachers in the same level of different subjects as ll posts of higher level from entry level are by way of selection, There is no such provision in the teaching cadre in the Universities of promotion being granted on the basis of seniority irrespective of the department or the subject. Their competition is with candidates of their subjec Ueeberene ent and not of different subjecis. Merely because Assistant Professor, Reader, Associate fens ied DA Nas. 168/77, OA 49216 & OA 4TTG Professor and Professor of each subject or the department are placed in the same pay-scale but their services are neither transferable nor they are in competition with each other. It is for this reason also that clubbing of the posts for the same level treating the University as a 'Unit' would be completely unworkable and impractical. It would be violative of Article 14 and 16 of the Constitution.
If the University is taken as a Unit' for every level of teaching and applying the roster it could result into some departments/subjects having all reserved candidates and some having onliy wumnreserved candidates, Such proposition again would be discriminatory and unreasonable. This again would be violative of Article 14 and 16 of the Constitution."
Further we direct the respondent University to carry out the exercise of applying the reservation to the posts under advertisement treating the department/subject as a 'Unit' for all levels of teachers and thereafter publish the fresh advertisement and ther proceed for selection and appointment."
5. In the present recruitment, the learned counsel for respondents informs that subsequent to the declaration of the panel out of 35 advertised posts, 20 appointment orders were issued and these 20 persons have joined as Teacher Grade-I in their appointed category/location. It is also noted in this context that all these appointees were appointed and posted and reported their duties and this has occurred during the pendency of this OA. It is amply clear that the position in law has been settled by the Hon'ble Apex Court in upholding the judgments of the Hon'ble High Court of Allahabad in the case of Vivekanand Tiwari supra) and in the facts and circumstances, the decision in that case is squarely applicable to the present recruitment. In these circumstances, since the respondents are bound to obey the law as laid down, the QA is partly sllewed with the following dirvections:-
OA Nos. 168/17, OA 442/16 & OASI916 Spee ty (@) The Respondent No.l and 2. shall recommmence the selection process from the point at which the roster has been applied for preparation of the final select lst by applying the distinct unit principle for each subject as prescribed by the Hon'ble Apex Court and as per law.
fit} In respect of subject of specialization of the applicant namely, Hindi, her selection would rest on the preparation of the select list as in the manner set out as above and she would be entitled to selection and appointment, if she falls within the category that emanates for such a redrawal of the panel.
7. Incase after the selection exercise, the applicant gets an order for appointment, then the applicant shall be entitled for the benefits of seniority and fixation of pay from the date of appointment and shail not be entitled for any back wages. She shall be entitled for the benefit of seniority and fixation of pay in keeping with the fact that a junior person in the merit list may have joined in the services under the respondents on the basis of instant selection process and the respondents shall verify this specific aspect while passing orders. In the aforesaid terms, the OA 1s disposed of. No order as to costs."
In O.A.168/2017, the issue is slightly different. The applicant has sought tn Para 8{a) that after examining the legality and propriety thereof, quash and set aside the impugned list of selected candidates dated 10" February, 2017 and direct the respondents to prepare subject-wise common merit list and subject- wise roster by giving due weightage to SC/ST/OBC candidates without practicing inequality on basis of regionalism and accordingly appoint the candidates as per the above referred 14 OA Nos. 168/17, OA 442/16 & OASIONG subject-wise merit list and subject-wise roster to the post of Assistant Teacher. The grounds raised by the applicant is that the respondents while declaring the results have granted 20 marks to the residents of UT/ Domicile cases. The applicant is a resident of Silvassa and he has not been granted the domicile 20 marks. He has stated that the candidates wha have been selected is actually having lesser marks than the applicant but awing te 20 marks given to him by virtue of his domicile status that he scored higher marks over the applicant. He submits that this policy of granting 20 marks for domicile is ille egal al. He argued that either 20 marks be granted to everybody or the same should be withdrawn from everybody to ensure a level playing field between the competing candidates.
The respondents have filed their counter affidavit in O.A.419/2016 and 0.4.442/2016. Their stand is similar as one they have taken in the O.A.41/2016 decided earlier, 1k, In O.A.168/2017 on the question of domicile, the respondents submitted that after publishing provisional selection list dated 11.05.2016, it was observed that the post of Assistant Teacher (TGT) is Group 'B' Non-Gazetted posts having Grade Pay of Rs.4,600/- and as per 6" CPC, for which National Roster has been implemented and hence, reservation benefits have to be given to all candidates irrespective of domicile origin.
13 OA Nos. 168/17, GA.442/16 & OASI9/16Ls, Whereas, in the provisional revised merit and selection list, reservation benefits were given only to the candidates who were origin of U.T. Of Daman and Diu. Therefore, the department has prepared a final selection list dated 10.02.2017, in which candidates have been given reservation benedit irrespective of domicile / origin, In the said selection list, the applicant could not find his place due to lower position in the merit.
iS Respondents further submitted that applicant is having only 5 years to stay in the UT on the date of application and hence fe was granted residential certificate, which proves that he is at present residing in U.T. Of Daman and Diu. However, as per rules of the U.T. for grant of domicile certificate one has to have atieast 10 years of continuous stay in the UT. Of Daman and Din. Admittedly, the applicant does not possess the said certificate and hence question of granting marks on domicile does not arise. Therefore, Domicile marks of 20 were not given. But the applicant has been considered for SC reservation even he is SC origin of Gujarat as the post of Assistant Teacher is Group-B (Non-Gazetted) for which National Rester / All India Roster has been implemented.
During arguments counsel for the applicant stated that the issue of demicile weightage ie The Hon'ble Bombay High Court in the case of Union 16 OA Nos. 168/17, GAS42/16 & OA ALOIS of India through the Administrator and ors. Vs, Patel Meenaben Amrutlal and Ors. in Writ Petition No.2462/2019 with Interim Application No.3759/2022 decided on 22,06,2022 held that -
') The Central Administrative Tribunal, Mumbai Bench, Mumbai by its order dated December 21, 2018 dismissed several original applications. The concluding paragraph of such order reads as follows:-
"92. However, respondents are additionally directed to review their selections and the select list prepared by them based on the illegal and unconstitutional award of 20 marks for' domicile and then to arrive at a fresh selection fist and to decide on the eligibility of candidates and their selection on that basis. For this purpose. three months time is granted to respondents to prepare _a fresh selection list_in respect of the advertisements impugned in these batch of cases. Further, until this Selection List is declared as above, the applicants who are presently in service by virtue of interim orders shall not be disengaged by respondents."
2 In this writ petition, the directions contained in paragraph 92 have been subjected to challenge by the Administrator, Union Territory of Daman & Diu and Dadra & Nagar Haveli.
3. Today, Mr. Venegaonkar, learned advocate for the Administrator, fairly submits that in view of the decisions of the Supreme Court reported in (2002) 6 SCC 562 GSailash Chand Sharma vs. State of Rajasthan and others) and (2019) 14 SCC 179 (State of Rajasthan vs. Nem! Chand Mehela and others), the directions given by the Tribunal in paragraph $2 are 17s OANos. 168/17, OA 442/16 & OASIAI6 unexceptionable. He has, therefore, invited us not to interfere with such directions.
4 'The fair submission of Mr. Venegaonkar is appreciated. The contents of paragraph 92. of the impugned order are not disturbed and the writ petition stands dismissed. No costs, § Tn view of the aforesaid order, nothing survives for decision in the interim application and the same stands disposed of. No costs." The present selection has been the subject matter of challenge on the question of reservation in O.4.41/2016 decided on 07.02.2019. It is clear from the above judgment that the proposition of law laid down consistently with regard to the application of reservation in teaching posts is that reservation is to be applied department-wise or subject-wise treating it as a Unit. Furthermore, domicile weightage has also been done away with.
14, in view of the above the present OAs deserve to be allowed. Respondents are duty bound to implement directions sesued in O.A.41/2016 decided on 07.02.2019 and in Writ Petition No.2462/2019. We dispose the present OA's similarly with directions to respondents to prepare the fresh selection lists accordingly. If the applicants get selected consequential benefits as directed in O.A.41/2016 shall flow to the present, applicants also, (Shri Krishhay" (MsiHarvitider Kaur Oberoi) Member (A) Member (J).
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