Last Updated on July 15, 2020 by Satish Mishra
This post is a case digest on the topic of Can Appointment Notification Change after Advertisement before CAT Tribunal wherein the appointment qualifications were changed subsequently by the government. The petitioner requested to quash the notification since in view of a new notification by central government. The court dismissed this plea where petitioners seek parity with a judgment of Rajasthan High Court which was distinguishable from the present case in a way if notifications are kept on amending in view of guidelines from the central government then the recruitment process will never come to end. Read the last para of the post to know the outcome of this case.
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Whether Advertisement for recruitment needs to be quashed upon further modification of Appointment qualifications
The Directorate General of Employment (DGE) in Ministry of Labour is the apex organization for development and coordination at National level for the programmes relating to vocational training including Women”s Vocational Training and Employment Services. Employment service is operated through a countrywide network of Employment Exchanges. Industrial Training Institutes are under the administrative and financial control of State Governments or Union Territory Administrations. DGE also operates Vocational Training Schemes in some of the specialized areas through field institutes under its direct control. Development of these programmes at national level, particularly in the area concerning common policies, common standards and procedures, training of instructors and trade testing are the responsibility of the DGE. But, day-to-day administration of employment Exchanges and Industrial Training Institutes rests with the State Governments/ Union Territories Administrations. Distribution of responsibilities between Central Govt., State Governments and Industry has been shown in the table Tasks and Responsibilities.
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The petitioners in the case of Nirdosh Gautam vs Govt. Of Nctd, filed this RA seeking recall/review of the order dated 17.12.2019 passed in OA No.3645/2019.
- Name of the case: Nirdosh Gautam vs Govt. Of Nctd
- Name of the Parties :Nirdosh Gautam (petitioner) and Govt. Of NCT Delhi
- Date of decision :16 March, 2020
The issue in the OA pertained to an advertisement issued by Govt. of NCT of Delhi wherein applications were invited for recruitment to the post of Craft Instructor on regular basis where the opening date of application was 27.01.2014 and the closing date was 27.02.2014.
The applicants had pleaded that subsequent to the issuance of this advertisement, the Directorate General of Employment and Training, who is the governing body in Central Government for such technical education, vide their letter dated 27.05.2014 had modified the essential qualifications for the post of Craft Instructors. These qualifications were not incorporated in the said advertisement OA No.3645/2019 which was already issued and where opening/closing dates were respectively 27.01.2014/ 27.02.2014 and were already over. Accordingly, it was pleaded that the said advertisement is required to be quashed and the recruitment process needs to be restarted.
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The applicants had relied upon a judgment by Hon‟ble High Court of Judicature for Rajasthan and Jodhpur vide D.B. CWP No.12145/2016 where the issue was whether the essential qualification prescribed by Central Government can be ignored by the State Government while issuing advertisement for recruitment to the post of ITI Instructors.
In this case, certain modifications to the educational requirement were prescribed by the Central Government vide their letter dated 27.05.2014 and 07.01.2016. The Government of Rajasthan issued the advertisement for recruitment to the post of ITI Instructor on 16.09.2016, i.e. subsequent to the communication of revised qualifications. However, the revised qualifications were still not prescribed in the said advertisement for recruitment. 5.1 It is in this context that Hon‟ble High Court of Rajasthan allowed the writ and quashed the advertisement. The OA No.3645/2019 observation regarding the point at issue and the judgment thereupon, is reproduced below:
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“The petitioners have challenged validity of advertisement dated 16/09/2016 issued by Rajasthan Subordinate and Ministerial Staff Service Recruitment Board, Jaipur pertaining to recruitment of I.T.I. Instructors allegedly issued in violation of prescribed standards as enunciated by National Council for Vocational Training (NCVT) under Directorate General of Training (DGT), Ministry of Skill Development & Enterpreneurship because of scaling down the necessary qualification.
National Council for Vocational Training (NCVT) was established by Central Government and recommendations made by the Council were accepted by Central Government vide its letter dated 27/05/2014 and 07/01/2016, which relates to Prescription of CITS for recruitment of Instructors in I.T.I that a necessary qualification. The Central Government, accepting the recommendations of NCVT for enhancement of excellence in teaching, as such, the directions issued by the Central Government are mandatory and are binding upon the State Government, so the State Government cannot conduct recruitment in ignorance of the said qualification and Central Government has laid down guidelines for recruitment of instructors for I.T.I.s by providing 30% waitage marks to such CITS qualified candidates but the imperative guidelines were ignored by the State of Rajasthan, while issuing its recruitment process.
Heard rival contentions of both the sides and examined the record, it is not disputed that the National Council for Vocational Training (NCVT) working under the Directorate General of Training (DGT), Ministry of Skill Development & Entrepreneurship has been entrusted to prescribe standards and curriculum for Crafts Man Training and guidelines issued by Director General of Training, Government of India for recruitment of Instructors in I.T.I of holding a qualification of Craft Instructors Training Scheme (CITS), which already stands accepted by the Central Government and Central Government acting upon the same guidelines having issuing instructions on 27/05/2014 and 07/05/2016 that CITS is mandatory for all the ITI Instructors and laying down such instructions for recruitment accordingly.
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We, have to examine whether the directions issued by the Central Government on the recommendations of NCVT are mandatory and are binding upon the State Government, which has the powers under proviso to OA No.3645/2019 Article 309 to frame service rules subject to the provisions of the Constitution and acts of appropriate legislature and further having acted upon these recommendation, whether the State Government could have again lower down the qualification capriciously without a justifiable reason.
The writ petition, challenging the questioned
advertisement dated 16/09/2016, is as such, liable to be allowed and the advertisement dated 16/09/2016 relating thereto is consequently quashed.
The respondent State Government is directed to issue fresh advertisement in consonance with the Central Government and NCVT Guidelines. It is also made clear that the aspirants, who were within the age limit on the last date of impugned/questioned advertisement dated 16/09/2016 and who have attained eligibility in the meanwhile, shall also be competent and eligible to apply in coming/prospective recruitment advertisement.”
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Therefore by relying on the above judgement , the current bench felt that it is very clear that the advertisement issued, subsequent to the acceptance of recommendations by Central Government and communication of the same to States, was found to be deficient as the orders by Central Government were not incorporated.
However as against this, the case in the instant OA is entirely different. The advertisement was issued and applications were to be filed during the period from 27.01.2014 to 27.02.2014. Certain qualifications were altered by Central Government vide a subsequent notification dated 27.05.2014.
Applicants have alleged that these modified qualifications as per letter dated 27.05.2014 were not incorporated in an advertisement for which closing date was OA No.3645/2019 already over on 27.02.2014. And it was on this basis that they had sought quashing of the said advertisement and to restart the recruitment process all over again.
The applicants had fairly pleaded that the essential qualifications prescribed in this advertisement, were however in conformity to the extant instructions and the relevant RRs as were applicable as of 27.01.2014.
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It is in these circumstances that the OA was dismissed being devoid of merit. According to the tribunal in any dynamic situation, the essential qualifications can always undergo a change by the competent authority and the subordinate authorities (States and Govt. of NCT of Delhi in instant case), are duty bound to follow it. However, such a change shall take effect from the date such modifications are ordered. Such modifications cannot be applied retrospectively.
The Tribunal further said that in this case, the applicant’s contentions of applying the modifications retrospectively, is to be agreed to, a very peculiar and unsustainable situation is likely to result wherein no recruitment process can ever be taken to its logical conclusion.
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Acceptance of such a contention means that if certain modification was ordered while recruitment process is already on, but is yet to be completed, this recruitment process would OA No.3645/2019 have to be cancelled and restarted by issuing a fresh advertisement after incorporating the modification. In case there is another change after re-start of this process, it will need to be again cancelled by the same logic and restarted all over again. Thus it is obvious that such a situation will lead to administrative chaos and non-recruitment and negation of rights of those who had participated in the recruitment process. This situation is unsustainable, unjust and therefore, cannot be permitted.
Therefore it was held that the applicants contention is, fallacious and ill-founded to start with and hence it was dismissed.
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This post is written by Rachita Yedhula.
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