Central Administrative Tribunal - Madras
A Prabagarane vs M/O Health And Family Welfare on 2 June, 2022
1 CENTRAL ADMINISTRATIVE TRIBUNAL CHENNAI BENCH OA NO.508/2020 1 _ OA 508/2020 Dated Thuysday, the May of Je Two Thousand Twenty Two CORUM: HON'BLE MR. T.JACOB, ADMINISTRATIVE MEMBER & HON'BLE MS, LATA BASWARAJ PATNE, JUDICIAL MEMBER 1.A.Prabagarane, No.12, Main Road, Guru Nagar, Gorimedu, Puducherry 605 006. 2.K.Viswanathan, No.10, Valialar Street, Nagamman Nagar, Puducherty 605 008. 3.M.Ganesan, No.56, Marlamman Kovil Street, Pillaichavady Post, Puducherry 605 014. 4.D,Ramadoss, No.A.2, Mahalakshmi Nagar, Murungappakkam, Puducherry 605 004, By Advocate M/s K.P.Jotheeswaran Vs. 1.The Secretary to Government, Ministry of Health & Family Welfare, Government of India, New Delhi. 2.The Director, Jawaharlal Institute of Post Graduate Medical Education and Research (JIPMER), Pondicherry 605 006, , 3.The Deputy Director (Administration), Jawaharlal Institute of Post Graduate Medical Education and Reséarch (JIPMER), Pondicherry 605 006. 4.The Administrative Officer, Jawaharlal Institute of Post Graduate Medical Education and Research (JIPMER}, Pondicherry 605 006. . « Applicants C) 5.R.Nandagopal Emp No.jP5604 6.R.Gopal, Emp No.JO5261 7.E.R.Raja, Emp.No.J05265 8.S.Aroul, Emp No.JO5S268 9.S.Saravanane, Emp.No.JO05266 10.E.Pazhanisamy, Emp No.JO5270 11.A.Spreetha, Emp.No.JP57i1 12.Lazare Marie, Emp.No.JP5714 13.S.Malarvizhy, Emp.No.JP5713 14.R.Rajendra Kumar, Emp.No.JP5715 15.V.Santhi, Emp.No.3P5725 16.M.Floty Isaikumaran, Emp.No.JA5334 Respondents 5-16 are working as MTS in JIPMER, Pondicherry 605006. By Advocate Mr.M.T.Arunan (R2-4) OA 3508/2020 . .Respondents J 3 OA 5308/2020 ORAL ORDER
(Pronounced by Hon'ble Ms. Lata Baswaraj Patne, Member(J)) The applicants have filed this OA under Section 19 of the Administrative Tribunals Act, 1985.seeking for the following relief:
"To set aside the addendum No.Admin-l/Pro/i1(18)/2017 dated 28.12.2019 passed by the 4" respondent in so far as contemplating skill test for the quota meant for seniority cum fitness basis,
(ii) To set aside the select list dated 11.11.2020 issued by the 2" respondent and promotion order in office order No.79(2020 series) dated 11.11.2020 passed by 4" respondent.
(iii) To appoint the applicant as Junior Administrative Assistant (erstwhile LDC) in accordance with the existing Recruitment Rules on seniority cum fitness basis."
2. The brief facts of the case as stated by the applicants are as follows:
The applicants joined the 1* respondent institute on consolidated basis and their services were thereafter regularized and they were made Multi Tasking Staff (MTS). The next avenue of promotion for them Is Junior Administrative Assistant (previously Lower Division Clerk). As per the new Recruitment Rules notified on 29.05.2020 for the post of Lower Division Clerk, the method of recruitment is 65% by direct recruitment, 20% by LDCE and 15% by Seniority cum Fitness, in that the sald 15% of the vacancies has to be filled on seniority cum fitness basis. from the Group C employees with saving clause guidelines issued by the DOPT dated 25.03.1996 and have 3 years regular service In posts with at least the grade of Rs.1800. The grievance of the applicants is that to fill up the said 15% quota reserved for the Group C employees as per the seniority cum fitness basis for the post of Junior Administrative Assistant (erstwhiie LDC), the respondents have issued proceedings dated 28.12.2019 insisting the eligible persons to undergo skill test which is against the Recruitment Rules as well as the statutory () 4 ; OA 508/2020 guidelines of the DOPT. Even though the applicants have made representation dated 01.09.2020 against the conduct of the skill test, the respondents were successful in conducting the skill test under the seniority cum fitness quota and published the results wherein the applicants are shown as unqualified. Aggrieved by the action of the respondents in conducting the skill test and publishing the select list dated 11.11.2020 and issuing promotional order dated 11.11.2020 to the selected candidates, the applicants have filed the present OA.
3. The respondents have entered appearance through their counsel and filed their reply statement refuting all the averments made in the OA except those which are admitted on facts, They have stated that as per the Model. RR issued by the DOPT, the minimum qualification for the post of JAA {erstwhile LDC) is 12" standard, but on the request of Jipmer National Importance Hospital Employees Union (JNIHEU, this was relaxed as a. one time measure to 10" class pass to give opportunity to in service MTS (Group C staff), Subsequently, the same was also included in the notified RR as savings clause guidelines for change of RR. Under seniority-cum-fitness basis, the senior employees were accommodated in order of seniority only and without any departmental qualifying exam for 15% of vacancies subject to the fulfilment of fitness criteria including skill test. The respondent institute has tried its best to held the existing employees by increasing the proportion of posts to be filled up by the promotion and by relaxing the educational qualification, etc. While doing this, the institute has to ensure that the persons appointed to the post of JAA are able to carry out the work associated with that post. Hence, basic computer skills are essential for persons to the appointed to this post by promotion. Hence, a computer skill test is a must. There are some persons even more senior to the applicants 3 OA 508/2020 in the present OA who did not even apply for consideration under the seniority cum fitness scheme, knowing that a computer skill test was mandatory and any direction now to promote the applicants would violate the principle of justice to those who did not apply and hence they prayed for dismissal of the OA.
4. Heard both sides and perused the OA along with relevant documents and counter filed by the respondents thereto. Though the private respondents 5 to 16 have been served with notices through the 4" respondent, they neither chose to appear through their counsel nor represented In person.
5. It is to be noted that the as per the Recruitment Rules for the post of LDC dated 12.02.1982, only 10% of vacancies of LDC were to be filled by promotion from Group D employees with 5 years regular service and age limit of 45 years (50 years for SC/ST) through Limited Departmental Exam. Thereafter as per the amended recruitment rules and the addendum dated 28.12.2019 and 13.01.2020 the applicants who are MTS become eligible for next level of promotion as Junior Administrative Assistant (erstwhile LDC) against the 15% vacancy reserved for the seniority cum fitness basis. The 2™ respondent issued an addendum dated 28.12.2019 to fill up the post of LDC by LDCE & Seniority cum fitness and for seniority cum fitness the essential requirements are mentioned as Group C staff, Office Attendants, MTS who must possess 12" pass or equivalent qualification and have 3 years of regular service in the post with at least in the Level I of pay matrix (GP Rs.1800) as per 6" CPC:. Subsequently by addendum dated 13.01.202, the 2™ respondent relaxed the education qualification from 12"
pass to 10" pass. On 29.05.2020, the 2™ respondent has notified the new recruitment rules wherein the method of recruitment is 65% by direct recruitment, 20% by LDCE and 15% by seniority cum fitness. The said 15% of the vacancies under seniority cum fitness quota shall be filled from the Group C émployees 6 . OA 508/2020 with saving clause guidelines issued by the DOPT dated 25.03.1996 and have 3 years of regular service in the post with atleast the Grade of Rs.1800. The Jipmer National Importance Hospital Employees Union has raised an industrial dispute regarding filling up of the post of LDC against seniority cum fitness quota before the Assistant Labour Commissioner, Central Pudhucherry. In its order dated 09.10.2020 it is observed that on scrutiny of the recruitment rules notified by the JIPMER, it was observed that 15% of the vacancies shali be filed-on seniority cum fitness basis and does not specify anything relating to the skill test as stated for Direct/LDCE recruits specifically. The conciliation officer observed that the contention of the Union to implement the RR is justified and further more the individual those who are affected in the instant case on whose behalf Union is representing -have already been redeployed as LDC from time to time by different orders of management. Therefore, the Assistant Labour Commissioner, Central Pudhucherry has given advice to the 2™ respondent to consider the recruitment of LDC purely based on RR seniority cum fitness basis without skill test. Also the Government of India, DOPT has issued guidelines on Departmental Promotion Committees by OM dated 10.04,1989 on the subject of Departmental Promotion Committees (DPC) and related matters, consolidated instructions in six parts. In Part IV procedure to be observed by DPC Para 7 it is observed thus:
"Non-Selection method:
Where the promotions dre to be made on 'non-selection' basis according to Recruitment Rules, the DPC need not make a comparative assessment of the records of officers and it should categorise the officers as 'fit' or 'not yet fit' for promotion on the basis of assessment of their record of service. While considering an officer 'fit', guidelines in para 6.1.4 should be borne in mind. The officers categorised as fit' should be placed in the panel in the order of their . seniority in the grade from which promotions are to be 7 OA 508/2020 made."
6. It is also to be noted that the Hon'ble High Court of Punjab & Haryana at Chandigarh while passing judgment in the matter of Nita Mallick Vs. PGIMER Chandigarh & others on 21.03.2016, after going through the ' ; relevant recruitment rules observed thus:
"13, From the reading of the item Nos. 6, 7, 9a, b, ¢ of Modified é) Recruitment Rules of PGIMER dated 13.04.2011 (supra), it is evident that the third source of recruitment to the post of Lower Division Clerk i.e. 5% of vacancies be filled on seniority cum fitness basis from Group 'C' employees who are not required to pass any typing test as the typing test is specifically prescribed only for the direct recruitment (90%) which is evident from para
7 of Educational and Other Qualification in the Modified Recruitment Rules of PGIMER, Chandigarh. The notice dated 23.09.2013 wherein It is prescribed "to pass the type test at the speed of 35 w.p.m. in English or 30 w.p.m. in Hindi on computer" is without the authority of law for the reason that modified Recruitment Rules are issued by: the Governing Body and approved: by the Institute Body whereas the notice dated 23.09.2013 prescribing the type test is issued by the Director, PGIMER, Chandigarh. In view of these facts and circumstances, both the PGIMER Institute and Tribunal have wrongly interpreted modified Recruitment Rules of PGIMER Chandigarh forthe post of LDC issued vide office order dated 13.04.2011 where under the candidates who applied for-5% of vacancies on é seniority cum fitness basis created from Group 'C' employees are required to pass the type test on computer, is contrary to the Rules of Recruitment governing the post of Lower Division Clerk."
The subject matter in the above said case before the Hon'ble Punjab & Haryana High court is very similar to that of the present OA. The Hon'ble High Court while dealing with the issue of seniority cum fitness also relied on ~ the following Supreme Court judgments:
15. The Supreme Court in the case of Orissa Public Service Commission and another verus Rupashree Chowdhary and another, reported in 2011(8)SCC 108 ruled as follows: "i3.
When the words of a statute are clear, plain or unambiguous, i.e., they are reasonably susceptible to only one meaning, the courts are bound to give effect to that meaning irrespective of g OA 508/2020 consequences, for the Act speaks for itself. There is no ambiguity in the language of Rule 24 leading to two conclusions and allowing an interpretation in favour of the respondent which - would be different to what was intended by the Statute. Therefore, no rounding off of the aggregate marks is permitted in view of the clear and unambiguous language of Rule 24 of the Rules under consideration".
16. In the case of Public Service Commissioner, Uttranchal versus Jagdish Chandra Singh Bora and another reported in 2014(8) SCC 644, the Supreme Court ruled as follows: "28. However, we find substance in the submission made by Mr. C.U. Singh that 2004 clarification would not have the effect of amending 2003 Rules. Undoubtedly, 2004 clarification Is only.an executive order It is settled proposition of law that the executive orders cannot supplant the rules framed under the proviso to Article 309 of the Constitution of India. Such executive orders/instructions can only supplement the rules framed under the proviso to Article 309 of the Constitution of India. Inspite of accepting the submission of Mr. C.U. Singh that clarification dated 29th April, 2004 would not have the effect of superceding, amending or altering the 2003 Rules; it would not be possible to give any relief to the respondents. The criteria under the 2003 Rules governs all future recruitments. We have earlier already concluded that no vested right had accrued to the respondents, the trained apprentices, tinder the. 2001 Rules:
We do not accept the submission of Mr: C.U. Singh that the claim of the respondents (trained .apprentices) would be | covered under the 2001 Rules by virtue of the so called amendment made by 2003 Rules. We are of the opinion that the High Court committed an error, firstly, in holding that the 2003 rules are applicable, and secondly, not taking into consideration that all the posts had been filled up by the time the decision had been rendered".
Finally, the Hon'ble High court directed the respondents 1 & 2 therein to consider the candidature of the petitioner therein to the post of LDC without insisting for passing the type test on computer.
7. The respondents have vehemently argued and cpposed the OA on the ground that as per the modal recruitment rules issued by the DOPT, the minimum qualification for the post of JAA (erstwhile LDC) is 12" standard pass, but on the request of the Jipmer National Importance Hospital Employees Union, the same was relaxed as a one time measure to 10" pass to give opportunity tin service to the Group C MTS employees. Subsequently,
-9 QA 508/2020
the same was also included in the notified recruitment rules as a saving clause guidelines for change of RR. Under seniority cum fitness basis, the senior employees were accommodated in order OF Seniority only and without any departmental qualifying exam: for- 15% of vacancies subject to the fulfilment of fitness criteria including skill 'test. Departmental qualifying exam (written exam & skill test) was conducted only for 20%. of the LDCE -
vacancies as per the RR. While doing so, the respondents have to ensure that persons appointed to the post of JAA are able to carry out the work Associated with the post and hence basic computer: skills are essential for persons to be appointed to the post by promotion. Hence,.a computer. skill test is a must. It is to be noted that the post of LDC is governed by the modified recruitment rules of JIPMER dated 29.05.2020. It is evident from the modified recruitment rules that 15% vacancies 'to be filled up on seniority cum fitness basis from Group C employees with saving clause guidelines issued by the DOPT datéd 25.03.1996 and have three years regular service in the post with atleast the grade of Rs,1800. - The guidelines issued by Government of India on the departmental promotion committee in Part IV, clause 7 have also to be taken into consideration.
8. From the.above facts and circumstances, it. is clear that the JIPMER has wrongly interpreted the modified recruitment rules for the post. of LDC' and the same is contrary to the rules of recruitment governing the. post of LDC.
It is to be noted that When the words of a statute are clear, plain or -
unambiguous, i.¢., they are reasonably susceptible to only one meaning, the courts are bound to give effect to that meaning Irrespective of consequences, for the Act speaks for itself. There is no ambiguity in the Janguage of said Rule i0(iii) & Rule 11(ii) of the notified RR dated 29.05.2020 and as pointing {} -
ot i ae 10 OA 508/2020 out the Interpretation in favour of respondents 2 to 4 which would be different from what was intended by the statute. It is also to be noted that it is settled proposition of law that the executive orders cannot 'supplant the rules framed under the proviso to Article 309 of the Constitution of india and it can-only supplement the said rules,
9. Therefore, in our 'considered opinion, there ig -no force in the submission made by the respondents' counsel. In. view of the. above, the addendum dated 28.12.2019 issued by the 4" respondent in so far as contemplating skill test for the quota meant for seniority cum fitness basis is hereby quashed and set aside. Consequently, the select list dated 41.11.2020 issued by the. 2" respondent and promotion order dated 14:11.2020 issued. by the 4" respondent giving appointment to the private respondents aré'hereby quashed and set aside, The respondents 2 to 4 are directed to fill the 15% quota vacancies reserved for seniority cum fitness
-basis fromthe Group C employees with saving clause Issued by the DOPT dated' 25.03.1996 by giving appointment to the applicants as JAA (erstwhg LDC) in accordance 'with the existing recruitment rules on seniority cum fitness basis according to the seniority list maintained by the respondents 2- 4 in the category of Group C. The above said exercise shall be done within a period of three months from the date of receipt of a certified copy of this order.
10. With the above directions, the OA is disposed of accordingly. No order as to costs.