Kindly go through the following orders given by CAT . First order given by CAT on Feb 2010 and second order given by CAT on Feb 2011 by the way of remand directions issued by High Court. The client is interested to go appeal as there is no fault from his side. Kindly provide your valuable comments
O R D E R (FEB 2010)
Through this OA applicant impugns respondents order dated 3.7.2008, whereby his request for regular appointment as Technical Assistant (hereinafter referred to as TA) from a retrospective date has been turned down.
2. The factual matrix transpires that applicant, who had been working on ad hoc basis since 8.9.1988 without any break as TA, applied for the said post through proper channel and participated in the selection notified for the post by the respondents in 2001, whereby two posts under unreserved category were to be filled. The applicant appeared for the interview on 28.6.2001. The selection committee recommended the names of Ms. xxxxxxxxxx against the two unreserved posts of Techncial Assistant on 28.6.2001 itself, whereas Ms. Xxxxxx and applicant were placed on the waiting list panel. Ms.xxxx and Shri joined on 13.7.2001. Before the panel could be exhausted, i.e., 28.6.2002, one post fell vacant on the death of the incumbent of the post of Technical Assistant Mr. xxxxx on 2.6.2001, which was offered to Ms. xxxxx, who was at serial No.1 of the panel. However, the earlier selected candidate Ms. xxxxxxx resigned from the post on 4.12.2001 when the panel was still in force, yet the applicant was not given appointment. The only reasoning, which has come-forth in the reply, is that as per the post-based roster this post which fell vacant was meant to be filled up by a SC candidate and that the selection to this post took place on 9.4.2005 when the selection committee recommended Shri xxxxxx on merits and also recommended Shri xxxxxx to be kept on waiting list.
3. Applicant, who appeared in person had appended several RTI information received under Right to Information Act from the respondents and stated that the post-based roster is by way of replacement and as the panel was in vogue when the post had fallen vacant, it should have gone to the applicant, who was in unreserved category like Ms. xxxxxx and has relied upon a plethora of decisions, including the following decisions, to substantiate his plea:
i) R.S. Mittal v. Union of India, 1995 (2) SCALE 433.
ii) Narender Kumar v. Delhi Admn., 1990 (3) SLJ CAT 406.
iii) Prasana Kumar Nayak & Ors. v. National Insurance Co. & Others, 1992 (3) SLJ 123 (Orissa).
iv) Vivekanand Chaturvedi & another v. UOI & Ors., 1996 (2) SLJ CAT 270.
v) Smt. Veena Gupta v. Delhi Admn. & Another, 1993 (2) CAT 90.
vi) G. Vishwanath v. UOI, 1990 (1) CAT SLJ 520.
vii) Nirmal Kumari and another v. Delhi Admn. And another, 1990 (1) CAT SLJ 347.
viii) Gujarat State Dy. XEN Assn. v. State of Gujarat, 1994 (2) SCALE 866.
ix) State of J & K v. Basant Kumari & Ors., 1993 (2) SLJ CAT 25.
4. On the other hand, learned counsel of respondents vehemently opposed the contentions and reiterated his pleas taken in the counter-reply as to the vacancy falling to post-based roster to a SC.
5. On careful consideration of the rival contentions of the parties, at the outset, as ruled by the Apex Court in Nadia District Primary School Council v. S. Biswas, (2008) 2 SCC (L&S) 946, life of a panel is only for one year, which is reiterated by the Apex Court in Girdhar Kumar Dadhich v. State of Rajasthan, (2009) 2 SCC 706. It is also held by the Apex Court in Subha B. Nair v. State of Kerala, (2008) 7 SCC 210 that decision on the part of employer to fill up the existing vacancy is within their domain but could be interfered in judicial review when discrimination or arbitrariness and a malafide decision is found to have been taken by the Government. The Apex Court in a three-Judge Bench decision in State of J & K v. Vijay Sharma, (2005) 13 SCC 403 ruled that if a panel is prepared and a select or wait list is made then if the notified vacancies remain unfilled, these vacancies shall be filled up by the candidates who have secured more marks in the selection.
6. In the above view of the matter the Apex Court in R.S. Mittal (supra) ruled that a person on the select panel has no vested right, yet he has a right to be considered for appointment when there is a vacancy which could be offered. There is no justification to ignore him for such appointment.
7. As regards the only ground of respondents that as per post-based roster the post was meant to be filled by a SC candidate, the reservation applies to post and not to vacancy and hence the vacancy of Ms. xxxxxxx was meant for unreserved post it should have been gone to the candidate in the waiting list, i.e., to the applicant, who also falls in the same category. Roster would have applied if the said vacancy could have been subjected to a fresh selection, which the respondents have ultimately, after four years, notified and appointed a SC candidate, yet the fact remains that when the panel was alive, wait-listed candidates have a preferential right to be considered for appointment as one of the other wait listed candidates on accrual of vacancy was appointed, meeting out a differential treatment to the applicant cannot be countenanced in law.
8. In the above view of the matter, we do not approve of in law the decision taken by the respondents. Overwhelming information indicates a contradictory stand of the respondents, which they have failed to justify by logic and also in law. OA is accordingly allowed. Impugned order is set aside. Respondents are directed to consider the applicant appointing on regular basis as TA from the date of accrual of the vacancy, i.e., on resignation of Ms. xxxxx with all consequences, admissible in law, within a period of three months from the date of receipt of a copy of this order. No costs.
Member (A) Member (J)
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The second order which has come in Feb 2011 by the way of remand is
ORDER (FEB 2011)
This matter has come to be listed before this Bench in terms of order dated 14.10.2010 granted by a Division Bench of High Court in Writ Petition No. of 2010 which had been filed to obtained invalidation of the order dated Feb 2010 granted by a learned Coordinate Bench of this Tribunal (O.A.No. The operative part of the orders granted by the High Court, which would indicate the present jurisdictional ambit of adjudication, is extracted hereunder:-
5. We make it clear tht if the Tribunal decides on the plea of limitation against the petitioner, issue on merits need not be decided by the Tribunal for the reason the same has been decided by the Tribunal vide impugned order dated Feb 2010. But in said eventuality while challenging the said order passed by the Tribunal, the petitioner would be entitled to challenge the impugned order dated Feb 2010 as well.
2. It is, thus, apparent from a perusal of the extracted portion of the order granted by the High Court that the Tribunal is required to take a decision only on the plea of limitation.
3. It is apparent, from a conjunctive perusal of the pleadings of the parties and was, even otherwise, conceded in the course of the presentation that in pursuance of the relevant advertisement (issued in the month of January 2001), interviews for the (regular) posts of
Technical Assistant ( two in number, both of General Category) came to be held on 28.6.2001. There is also no controversy that two candidates (other than the applicant) namely Ms xxxxxxx and xxxxxxx, came to be recommended for appointment; while two others (Ms.xxxxxx and the applicant herein) were wait-listed in that order. Both the selected candidates joined their duties with effect from 13.7.2001. In the meantime, an employee namely Mr.xxxxxx, holding placement of that very character, died in harness and Mrs.xxxxx came to be appointed in that vacancy. She joined her duty on 8.11.2001. Though Ms. xxxxxx was relieved from her duties with effect from 4.12.2001, on account of unannounced absence, no appointment offer came to be made to the applicant herein. The waiting list was to be in force for a period of one year, which period was extendable by six months with the permission of the competent authority. The facts, till this stage, are accepted by the parties in unanimity.
4. It was argued by the applicant that the filing of this O.A. in the year 2009 cannot be faulted on the touchstone of limitation in view of the fact that the result was neither publically notified, nor individually communicated and, thus, the applicant had no means to be in the know thereof. He also argued that it was only in response to a query addressed by him under the R.T.I. Act, that he was informed that he had been wait-listed. The result of interview having been notified to him only in the response received under the R.T.I. Act, the respondents cannot validly raise a plea of limitation it was argued.
5. Though we express our deep sense of dismay at the manner in which the respondents are proved to have acted in not announcing the result (publically or individually), it does not possibly solve the riddle of limitation for the applicant.
6. Appointments to public office are, by the very nature of things, sacrosanct in character. The rule-formulations and also the judicial pronouncements of courts of law ordain an attitude of absolute transparency and fair play in the manner of appointments to public service. In our democratic polity, each employee/candidate has a right to aspire for appointments to public service and any act on the part of the recruiting agency, which grants an unfair advantage to any segment of candidates, deserves to be frowned upon by the Courts of Law. In that context, it hardly requires emphasis that announcement of result of an interview of any category with immediacy, would be required.
7. In the present case, the applicant had made a precise averment that the result aforementioned never ever came to be announced and it was only by a resort to the provisions of the RTI Act that he was able to cull out information about the result of the interview. In this context, we may notice the response offered by the concerned C.P.I.O. of the (Recruitment Cell), vide communication dated 1.11.2010 . For facility of reference, we would extract hereunder the queries indicated as items (1) & 2(i), 2(ii) & 2(iii), alongwith the responses offered thereto:-
Point No. Query Reply
1. The interview/Selection for 2 Unreserved posts of Technical Assistant which was conducted on 28.06.2001 by the Selection Committee at . Please inform the date on which the result was officially declared by the administration?
2(i) The Selection Committee also recommended and prepared whether the administration displayed the result of waitlisted candidates in Employment News/Rozgar Samachar or in any official bulletin?
No notification(s) of the result is available in the records.
(ii) With ref to question 2(i), if yes is the answer, please provide the certified copy of the Publication/Official bulletin bearing signature of the signing authority?
(iii) With ref to question 2(i), if no is the answer, please inform under which provision the result of the waitlisted candidates were not displayed?
3. The selection committee which was constituted for the selection of the above posts, please inform me the name and designation of the officials who were the members of the selection committee constituted for the selection of the posts?
7. It would be apparent, from a perusal of the above-extracted information, that the applicant had sought precise information about whether result of the interview had been announced in any manner and if the answer to this query was in the affirmative, to provide him a certified copy of the Publication/ Official bulletin bearing signature of the signing authority and if response thereto was in the negative, then to give him information under which provision the result of the waitlisted candidates were not displayed. In response to these queries, the C.P.I.O. informed that No notification(s) of the result is available in the records. In official parlance, information of this category would be documented in various records. It is, thus, neither here nor there for the respondents to have averred that no notification of the result was available on record. The response to each query ought to have been very specific. It is obvious that there was considerable refrain on the part of the respondents in furnishing the information which had a very relevant bearing on the adjudication under consideration.
8. At the same time, it requires pertinent notice that the applicant is indicated to have applied for the obtaining of the information under the RTI Act, for the first time, in the year 2007. He was already in employment, though on adhoc basis, with the for the last about eleven years. The selected candidates were holders of indicated placements in that very organization. The applicant has not been able to indicate how can he wriggle out of the predicament of having to explain the refrain on his part in filing of the O.A and in not filing of the plea for information under the RTI Act from 2001 to 2007.
9. In the light of the foregoing discussion, we are of the considered view that the O.A. filed by the applicant is time-barred and shall stand disposed of accordingly.
