Central Administrative Tribunal - Delhi
Gautam Mann vs Govt. Of Nctd on 2 June, 2023
Central Administrative Tribunal
Principal Bench, New Delhi
O.A.No.2082/2020
M.A. No.2768/2020
Order reserved on : 19.05.2023
Order pronounced on : 02.06.2023
Hon'ble Mr. Anand Mathur, Member (A)
Hon'ble Mrs. Pratima K. Gupta, Member (J)
Gautam Mann,
S/o Balraj Singh,
R/o H.No.397,
Bawana Road,
Pehlad Pur Bangar,
North West Delhi-110042
Category-OBC
Post Name-Craft Instructor Tool & Ampsemicolon Die
Maker (Press Tools, Jigs and Ampsemicolon fixtures)
Post Code-109/14,
ADV.No.01/2014
... Applicant
(By Advocate : Shri Ajay Kumar)
Versus
1. Govt. of NCT,
Through its Chief Secretary,
Asaf Ali Road, Civil Line, Delhi.
2. Delhi Subordinate Services Selection Board,
Through its Chairman,
F-16-18, Institutional Area,
Karkardooma, Delhi-110092.
3. Department of Training and Technical Education,
Delhi Government,
Muni Maya Ram Marg,
Pitampura, New Delhi-110088.
...Respondents
(By Advocate : Shri Amit Yadav with Ms. Monika
Bhargava and Ms. Ridhi Dua)
2
O.A.No.2082/2020
ORDER
By Hon'ble Mrs. Pratima K. Gupta, Member (J):
In the present O.A. filed under section 19 of the Administrative Tribunals Act, 1985, the applicant has sought the following relief(s):-
"(A) Direct all the respondents to give appointment letter/ appointment to the applicant for the post of craft instructor, tool and die maker (press tools and Jigs and fixtures), in department of training and technical education, Post Code 109/2014, in advertisement No. 01/2014, under the OBC (category).
(B) Pass any other further orders which this Hon‟ble Tribunal may deem fit and proper in the facts and circumstances of the case are passed in favor of the applicant and against the Respondents."
2. Brief facts of the case that arise for consideration in the instant O.A. are that the applicant participated in the selection process initiated by DSSSB for the post of Craft Instructor Tool & Die Maker (Press Tools, Jigs & Fixtures) under the Post Code 109/2014, advertisement no. 01/2014 in the OBC category. After being declared successful, he uploaded his e-dossier, however, he was not extended the offer of appointment. Aggrieved by the same, he approached this Tribunal by way of the present 3 O.A.No.2082/2020 O.A. During the pendency of this O.A. the respondents issued an order dated 24.11.2020. Thereafter, by an M.A. 2768/2020, the applicant amended the prayer in the O.A. seeking quashing of the order communicated by an email on 24.11.2020.
3. Learned counsel for the applicant stated that the only reason for non-issuance of the offer of appointment was that the post under the OBC category against which the applicant had been declared successful had been withdrawn by the user department. He argued that, at this stage, after the selection process was over and the applicant has been declared successful, an indefeasible right had accrued in favour of the applicant, therefore, the offer of appointment could not be denied. The applicant has become overage now and is not eligible for any recruitment under the Government. He draws strength from the law laid down by the Hon‟ble Supreme Court in Prem Prakash Vs. Union of India and Ors. 1984 AIR 1831 dated 22.08.1984. The relevant portion of the said judgment reads as under:
"It is clear from this notification that if selected candidates are available from the previous list, there should either be no further recruitment until those candidates are absorbed or, in the alternative, vacancies which are declared for the subsequent years should take into account 4 O.A.No.2082/2020 the number of persons who are already in the list of selected candidates who are still awaiting appointment. The notification further shows that there should be no limit on the period of validity of the list of selected candidates prepared to the extent of declared vacancies. Once a person is declared successful according to the merit list of selected candidates, the appointing authority has the responsibility to appoint him, even if the number of vacancies undergoes a change after his name has been included in the list of selected candidates.
We must record our dissatisfaction at the fact that the Rules of the Delhi Judicial Service have not been amended so as to bring them in conformity with the administrative instructions and notifications which have been issued by the Ministry of Home Affairs, Department of Personnel and Administrative Reforms, from time to time. The situation is virtually chaotic for which, we must clarify, the High Court of Delhi cannot be blamed. It is surprising that though 13 years have gone by since the Delhi Judicial Service was established, no attention whatsoever has been paid to a matter which concerns the future of a large number of young men and women who aspire for posts in the Judiciary. The instant case and the cases of Ajaib Singh and Ram Swarup show that the worst sufferers of this inaction are members of the Scheduled Castes and Scheduled Tribes. Sooner the Rules are amended, easier will it be for the High Court to administer and superintend the affairs of the subordinate Judiciary with the object of achieving the ideals enshrined in Articles 16 (4), 38 and 46 of the Constitution.
Though the Rules ought to be amended, that does not mean that administrative instructions can be ignored by the High Court until that is done. The Assistant Registrar says in paragraph 9 of his 5 O.A.No.2082/2020 counter-affidavit that "administrative instructions cannot be allowed to prevail over the statutory rules." That would be correct provided that the administrative instructions are contrary to the statutory rules. In this case, Rule 28 itself says that "Appointments made to the service by competitive examination shall be subject to order regarding special representation in the service for Scheduled Castes and Scheduled Tribes issued by the Central Government from time to time." Therefore, far from their being any inconsistency between the statutory rules and the administrative instructions it is clear that the two have to be read together.
These writ petitions must therefore succeed. Our reasons for allowing the petitions may be summed up thus: In the first place..., in the process of remedying injustice which was done to the two scheduled caste candidates of 1979, no injustice can be caused to the petitioners who had qualified for the reserved seats in the examination held in 1980. Secondly, the quota of seats available for reserved candidates cannot be made to depend on the fortuitous circumstance as to how many candidates have qualified for the general seats. The reserved quota must be fixed on the basis of the total number of vacancies which are to be filled at a given point of time. Thirdly, the notification of 1982 is good authority for adjusting the petitioners against the reserved vacancies for the year 1980. The statutory rules and administrative instructions have to be read together by reason of Rule 28.
We accordingly direct that the High Court and the Delhi Administration will take expeditious steps for notifying the appointments of the petitioners, Dal Chand Anand and Prem Prakash, to the Delhi Judicial Service. For purposes of seniority the former will rank higher than the latter because that was their orders of seniority in the original merit list of 1980. Since 6 O.A.No.2082/2020 they have not actually worked as Sub- Judges during the intervening period, they will not be entitled to any remuneration for that period. They will however rank for seniority in the Delhi Judicial Service on the footing that they were appointed when they ought to have been appointed, that is to say, when the other candidates were appointed on the basis of the result of the 1980 examination. In all other respects, including probation, their appointment will be subject to the provisions of the relevant rules and regulations.
In the result, the writ petitions are allowed to the extent indicated above. Respondents 1 and 2 will pay to the petitioners the costs of these petitions. M.L.A. Petitions allowed."
4. Learned counsel for the respondents vehemently opposed the O.A. and argued that the vacancy as advertised under the OBC category was inadvertently displayed by the recruitment agency, i.e. DSSSB and this vacancy under the OBC category was withdrawn at the appropriate time. The same was advertised in the newspaper „Mail Today Daily‟ dated 04.07.2015. He reiterated that the vacancy under the OBC category was inadvertently advertised and the respondents were well within their right to withdraw the incorrectly advertised vacancy. He goes on to argue that since the applicant was selected against a vacancy which never existed, he has no case whatsoever. He, under instructions, stated that the vacancy never existed and for the next selection process, 7 O.A.No.2082/2020 requisition has already been sent to the DSSSB which has also advertised the same. He drew strength from the following judgments passed by the Hon‟ble Supreme Court in support of his contentions:-
(i) Shankarsan Dash Vs. Union of India 1991 SCC (3)
472.
(ii) Commissioner of Police Vs. Umesh Kumar CA No. 3334/2020
5. Heard learned counsel for the parties and perused the pleadings available on record.
6. It is not in dispute that the applicant is an aspiring candidate under the OBC category who applied for the post under question through proper channel. He participated in the selection process and was placed in the list of selected candidates. The cut off marks under the OBC category were fixed as 64.75, whereas the applicant secured 90.5 marks, which are much above the cutoff merit. It is also not in dispute that on being declared successful, he was asked to upload the e-dossier, which he uploaded well in time and the same was duly accepted by the respondents. After verification of the documents, the applicant was awaiting for the offer of appointment. However, the same was not offered to him and an impugned E-mail was sent to him on 24.11.2020, recording the reason for the same as under : 8 O.A.No.2082/2020
"Excess dossier of OBC category received from DSSSB"
7. In the conspectus of all the facts, we are of the considered opinion that a right had accrued to the applicant in view of the rank secured by him under OBC category. He had reached this stage by virtue of his merit. A right of legitimate expectation had accrued in his favour.
8. It is noticeable that a coordinate Bench of this Tribunal at Hyderabad in OA No.021/00258/2021 titled Hyder Bin Akbar Vs. Dept. of Posts on 16.03.2022, dealing with the similar issue, observed as under :-
"34. Ordinarily, suitability is to be judged by the Executive Council and not by this Court. But what are we to do when the Executive Council acts in a patently unfair manner, as it has done in this case? This Court is a Court of Justice. No doubt it has to do justice based on law, but the Court will interpret law in a way that leads to justice and not injustice.
35. On the facts of this case, and in view of the fact that the Executive Council has acted on irrelevant considerations and has misdirected itself, and since a remand to it would lead to further delay and harassment of the petitioner, we ourselves have Judged the petitioner's suitability and we find her suitable to be appointed as regular lecturer, and we hold that she fulfills all the requirements of Section 31 (3) (c) of the Act.9 O.A.No.2082/2020
36. In the circumstances, a mandamus is issued to the respondents to regularise the petitioner as lecturer in Home Science forthwith and pay her salary of regular lecturer. The petition is allowed. No order as to costs.
XXXIII. The wrong application of rules and law is not the mistake of the applicant and therefore he should not be penalized for no fault of his. It is the own mistake of the respondents to have decided to not to fill up the EWS posts, albeit it is obligatory upon them under rules/law to fill them up and therefore, for their folly the applicant should not suffer the adverse consequences of not being offered the appointment as driver for which he was legally titled to in all respects. We rely on a sequence of judgments rendered on the aspect touched upon, by the Hon‟ble Apex court, as under, to support our view:
(a). It is settled law that no one should be penalized for no fault of his. (See Mohd.Ghazi vs State of M.P. 2000(4) SCC 342.
(b) A.K. Lakshmipathy v.
RaiSahebPannalal H. Lahoti Charitable Trust,(2010) 1 SCC 287 "they cannot be allowed to take advantage of their own mistake and conveniently pass on the blame to the respondents."
(c) Rekha Mukherjee v. Ashis Kumar Das,(2005) 3 SCC 427:
367. The respondents herein cannot take advantage of their own mistake.
XXXIV. Recruitment to Government posts is a keenly contested affair. Those appointed would be called upon to render public service. The Government in order to bring about social and economic progress of the different sections of the society has vacancies 10 O.A.No.2082/2020 ushered in the EWS legislation in public interest and public good. The respondents have failed to realize and appreciate that every decision of the State has to be in public interest. Larger public interest calls for strict adherence of the rules. On both the counts stated respondents faltered inexplicably. Their decision to not to fill up the EWS is thus not in Public interest. We have drawn the above remarks from the annotations of the Hon‟ble Apex Court in the following verdicts.
a. Supreme Court of India in Nidhi Kaim vs State Of M P And Ors Etc on 12 May, 2016 in Civil Appeal No. 1727 OF 2016 No doubt, that the overarching requirement of Constitution is that every action of the State must be informed with reason and must be in public interest b. Karnataka Public Service Commission & Ors v B.M. Vijaya Shankar & Ors, AIR 1992 SC 952:(1992) 2 SCC 206 "Larger public interest demands of observance of instruction rather than its breach".
XXXV. Coming to the fag end of the dispute we would like to remind the respondents that providing EWS reservations is a promise made to the Nation by the Govt. and on their part have fulfilled it by bringing in the requisite legislation. It is the respondents who played the role of the spoiler by not understanding the repercussions of their irrational, arbitrary and discriminative decision to not to fill up the EWS posts. Having participated in the selection process and being successful in the EWS category it is but natural that applicant had an indefeasible substantive legitimate expectation of being selected which has been belied by the respondents specious decision and hence is against the legal principle laid down by the Hon‟ble Apex Court in Kerala State Beverages (M And 11 O.A.No.2082/2020 M) Corporation Ltd vs. P. P. Suresh And Ors. Etc. Etc. on 4 October, 2019, in Civil Appeal Nos.7804-7813 of 2019. The legitimate expectation of the applicant was dashed off by a decision to not to fill up EWS posts as well as rubbing salt over the wound by granting the rule 38 transfer to R-6 against EWS vacancy irregularly violating the rules in the rule book. Notice was served on R-6 and there has been no reply. However, since R-6 has joined some time back it may be too late in the day to cancel the transfer. Nevertheless, respondents have to take due notice of the serious lapse for avoidance of recurrence of the folly in the future.
Relief granted XXXVI. To sum up, we observe that the respondents failed in following important provisions pertaining to the Rules and law, as given hereunder:
1) They did not uphold the Constitutional provisions pertaining to EWS reservation/ RR-205;
2) Rules regarding Rule 38 transfer were violated;
3) Principles of natural justice were not adhered to;
4) Decision was found to be malafide as well as malice in fact and law;
5) Penalizing the applicant for the mistake of the respondents;
6) Law regarding rules of the game was given a go-bye;
7) Many other legal principles pointed out were not abided by;
Therefore, the decision of the respondents to not to fill up the EWS vacancies is not sustainable under rules 12 O.A.No.2082/2020 and law. Consequently, the respondents are directed to consider:
i. The applicant for appointment to the post of Driver (Ordinary) Non-ministerial against one EWS vacancy reported to be kept vacant in pursuance of the interim order of the Tribunal.
ii. The seniority of the applicant will be fixed on a notional basis on par with those selected against the notification dated 21.7.2020 as per his merit.
iii. The applicant will not be eligible for any back wages for the period from the date of appointment till he joins the post iv. Time allowed to implement the judgment is 3 months from the date of receipt of copy of this order.
XXXVII. With the above direction, the OA is allowed with no order as to costs. Accordingly, MA No. 559/2021 stands disposed."
9. In view of the aforesaid observations, it is clear that the respondents cannot be allowed to take advantage of their own wrong and to put a meritorious candidate like the applicant to a disadvantageous position for no fault of his.
The respondents advertised the vacancy against which the applicant applied under the OBC category and he cleared the relevant recruitment process. However, the vacancy so advertised under the OBC category was withdrawn subsequently by the respondents. The respondents are solely responsible for their act of negligence for which the 13 O.A.No.2082/2020 applicant cannot be put to a loss. The respondents in their counter reply have categorically stated that they informed the recruiting Agency i.e. DSSSB about withdrawal of OBC vacancy, however, the DSSSB has gone ahead with the selection process against the vacancy for which the applicant had applied. In this regard, it is observed that it is an internal matter between the User Department and the Recruiting Agency i.e. DSSSB and the applicant cannot be made to suffer for the lapse on their part. We have no doubt that injustice has been done with the applicant.
10. In view of the above observations we are of the opinion that ends of justice would meet if the OA is allowed. The impugned order dated 24.11.2020 communicated through E-mail is quashed. The respondents are directed to extend the offer of appointment to the applicant to the post of Craft Instructor Tool and Die Maker (Press Tools and Jigs and Fixtures) against an existing or anticipated vacancy. The applicant shall be entitled for all consequential benefits that may include pay fixation, promotion etc. only on a notional basis, from the date his immediate junior was appointed against Post Code 109/2014, Advertisement No. 01/2014 by DSSSB. The above exercise shall be completed 14 O.A.No.2082/2020 within a period of eight weeks from the date of receipt of a certified copy of this order.
11. Pending MAs, if any, also stand disposed of.
12. No order as to costs.
(Pratima K. Gupta) (Anand Mathur)
Member (J) Member (A)
/rk/