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2011 DIGILAW 385 (CAL)

T. Wajith v. The Union of India

2011-03-16

JYOTIRMAY BHATTACHARYA, R.N.BHATTACHARYA

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JUDGMENT :- Jyotirmay Bhattacharya, J. This appeal is directed against an order dated 4th March, 2011 passed by the learned Central Administrative Tribunal, Calcutta Bench in O.A. No.61/AN of 2011, whereby the petitioners’ prayer for quashing of the order issued by Respondent No.3 on 09.04.2011 & 06.11.2010 for giving certain relaxation to the junior engineers who served the A & N Islands after A & N Islands suffered Tsunami devastation in 2004, for competing them with the other open market candidates in the process of filling up of vacancies in the post of junior engineer on regular basis, was rejected by the learned Tribunal. The petitioners also prayed for direction upon the respondents for implementation of the policy decision dated 7th October, 2009. They also prayed for issuance of direction upon the respondents for absorbing them in regular service as per the recruitment rules framed on 1st February, 1979. None of the reliefs claimed by the petitioners was allowed. In fact, the said application was rejected by the learned Tribunal as a whole. The propriety of the said order is under challenge in this application under Article 226 of the Constitution of India before this Hon’ble Court. Heard the learned counsel of the parties, Considered the materials on record including the order impugned. Let me now consider as to how far the learned Tribunal was justified in passing the impugned order in the facts of the instant case. Admittedly, immediately after the said Islands were affected by Tsunami devastation, the petitioners were engaged by the Administration of A & N Islands to serve the said Islands as junior engineers on contractual basis for a temporary period. The petitioners served the said Islands to the best of their ability during the crisis period. The Administration was also satisfied with their performance. Trouble started when the Administration subsequently took initiative to fill up the posts of the junior engineers on permanent basis. The decision which was taken by the Administration regarding the selection process for filling up those vacant posts on regular basis, was not favourable to the petitioners. As a result, the Administration was involved in several litigations which went upto the Hon’ble Supreme Court. While deciding the Special Leave Petition being SLP (Civil) No.13484 of 2007 filed by T. Wajith & Ors. As a result, the Administration was involved in several litigations which went upto the Hon’ble Supreme Court. While deciding the Special Leave Petition being SLP (Civil) No.13484 of 2007 filed by T. Wajith & Ors. against Union of India & Ors., the Hon’ble Supreme Court rejected the Special Leave Petition with a direction that in case any selection takes place, then due credit to the past service of the petitioner, may be given. Hon’ble Supreme Court also observed that the Government may also consider the relaxation of age for the petitioners. Pursuant to the said order of the Hon’ble Supreme Court passed on 5th September, 2007, the officials of the Administration started deliberation on the issue regarding the relaxations which would be given to the petitioners in the selection process. As a matter of fact, at one point of time, the Chief Secretary of the Administration proposed for giving relaxation to those junior engineers who served A & N Islands after the Tsunami by reserving 50% of the total vacancies for them. Even the Chief Secretary suggested for filling up those reserved posts on seniority basis without taking any examination or interview, as they had already been found to be capable to deliver the service of junior engineer in the departments. While making such proposal, the Chief Secretary also expressed his satisfaction with regard to their performance during the period of their engagement on temporary basis. Their ability to serve the said Island in those posts by virtue of the experience they gathered during the period of their engagement on temporary basis, was also recognized by him which will be reflected from the letter dated 7th October, 2009 written by EO to Chief Engineer to the Deputy Secretary(PWD) being annexure ‘A-10’ to the writ petition. However, while taking the ultimate decision in this regard, the concerned authority, viz. Commissioner-cum-Secretary, the Respondent No.5 herein, without taking note of the said proposal of the Chief Secretary and also without giving any weightage thereto took the ultimate decision on 9th April, 2010 for giving certain extra weightages to the petitioner in the process of awarding of marks and for giving age relaxation to them. The relevant part of the said order is set out hereunder:- “(a) Age relaxation to the applicants who have become over aged. The relevant part of the said order is set out hereunder:- “(a) Age relaxation to the applicants who have become over aged. (b) Weightage of 20% may be given during first stage of selection process i.e. written test (i.e.) the marks secured by the applicants in the written exam will be multiplied by a factor of 1.20. (c) Weightage of 20% may also be given during the process of second stage i.e. personal interview (i.e.) the marks secured by the applicants in the personal interview will be multiplied by a factor of 1.20. The applicants shall have to compete with open market candidates in the selection process but shall be given age relaxation and weightage in written test and interview as indicated above.” The old recruitment rules were changed by the Administration. A new recruitment rule of 2009 was introduced which came into effect from 9th October, 2009, wherein the relaxation which the Administration wanted to give to those junior engineers as mentioned above, were incorporated. Accordingly, the appointment notification which was earlier published on 21st July, 2009 was abandoned and a new notification was issued on 28th July, 2010 in super-session of the said earlier appointment notification, inviting fresh applications from the aspiring candidates. The said notification was issued on 28th July, 2010, after publication of the new recruitment rules of 2009. The Administration thus decided to complete the selection process by following the new rules of 2009. In this context, the legality of the said selection process was challenged by the petitioners. Mr. Chatterjee, learned advocate, appearing for the petitioners contended that since the selection process was initially commenced by issuance of earlier employment notification and by requisitioning the names of suitable candidates from the concerned employment exchange prior to the new recruitment rules came into operation, the concerned respondents ought to have completed the said selection process by following the old recruitment rules which was in operation at the time when the appointment notification was initially issued on 21.7.2009. He further submitted that after commencement of the selection process, recruitment rules cannot be amended. In support of such submission Mr. Chatterjee cited the following decisions of the Hon’ble Supreme Court:- (1) In the case of Secretary, A.P. Police Service Commission vs. Swapana & Ors. reported in (2005) 4 SCC 154 . (2) In the case of Arjun Singh Rathore & Ors. vs. B.N. Chaturvedi & Ors. In support of such submission Mr. Chatterjee cited the following decisions of the Hon’ble Supreme Court:- (1) In the case of Secretary, A.P. Police Service Commission vs. Swapana & Ors. reported in (2005) 4 SCC 154 . (2) In the case of Arjun Singh Rathore & Ors. vs. B.N. Chaturvedi & Ors. reported in (2007) 11 SCC 605 . Mr. Chatterjee further contended that when even the Chief Secretary expressed his satisfaction with regard to his client’s performance during the crisis period in these Islands with a rider that they may discharge their duties in those posts satisfactorily by virtue of the experience they gathered, the concerned authority ought not to have ignored the Chief Secretary’s proposal for reservation of 50% of the total vacancies of those engineers who rendered their services to the satisfaction of the authorities during the crisis period and for filling up those reserved posts by those engineers on seniority basis without holding any selection test either written or interviewed for them. Accordingly, he prayed for intervention of this Court and also prayed for issuance of direction upon the concerned authority at least to review its decision which is impugned herein, by taking into consideration the Chief Secretary’s opinion in this regard. Mr. Tabraiz, learned advocate appearing for the Administration refuted such submission of Mr. Chatterjee by contending that since the selection process was initiated after the new Rule of 2009 came into operation, the question of application of old rules to the present selection process, does not arise at all. He further contended that sufficient protection and/or relaxation was given to the petitioners by the authority in terms of the direction of the Hon’ble Supreme Court, by taking into consideration of their past service rendered by them in the department during the crisis period. As such, he prayed for dismissal of the writ petition. Let me now consider the merit of the writ petition in the facts of the instant case. On consideration of the ultimate decision of the Administration contained in the order dated 9th April, 2010 being annexure ‘A-12’ to the writ petition, this Court does not find any reflection about the consideration of the Chief Secretary’s above proposal in the process of taking the ultimate decision in this regard. On consideration of the ultimate decision of the Administration contained in the order dated 9th April, 2010 being annexure ‘A-12’ to the writ petition, this Court does not find any reflection about the consideration of the Chief Secretary’s above proposal in the process of taking the ultimate decision in this regard. Though it is reasonably expected that the concerned authority should have at least taken into consideration the above proposal of the Chief Secretary at the time of taking the ultimate decision in this regard, but non-consideration of such proposal of the Chief Secretary, in my view, cannot vitiate the ultimate decision taken by the Government in this regard on 9th April, 2010, particularly when this Court finds that the relaxation which the administration has given to those junior engineers for competing with the open market candidates for filling up those vacant posts on regular basis, is not an unreasonable one. On consideration of the relaxations which the Administration has given to those junior engineers, this Court holds that the relaxation and/or extra weightage which will be given to them in both written test and in interview are sufficient enough as they being equally qualified with other candidates from the open market and also they having gathered practical experience in the field by virtue of their engagement during the temporary period of engagement, will be in much more advantageous position than the other open market candidates having no experience in the field, in the test which will be held by the authority for selecting the suitable candidates for the said posts. As such, they should not feel aggrieved by the said decision of the Administration which sufficiently protected them while seeking regular employment in those vacant posts under the protected umbrella by competing with the open market candidates having no experience in the field. In my view, the extra weightage in marks which the administration has decided to give to the petitioners both in written test as well as in interview, as well as the age relaxation given to them, in the light of the said order by the Hon’ble Supreme Court, are sufficient enough to recognize their past performance in the concerned department during crisis period. This court further holds that the petitioners cannot pray for enforcement of the Chief Secretary’s proposal which deemed to have not been accepted by the concerned department of the Administration. This court further holds that the petitioners cannot pray for enforcement of the Chief Secretary’s proposal which deemed to have not been accepted by the concerned department of the Administration. Thus this Court does not feel any necessity to interfere with the Tribunal’s order on this issue. This Court also does not find any substance in the other submission of Mr. Chatterjee regarding legality of the application of the new rules in the instant selection process, as this Court finds that the Administration did not propose to amend the old recruitment rules after the selection process was allegedly initiated under the old rules as contended by Mr. Chatterjee. Though it is true that the employment notification was initially published on 21st July, 2009 and names of suitable candidates were requisitioned from the employment exchange prior to the new selection rules of 2009 came into operation, but ultimately the concerned authority had to abandon the said selection process for giving relaxation to those junior engineers who were engaged on temporary basis in terms of the order passed by the Hon’ble Supreme court as aforesaid. Accordingly, the new rules of 2009 were introduced on 9th October, 2009 and a fresh employment notification was issued on 28th July, 2010 in supersession of the earlier employment notification dated 21st July, 2009, inviting fresh applications from suitable candidates and by requisitioning names of suitable candidates from employment exchange. Thus, this Court holds that in the instant case new rules were not applied after the selection process was initiated as contended by Mr. Chatterjee. Rather the selection process was initiated afresh by the subsequent appointment notification which was issued on 20th July, 2010 after the new recruitment rules of 2009 came into operation on 9th October, 2009. All these steps including issuance of fresh appointment notification in supersession of the earlier employment notification and introduction of the new recruitment rules had to be taken by the Administration to give certain benefits to the petitioners in the light of the order of the Hon’ble Supreme Court so that they need not come with equal competition with the open market candidates in the selection process. Thus, this Court holds that the decisions which were cited by Mr. Chatterjee as referred to above have no application in the present case. Be it mentioned here that selection process for direct recruitment does not commence by vacancy notification. Thus, this Court holds that the decisions which were cited by Mr. Chatterjee as referred to above have no application in the present case. Be it mentioned here that selection process for direct recruitment does not commence by vacancy notification. Selection process for direct recruitment starts only when the names of the suitable candidates are sponsored by the Employment Exchange and/or applications applying for the post are submitted in terms of Employment notification, as the right of those candidates, to be considered for the post matures only when their names are either sponsored or they apply for the posts. There is nothing on record to show that name of any suitable candidate was sponsored by the Employment Exchange in terms of earlier requisition of the Administration. There is also nothing on record to show that anybody applied for the posts in terms of the earlier notification. There is also nothing on record to show that any one who intended to participate in the selection process in terms of the earlier notification, has been subsequently excluded. No such candidate has come forward with such a complaint. Rather here is the case where the administration had to change its rules and abandoned the earlier employment notification only to give certain additional benefits to the petitioners for their past service rendered by them to the concerned department during its crisis period, in terms of the order of the Hon’ble Supreme Court. And as such, the petitioners’ challenge in this regard, in my view, does not sound much, in the facts of the instant case. This Court thus holds that the concerned authority did not commit any illegality either in initiation of the selection process afresh in supersession of the earlier selection notification or in taking the decisions for giving certain relaxations to the petitioners as mentioned above or in taking the decision to complete the said selection process by applying the new recruitment rules of 2009. There is no law which provides, that once a vacancy notification is issued and/or advertised inviting application from the suitable candidates, such selection process cannot be abandoned under any circumstances. As such this Court does not find any substance in the submission of Mr. Chatterjee in this regard. There is no law which provides, that once a vacancy notification is issued and/or advertised inviting application from the suitable candidates, such selection process cannot be abandoned under any circumstances. As such this Court does not find any substance in the submission of Mr. Chatterjee in this regard. That apart, if the selection is completed as per the old Rules, the petitioners cannot be given any relaxation, as the old Rules does not provide for grant of any such relaxation for the temporary appointees in the concerned posts. In the facts as stated above, this Court does not find any justification to interfere with the impugned order passed by the learned Tribunal. The writ petition thus stands dismissed.