Central Administrative Tribunal - Ernakulam
Arun Reveendran vs Regional Director Esi Corporation on 10 February, 2023
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No. 180/00770/2018
Friday, this the 10th day of February, 2023.
CORAM:
HON'BLE Mr. JUSTICE K.HARIPAL, JUDICIAL MEMBER
HON'BLE Mr. K.V.EAPEN, ADMINISTRATIVE MEMBER
Arun Reveendran, S/o.Ravindranathan Nair
Aged 28 years Santha Sadanam
Thaikattussery P.O., Cherthala
Alappuzha Dist., Pin -688528 - Applicant
[By Advocate: Mr. C.S.Gopalakrishnan Nair]
Versus
1. Regional Director, Employees' State Insurance
Corporation, Panchdeep Bhavan
North Swaraj Round, Thrissur-680020
2. Director General, Employees' State Insurance
Corporation, Panchadeep Bhavan, CIG Marg
New Delhi-110002
3. Union of India, represented by its Secretary
Department of Labour and Employment
New Delhi-110001 - Respondents
[By Advocates : T.V.Ajayakumar for R1 and R2
C.P.Ravikumar for R3]
The application having been heard on 08.12.2022, the Tribunal
on 10.02.2023 delivered the following:
O.A No.770/2018 2
ORDER
Justice K.Haripal On 04.12.2015 the 1st respondent published Annexure-A1 notification inviting on-line applications to the post of Stenographer, U.D.Clerk (UDC) and Multi Tasking Staff (MTS) in Kerala region of the Employees State Insurance Corporation, on regular basis by direct recruitment. Thus, 8 vacancies of Stenographer, 204 vacancies of UDC and 102 vacancies of MTS were notified. The applicant was an aspirant for the post of UDC. The selection process involved two stages; written test and then a Computer Skill Test, CST. According to the applicant, when he cleared the initial written test, Annexure-A2 list was published, in which his name appears as sl.No.263. Annexure-A2 contains important note, sl.Nos. 1 to 9. Against sl.No.9 it was stated thus:
"This office had advertised 204 vacancies in the month of December 2015. Due to handing over of ESIC Hospital cum Medical College, Paripally to State Government and appointing of Meritorious Sports Personnel, the vacancies have been reduced to 137."
The applicant is very much aggrieved by such a note and therefore seeks to call for the records leading up to the issue of Annexure-A2 and quash the 'Important Note No.9' to the extent it reduces the number of vacancies to 137, to direct the 1st respondent to initiate action to fill up O.A No.770/2018 3 204 vacancies as notified in Annexure-A1 and to direct the 1 st respondent to fill up all the vacancies from Annexure-A10 select list till it is exhausted.
2. Pursuant to Annexure-A2 he underwent the CST and cleared the same and found place in Annexure-A3 list of candidates in alphabetical order, who have qualified for appointment. The name of the applicant appears as sl.No.47. According to him, after Annexure-A1, Annexure-A4 notification was published by the respondents on 08.04.2016 for recruitment of meritorious sports persons for the posts of UDC and MTS. As per the Government Order, 5% of the vacancies in Group-C is reserved for meritorious sports persons. The reasoning for reducing the vacancies from 204 to 137 is illegal and arbitrary as much as it was made public only after the publication of the result of the written test. Group-C vacancies include UDC, LDC, Stenographer and MTS. Moreover, Annexure-A4 was published much after publication of Annexure-A1. Therefore, reduction of vacancy in the cadre of UDC on that count is absolutely wrong and illegal. The selection processes under Annexures-A1 and A4 are different. Moreover, the validity of the select list is not specified in Annexure-A1. Therefore, without exhausting the list a further notification should not have been issued. The applicant has become over-aged and his further chance of getting employment is lost. The vacancies surrendered on account of the handing over of the ESIC O.A No.770/2018 4 Hospital cum Medical College, Paripally should be adjusted in future vacancies.
3. The applicant collected the details from the respondents. Out of 137 candidates, for whom offer of appointment was issued, only 66 general candidates have joined duty. He has also produced the list of 137 candidates in the select list and reserve list of 35 candidates. According to him, from Annexure-A9 it is clear that there were 102 unreserved vacancies of UDCs as on 01.04.2015 and 104 unreserved UDC vacancies as on 01.04.2017. Out of the 66 general candidates who had joined service, 7 candidates have already resigned and the post became vacant. Moreover, 2 candidates belonging to reserved quota also have resigned. The applicant is the next 5th candidate in the general quota eligible for appointment as UDC as per the select list, Annexure-A10. That means, out of 137 candidates only 128 are in service; also in view of the fact that there is no validity period for the select list, all the vacancies have to be filled up from Annexure-A10 select list.
4. On behalf of the respondents 1 and 2, Social Security Officer (Legal) has filed a reply statement challenging the very maintainability of the application. According to him, the application is lacking in merits. Pursuant to Annexure-A1 notification a written test was held in March 2016 and candidates in Annexure-A2 were subjected to the CST and Annexure-R1(b) merit list containing 229 candidates was published. O.A No.770/2018 5 Meanwhile, by Annexure-R1(a) communication of the 2 nd respondent dated 02.02.2017, consequent to the handing over of the ESIC Hospital cum Medical College, Paripally to the State Government, number of posts in different categories was reduced. Thus 91 posts of UDC were surrendered/abolished. Resultantly, number of posts of UDC came down from 416 to 325. Moreover, 5% vacancies advised under the direct recruitment quota in the cadre of MTS and UDC were filled up by recruiting meritorious sports persons. This was done on the basis of the instructions issued by the Department of Personnel and Training, Government of India. Consequent to the publication of Annexure-A4 notification dated 08.04.2016, 10 vacancies, that is 5% of 204 vacancies are reserved for the same. The applicant has not impleaded those appointees, who are likely to be affected in the event of allowing the Original Application. Therefore, O.A. is bad for non-joinder of necessary parties. Moreover, according to the respondents, Annexure-A3 has no relevance since it is published in alphabetical order, what is important is Annexure-R1(b) merit list in which the name of the applicant appears as sl.No.138. His name is not included in Annexure-A7 list of candidates selected for the post of UDC or in the Annexure-A8 reserve list. As per Annexure-R1(c) directions from the Head Quarters 'the result shall be prepared as per the vacancies notified in the recruitment notification/advertisement or subsequent corrigendum, if any issued by O.A No.770/2018 6 the respective region. Vacancies which do not exist shall not be filled. The vacancies which were not notified in a particular category, namely SC, ST, OBC, UR, PWD Ex-servicemen should not be filled up from this recruitment. Vacancies accrued subsequent to 31.03.2016 should not be filled up from this recruitment.' Meritorious sports persons were recruited in October 2016 pursuant to Annexure-A4 notification, as there is instruction to fill up 5% of the vacancies of total number of 204 vacancies of UDC; that also should have been reduced from the available vacancies. Reserved list was also published as per the instructions of the DoPT. Accordingly, candidates belonging to reserve categories finding place in the select list against UR vacancies on their own merit without relaxed standards shall not be adjusted against the reserved share of vacancies and shall be adjusted against UR vacancies. The reserved vacancies will be filled up separately from the available eligible candidates in the respective categories. The final list and reserve list were prepared in accordance with law. The applicant is not included in the reserve list also. Therefore, his rights are not affected. Moreover, there is a direction in Annexure-R1(d) that the reserve list cannot be prepared beyond 25%. It is also stated that there was a direction that validity period of reserve list is 18 months from the date of approval of the result. Referring to the decision in Kulwinder Pal Singh and another v. State of Punjab and others [(2016) 6 SCC 532] the respondents averred O.A No.770/2018 7 that a candidate does not have an indefeasible right to appointment and it is always open to the Government/appointing authority not to fill up vacancies and the only consideration is that such a decision should not be arbitrary or unreasonable.
5. The applicant filed a rejoinder. With reference to Annexure- R1(c) conveyed on 15.03.2017 he said that reduction in number of vacancies occurred on appointment of sports persons cannot be justified. Moreover, the respondents have not issued any fresh notification with regard to the reduction of sanctioned strength in 2017 and it is absolutely illegal to reduce the number of vacancies notified upto 31.03.2016. From Annexure-A8 reserve list three persons belonging to UR category have not joined and those vacancies should have been filled up from Annexure-A10 merit list. Referring to Annexure-A11 notification dated 01.03.2019 it is pointed out that now the respondents have issued fresh notification for the post of 61 vacancies of UDCs.
6. The respondents filed a reply to the rejoinder and produced the copy of Annexure-R1(d).
7. We heard the learned counsel for the applicant as well as the learned Standing Counsel for the respondents 1 and 2. The learned counsel for the applicant filed an argument note also.
8. Facts of the case are not in dispute. The applicant was selected and included in the list of candidates to be appointed as UDC O.A No.770/2018 8 after clearing both the written test as well as the CST. In the Annexure- R1(b) merit list his name comes in sl.No.138. Initially, under Annexure-A1 notification 204 vacancies were notified in the category of UDC including 125 unreserved vacancies, 24 vacancies for SC, 3 for ST, 52 for OBC, 18 for Ex-service men and 5 for PWD. It is further stated that the above vacancies may increase or decrease depending upon the actual requirement. But ultimately, by the time Annexure-A2 was published on 28.03.2017, the number of vacancies was substantially slashed. In note No.9 it is stated that though 204 vacancies had been advertised, due to handing over of the ESIC Hospital cum Medical College, Parippally to State Government and appointing of meritorious sports persons, the vacancies have been reduced to 137. Naturally, the applicant who belongs to unreserved category is seriously aggrieved by the drastic deduction in the number of vacancies.
9. The learned counsel for the applicant reiterated the contentions and forcefully argued that due to the arbitrary reduction in the number of vacancies and appointment of sports persons in the existing vacancies, persons like the applicant who were in the brim of getting employment had to suffer. According to him, the applicant is over-aged and is unable to aspire appointment pursuant to Annexure- A11 notification. Even if the handing over of the ESI Hospital cum Medical College, Parippally has caused reduction in number of vacancies, O.A No.770/2018 9 that can be adjusted against future vacancies. Referring to Annexure-A11 he pointed that 61 vacancies have been notified. Moreover, the expiry period of the select list is not mentioned. He also pointed out that there is no justification in appointing persons pursuant to Annexure-A4 and all these have caused considerable prejudice to the candidature of the applicant. He submitted that by way of an interim order one vacancy has already been kept vacant and therefore the applicant may be directed to be appointed in the vacancy.
10. On the other hand, the learned Standing Counsel for respondents 1 and 2 submitted that the respondents could not help since the subsequent developments had necessitated reduction of vacancies. According to him, the applicant has no vested right of appointment, nor there is any obligation for the respondents to fill up all the vacancies notified. Even if the second contention of the applicant is upheld, relief cannot be granted since the application is bad for non-joinder of candidates appointed in the sports quota. He also relied on the decisions reported in Mohd.Rashid v. The Director, Local Bodies, New Secretariat and ors. [(2020) 2 SCC 582], G.Radhakrishnan and ors. v. Kerala State Road Transport Corporation and ors. [2018 (2) KLJ 746], K.H.Siraj v. High Court of Kerala and ors. [2006 (2) KLT 923], Public Service Commission, Uttaranchal v. Mamta Bisht and ors. [AIR 2010 SC 2613] and Poonam v. State of U.P. And others [(2016) 2 SCC 779].
O.A No.770/2018 10
11. As noticed earlier, the applicant is aggrieved by the subsequent incorporation of note No.9 in Annexure-A2, whereby the number of vacancies was substantially reduced from 204 to 137, which no doubt, has caused irreparable injury and loss to the applicant. So he wants to quash such a clause and seeks a direction to fill up 204 vacancies notified in Annexure-A1. It is true that total number of vacancies notified in Annexure-A1 was 204. Annexure-A1 was issued on 04.12.2015. Those 204 vacancies included 91 vacancies of UDC that meant for the ESIC Hospital cum Medical College, Parippally. But in subsequent point of time, indisputably, the Corporation had handed over the management of the hospital back to the State of Kerala and therefore, it is idle for the Corporation to fill up that 91 vacancies.
12. Similarly, Annexure-A1 contains a clause that vacancies may increase or decrease depending upon the actual requirement. 204 vacancies were notified at the time when the ESI Hospital and Medical College was under the control and management of the Corporation. Once it was handed over to the State Government, there is no point in insisting that, those vacancies should have been filled up. In Official Liquidator v. Dayanand and others [(2008) 10 SCC 1], the Hon'ble Supreme Court held thus:
59. The creation and abolition of posts, formation and structuring/ restructuring of cadres, prescribing the source O.A No.770/2018 11 and mode of recruitment and qualifications and criteria of selection, etc. are matters which fall within the exclusive domain of the employer. Although the decision of the employer to create or abolish posts or cadres or to prescribe the source or mode of recruitment and laying down the qualification, etc. is not immune from judicial review, the Court will always be extremely cautious and circumspect in tinkering with the exercise of discretion by the employer. The Court cannot sit in appeal over the judgment of the employer and ordain that a particular post or number of posts be created or filled by a particular mode of recruitment. The power of judicial review can be exercised in such matters only if it is shown that the action of the employer is contrary to any constitutional or statutory provisions or is patently arbitrary or vitiated by mala fides."
That means, a general policy decision was taken by the Corporation for abolishing/reducing posts. Reduction in vacancies caused due to the handing over of the Medical College to the State Government. Such a decision cannot be challenged unless it is shown that the decision is a malafide exercise of screening of posts has been done for extraneous reasons.
13. It is also the settled principle of law that a candidate does not have any legal right to be appointed. In terms of Article 16 of the Constitution, he has only a right to be considered. As held by the Hon'ble Supreme Court in Pitta Naveen Kumar and others v. Raja Narasaiah Zangiti and others [(2006) 10 SCC 261] consideration of the case of an O.A No.770/2018 12 individual candidate although ordinarily is required to be made in terms of the extant rules but strict adherence thereto would be necessary in a case where the rules operate only to the disadvantage of the candidates concerned and not otherwise.
14. Turning to the second limb that appointment of persons under the sports quota has damaged the prospects of the applicant, also cannot be upheld. The applicant has stated that there are standing instructions to accommodate sports persons in 5% of the vacancies. But according to him, it need not to be in the cadre of UDC alone but can be in the categories of all Group-C employees taken together. The statement of the respondents indicate that 10 posts of UDC have been reserved for eminent sports persons in the 5% quota. There is also reasons to believe that pursuant to Annexure-A4 notification 4 persons have already been appointed which resulted in reducing the number to 137 vacancies, sought to be filled up at the final leg of the recruitment process.
15. It is true that Annexure-A1 is silent about any reservation being made to sports persons in the 204 posts advertised for appointment. All the same, in Annexure-A2 such a clause has been incorporated. It should be taken as a corrigendum, taking into account the subsequent developments. Firstly, the applicant has no case that note No.9 was incorporated with any malafide intention targeting to O.A No.770/2018 13 exclude any particular individual or candidate from the zone of consideration. But when such subsequent developments had taken effect, certain candidates were bound to suffer. The serial number of the applicant in Annexure-R1(b) happened to be at 138; had it been bit above, he would have been selected and appointed. It is unfortunate that he is now over-aged and is not entitled to apply for the post pursuant to Annexure-A11 notification.
16. It has come out that pursuant to Annexure-A4 notification, candidates were appointed in October 2016 itself, which also resulted in reduction of number of vacancies. That also was not done purposely or to trouble anyone in particular. As submitted, atleast four persons have been appointed in that category. Despite the specific contention of the respondents that those persons are necessary and proper parties, and the O.A. is bad for non-joinder of necessary parties, the applicant has not taken care to implead them. In the nature of the contentions raised by the applicant, no relief can be granted to the applicant owing to their absence in the array of parties. Therefore, the fact that they have not been identified and impleaded is a very valid reason for denying the claim of the applicant.
17. In this context, a valid point raised by the learned counsel for the applicant cannot be ignored. In Annexure-R1(c) dated 15.03.2017 it has been advised that 'vacancies accrued subsequent to 31.03.2016 O.A No.770/2018 14 should not be filled from this recruitment.' At the same breath, the respondents have contended that sports persons selected pursuant to Annexure-A4 dated 08.04.2016 were appointed in October 2016. This clearly exposes the double standard of the respondents. All the same, for the reason stated in the previous paragraph, we cannot take serious note of the argument since the appointees in sports quota are not parties in this O.A.
18. After the written test and CST, the respondents published a merit list. Thereafter, a reserved list was also published. Neither in Annexure-A7 nor in Annexure-A8 the name of the applicant finds place. Last candidate offered appointment from unreserved candidates is sl.No.124, Ajesh, who declined appointment. The applicant's name appears in the 5th place among unreserved candidates after the said Ajesh. Therefore, the claim of the applicant that he is entitled to be appointed has no force.
19. There was also a contention by the learned counsel that out of 137 candidates already appointed, 9 have resigned and left service which includes 7 persons from unreserved categories. But ipso facto it does not confer any right to the candidates lower in the list, to claim appointment. In the decision reported in Ashwani Kumar Singh v. U.P. Public Service Commission and others [(2003) 11 SCC 584] the Hon'ble Supreme Court has held that vacancies which exist on account of some O.A No.770/2018 15 selected candidates not joining need not perforce be filled up from the merit list. Much would depend upon the statutory provisions governing the field. As come out from Annexure-R1(c), there are directions to the respondents that vacancies subsequent to 31.03.2016 should not be filled up from recruitment under consideration. Moreover, reserve list was not permitted to be prepared beyond 25% of the vacancy.
20. After evaluating the circumstances, we feel that, in the absence of specific reservation of quota for sports personnel in Annexure-A1, 5% quota should not have been taken from the notified vacancies. Secondly, absence of provision regarding the validity of the select list also created confusion in the minds of the candidates. Anyhow, these are not good grounds to grant any relief to the applicant.
In the result, we do not find reasons to grant any relief to the applicant. Original Application is dismissed. Interim orders shall stand vacated. No cost.
Dated, this the 10th February, 2023.
K.V.EAPEN JUSTICE K.HARIPAL
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
ds
O.A No.770/2018 16
List of Annexures
Annexure A2: True copy of the shortlist published on 28.3.2017 by
the 1st respondent
Annexure A1: True copy of the Notification
Annexure A3: True copy of the list of candidates qualified in
Computer Skill Test (alphabetical order)
Annexure A4: True copy of the Notification No. B-16/16/1/2013-E-
II dt:8.4.2016 issued by the 2nd respondent
Annexure A5: True copy of the letter No.H-16/13/2/13-E-III
dt:2.2.2017 issued by the 2nd respondent
Annexure A6: True copy of the letter No.54-Z.12/14/CPIO/2018-
RTI dt:2.7.2018 issued by the 1st respondent
Annexure A7: True copy of the Select list of 137 candidates
Annexure A8: True copy of the reserved list of 35 candidates Annexure A9: True copy of the Order No.54-Z.12/14/CPIO/RTI-
2014- 15/APPEAL dt:21.8.2017 issued by the Assistant Director, ESIC Thrissur Annexure A10: True copy of the Select List of UDCS supplied by the 1st respondent in reply to the RTI question Annexure A11: True copy of the Notification dt:1.3.2019 Annexure R1(a) True copy of the letter dated 2-2-2017 issued by the ESIC Headquarters to the Regional Director.
Annexure R1(b) True copy of the list of candidates who have qualified in CST (in the order of merit).
O.A No.770/2018 17Annexure R1(c) True copy of the letter dated 15.03.2017 issued by the ESIC Headquarters addressed to all the Regional Directors.
Annexure R1(d) True copy of the letter No.Z-11(12)1/2017-Exam dated 23-4-2018 of the ESIC Headquarters.
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