S. Murugan vs Union Of India & Ors.

Brief facts of the case as submitted by the applicant are as follows: The applicant states that there exists a post of “Staff Nurse” in the Respondent Department in the pay band of Rs. 9,300–34,800 with a Grade Pay of Rs. 4,600. The said post is classified as a Group-C, Non-Gazetted, Non-Ministerial post. By the impugned Notification, the respondents advertised 55 vacancies for direct recruitment to the said post. Out of these, 28 posts were earmarked for the Unreserved category, while 27 posts were reserved under vertical reservation, comprising 18 posts for Other Backward Classes (OBC) and 9 posts for Scheduled Castes (SC). In addition, under horizontal reservation, one post was reserved for Persons with Disabilities. However, the respondents failed to provide any reservation under the “Meritorious Sports Persons” (MSP) quota. The applicant, being a Meritorious Sports Person, is aggrieved by the said omission and has, therefore, approached this Tribunal by way of the present Original Application.

The learned counsel submitted that, as is evident from the mandatory Office Memorandum issued by the Government of India dated 12.11.1987, as incorporated in the consolidated Office Memorandum dated 27.03.2012, 5% of the posts are required to be reserved for Meritorious Sports Persons under horizontal reservation. He further submitted that, in the year 2012, the respondents had issued a Notification for recruitment to the post of Staff Nurse without providing reservation under the MSP quota. The said omission was challenged before this Tribunal by way of an Original Application. Pursuant to the directions issued by this Tribunal, the respondents issued an amended Notification dated 05.11.2012, providing reservation under the MSP quota. Likewise, in the year 2014, the respondents issued a Notification for recruitment to the post of Staff Nurse providing reservation under the MSP quota.

The learned counsel further pointed out that, in terms of the Office Memoranda issued by the Government of India from time to time, the respondents are bound to provide 5% reservation for Meritorious Sports Persons under horizontal reservation. Accordingly, the impugned Notification is illegal and liable to be set aside to the extent that it fails to provide the prescribed reservation for Meritorious Sports Persons.

He further submitted that the respondents have consistently provided 5% reservation under the MSP quota in other recruitment Notifications. The failure to provide such reservation in the impugned Notification is, therefore, discriminatory and arbitrary. It was also submitted that posts carrying an identical pay band in the Union Territory of Delhi were notified with provision for reservation under the MSP quota. Thus, the action of the respondents in omitting to provide horizontal reservation for Meritorious Sports Persons in the impugned notification is discriminatory and violative of the applicable Government instruction.

In view of the above submissions, the learned counsel for the applicant prayed that this Tribunal may be pleased to grant the reliefs sought for in the present Original Application.

Per contra, the learned counsel appearing for the respondents, relying upon the reply statement, contended that the Ministry of Personnel, Public Grievances and Pensions, Department of Personnel and Training, by its Order dated 09.04.2009, issued under Article 309 and clause (5) of Article 148 of the Constitution of India, read with Rule 6 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, classified the civil posts under the Union into various groups. According to the said classification, Central Civil Posts carrying Grade Pay of Rs.5,400/-, Rs.4,800/-, Rs.4,600/- and Rs.4,200/- in the Pay Band of Rs.9,300–34,800 in Pay Band-2 were classified as Group ‘B’ posts.

The learned counsel further submitted that, under the existing Recruitment Rules, the post of Staff Nurse is classified as a Group ‘C’, Non-Gazetted, Non-Ministerial post. However, the Recruitment Rules are required to be amended with the concurrence of the Union Public Service Commission (UPSC). Under the Seventh Central Pay Commission, the post of Staff Nurse carries the pay of Level-7 in the Pay Matrix, corresponding to the pre-revised Pay Band of Rs.9,300–34,800 with Grade Pay of Rs.4,600/-.

It was further submitted that the DP & AR (Personal Wing), Government of Puducherry, in Circular, dated 18.05.2015, had clarified that the classification of posts issued under the relevant constitutional provisions was required to be followed scrupulously. The concerned authorities were accordingly instructed to notify vacancies with the appropriate classification strictly in accordance with the orders issued by the DP & AR (Personal Wing), Puducherry, even if the revised classification had not yet been incorporated in the Recruitment Rules governing the respective posts. In view of the aforesaid clarification, the respondents classified the post of Staff Nurse as a Group ‘B’, Non-Gazetted post. Consequently, the learned counsel contended that reservation under the Meritorious Sports Person (MSP) category could not be extended to the said post, as such reservation was applicable only to the posts falling within the permissible categories, namely, Group ‘C’ and Group ‘D’ posts.

The learned counsel for the respondents further relied upon the Office Memorandum dated 04.08.1980 issued by the Ministry of Home Affairs, Department of Personnel and Administrative Reforms, New Delhi, containing instructions regarding appointment of Meritorious Sports Persons by relaxation of the prescribed recruitment procedure. He particularly relied upon paragraph 2 thereof, which provides as follows:

Placing reliance upon the aforesaid instructions, the learned counsel submitted that, since the post of Staff Nurse, carrying Grade Pay of Rs.4,600/- under the pre-revised Pay Band-2 of Rs.9,300–34,800, stood classified as a Group ‘B’ post, reservation under the MSP category could not legally be earmarked against the said post. Therefore, according to the respondents, the omission to provide reservation under the MSP quota in the impugned Notification was neither illegal nor discriminatory.

The learned counsel for the respondents further contended that the applicant, having participated in the selection process pursuant to the impugned Notification and having subsequently remained unsuccessful, was not entitled to challenge the selection process or the terms of the recruitment Notification. In support of the said contention, reliance was placed upon the judgment of the Hon’ble Supreme Court in Trivedi Himanshu Ghansyambhai v. Ahmedabad Municipal Corporation and Others, reported in (2007) 7 SCC 438, wherein it was held that a candidate who becomes unsuccessful in the selection process has no locus standi to challenge the selection list.

He further placed reliance upon the subsequent judgments of the Hon’ble Supreme Court in Ramesh Chandra Shah and Others v. Anil Joshi and Others, reported in (2013) 11 SCC 309, and Madras Institute of Development Studies and Another v. Dr. K. Sivasubramaniyan and Others, reported in (2016) 1 SCC 454, and submitted that a candidate who participates in a selection process with full knowledge of the terms and conditions governing the same, and thereafter remains unsuccessful, cannot subsequently turn around and challenge the advertisement or the methodology adopted in the selection process. Such a candidate is, according to the respondents, estopped from questioning the selection process after having participated therein.

In the light of the above submissions, the learned counsel for the respondents contended that the applicant, having participated in the selection process and having remained unsuccessful, was estopped from challenging the impugned Notification or seeking reservation under the MSP quota. He therefore prayed that the Original Application be dismissed as devoid of merit.

We have considered the arguments put forth by the learned counsel for the parties at length, perused the pleadings and the materials placed on record.

It is seen from the records that the Directorate of Health and Family Welfare Services, Puducherry had issued a Notification, dated 03.09.2017 inviting applications from the eligible candidates for filling up of 55 vacancies of Staff Nurse. The pay scale to the post of Staff Nurse has notified as level 7 in the Pay Matrix. The details of vacancies notified under various categories is as under:

It is also seen from the records that the Puducherry Government has prescribed the following educational and other qualifications for direct recruitment of Staff Nurse are as follows:

It is seen that, consequent upon the revision of the pay structure, it became necessary to prescribe revised norms for classification of Central Civil Services posts into the four categories, namely, Group 'A', 'B', 'C' and 'D', on the basis of the applicable Pay Band and Grade Pay or the corresponding pay scales, as approved by the Government. Accordingly, the Government of India issued an order classifying the various Central Civil Services posts into Group 'A', 'B', 'C' and 'D' on the basis of the revised norms of pay, which was notified in the Gazette of India Extraordinary vide S.O.946(E) dated 09.04.2009. In terms of the said order, the classification of Central Civil Services posts is required to be determined strictly with reference to the prescribed Pay Band and Grade Pay or the corresponding pay scales.

The records further disclose that the post of Staff Nurse was originally classified as a Group 'C', Non-Gazetted, Non-Ministerial post. However, the post presently carries the pay of Level-7 in the Pay Matrix under the Seventh Central Pay Commission, corresponding to the pre-revised Pay Band of Rs.9,300–34,800 with Grade Pay of Rs.4,600/-. In view of the revised norms of classification prescribed by the Government of India, the said pay structure falls within the classification of Group 'B'. Therefore, notwithstanding the earlier classification of the post as Group 'C', the respondents were required to follow the revised classification applicable to the post on the basis of its corresponding pay structure.

The next question that arises for consideration is whether the applicant could claim reservation under the Meritorious Sports Person (MSP) quota for direct recruitment to the post of Staff Nurse. In this regard, the Office Memorandum dated 04.08.1980 issued by the Ministry of Home Affairs, Department of Personnel and Administrative Reforms, assumes significance. The said instructions specifically provide that appointment of meritorious sports persons can be made to posts in Group 'C' and Group 'D', which, under the applicable Recruitment Rules, are required or permitted to be filled by direct recruitment otherwise than through the Union Public Service Commission. The same instructions expressly provide that no such appointment shall be made to posts in Group ‘A’ and Group ‘B’ by direct recruitment.

Thus, the eligibility for appointment under the MSP quota is directly linked to the classification of the post and the mode of recruitment prescribed under the applicable Recruitment Rules. Once the post of Staff Nurse is held to be a Group ‘B’ post in terms of the revised classification applicable to its pay structure, the restriction contained in the aforesaid Office Memorandum would operate. Consequently, reservation under the MSP category cannot be claimed for direct recruitment to the said post. It is, therefore, clear that the respondents were justified in not earmarking any vacancy under the MSP quota in the impugned notification, since the post in question, having regard to its revised classification as Group ‘B’, falls outside the scope of posts to which appointment of Meritorious Sports Persons by direct recruitment is permissible under the applicable Government instructions.

We are, therefore, unable to accept the contention of the applicant that the respondents were under a mandatory obligation to provide 5% reservation under the MSP quota in the impugned notification. The fact that the post was classified as Group ‘C’ at an earlier point of time cannot, by itself, confer a continuing right to reservation when the classification of the post has subsequently undergone a change in accordance with the revised norms prescribed by the Government. Accordingly, the challenge made by the applicant to the impugned Notification on the ground of non-provision of reservation under the MSP quota is devoid of merit and cannot be sustained.

In the result, the OA is dismissed. No order as to costs.