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Judgment
ORDER
Per: - Ram Mohan Johri, Administrative Member
The applicant has filed the present Original Application under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs: -
Quashing the order No. 232 SSB of 2020 dated 15-09-2020 whereby the selection of the applicant has been cancelled abinitio without giving an opportunity to the petitioner to be heard.
Quashing the order No. 108 of 2020 dated 24-09-2020 passed by respondent No.7
Directing the respondents no.1, 5, 6 and 7 to appoint the applicant to the post of physiotherapist for which she has been selected by the respondent No.1 and
Any other order or direction which this Hon'ble Tribunal deems the applicant entitled to, in the facts and circumstances of the case may be granted in her favour.
The facts of the case as averred by the applicant in her pleadings, are as follows: -
The case of the applicant is that respondent No.1 issued Advertisement Notification dated 01.02.2019 inviting applications for various posts in Government Medical College, Kathua, including the post of Physiotherapist in the Divisional Cadre Jammu. One post was available under the Open Merit category and the prescribed qualification was 10+2 with Degree in Physiotherapy from any recognized Institute/SMF. The applicant, claiming to possess the requisite qualification, applied for the said post and was permitted to participate in the selection process.
The applicant states that after completing 10+2, she pursued Bachelor of Physiotherapy (BPT) from Manipal Academy of Higher Education (Deemed University) and was enrolled with the Faculty of Allied Health Sciences/Kasturba Medical College, Mangalore. She successfully completed the BPT course and thereafter also acquired a Master’s Degree in Physiotherapy (MPT) in Neurological Sciences and Paediatric Neurology. She is also stated to be a registered member of the Indian Association of Physiotherapists.
According to the applicant, she successfully participated in the selection process and stood at the top of the merit list in the Open Merit category. Her original documents were also subjected to scrutiny on 16.10.2019 and, at that stage, no objection regarding her educational qualification was communicated to her. The applicant asserts that her Bachelor’s degree certificate, on account of a typographical/printing error attributable to the University, mentioned “Bachelor of Physical Therapy” instead of “Bachelor of Physiotherapy”, though the course actually pursued and completed by her was Bachelor of Physiotherapy.
The grievance of the applicant arose when respondent No.1, without issuing any notice or affording her an opportunity to explain the discrepancy in the degree certificate, passed Order No.232-SSB of 2020 dated 15.09.2020, whereby her selection was cancelled ab initio. The applicant maintains that had an opportunity been afforded to her, she could have immediately obtained the necessary clarification/correction from the University. Upon learning of the cancellation, she approached the University for rectification of the mistake, and a corrected degree certificate was subsequently issued in her favour.
The applicant had earlier approached this Tribunal by filing O.A. No.852/2020. By order dated 24.09.2020, this Tribunal directed the respondents to examine her candidature afresh in the light of the plea that the description of her degree was the result of a typographical error. It was further directed that, in the meantime, the wait-listed candidate should not be called in her place until a decision on the applicant’s request was taken, and the exercise was required to be completed within four weeks.
The applicant further pleads that, in the meantime, respondent No.7 issued Order No.108 of GMCK of 2020 dated 24.09.2020, appointing respondent No.8 as Physiotherapist. On coming to know of the same, the applicant informed the authorities that she had already challenged the cancellation of her selection and that the matter had been considered by this Tribunal. Nevertheless, respondent No.8 was permitted to join the post. The applicant accordingly contends that she was the originally selected and more meritorious candidate and that denial of appointment to her merely on account of a rectifiable typographical error in the degree certificate was arbitrary and unjustified.
The respondents have filed their written statement wherein they have averred as follows: -
Respondent No.1/J&K Services Selection Board has opposed the O.A. and contended that the selection process was conducted strictly in accordance with the applicable rules. It is stated that the relevant post of Physiotherapist in GMC Kathua carried the prescribed qualification of “10+2 with Degree in Physiotherapy from any recognized Institute/SMF.” After completion of counselling and document verification, the selection list was forwarded to the concerned department on 20.01.2020; however, the recommendation of the applicant was specifically withheld subject to verification of the validity of her degree and production of a bona fide certificate from the University.
The Board states that it sought clarification from the University Grants Commission. The UGC, vide communication dated 10.06.2020, informed the Board that Bachelor of Physical Therapy was not a specified degree, whereas Bachelor of Physiotherapy was a specified degree under Section 22 of the UGC Act, 1956 and could be awarded by a statutory/deemed University in accordance with the applicable UGC norms. On the basis of the degree then produced by the applicant and the clarification received from the UGC, the matter was placed before the 172nd Board Meeting, wherein the applicant was declared ineligible for not possessing the prescribed qualification. Consequently, her withheld selection was cancelled ab initio vide Order No.232-SSB of 2020 dated 15.09.2020 and the indenting department was asked to operate the waiting list under the Open Merit category, if required.
Significantly, the Board has further pleaded that pursuant to the directions passed by this Tribunal in O.A. No.852/2020 on 24.09.2020, the candidature of the applicant was reconsidered. Upon such reconsideration, the Board passed Order No.353-SSB of 2021 dated 06.12.2021 and recommended the applicant by way of a speaking order in compliance with the directions of the Tribunal. The Board has, therefore, taken the stand that its role in the matter stood exhausted after making the recommendation and that the actual appointment falls within the domain of the indenting/appointing department, which is required to take the consequential action.
The Board nevertheless maintains that the original selection process and the action taken by it at the relevant point of time were based upon the documents then available and the clarification received from the UGC, and that there was no arbitrariness or illegality on its part.
Respondent No.8 has separately contested the O.A. Her principal contention is that she was a wait-listed candidate and was appointed only after the candidature of the applicant had been cancelled and the competent authority had decided to operate the waiting list. Prior to her appointment as Physiotherapist, respondent No.8 was already serving as MRW/Technician Therapist in GMC Kathua. Upon being offered appointment to the post of Physiotherapist vide order dated 24.09.2020, she resigned from her earlier post and joined as Physiotherapist on 26.09.2020. It is pleaded that she was neither responsible for the cancellation of the applicant’s candidature nor was there any fraud, misrepresentation or collusion on her part, and therefore her appointment should not be disturbed for circumstances over which she had no control.
Respondent No.8 further submits that at the time her appointment was made, the applicant’s selection stood cancelled on the ground that the degree produced by her mentioned Bachelor of Physical Therapy, whereas the UGC had clarified that the specified degree was Bachelor of Physiotherapy. Accordingly, after cancellation of the applicant’s candidature, the waiting list was operated and respondent No.8, being placed at Serial No.1 therein, was issued the appointment order. She consequently asserts that her appointment was valid when made and that she cannot be prejudiced on account of subsequent developments concerning the applicant’s candidature.
Respondent No.8 has also raised an objection regarding the earlier O.A. No.852/2020, contending that neither she nor the concerned indenting department/GMC Kathua was impleaded therein, despite the fact that the dispute had a direct bearing upon the appointment subsequently made in her favour. On these grounds, respondent No.8 seeks dismissal of the present O.A. and protection of the appointment already granted to her.
Heard learned counsel for the parties and perused the pleadings made by them.
The essential facts are not seriously in dispute. Pursuant to Advertisement Notification dated 01.02.2019, applications were invited for various posts including that of Physiotherapist in Government Medical College, Kathua. The prescribed qualification Central Administrative Tribunalfor the post was 10+2 with Degree in Physiotherapy from a recognized Institute/SMF. The applicant participated in the selection process and admittedly stood at Serial No.1 in the Open Merit category. Her recommendation, however, was withheld for verification of the validity of her degree.
The controversy arose because the degree certificate produced by the applicant mentioned the nomenclature “Bachelor of Physical Therapy” instead of “Bachelor of Physiotherapy.” Upon clarification being obtained from the University Grants Commission, the Board was informed that Bachelor of Physical Therapy was not a specified degree whereas Bachelor of Physiotherapy was a specified degree under Section 22 of the UGC Act, 1956. On this basis, the applicant was declared ineligible and her withheld selection was cancelled vide Order No.232-SSB of 2020 dated 15.09.2020.
The case of the applicant, however, has consistently been that the discrepancy was merely a typographical error in the certificate issued by the University and that she had, in fact, undergone and successfully completed the Bachelor of Physiotherapy course. The material on record also shows that the University subsequently issued a corrected degree certificate to the applicant.
The applicant had earlier approached this Tribunal by filing O.A. No.852/2020. Vide order dated 24.09.2020, this Tribunal directed the respondents to reconsider the candidature of the applicant afresh in view of the alleged typographical error and further directed that the wait-listed candidate should not be called in her place till a decision was taken on her candidature.
What assumes considerable significance for deciding the present proceedings is the subsequent development recorded in the written statement of the J&K Services Selection Board itself. The Board has categorically stated that pursuant to the directions passed by this Tribunal, the applicant’s case was reconsidered and, vide Order No.353-SSB of 2021 dated 06.12.2021, her candidature was recommended by way of a speaking order. The Board further states that, thereafter, appointment was within the domain of the indenting/appointing department.
Thus, insofar as the eligibility and selection of the applicant are concerned, the controversy has substantially come to an end. The very authority which had earlier cancelled her candidature has, upon reconsideration, restored/recommended her candidature. Once such recommendation has been made after considering the corrected position regarding her educational qualification, the applicant cannot indefinitely be denied the fruits of her selection merely because, during the intervening period, the waiting list was operated and respondent No.8 was appointed.
The record further demonstrates that the applicant had secured the first position in the Open Merit category. Her selection was not cancelled because she had failed to undergo the prescribed course or lacked the substantive academic qualification, but because of the description appearing in the certificate issued by the University. The University thereafter corrected the degree and the Selection Board, upon reconsideration, ultimately recommended the applicant. In such circumstances, continuing to deny appointment to the applicant would perpetuate the adverse consequences of an error for which, on the material available before us, she cannot be held responsible.
At the same time, the position of respondent No.8 cannot be ignored. Respondent No.8 has pleaded that she was earlier serving as MRW/Technician Therapist in GMC Kathua and, upon being offered appointment as Physiotherapist on 24.09.2020, resigned from her previous post and joined the post of Physiotherapist. She has been serving on the post since September, 2020. There is no allegation, much less any material, to show that respondent No.8 secured her appointment by fraud, concealment, misrepresentation or collusion.
Respondent No.8 was appointed because the competent authorities had, at the relevant time, cancelled the candidature of the applicant and operated the waiting list. Respondent No.8 merely accepted the appointment offered to her. She cannot, therefore, be made to suffer for an administrative decision over which she had no control, particularly after rendering service for a considerable period.
The Court is consequently faced with a situation where denying relief to the applicant would cause manifest injustice to a candidate who was originally higher in merit and whose candidature was subsequently restored by the Selection Board itself, whereas setting aside the appointment of respondent No.8 at this stage would result in serious prejudice to an employee who entered service without any fault on her part.
The jurisdiction of this Tribunal is not confined to identifying an illegality; it must, as far as practicable, mould the relief in a manner which remedies the injustice without unnecessarily unsettling rights which have intervened in the meantime. The facts of the present matter call for such an equitable balancing.
Once the Selection Board has passed Order No.353-SSB of 2021 dated 06.12.2021 recommending the applicant, the appointing department cannot take shelter behind the fact that the advertised vacancy has already been occupied by respondent No.8. Such a course would render the reconsideration undertaken pursuant to judicial directions entirely illusory. The applicant cannot be left with a mere paper recommendation without consequential appointment.
We are, therefore, of the considered opinion that the ends of justice would be adequately served by protecting the appointment of respondent No.8 while simultaneously directing the official respondents to accommodate the applicant against a supernumerary post of Physiotherapist.
Such a course would neither result in displacement of respondent No.8 nor deprive the applicant of the appointment which legitimately follows from the subsequent recommendation made in her favour. The supernumerary post shall be personal to the applicant and may subsequently be adjusted against the next available regular vacancy of Physiotherapist in the concerned cadre, whereupon the supernumerary post shall stand abolished.
As regards consequential benefits, we are conscious that the applicant has not actually discharged duties as Physiotherapist during the intervening period. Therefore, while she cannot be granted salary for a period during which no service was actually rendered, the administrative error which deprived her of timely appointment should also not operate to her disadvantage for all purposes.
Accordingly, for purposes of seniority and other service-related Central Administrative Tribunalbenefits, the applicant shall be granted notional appointment/seniority from the date respondent No.8 was appointed/joined as Physiotherapist, subject to the applicable rules governing inter se seniority. Such notional benefit shall count for fixation of seniority, qualifying service, increments and pensionary purposes, wherever admissible under the relevant rules. However, the applicant shall not be entitled to arrears of salary for the period prior to her actual appointment. Monetary benefits shall accrue only from the date she actually assumes charge pursuant to this order.
In view of the foregoing discussion, the Original Application is allowed in the following terms:
The cancellation of the applicant's candidature vide Order No.232-SSB of 2020 dated 15.09.2020 shall not operate against her, particularly in view of the subsequent reconsideration and recommendation made by the J&K Services Selection Board vide Order No.353-SSB of 2021 dated 06.12.2021.
The official respondents are directed to act upon the recommendation dated 06.12.2021 and issue an appointment Central Administrative Tribunalorder in favour of the applicant to the post of Physiotherapist.
If no regular vacancy of Physiotherapist is presently available, the competent authority shall create a supernumerary post of Physiotherapist, personal to the applicant, and appoint her against the same.
The said supernumerary post shall continue till the applicant can be adjusted against the next available regular vacancy in the cadre, and upon such adjustment the supernumerary post shall automatically stand abolished.
The appointment of respondent No.8 shall not be disturbed and Order No.108 of GMCK of 2020 dated 24.09.2020, to the extent it grants appointment to respondent No.8, shall remain protected.
The applicant shall be accorded notional seniority and consequential service benefits from the date respondent No.8 was appointed/joined as Physiotherapist, subject to the Central Administrative Tribunalapplicable statutory rules. She shall, however, not be entitled to back wages for the period during which she did not actually work.
Actual pay and allowances shall become payable to the applicant from the date she assumes duties pursuant to the appointment order.
The entire exercise, including creation of the supernumerary post, wherever necessary, issuance of the appointment order and fixation of the applicant's notional service benefits, shall be completed within a period of 12 weeks from the date of receipt of a certified copy of this order.
It is clarified that creation of the supernumerary post in terms of this order is a consequence of the peculiar facts of the present case and shall not be treated as a precedent for claiming appointment beyond the advertised vacancies in cases where no comparable circumstances exist.
The Original Application stands allowed in the aforesaid terms. Central Administrative TribunalPending M.A(s), if any, shall also stand disposed of. No order as to costs.