COMPETENT AUTHORITY MUST ISSUE REASONED ORDER CONSIDERING COVID DUTY PREFERENCE AND PANEL OPERATIONAL GUIDELINES.

The applicant, Sk. Kajem Ali, was appointed as an Auxiliary Nurse Midwife (ANM) under the Central Government Health Scheme (CGHS), Kolkata, on September 6, 2019.

He secured the first position in the merit list for the ANM post.

Subsequently, he applied for the post of Nursing Officer under CGHS Kolkata, as an eligible departmental candidate, and was permitted to appear in the recruitment process which commenced with an Employment Notification in January 2020.

A merit list for the Nursing Officer post was published on February 20, 2021, on which the applicant was placed at Serial No. 16 in the Unreserved category.

During the panel's subsistence, on June 10, 2021, a new Nursing Officer post was sanctioned for the CGHS Wellness Centre at Ishapore.

The applicant repeatedly represented to be considered for this post, particularly as a departmental candidate from the existing panel.

The Additional Director, CGHS Kolkata, forwarded and subsequently recommended the applicant’s candidature to higher authorities via letters dated January 23, 2024, and February 21, 2024, acknowledging him as the next eligible candidate.

However, the Directorate of CGHS, on April 29, 2024, informed that the Ishapore post must be filled strictly through Direct Recruitment according to Recruitment Rules and the Integrated Recruitment System, rejecting the applicant’s consideration outside this mechanism.

The applicant had also performed COVID-related duties for over 200 days, entitling him to preferential consideration under the Ministry of Health & Family Welfare’s Circular dated May 3, 2021.

1. Whether the rejection of the applicant's candidature for the post of Nursing Officer at Ishapore CGHS Wellness Centre by the communication dated 29.04.2024 was arbitrary and unsustainable in law, given his inclusion in a prior merit list, the recommendation by the Additional Director, and relevant policy circulars including the COVID duty preference policy.

2. Whether the respondents sufficiently considered the applicant's eligibility, the recommendation by the Additional Director, and the applicability of the DoP&T Office Memorandum dated 08.02.1982 and the Ministry of Health & Family Welfare's Circular dated 03.05.2021.

The Tribunal primarily considered the DoP&T Office Memorandum dated February 8, 1982 (No. 22011/2/79-Estt (D)), which dictates that recruitment should not occur if suitable candidates from an earlier selection list are available, or that subsequent recruitment should account for such candidates.

It also applied the Ministry of Health & Family Welfare’s Circular dated May 3, 2021, which provides for preferential consideration in regular government appointments for health professionals who completed a minimum of 100 days of COVID-related duty.

Further, the principles from O.A. No. 2633/2021 of the Principal Bench and the Hon'ble High Court of Delhi's judgment in Vinod Kumar Sharma & Ors. v. Union of India & Anr. (W.P.(c) 17291/2022) dated July 29, 2024, which reinforced the binding nature of the COVID preference policy, were considered.

The Tribunal also acknowledged the well-settled legal propositions from State of Odisha & Anr. vs. Rajkishore Nanda & Ors. (2010) 6 SCC 777 and Bedanga Talukdar vs. Saifudallah Khan & Ors. (2011) 12 SCC 85 that vacancies cannot be filled beyond notified numbers and mere inclusion in a merit list does not confer an indefeasible right to appointment.

The Tribunal found that the applicant's case was not rejected on grounds of ineligibility but primarily on procedural grounds related to recruitment methodology.

The communication dated April 29, 2024, was deemed cryptic and failed to comprehensively examine or address the specific grounds urged by the applicant, including the recommendation by the Additional Director, CGHS Kolkata, and the applicability of the DoP&T instructions on recruitment panels and the COVID-duty preference policy.

The Tribunal distinguished the present case from the Supreme Court judgments cited by the respondents (Rajkishore Nanda and Bedanga Talukdar), noting that the applicant was not claiming appointment dehors the Recruitment Rules or against non-existent vacancies, but rather for a duly sanctioned post for which his candidature was recommended by the competent authority and supported by specific policy instructions, including the post-pandemic COVID preference.

The Tribunal emphasized that a formally recommended candidature, supported by applicable policy instructions, requires a reasoned and speaking order after due consideration of all relevant rules, policies, and factual circumstances.

Prior orders from the Principal Bench and the Delhi High Court, extending the COVID preference policy, reinforced this view.

The impugned communication dated April 29, 2024, was set aside as a non-speaking order devoid of reasoned analysis.

The respondents are directed to re-examine and reconsider the applicant’s candidature for the post of Nursing Officer, strictly in accordance with applicable Recruitment Rules, the recommendation letter dated February 21, 2024, the DoP&T O.M. dated February 8, 1982, the Ministry Circular dated May 3, 2021, and all other pertinent instructions.

A reasoned and speaking order must be passed within 90 days from the date of receipt of the order.

The Tribunal explicitly stated that it has not expressed an opinion on the merits of the applicant’s entitlement, leaving the final decision to the competent authority.

The O.A. was disposed of accordingly, with no order as to costs.