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9 Feb

The tribunal did not direct the use of a waitlist to fill vacancies in Permanent commission: Delhi High Court.

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Case title: Maj Vishal Vs Union Of India And Ors.

Case no.: W.P.(C) 15908/2023

Decided on: 08.02.2024

Quorum: Hon’ble Justice V. Kameswar Rao, Hon’ble Justice Saurabh Banerjee

FACTS OF THE CASE:

The current writ is based on an order of the Armed Forces Tribunal. The petitioner is a Short Service Commissioned Medical Officer who has joined the Army Medical Corps. It was the petitioner’s case that, in recent years, a number of vacancies have been created for the grant of Permanent Commission to SSC Officers, and according to a letter from the Ministry of Defence dated September 3, 1998, 115 vacancies in the category of PC were to be filled by SSC Officers in the Armed Force Medical Corps. The petitioner was eligible for the PC, so he participated in the selection process, and his case was heard at the DPC in June 2012. The results were released in November of 2012. The petitioner was ranked 53rd on the merit list, but only 15 candidates were appointed as PCOs following the DPC in June 2012. In March 2014, similarly placed SSC Officers, who were also dissatisfied with the respondents’ action of filling only 15 vacancies instead of 50, approached the Tribunal, citing Major Mallikarjun’s case. It is sufficient to state that the Tribunal decided the OA on October 15, 2015, holding that the reduction of vacancies from 50 to 15 is illegal and that the 50 vacancies must be filled. The respondents were asked to fill 50 vacancies, but only 33 were filled, leaving 17 vacant. The petitioner filed a petition in tribunal, which was dismissed.

PETITIONERS CONTENTION:

The petitioner’s counsel contends that the Tribunal’s order is erroneous because the respondents have no right to refuse the grant of PC to a candidate who is on the panel or on the waitlist if vacancies exist. If a vacancy is not filled due to reasons such as unwillingness, invalidation, death, or resignation, candidates on the waiting list will be considered for the position. The respondents had a responsibility to operate a waiting list because 17 vacancies remained unfilled. They argued that it is a travesty of justice to overlook qualified candidates for PC and let them go to waste.

RESPONDENTS CONTENTION:

They contended that the Tribunal granted relief in the case of Major Mallikarjun solely on the basis of “legitimate expectations” of the top 50 candidates whose selection had already been approved by the previous DGAFMS, because the applicants were ranked among the top 50. They He also stated that the judgement was for the applicants and not an order in rem. It was extended to the top 50 candidates based on the Tribunal’s observations. In contrast, the petitioner was not on the Merit List’s top 50 and chose not to pursue the matter until 2017.

COURT ANALYSIS AND JUDGMENT:

The court held that, in light of the Tribunal’s decision in Major Mallikarjun S Biradar, the Tribunal correctly rejected the petitioner’s OA. Furthermore, this Court believes that because the upper age limit for PC is 30 years and the petitioner has used up his last chance in December 2012, no PC direction can be issued. Furthermore, the maximum service period for granting PC to an SSC Officer should be 9 years and 6 months, while the petitioner already served for more than 13 years.

The petitioner approached the Tribunal to state that the waitlist needs to be operated because the vacancies resulting from the Tribunal’s directions in Major Mallikarjun S. Biradar have not been provided. The court held that the petitioner could not have filed the OA on the basis of the direction provided by the Tribunal in Major Mallikarjun S. Biradar because no such direction had been given by the Tribunal.

The court stated that the issue of operating a waitlist is not relevant in light of the Tribunal’s decision in Major Mallikarjun S Biradar, which has reached finality and is no longer res interga. Furthermore, the petitioner’s claim is based on the Tribunal’s decision in Major Mallikarjun S Biradar, which makes no mention of the need to operate a list larger than 50. As a result, the applicants received relief because they were among the 50 candidates found to be qualified for permanent commission on merit. Therefore, the petition is dismissed.

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Written by – Surya Venkata Sujith

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22 Nov

Petitioner’s Candidature Was Not Rejected At Its Inception And Despite Her Failure To Produce The Certificate Is Sufficient Compliance Of Guidelines: High Court Of Patna

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Citation: L.P.A No.1414 of 2018

Coram: Honourable Chief Justice And Honourable Mr. Justice Rajiv Roy

Decided On: 03-10-2023

Introduction:

The present appeal is filed against an order in a review, which rejected the same finding the scope of review to be very limited and the invocation of such review jurisdiction possible only on the ground of an error apparent/evident from the face of the record.

Facts:

On 02.04.2018, a writ petition was filed by the petitioner against the rejection of her candidature to the post to Lady Supervisor, which was dismissed. The rejection of her candidature was on account of her not having produced the Non-Creamy Layer Certificate, which she was obliged to produce along with application.

The learned Single Judge found that though it was not produced along with application, she was called for counselling on 14.05.2012, on which date also she had not produced it. The petitioner’s reliance on the guidelines, which speak of an opportunity to submit the required certificate, having not been granted to her was also rejected on the ground that the advertisement clearly spelt out the requirement to produce the certificates along with application.

The advertisement was made for appointment on contractual basis to the post of Lady Supervisor (Mahila Parveyashika) in Katihar district. Even according to the petitioner, the advertisement required that the application should contain the self-attested photograph, the Extremely Backward Class certificate along with the certificate of not coming under creamy layer. Admittedly, the petitioner did not produce the certificate along with the application. In the writ petition also the petitioner had a contention that if her application was defective, she should have been informed.

Court’s Analysis and Judgement:

Petitioner’s candidature was not rejected at its inception and despite her failure to produce the certificate, she was called for the counselling. This was sufficient compliance of the guidelines. The advertisement clearly required the applicants to produce the certificates and the self-attested photograph long with the application itself. If any of the enclosures required are not produced, the application could be rejected in limine, which was not done.

It also have to be noticed that the certificate was issued only on 14.05.2012, on which date the counselling was also carried out. Hence, the petitioner’s contention that the certificate was produced at the time of counselling also cannot be believed. Hence the appeal was dismissed by the court.

Written by- Sushant Kumar Sharma

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22 Nov

Nothing Left To Be Decided As The Subject Matter Advertisement Was 8 Years Old: Patna High Court

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Title: Dr. Veena Kumari v The Bihar Agricultural University

Citation: CWJC No.12028 of 2014

Coram: Honourable Mr. Justice Partha Sarthy

Decided On: 04-10-2023

Introduction:

The instant application was filed for quashing the Letter no. 1041 dated 4.7.2014 whereby the letter issued to the petitioner by the University calling the petitioner for interview to the post of Assistant Professor-cum-Junior Scientist for discipline Agriculture Economics vide Advertisement no.06/2013 dated 4.9.2013 was illegally recalled.

Facts:

It is submitted that the call letter for the interview had been held on 15.07.2014 for the post of Agriculture Economics was wrongly due to typographical/technical error. It is mentioned here that the petitioner namely Dr. Veena Kumari earlier moved this Hon’ble Court vide CWJC No. 1415 of 2008 for the same issue, the Hon’ble Court has passed order and rejected the grievance of the petitioner on 04.08.2011 for consideration of her candidature on the basis of her M.Sc. degree without having corresponding degree at the under graduate level on the ground that so long as the eligibility condition prescribed under Para-17.2 of RAU Act & Statute.

Court’s Analysis and Judgement:

the interview which is the subject matter of the instant application having taken place more than 8 years ago. So in present case there is nothing remaining to be decided on, hence the writ application was disposed by the court.

Written by- Sushant Kumar Sharma

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19 Oct

The Calcutta High Court: – Ruled that it is “sexist” to distinguish between a married and unmarried daughter in compassionate employment.

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Title: – Dipali Mitra & Ors. V Coal India Limited & Ors.

Case No.: – WPA 14349/2018

Decided on: 17/10/2023.

Coram: The Hon’ble Justice Shekhar B. Saraf

Introduction: –

The Calcutta High Court has determined that the National Coal Wages Agreement-VI’s Clause 9.3.3, which distinguishes between “married” and “unmarried” daughters for the purposes of compassionate appointment, is extra vires and violates Articles 14 and 15 of the Constitution. A single bench of Justice Shekhar B. Saraf held that the primary requirement for consideration of an application seeking compassionate appointment is to show dependency upon the deceased employee and financial exigency. The bench dismissed the petitioners’ plea for compassionate appointment, noting that the petitioners’ primary reasons for seeking the same was dependency on the deceased employee and financial exigency. It was assumed that a daughter’s marriage status made her less dependent on her mother or father and more on her husband, which is “misogynist”.

The Government was asked by the Court to investigate “archaic laws/policies” that uphold the sexist “natural” order of things and revise them in conformity with Article 14 of the Constitution’s equal gender principles.

Brief Facts: –

The current writ petition was filed by the petitioners, who were related to the late Shibdas Mitra, an employee of Eastern Coalfields Limited, Kolkate (ECL), requesting a compassionate appointment in favor of a son-in-law or married daughter under Clause 9.3.3 of the National Coul Wages Agreement-VI (NCWA-VI).

Petitioner no. 1’s wife had requested a compassionate appointment for her son-in-law, petitioner no. 2, a.k.a. a “indirect dependant,” on the grounds that the family’s only source of income was the dead employee and that their son, a direct dependant, was living in Sweden. ECL denied the son-in-law’s request for a compassionate appointment, citing the existence of the dead employee’s son as a direct descendant. However, the married daughter of the deceased employee was not taken into consideration.

Petitioner No. 1 then submitted her own application for compassionate appointment, but it was denied because the 45-year-old age requirement for hiring a female dependent had been exceeded. Petitioner no. 1 then requested a compassionate appointment on behalf of her daughter, who is married.

Outraged by this, the petitioners went to the High Court, which was resolved by ordering the respondents to issue a reasoned order supporting or opposing the petitioners. This was done by issuing an order that denied the married daughter of the deceased compassionate employment.

Petitioners filed an appeal against the contested order with the ECL; however, they received no answer. Consequently, they filed an application under Article 226 with the High Court.

Judgement: –

The Court addressed the Petitioner no. 2’s argument that the compassionate appointment was an exception “carved out against the general rule of merit-based recruitment,” not a vested or inherited entitlement. Regarding the question of whether the NCWA’s distinction between married and unmarried daughters is beyond the scope of Articles 14 and 15 of the Constitution, the Court determined that there was no applicable reasonable classification.

In the end, the Court decided that the petitioner’s writ petition should be denied because they had not come before the Court in a clean manner and because the married daughter was living with her husband and had never shown that she was dependent on the deceased employee, even though the son-in-law was earning a living and supporting himself. The petitioners’ submission of incorrect ages and fake affidavits, together with their request for a compassionate appointment for their married daughter just four years after the deceased’s death, were discovered by the court. The Bench also expressed its opinion and provided greater insight into the “arbitrary distinction” between married and single daughters in an afterword.

Written By: Sushant Kumar Sharma.

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