Bhushan Devidas Rakhe and Others Vs. Union of India Represented Through the Secretary, Ministry of Defence and Others - Court Judgment

Mrs. Chameli Majumdar, Member (J).

1. The applicants have challenged the two orders dated 16.08.2012 and 01.09.2012 issued by the General Manager, Ordnance Factory, Chanda. The order dated 16.08.2012 was issued purportedly in compliance with the order dated 30.04.2012 passed by the Central Administrative Tribunal, Bombay Bench in O.A. No. 286/2011 (Shri Bhushan Devidas Rakhe Vs. Union of India and Others). The Tribunal directed the respondents to reconsider the matter and take a proper decision in the light of the observations made in the judgment and also to take a further action with regard to the appointment of the applicant. The General Manager, by the impugned order dated 16.08.2012, held that it would not be proper to offer appointment in the post of Foreman Grade-II to Shri Bhushan Devidas Rakhe and the case was disposed of by the order dated 01.09.2012. The General Manager declined to offer appointment in the post of Fireman Grade-II to three other applicants of the O.A. No. 681/2011. The applicant of O.A. No. 286/2011 and three applicants of O.A. No. 681/2011 have filed the present O.A. challenging the above mentioned two orders passed by the General Manager.

The applicants have prayed for the following reliefs :

“(1) To declare the impugned orders issued by Respondent No. 3; vide its letters of even No. 2036/DR/FM-11/ESTT dated 16.08.2012 (Annex. 'A-1') in pursuance with the order passed by the Hon'ble Tribunal in C.P. No. 2022/2012 in O.A. No. 286/2011 and the impugned order dated 01.09.2011 (Annex.'A-2') in pursuance with the order passed by the Hon'ble Tribunal in OA No. 681/2011 are totally arbitrary and discriminative as they are in violation of Art. 14 and 16 of the Constitution and also the provisions of Educational Qualification as stipulated in the advertisement and further S.R.O. 141 dated 20th November 2006 (Annexure 'A-9' and Annex. 'A-10')

(2) That, the Hon'ble Tribunal also be pleased to direct the Respondent No. 3 to issue appointment orders to the Applicants against the post of Fireman Gr.II, at par with other 8 candidates (out of 9 candidates); who had already been appointed in Ordnance Factory Chanda from the current Select List (Annexure 'A-14), as well as in the past during the year 2008-2010 (Annexure A-13) and also in other sister Ordnance Factories on the basis of the same Diplomas of One Year and/or Certificates of Six Months period on Fire Fighting Training.

(3) That, the Hon'ble Tribunal further be pleased to direct the Respondent 3 to issue the appointment orders with effect from the date on which the other candidates, who were lower in the merit to them, were appointed and further grant all other consequential benefits at par with those junior candidates, as granted by this Hon'ble Tribunal in another identical case of Shri Vijay Punnaswamy P.P. Chinnayya V. U.O.I. and 2 Others in O.A. No. 2147/2010, as decided on 3rd November, 2012.

(4) That, this Hon'ble Tribunal further be pleased to grant cost and/or exemplary cost of the proceeding before this Hon'ble Tribunal for compelling the applicants for filing the instant O.A. due to misleading statements made by the Respondent No. 3, inter alia, in its impugned order at Para 'O' to the effect that no such candidates were appointed (Annexure A-1) and incidentals thereto and any other benefits as deemed fit and proper in facts and circumstances of the case.”

2. At the time of hearing, Shri R. R. Shetty, Learned Counsel for the respondents produced a decision bearing no. 2748/OA/394/2013-Vig. dated 08.11.2013. Following is the observations in para 5 of the said order :

“In the penultimate paragraph of his advice, Ministry of Law and Justice, Deptt. Of Legal Affairs has observed as under :

“In view of the aforesaid discussion, in our opinion, the officer concerned may not impose condition of educational and other qualification on his own in the shape of recognized Certificate Course from a recognized Institute which is not in conformity with either relevant recruitment rules/or clarification issued by the DG, OFB, Kolkata. It may be noted, as per the clarification issued by the DG, OFB, Kolkata, minimum duration of six months is prescribed for the Basic Fire Fighting Course WHEREAS candidates who have filed the OA No. 394/2013 have completed either 6 months or one year Basic Fire Fighting course. Such a condition may not be sustained in any court of law. If the General Manager wants to change educational and other qualifications, in our opinion, amendment in the rules itself is the only option available with the department. In the prevailing facts and circumstances, the General Manager may review his order dated 16.08.2012 and 01.09.2012 refusing employment.”

In view of the foregoing, it is proposed to review the decision of the General Manager as contained in his Speaking Order dt. 16.08.2012 and 01.09.2012 and offer Appointments to the undermentioned individuals after following the due procedure like PVR, etc.

1. Shri Ramakrushna Domaji Tonge.

2. Shri Vinod Ashok Gaurkar.

3. Shri Shrikant Bholesh Nimsatkar

4. Shri Pankaj Narayan Khapne.

5. Shri B. D. Rakhe.”

3. The Learned Counsel for the applicant has produced an order passed by the Central Administrative Tribunal, Bombay Bench at Nagpur sitting in O.A. No. 2147/2010 dated 03.11.2012. In the said O.A., the Tribunal held, inter alia, as follows :

“11. If a review be undertaken in respect of those appointed as Fireman Gr.II (or those who had initially been so appointed and now got promoted to any higher grade), it may reflect that majority of them would not fill the bill of having the certificate course through any recognized institution.

The respondents have not come out with any statistics as to which are the institutions that are recognized by the Central or State Government. Nor do they seem to have made any attempt to approach the AICTE or State Board/Council of Technical Education to obtain the list of such recognized Institution. It is also not known as to how many out of 20 candidates selected for appointment to the 20 notified posts would have got their certificate from the Recognized Institution.

12. In view of the fact that in the recent past too, two such cases have been allowed (vide order dated 30.04.2012 in O.A.No. 286 of 2011 and order dated 14.06.2012 in O.A. No. 681 of 2011, we respectfully follow the same and hold that the applicant fulfills the requisite conditions for appointment as Fireman Gr.II. As he stood provisionally selected, he should be appointed as Fireman Gr.II and his appointment would date back to the earliest appointee in the present selection but the same would be notional and actual till the applicant has shouldered the responsibilities. The O.A. is allowed The impugned orders at Annexure A-1 and A-2 are quashed and set aside. This order shall be complied with, within a period of two months from the date of communication of this order.

13. Before parting with the case, the Tribunal would like to emphasize that it would be appropriate for the respondents to obtain the list of recognized technical institutes imparting fire fighting course of various duration from the AICTE and MSBTE and the same may be kept in view in the future appointments.”

4. This Tribunal, sitting at Nagpur, quashed the impugned orders of the General Manager whereby the General Manager declined to give appointment to the applicant of that O.A. and passed its order dated 03.11.2012 in O.A. No. 2147/2010. This Tribunal in the earlier two O.As., namely 286/2011 and 681/2011, filed by these applicants, although directed the Respondent No. 3 to reconsider the matter and take appropriate decision but gave a clear observation and conclusion that the decision of the respondents in denying appointment to the applicants on the ground that diploma certificate obtained by them do not satisfy the relevant criterion in the advertisement and SRO 141 could not be sustained.

In this regard, para 17 of the order passed by this materials available on record and having Tribunal in O.A. No. 681/2011 is set out herein below :

“17. Having considered the entire heard learned counsel for the parties, we have no hesitation to hold that Annexure A-1 to A-4 are liable to be quashed. We do so.

It is held that the decision of the respondents in denying appointment to the applicants on the ground that the Diploma Certificates obtained by them do not satisfy the relevant criterion in the advertisement and SRO 141 cannot be sustained. Respondent No. 3 is, therefore, directed to reconsider the matter and take an appropriate decision keeping in view the observations and conclusions made by us in this order.”

5. Having regard to the judgment passed by this Tribunal in O.As. 286/2011, 681/2011, 2147/2010 as well as the decision dated 08.11.2013 produced by the respondents to review the orders of the General Manager dated 16.08.2012 and 01.09.2012 and to offer appointment to the applicants after following the due procedure like PVR, etc., the O.A. is allowed.

The impugned orders 06.08.2012 and 01.09.2012 are set aside. The respondents are directed to appoint the applicants in the post of Fireman Grade-II subject to fulfilling other requisite formalities like police verification, etc. from the date when the first selected candidate was appointed under the same selection process. However, such appointment would be notional and actual will be only from the date the applicants would join their respective posts of Fireman Grade-II.

6. The O.A. stands allowed in terms of above directions. No order as to costs.