CENTRAL
ADMINISTRATIVE TRIBUNAL
BANGALORE
BENCH, BANGALORE
ORIGINAL
APPLICATION NO.172/2009
TODAY,
THIS THE DAY OF
................. , 2011
HON'BLE
SMT. LEENA MEHENDALE ...MEMBER(A)
HON'BLE
SHRI V.AJAY KUMAR ...MEMBER(J)
Brahm Deo Mahto,
Son of Mahendra Narain Mahto,
Aged about 40 years,
Sergeant (Indian Air-force).
Presently working on posting
at Aeronautical Development
Establishment (ADE),
New Thippasandra Post,
Bangalore – 75. ... Applicant
(By
Advocate Shri Sriram)
Vs.
1. The
Union of India,
Represented
by its Secretary,
Ministry
of Defence,
South
Block,
New
Delhi - 110 011.
2. The
Director,
Directorate
of Personnel,
D.R.D.O.
Head Quarters,
Sena
Bhavan, New Delhi – 110 011.
3. The
Director & Chairman,
Zonal
Recruitment Centre (South),
Aeronautical
Development Establishment,
(ADE),
New Thippasandra Post,
Bangalore
– 75.
4. The
Director,
Gas
Turbine Research Establishment,
(GTRE),
D.R.D.O. Township,
C.V.Raman
Nagar, Bangalore-93. ...Respondents.
(By Additional Central Government Standing Counsel
Shri M.Rajakumar)
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O R D E R
HON'BLE SMT. LEENA MEHENDALE ...MEMBER(A)
The administration has a
responsibility to find solutions to traps which are sometimes created
inadvertantly. When there is a prayer
for settling a trap-like issue the same must be settled speedily, else it also
shows lack of application of mind. This
case is an example of such a situation.
2. This OA was filed on 5.4.2009 under
Section 19 of the Administrative Tribunals Act against the delay caused by
respondent-2 for considering his
appointment as the STA-A (Senior Technical Assistant grade 'A') on the Establishment
of GTRE, Bangalore under DRDO.
3. The case of the applicant is that he is
a Combatant member of Indian Air force as a Seargeant (Mechanic Transport
Fitter – Tradesman) whose services were kept at the disposal of ADE
(Aeronautical Development Establishment), Bangalore which works under and as a
field establishment of DRDO, New Delhi, whose Director is Respondent No.2
herein. The Director of ADE is also the
Chairman of the ZRC (S) (Zonal Recruitment Centre South) in which capacity he
has been impleaded as Respondent No.3.
4. The ZRC (S), Bangalore vide its
Employment News 25-31 March, 2006,
vide Annexure A1 invited applications for various posts including 101 posts of
STA-A (Senior Technical Assistant - Grade'A').
The advertisement offered age relaxation to those who had served the
Armed Forces. The applicant submitted
his application for the said post on 6.4.2006 (Annexure -A2). The last date for receiving the application
was 20.4.2006 as per Annexure A1 and thus his application was in time.
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5. It is claimed that by virtue of
applicant being a Combatant and having
worked in the Indian Air-Force and having completed 18 ½ years of service, the applicant and persons
such as him are eligible to apply to various civil posts against the
reservation of Ex-servicemen because at the end of 18 ½ years of service as
Combatant, he is allowed to retire.
Further, the Combatants are normally retired at the end of 20 years of
service unless and until they are given further extension. Having already completed 18 ½ years of
service, he had applied for extension
beyond 20 years prior to his application for civil post but had not received
any communication regarding extension of his combatant service beyond 20 years. He received such order only after the last
date for application to the civil post.
6. Thus, as per his claim, his status
vis-a-vis the Indian Air Force as on the date of application was that:-
(a) he had completed 18 ½ years
of Combatant service which is a qualifying service for retirement as well as
for seeking civilian posts as an Ex-serviceman.
(b) However, he has not actually
left IAF and thus, may continue as a serviceman in natural course upto 20 years
of service.
(c) As permitted by rules, he
has also applied for extension with IAF beyond the period of 20 years, but, the
outcome of that application is not known.
7. His application for the new employment
as STA-'A' in the office of the ZRC (S), Bangalore was submitted through proper
channel which was routed through the
Administrative Officer of ADE who
forwarded it to the Director, ADE (who is
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also the
Chairman of the ZRC) on 11.4.2006, which is
before the last date of application
(Annexure A3).
8. While filling up the application form
Annexure A2 the applicant had mentioned his category as OBC but had not claimed
himself as Ex-serviceman. He submits that since he had already
completed 18 ½ years in the combatant service he becomes eligible to be posted
as Ex-serviceman in addition to being posted against an OBC reservation. This is the crux of the case.
9. The interviews were conducted in
October-November, 2006 and during the interview the applicant produced the NOC
(No Objection Certificate) issued by his parent department namely Air Force
Headquarters which showed that he was a Combatant member of Indian Air force and the NOC made it clear that if he was
selected, the Air Force Headquarters would discharge
him from service and allow him to join the said civilian post. The applicant claims that the very act of the
IAF Head Office giving him NOC to apply for a civil post after completion of 18 ½ years of service
makes his status in the new job as equivalent to an Ex-serviceman although
technically he continues to be a Serviceman
and not Ex-serviceman on the day of application and till he is relieved
to join the new post.
10. The select list came to be published on
22.1.2007 and confirmed his selection against the post of STA-'A' in the OBC quota on the establishment of GTRE,
Bangalore (Annexure A7). He was then
asked on 13.3.2007 (Annexure A8) to fulfil certain formalities including
filling up three sets of attestation forms etc. which he did and waited. When
he did not receive any further communication for some time, he gave two
representations Annexure A9 and A10 dated 17.8.2007 and 11.9.2007 respectively. In response to them he was informed by
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letter
dated 19.9.2007 Annexure A11 by the
Chief Administrative Officer of the ZRC(S), Bangalore, that there was an
ambiguity regarding his status as Ex-serviceman and the matter was referred to
D.R.D.O., Headquarters, (Respondent No.2) and further that his case for
civilian appointment would be decided on receipt of the clarification from them. He further received two more replies of that
nature vide communications dated 6.11.2007 and 27.5.2008 (Annexure A12 and
A13). He sent another representation
dated 11.11.2008 (Annexure A14) once
again claiming that his status as Ex-serviceman was not disputed because he was
eligible to apply for a civilian post immediately after completion of 18 ½
years of service. Hence the
non-mentioning by him as Ex-serviceman in his application should not be held
against him.
11. He quoted the case of the similarly
placed candidate Shri Santosh
Kumar Chourasia who was also a Combatant
Member who was on extended service after
completion of more than 20 years of service and who had applied for the post
pursuant to notification at Annexure A1. He was selected as STA-A in the
Electronics grade and is now given an
appointment in ADE, Bangalore in July
2008 and the Respondents-3 & 4 can verify from his service records that the
present applicant has a similar case. A
perusal of Annexure-A7 shows that Shri Santosh Kumar Chaurasia has been taken
in the quota of Ex-servicemen and OH though under OBC he would also be over-age. The applicant claims that because the status
of Ex-serviceman is acknowledged for Shri Santosh Kumar Chaurasia, who was also
on extension and had not actually retired, therefore, the applicant also must
be similarly treated.
12. Under the circumstances, the applicant
prays for a directions to the
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respondents
to consider his case for issuing appropriate order of appointment as STA-A on
the Establishment of GTRE against Ex-serviceman quota as per the selection
process held by the ZRC (S), Bangalore and pursuant to the list published vide
Annexure A7 dated 22.1.2007.
13. It is seen from Annexure-A7 that GTRE
(Gas Turbine Research Establishment) issued the forms and other papers to him
as a pre-requisite to issue appointment order and the same were forwarded to
him through Respondent-3 who then questioned his status as Ex-serviceman and
forwarded the matter to the competent authority i.e., Respondent-2 from whom
the clarification is still awaited.
14. Coming to the reply by the respondents, it
is seen from the verification of the reply statement that the Chief
Administrative Officer has filed the reply statement on behalf of all the
respondents. Hence the respondents
cannot claim that no proper reply was issued to the applicant because the correspondence
between Respondents-2 and 3 has not come to a finality. The responsibility of stating reasons for
delay in considering his representation lies on all the respondents and more
particularly on respondent No.2 who cannot discharge it simply by authorising
someone else to file verification.
Responsibility also lies on the verifying officer. No attempt has been
made to explain why Respondent-2 is unable to answer the reference made to him
by the Respondent-3 on the question of applicant.
15. It is submitted by the respondents that
while applying for the post of STA-A, the applicant has mentioned himself to be
OBC and claimed the post against
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OBC reservation for which he was over-age and
hence not eligible against OBC quota. He
should have similarly claimed himself as Ex-serviceman and should have
mentioned this in the appropriate column and should have claimed his appointment under reservation for
Ex-serviceman also. As the applicant is
over age as OBC candidate, he was not considered against OBC reservation and he
cannot be considered against Ex-serviceman reservation because he has not
stated against Column-12 of Annexure A2 that he is an Ex-serviceman.
16. While making this submission the
respondents have not clarified as to how a combatant person, who is under
promise to be relieved (by way of NOC) but not yet actually relieved can claim
to be Ex-serviceman. That would be a
false statement, while if he does not mention himself as Ex-serviceman, he is
denied opportunity. This is the typical
trap-like situation, for which respondents No.2 and 3 had a responsibility to
find a solution.
17. It is further stated that the IAF merely
permits their officials to seek re-employment in Civil establishments of Army
on completion of 18 ½ years service. The
NOC issued by IAF alone does not confer the Ex-serviceman status on a
candidates applying for re-employment under ZRC (S), Bangalore, ADE. The ZRC (S)
is guided by instructions issued by DOP&T with regard to eligibility
of Armed Service Personnel applying for Civil Posts. A candidate working in the Armed Forces would
become eligible for applying for Civil Posts only when he completes the
prescribed period of Army Services within a year from the last date for
receiving applications. The respondents
admit that on the last date for receipt of application the applicant had
completed 18 ½ years of service in the IAF and was eligible as
Ex-serviceman. However, in view of the
fact that he applied
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against
only OBC quota and not Ex-Serviceman Quota, these provisions relating to
eligibility of service personnel applying for civil posts referred to in the OA
are only academic and not relevant to the instant case.
18. The learned counsel for applicant argued
that the anamoly in respondents claim is obvious. If the applicant could not be posted against
OBC quota (being over-age) and also not against ex-seviceman quota- not being
so mentioned in his application, then why was he called for interview and why
selected.
19. The learned counsel for the applicant
points out that the reply statement mentions at para-12 that the letter dated
18.01.2007 intimating selection for the post of STA 'A' (Automobile) was
erroneously issued. It is also mentioned
at para 12 and 13 of the reply statement that the publication of select list
was also erroneous by treating him as Ex-serviceman. We however, note that Annexure-A6 issued by
the ZRC dated 18-1-2007 was issued against the OBC post and not against the
Ex-serviceman as stated in para 12 and 13 of the reply statement.
20. The learned counsel for applicant has
relied on the judgement of Hon'ble Supreme Court in the case of East Coast
Railway and Another Vs. Mahadev Appa Rao and Others. (2010) 2 Supreme Court Cases
(L&S) 483 the headnote of which states as under:
"A. Recruitment process – Examination/Selection
test – Cancellation of – Judicial review on the ground of arbitrariness – Held,
though a candidate who has passed an examination or whose name appears in
select list does not have an indefeasible right to be appointed, yet
appointment cannot be denied arbitrarily, nor can selection test be cancelled
without giving proper justification."
The learned counsel argues that the
action of the respondents is arbitrary
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because it
shows partiality towards appoint of Shri Santosh, who also was in the service
beyond the required 18 ½ years, but mentioned in the application that he is an
Ex-serviceman. The withholding of
appointment to the applicant is not only unfair and discriminatory when
compared to the case of Shri Santosh, but, it is also without application of
mind because if at all any weightage could be given to the non-mentioning of
Ex-serviceman status in the application form, then it was only a minor
weightage. That minor weightage too goes
away when the applicant appears in the interview and produces the NOC from his
office promising that if selected, the parent department would relieve him to
join the civilian post. He further
claims that after taking so many months and still not deciding the issue
referred to him by Respondent No.3, the Respondent No.2 has now come out by
stating that the inclusion of the applicant's name in the select list as well
as the issuance of appointment letter to him were done erroneously. This is arbitrary and respondent No.2 cannot
be permitted to take this stand. It is a
situation similar to that in the citation and hence applies to the instant
case.
21. The learned counsel for Respondents
argued that the ZRC (S) had proceeded to fill up 101 vacancies of STA-A, out of
which 21 posts were reserved for OBC and 7 were reserved for Ex-servicemen and
the applicant cannot be posted against either.
He has cited the judgment of Hon'ble Supreme court in the case of Union
of India Vs. Dalbir Singh & Anr. - 2009 AIR SCW 4552. In the headnote the Hon'ble Apex Court has
held as under:
"Constitution of India, Art.16
– Appointment – Post of mazdoor in Govt. department – Separate advertisement
issued for general and OBC category – Number of posts in said categories mentioned
– Caste certificate produced by candidate claiming appointment in OBC category
found to be defective – He never claimed to be considered in general category –
His case cannot be directed to be considered in general merit only because he
has scored more marks than last selected caididate in
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general
merit."
Applying
the same principle, when the applicant did not apply for Ex-serviceman's quota,
he cannot be considered for that vacancy.
22. We have heard both the learned counsel for the applicant and the
learned Additional Central Govt. Standing Counsel for Respondents. We have also carefully perused the records
and the annexures attached thereto.
23. It is seen that a peculiar trap-like
situation has arisen here for which the department is dragging its feet in not
taking a decision to resolve the issue.
We agree with the learned counsel for the applicant that the applicant
who is a Combatant Army personnel would normally come to the end of his combatant
service at the end of 18 ½ years of service.
Hence, on that day, he notionally acquires the status of an
Ex-serviceman. At the same time, if he
has not been discharged and is on extension for another 1 ½ years, i.e., upto
20 years of service, then, he is technically a serviceman, and mentioning
himself as an Ex-serviceman in application form would be a falsehood. We can appreciate that under such a
situation, where such an incumbent has to apply for civilian post against the
Ex-serviceman's quota. It may not be very clear to him whether he can
truthfully and legally claim to be an Ex-serviceman, although notionally he has
acquired eligibility on completion of 18 ½ years of service.
24. The solution lies at the time and place
of interview, where his NOC from IAF headquarters gets examined. When the department agrees to relieve him if
selected, then a further weightage gets added to his notional status of
Ex-serviceman. Any prudent person who is
under extension for 1 ½ years, but not
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yet
guaranteed of his selection to civilian post is bound to retain his status of
Serviceman and not resign simply to be able to claim status of Ex-serviceman.
Still he certainly has a right to aspire for a civilian post which would keep
him employed for a longer time.
Considering that the whole concept of reservation for Ex-servicemen in
civilian posts is born from the philosophy that Combatant army officials must
be granted good re-employment facilities in view of their spirit of sacrifice
during the Combatant years, it is logical to expect that the DRDO should have
issued some clarification long back to take care of a situation such as the
present one in which a truth-speaking applicant is not able to decide whether
in the application he should mention himself as a serviceman or an
Ex-serviceman. Even though the
Department may not have come across such a situation earlier, but, when a
reference of this kind was made to them, they ought to have decided the matter
speedily. The Respondents have not only
failed to resolve the issue but are also seen as retracting from their own
action of selecting him without due
consideration to his eligibility as Ex-serviceman and without giving a
due reply to him.
25. We therefore, see merit in the prayer
made by the learned counsel for applicant and also feel the need to resolve
this trap. It is therefore, fair and
just, in our opinion, that the applicant who has completed his 18 ½ years of
combatant service and can be relieved any moment to join a civilian post,
should be considered as an Ex-serviceman and accommodated against the post
reserved for Ex-servicemen. The dilemma
before the present applicant on the date of submitting his application was
whether he was allowed to mention himself as an Ex-serviceman and it is because
of this dilemma that he has not mentioned himself as an Ex-serviceman in the
application, instead, he has carried the NOC
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from his
parent department and submitted it while appearing for interview. We therefore, consider it fit that respondent
No.2 should clarify for future notifications that any person who has completed
18 ½ years of Combatant service, but may be continuing for extended period is
eligible for being posted against Ex-serviceman quota, subject to NOC. In the
present OA too, we think it just and fair that the applicant is appointed as
STA-A against the post reserved for Ex-servicemen in the office of the 4th
Respondent.
26. The OA is allowed. The Respondents No.2, 3 and 4 are directed to
issue order of appointment to the applicant appointing him as a Senior
Technical Assistant Grade -A on the establishment of GTRE as per the select
list published vide communication dated 22-01-2007 (Annexure-A7). This exercise shall be completed within a
period of two months from the date of receipt of a copy of this order. No order as to costs.
(V. AJAY KUMAR) (LEENA MEHENDALE)
MEMBER (J) MEMBER
(A)
psp.
