Jammu, October 24: A bench of CAT comprising of ANAND MATHUR & RAKESH SAGAR JAIN, Members in T.A No. 61/3409/2021 alongwith T.A. No. 61/3415/2021 ordered as:
1. Case of applicants is that they are belonging to general and reserved categories and are working as Multi-Tasking Staff (MTS) in the IA&AE Department in the office of the Principal Accountant General, Jammu and Kashmir, Jammu, continuously for a period of about two decades.
They applied for the posts of MTS in response to advertisement issued by the respondent-department.
However, to facilitate the appointment of private respondents, the official respondent conducted the selection process in an illegal and arbitrary manner, despite the applicants having better merit, they were not selected.
2. Applicants seek the following reliefs:- “It is, therefore, humbly prayed that by a writ, order or direction relevant record, pertaining to selection for the post of Multi Tasking Staff, may kindly be called for, and the selection of respondents 13 to 161 for the said post, and their appointment thereto, if it is made in the meantime, quashed, and the petitioners deemed or treated as selected and appointed to the said post by direct recruitment pursuant to the advertisement, issued by the said Department, published in the Hindustan Jobs (Hindustan Times) for the period 4-10 September 2011, and also in the Employment News for the period 3-9 September 2011, or otherwise by their regularization and absorption on the said post.
Any other writ, order or direction that this Hon. Court may deem just, fir and proper in the facts and circumstances of the present case may also be granted.”
3. Applicants seek the quashment of the selection list (Annexure ‘D’ to the T.A) on the ground that: :: 21 :: T.A No. 61/3409/2021 alongwith T.A. No. 61/3415/2021 I. No criteria for selection was advertised or otherwise published for information of the candidates.
The official respondents No. 1 to 18, however, claim to have provision of the criteria in the letter of the Comptroller and Auditor General of India described as Circular No. 22-NGE/2010 (No.1024-NGE(App)30-2009) dated 27 August 2010 (annexure R-1 to their objection).
Significantly, this communication is described to be “Confidential (for exclusive use in IA&AE and not to be quoted or published elsewhere). The criteria of selection, admittedly, was not published; II. The selection criteria referred to in the objection (annexure R-1) is arbitrary, unjust and unfair.
The academic qualifications and marks for interview are arbitrarily fixed: they do not co-relate to the job. The marks of interview are excessive, intended clearly to bring in arbitrariness and oust the Applicants. Since the criteria was not published, and the legal source of the same is not indicated, the same cannot but be designed to give arbitrariness a play in the selection. Since the said criteria was intended to be confidential, and not to be published, it cannot but be an indication that the same was only a mechanism for absorption and regularization of those who have been already working in the Department for such a long period of time;
III. The marks of interview are so divided and allocated as 5 for awareness and presence of mind and 10 for additional :: 22 :: T.A No. 61/3409/2021 alongwith T.A. No. 61/3415/2021 qualifications/skills, like driving, electrician, carpentry, gardening, etc., and for work experience between 0 and 45, the maximum 45 for 800 days of it. This criterion is arbitrary and has no rationale or any good reason behind it;
IV. The aforesaid criteria has not been applied faithfully. Less meritorious candidates have been selected and appointed. Additional qualifications of the Applicants have been ignored and reservation rules upset. The allocation and counting for experience limited only to 800 days is arbitrary and unexplainable, and then that too is not followed faithfully.
V. Respondents 68, 89,123, 152, 84, 87, 98, 69, and 59, namely Anoop Kumar (Gen), Deep Raj (SC), Sandeep (Gen), Sandeep (Gen), Kewal (Gen), Sham Lal (Gen), Romesh Kumar (SC), Amit Sharma (Gen), Gulshan Kumar (Gen) respectively are junior to Applicants 1 to 11; and respondents 65, 93, 41, 91, 27, 80, and 26, namely Ranjan Kumar Koul, Kamlesh Kumari, Sachin (Gen), Pawan (OBC), Nanak Singh (Gen), Narinder Pal (OBC) and Upasana Sharma (Gen) respectively in TA No. 3409/2021 were not even daily wagers; VI. It is averred in TA No. 3409/2021 that the applicants have more marks than the selected 60 candidates; but they have been given highest marks in interview, when most of them had no additional qualifications or skill. Respondents 55, 59, 61, 62, 68 :: 23 :: T.A No. 61/3409/2021 alongwith T.A. No. 61/3415/2021 and 69, namely Puran Chand Sharma, Gulshan Kumar, Rohit Malik, Sandev Singh, Anoop Singh and Amit Sharma, were given 14 marks each in interview, and respondents 73, 82 and 87, namely Dev Raj, Anil Kumar Raina and Sham Lal respectively 13 marks each. On the other hand, petitioner 10, Garru Ram, who is a skilled driver, was given 2 marks in interview; Applicants 6, 7, 12, 15 and 19, namely Pawan Kumar, Victor Kumar, Balwant Raj, Anil Kumar and Ravi Kumar respectively are skilled in driving and possessed of a valid driving license, but the said additional qualification is not counted. Applicants 8, 13 and 18, namely Ashok Kumar, Amrit Pal Singh and Jeewan Jyoti, are possessed of additional qualification of Diploma in Computers, but the same is not counted. Applicants 6, 8, 12, 15 and 19 were in spite of their additional qualifications and skills awarded 5, 2, 8, 8 and 8 marks in interview. Respondents 94 and 95, namely Kamal Kumar and Ashok Kumar, who have been awarded 12 marks each in interview, and respondents 87 and 82, namely Sham Lal and Anil Kumar Raina, who have been awarded 13 marks each, respondents 68 and 62, namely Anoop Kumar and Sandev Singh, who have been awarded 14 marks each, have no additional qualification at all. There is, thus, bungling in selection and the mischief has played out also in the allocation of marks in interview; :: 24 :: T.A No. 61/3409/2021 alongwith T.A. No. 61/3415/2021 VII. The whole length of service, according to the said criteria, is not counted for allocation of marks: it is limited only to 800 days maximum, for which 45 marks are allocated. The said criteria is also not applied properly and the mischief is out in the allocation of 45 marks for lesser days of service in many cases. Respondents 90 and 54, namely Rakesh Raina and Mashroof Ahmed, who had experience of only 564 days and 323 days respectively, have been awarded 45 marks each. The arbitrariness is writ large even in the application of 800 days’ formula.
VIII. There was no instruction from the Comptroller and Auditor General of India for engagement of a daily wager only for 200 days a year. The Applicants were all these years engaged throughout a year, and they continued to be in service without break. There are others as well, as indicated in schedule (annexure ‘SA-1’), who have been allowed engagement for more than 200 days, and have been given the benefit of excess days as well.
The official respondents have no explanation at all why the benefit of entire service was not given to the Applicants and the limit of 800 days indicated in the so-called criteria is arbitrary and unreasonable; so is the said criteria as a whole;
IX. The mandatory reservation for Schedule Caste category is not adhered to in the selection. According to the information furnished under the Right to Information Act vide No. CONT.CELL/AU/RTI/2012-13/314 dated 3 July 2012, 6.71% slots were reserved for the said category, which is against the Constitutional mandate. According to law, reservation for the said category ought to be 16 ¾% and for the Schedule Tribe category 7 ½ %.
According to the said information, out of 92 posts initially proposed to be filled up, 7 were reserved for the Schedule caste category, and out of the next 57, 3 alone in that category, while 10 posts were reserved for the Schedule Tribe category in the whole lot. The selection does not observe the rule of reservation, and does not even maintain a rightful balance between the Schedule Caste and Schedule Tribe categories. If the rule of reservation was correctly observed, and the posts were reserved according to the quota of schedule caste category, the Applicants would have surely got inducted in the Multi-Tasking Staff;
X. It is averred in TA No. 3409/2021 that Ashok Kumar and Garu Ram Applicants, Nos. 8 and 10 respectively, who both belong to the Schedule caste category, were awarded 74 marks each; but S/Sh. Dhyan Chand, Rahspal Chand and Dev Raj, who also belong to the same category, and have secured, the first one 39 marks and other two 38 each, and are thus less meritorious, have been selected in ignorance of the better merit of the said Applicants. The information under the Right to Information Act :: 26 :: T.A No. 61/3409/2021 alongwith T.A. No. 61/3415/2021 (annexure ‘SA-2’ with the supplementary affidavit) is instructive in this behalf;
XI. The Applicants have a right to absorption and regularization. They have been in service for a very long period of time. By reason of their engagement with the Department over this long period, the Applicants have lost all avenues of employment and livelihood: it is, in the circumstances, neither just nor reasonable and fair not to absorb or regularize them. In the absence of rules against any such regularization, and there being no affectation of any other person, their right to regularization rises to a higher pedestal. There are no rules for recruitment or appointment to the post of Multi-Tasking Staff. The Applicants are entitled even under the Industrial Disputes Act to continue in service of the Department. The right to livelihood and the legitimate expectation of the Applicants are adversely affected;
XII. There was a proposal for regularization and appointment of daily wagers on permanent basis against vacancies in the Department, and there has been exchange of correspondence between the Comptroller and Auditor General of India and the Principal Accountant General, Jammu and Kashmir, on the subject, obviously with the idea to adjust such persons on permanent posts substantively. The said proposal appears to be lost on the way for no valid reasons;
XIII. The interview for selection was farcical: it was just a formality. As a matter of Policy, interview for the fourth class post has been abolished all over the country in acceptance of the hard fact that it is not required for the said post and serves only as harassment to the candidate; it is only to promote nepotism and favouritism;
XIV. No criteria for selection was advertised or otherwise published for information of the candidates. The official respondents Nos. 1 to 18, however, claim to have provision of the criteria in the letter of the Comptroller and Auditor General of India described as Circular No. 22-NGE/2010 (No.1024-NGE(App)30-2009) dated 27 August 2010 (annexure R-1 to their objection).
Significantly, this communication is described to be “Confidential (for exclusive use in IA&AE and not to be quoted or published elsewhere”). The criteria of selection, admittedly, was not published;
XV. The selection criteria referred to in the objection (annexure R-1) is arbitrary, unjust and unfair. The academic qualifications and marks for interview are arbitrarily fixed: they do not co-relate to the job. The marks of interview are excessive, intended clearly to bring in arbitrariness and oust the Applicants.
Since the criteria was not published, and the legal source of the same is not indicated, the same cannot but be designed to give arbitrariness a play in the selection. Since the said criteria was intended to be confidential, and not to be published, it cannot but be an indication that the same was only a mechanism for absorption and regularization of those who have been already working in the Department for such a long period of time;
XVI. The marks of interview are so divided and allocated as 5 for awareness and presence of mind and 10 for additional qualifications/skills, like driving, electrician, carpentry, gardening, etc., and for work experience between 0 and 45, the maximum 45 for 800 days of it. This criterion is arbitrary and has no rationale or any good reason behind it;
XVII. The aforesaid criteria has not been applied faithfully. Less meritorious candidates have been selected and appointed. Additional qualifications of the Applicants have been ignored and reservation rules upset. The allocation and counting for experience limited only to 800 days is arbitrary and unexplainable, and then that too is not followed faithfully;
XVIII. It is averred in TA No. 3409/2021 that respondents 68, 89,123, 152, 84, 87, 98, 69, and 59, namely Anoop Kumar (Gen), Deep Raj (SC), Sandeep (Gen), Sandeep (Gen), Kewal (Gen), Sham Lal (Gen), Romesh Kumar (SC), Amit Sharma (Gen), Gulshan Kumar (Gen) respectively are junior to Applicants 1 to 11; and respondents 65, 93, 41, 91, 27, 80, and 26, namely Ranjan Kumar Koul, Kamlesh Kumari, Sachin (Gen), Pawan (OBC), :: 29 :: T.A No. 61/3409/2021 alongwith T.A. No. 61/3415/2021 Nanak Singh (Gen), Narinder Pal (OBC) and Upasana Sharma (Gen) respectively were not even daily wagers; XIX. The applicants have more marks than the selected 60 candidates; but they have been given highest marks in interview, when most of them had no additional qualifications or skill. It is averred that in TA No. 3409/2021, respondents 55, 59, 61, 62, 68 and 69, namely Puran Chand Sharma, Gulshan Kumar, Rohit Malik, Sandev Singh, Anoop Singh and Amit Sharma, were given 14 marks each in interview, and respondents 73, 82 and 87, namely Dev Raj, Anil Kumar Raina and Sham Lal respectively 13 marks each. On the other hand, petitioner 10, Garru Ram, who is a skilled driver, was given 2 marks in interview; Applicants 6, 7, 12, 15 and 19, namely Pawan Kumar, Victor Kumar, Balwant Raj, Anil Kumar and Ravi Kumar respectively are skilled in driving and possessed of a valid driving license, but the said additional qualification is not counted. Applicants 8, 13 and 18, namely Ashok Kumar, Amrit Pal Singh and Jeewan Jyoti, are possessed of additional qualification of Diploma in Computers, but the same is not counted. Applicants 6, 8, 12, 15 and 19 were in spite of their additional qualifications and skills awarded 5, 2, 8, 8 and 8 marks in interview. Respondents 94 and 95, namely Kamal Kumar and Ashok Kumar, who have been awarded 12 marks each in interview, and respondents 87 and 82, namely Sham Lal and Anil Kumar Raina, who have been awarded 13 marks each, respondents 68 and 62, namely Anoop Kumar and Sandev Singh, who have been awarded 14 marks each, have no additional qualification at all. There is, thus, bungling in selection and the mischief has played out also in the allocation of marks in interview.
XX. The whole length of service, according to the said criteria, is not counted for allocation of marks: it is limited only to 800 days maximum, for which 45 marks are allocated. The said criteria is also not applied properly and the mischief is out in the allocation of 45 marks for lesser days of service in many cases. Respondents Rakesh Raina and Mashroof Ahmed, who had experience of only 564 days and 323 days respectively, have been awarded 45 marks each. The arbitrariness is writ large even in the application of 800 days’ formula;
XXI. There was no instruction from the Comptroller and Auditor General of India for engagement of a daily wager only for 200 days a year. The Applicants were all these years engaged throughout a year, and they continued to be in service without break. There are others as well, as indicated in schedule (annexure ‘SA-1’), who have been allowed engagement for more than 200 days, and have been given the benefit of excess days as well. The official respondents have no explanation at all why the benefit of entire service was not given to the Applicants and the limit of 800 days indicated in the so-called criteria is arbitrary and unreasonable; so is the said criteria as a whole;
XXII. The mandatory reservation for Schedule Caste category is not adhered to in the selection. According to the information furnished under the Right to Information Act vide No. CONT.CELL/AU/RTI/2012-13/314 dated 3 July 2012, 6.71% slots were reserved for the said category, which is against the Constitutional mandate. According to law, reservation for the said category ought to be 16 ¾% and for the Schedule Tribe category 7 ½ %. According to the said information, out of 92 posts initially proposed to be filled up, 7 were reserved for the Schedule caste category, and out of the next 57, 3 alone in that category, while 10 posts were reserved for the Schedule Tribe category in the whole lot.
The selection does not observe the rule of reservation, and does not even maintain a rightful balance between the Schedule Caste and Schedule Tribe categories. If the rule of reservation was correctly observed, and the posts were reserved according to the quota of schedule caste category, the Applicants would have surely got inducted in the Multi-Tasking Staff;
XXIII. It is averred in TA No. 3409/2021 that Ashok Kumar and Garu Ram, applicants No. 8 and 10 respectively, who both belong to the Schedule caste category, were awarded 74 marks each; but S/Sh. Dhyan Chand, Rahspal Chand and Dev Raj, who also belong to the same category, and have secured, the first one 39 marks and other two 38 each, and are thus less meritorious, have been selected in ignorance of the better merit of the said Applicants. The information under the Right to Information Act (annexure ‘SA-2’ with the supplementary affidavit) is instructive in this behalf;
XXIV. The applicants have a right to absorption and regularization. They have been in service for a very long period of time. By reason of their engagement with the Department over this long period, the Applicants have lost all avenues of employment and livelihood: it is, in the circumstances, neither just nor reasonable and fair not to absorb or regularize them. In the absence of rules against any such regularization, and there being no affectation of any other person, their right to regularization rises to a higher pedestal. There are no rules for recruitment or appointment to the post of Multi-Tasking Staff.
The Applicants are entitled even under the Industrial Disputes Act to continue in service of the Department. The right to livelihood and the legitimate expectation of the Applicants are adversely affected;
XXV. There was a proposal for regularization and appointment of daily wagers on permanent basis against vacancies in the Department, and there has been exchange of correspondence between the Comptroller and Auditor General of India and the Principal Accountant General, Jammu and Kashmir, on the subject, obviously with the idea to adjust such persons on permanent posts substantively. The said proposal appears to be lost on the way for no valid reasons;
XXVI. The interview for selection was farcical: it was just a formality. As a matter of Policy, interview for the fourth-class post has been abolished all over the country in acceptance of the hard fact that it is not required for the said post and serves only as harassment to the candidate; it is only to promote nepotism and favouritism;
4. In the objections filed by official respondents, the allegations levelled by the applicants have been denied in toto. It is the case of official respondents that the interview was conducted fairly and selection was made strictly in accordance with the merit and the criteria fixed. It is further averred that the applicants have no case in their favour. The application being meritless deserves to be dismissed.
5. We have heard and considered the arguments of the learned counsel for applicants and learned Senior CGSC for official respondents and gone through the material on record.
6. The above-stated facts in the T.As having not been specifically denied or rebutted by the official respondents in the objections and therefore, are deemed to be admitted by the official respondents. Applicants have alleged violation of statutory provisions while conducting the selection process by the official respondents which have not been denied by the respondents.
The allegation that the criteria was not published and reservation quota has not been implemented in the appointments is writ large on the face of the record from which the official respondents cannot escape.
7. Looking to the facts and circumstances of the case and facts alleged by the applicant which have not been specifically denied by the official respondents, we are of the opinion that the selection process was conducted in an unfair and arbitrary manner, by passing the statutory provisions to the detriment of the applicants who deserved to be appointed to the post of MTS.
8. The facts of the case as discussed above make out a case for the applicants that the selection process was conducted unfairly and appointment of private respondents have been made in violation of the statutory provisions of law. The impugned selection/appointment list deserves to be set aside and direction to be given to reframe the selection list.
9. However, the circumstance also arise that the private respondents have been working as MTS since the year 2011 and it would be inequitable to render them jobless after such a long period of being in service and most probably becoming overage and be unable to apply for job in any sector – private or public.
10. After quoting catena of judgements in our considered opinion, the law laid down by the Hon’ble Apex Court applies to the present situation also.
We are of the view that it would be inequitable if we set aside appointments of candidates (private respondents) selected, appointed and are working since 2011.
11. It is also averred in the T.As that at the time of motion hearing, the Court reserved vacancies of the multi-tasking staff for the applicants and further directed not to disengage the applicants’ services, by the order dated 26 April 2012.
This order was made absolute on 24 September 2013 and continues to be in force. Earlier, some daily wagers filed a writ petition (SWP 1748 of 2007) with the prayer for regularization on a permanent post in the Department on the ground of their long service with the latter –– some of the Applicants Roshan Lal, Ashok Kumar and Gopal Krishan are applicants therein as well and the Court was pleased to direct maintenance of status quo by its order dated 28 September 2007.
The said petition is still pending and the said order is still in force.
Official respondents have also placed on record statement issued by the department showing at present that some posts are available. It be noted that applicant No. 19 (Ravi Kumar) in T.A. No. 3409/2021 and applicant No. 2 in T.A. No. 3415/2021 are no longer parties in the present T.As by the orders passed by the Hon’ble High Court.
12. Looking to the tenor of the stay order and the statement placed on record as well as the settled principle of law, while observing that it would be inequitable to set aside the appointments of candidates (private respondents), we direct the official respondents that the applicants similarly situated to private respondents and protected in the present proceedings will be treated at par with those respondents and if the applicants are found eligible and qualified, the official respondents will consider their cases, i.e. the cases of the applicants and will appoint them in accordance with law and that appointment would be effective from the date of appointment of the private respondents and they would be entitled to all notional service benefits.
Age bar, if any, will not come in the way of the applicants. The entire exercise shall be completed within a period of two months from the date of communication of the order. The said benefit, however, is limited to those applicants who have challenged the selection by approaching the Tribunal.
13. T.As are accordingly disposed of. No costs.
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