Central Administrative Tribunal - Kolkata
Kamal Naik vs Forest on 22 January, 2024
1 0.a, 351.01679.2018 with m.a.891.2019, m.a. 802.2022 (Video Conferencing) - CENTRAL ADMINISTRATIVE TRIBUNAL No. 0.A. 351/01679/201 With M.A.351/891/2019 M.A.351/802/2022 "KOLKATA BENCH, KOLKATA gt Heard on 04.01.2024 . ' Date of order: rp 2. Ol|- 24 2 Present: _Hon'ble Mr. Jayesh V. Bhairavia, Judicial Member Hon'ble Mr. Suchitto Kr. Das, Administrative Member 1. Shri Kamal Naik, aged about 27 years, S/o Akbar Naik, R/o Kalapahar, Po Mohanpura, PS. Kalighat, | North'& Middle Andaman.-744104. 11, Shri Laxman Mahto, aged 24 years, S/o Shri Mahavir Mahto, R/o Laxmipur, Diglipur.-744 106. 2. Shri Mukesh Dung Dung, aged 'about 25 years. S/o late Maikal Dung Dung, R/o Beach Dera, Aerial Bay ~ Post, Diglipur.-744106. 3. Shri Alexander Ekka, S/o George Ekka, R/O Karmatanga No. 10, Mayabunder.-744104 4. | Shri Deepak Sutar, aged about 29 years, S/o Nikyalal Sutar, R/o Shoal Bay No.13, South Andaman.-744104. 5..Shri Vishal Minj, aged about 27 years, S/o Mathel"' Minj, R/o Birsa Nagar, Tugapur, Mayabunder - 744104, ~ , 6. Shri Sanjay Xaxa, aged about 24 years, S/o Tintus. Xaxa, R/o Ramnagar, Diglipur.-744 106. 7. Shri Rajesh Uraon, aged about 28 years, S/o Lohara Uraon, R/o Attampahar, Port Blair, South Andaman. -744104, 8. Shri Uday Raj, aged about 23. years, S/o S. Pandi, R/o Burmanallah, Port Blair.-744104 9. Shri James Mondal, aged about 25 years, S/o Jacob Mondal, R/o Kishori Nagar, Dilgipur, North Andaman. 744104, 10. Shri Navin Tirkey, aged about 25 years, S/o Francis Tirkey, R/o Sabri, Rangat, North & Middle Andaman.-744104. ~ Jo ~ i : 2° 0.4, 351.01679:2018 with m.a.891.2019, m.a. 802.2022 12. Shri Ram Kishan Toppo, -aged about 29 years, S/o Shri Birsa Toppo, R/o Laxmipur, Diglipur.- 744106. . ; 13, Shri Vijay Kumar, S/o Lapra Kujur. R/o Hut Bay, Little Andaman.- 744104. .. Applicant -. VERSUS- 1. The Union of India through Secretary, Ministry of Environment and Forests, Paryavaran Bhawan, CGO Complex, Lodhi Road, New Delhi-110003. 2. The Andaman & Nicobar Administration, Through the Chief Secretary, Andaman & Nicobar Administration, Secretariat, Port Blair.-744104 3, The Chief Secretary, A&N Administration. Secretariat, Port Blair. 744104 _ 4. The Principal Chief Conservator of Forests, Ex- Officio Secretary (Environment & Forests), Andaman & Nicobar Islands, Vansadan, Port Blair- 744 102, Andaman District.-744104 5, The Divisional Forest Officer, Diglipur Forest Division, Department of Environment and Forests, Andaman & Nicobar Islands. -744105. " Official Respondents 6. Mohammed Jabir ~7. Swapan Paul 8. Ram Prasad 9. Jayanta.Dhali 10. Ashok Kumar 11. K. Chandan Charan 12, Soma Urown 13. Mahananda Halder 14. Neel Rathan Mondal 15. Gayan Parsan Toppo 16. Saw Phothada 17. Ranjit Baroi 18. Prokash Sikder | 19. Shiv Prakash Tirkey 20. Ashim Kumar Hawlader™ 21. Utpal Bairagi _ 22, Sunil Lakra 23. Pradeep Halder 24. Bhabotosh Barury 25. Saw Yoayela 26. Mrityunjoy Mondal '27..Suraj Roy For the Applicant For the Respondents: 0.4. 28. 29, 30. 31. 32, 33. 34, 35. 36. 37. 38. 39. 40. 41, 42, 43, 44, 45, 46. 47, 48, 49, 50. 51. 52, 53. 54, 55. 56. 57. 58. 59, 60. 61, 62. 63. 64, 65, 66. 67. 68. 69. 351.01679.2018 with m.a.891.2019, m.a. 802.2022 Joga Rao Sadhan Majhi Sekhar Rajbangshi Bishnu Bain Susanta Roy Anup Mistry ° Sujan Kumar Mondal Alit Chandra Halder Manojit Mondal Sanjay Mondal Susanto Biswas - Manoj Halder Ranjit Das Satyajit Nag Saheb Ojha Gyanendra Bahadur Keshab Chanda Das Sukdev Bepari Subhankar Chakrabarthy Johan Dung Dung Asmitab Halder Ratan Das .- Rajesh Halder Somnath Majhi -- Sunita Gain Biswajit Dey __ Nand Krishna Majhi Manojit Das Budua Kachua Basant Minj Badal Mondal * Saw Daius Saw Hudson Saw Lerpaw Badal Chakraborty~ Manash Kumar Vaishnab K. Abdul Gafar P. Abdula Kareem Lalit Kumar Bara Niranjan Bain Rakhal Debnath. ' Prosenjit Biswas Ms. A. Nag, Counsel . .. Private Respondents Mr. D. Chowdhury, Counsel (Official Respondents) Md. Tabraiz, Counsel (Private Respondents) 4. 0,a. 351.01679.2018 with m.a.891.2019, m.a. 802.2022 ORDER
Per Mr. Jayesh V. Bhairavia, Judicial Member:
The applicants have approached this Tribunal under Section 19 of the Administrative Tribunals Act, 1985 seeking following relief:
2.
"a, Leave be granted to move the application 'jointly under rule' 4 (5) (a) of the Central Administrative Tribunal (Procedure) Rules, 1987.
b An order / orders quashing the select list prepared by the respondent authorities dated I7* October, 2018 for the post of regular Mazdoor under Diglipur Division, Environment and Forests, Andaman & Nicobar Administration:
G An order / orders directing the respondent authorities to prepare the final list strictly in consonance to the employment notice dated 16th October, 2013. d. An order / orders directing the respondent authorities te prepare the select list following the. merit list by selecting 39 candidates from General category, 27 from OBC and 9 from ST (if available). ; . . ;
é. An order directing the respondent authorities to act in accordance with law. f An Order to issue directing the respondents to produce the records of the case before this Hon'ble Tribunal so that conscious able justice may be done. g _ Such other. or further order direction or directions, as Your Lordships deent fit and proper in the interest of Justice,"
M.A. No. 351/00891/2019 has been filed by the private respondents to be added under Section 24 of Central Administrative Tribunal (Procedure) Rules, 1987 to be added as party respondents in this O.A. since they may' be prejudiced and their rights may be affected owing to final outcome of this O.A. 351/00891/2019, we allow them to be added as private respondents in this O.A.
3. 'On being satisfied with the pleadings as advanced by the applicants of M.A. No..
1The brief facts of the case as narrated by the applicants are as under:-
3.1. The Respondent No, 5 i.e. Divisional Forest Officer, Diglipur Forest Division, Department of Environment & Forest, A&N Administration, Haddo, Port Blair published Employment Notice on 16.10.2013 whereby applications were invited from eligible candidates to fil up total 75 posts (39 posts for General, 27 posts for OBC and 9 posts for ST) (Annexure A/2 refer) of Regular Mazdoor in Diglipur Forest Division.
He 5 ---- 0.a, 351.01679.2018 with m.a.891.2029, m.a. 802.2022 3.2. In pursuance of the said advertisement, all the applicants herein applied for the post of Regular Mazdoor under General Category. | ' 3.3. The recruiting 'authority. decided to have three levels of tests for . recruitment. Accordingly, admit cards were issued to the eligible candidates including the applicants herein. They participated in the selection process, During the selection process, due to death of one-of the candidates, the selection process 'was postponed and subsequently same was continued till June, 2018.
3.4, In the month of June, 2018, the respondents had published the Consolidated Mark List of Candidates in the level I, level II & level III tests for recruitment to the post of RPS Mazdoor (Annexure A/S refer),
- 3.5. Thereafter on 21.10.2018, the respondents had published final merit list dated 17.10.2018 by way of Press Note. Altogether 65 candidates were selected but no waiting list was prepared by the authority (Annexure A/6 refer).
| 3.6. It is stated that only 19 candidates were selected by the authorities under | General quota (i.e. General Category) against 39 advertised vacancies for. UR.
-However, in respect to OBC category candidates, 46 candidates were selected for OBC against 27 posts advertised, No ST candidate had been selected as per the ' final merit list published by the respondents.
Since the name of the applicants were not included in the final merit list dated 21.10.2018 tinder UR category and increased the number of vacancies for OBC category i.e. from 29 to 46 and had selected 46 candidates of OBC category, being aggrieved, the applicant has filed the present O.A. Ms. A. Nag, Ld. Counsel for the applicants mainly submitted as under:- -
4.1. As per the advertisement dated 16.10.2013 total 75 vacancies of Regular Mazdoor were notified to be filled up by direct recruitment. Out of advertised 75 t vacancies, 39 posts were required to be filled up by General Category candidates;
instead the respondents had notified names of only -19 candidates of UR category' { 6 0a. 351.01679.2018 with m.a.891.2019, m.a. 802.2022 in the final merit/selection list and arbitrarily reduced the vacancy advertised. The respondents have never informed the candidates about the change of number of
- posts of particular quota.
It is stated that only one candidate of OBC category procured higher marks than the General 'Category candidates. However, none of the other OBC candidates who were selected had procured higher marks than the applicants.
4.2.- Further, it is submitted that though .only 27 vacancies were advertised in _respect to OBC category, the respondents have arbitrarily varied the vacancy and increased the number of vacancies for the said category and as. such have selected 46 candidates of OBC category instead of 27. Therefore, the impugned action of the respondents in reduction of vacancy/posts for General Category and increasé the vacancies of OBC category after publication of vacancy notice is. arbitrary, illegal and against the mandate of Article 14 and 16 of the Constitution of India.
4.3. Further, it is submitted that the applicants, who are 13 in numbers can very " well be selected and appointed as they are more meritorious than the 'candidates who figured in 'the select list from Sr. No, 21 to 65. It is submitted that the respondents had selected the candidates belonging to OBC category in excess to the permissible ceiling for reserved category candidates. Thus, the final merit/selection list whereby the 'respondents have enlisted the name of only 19 candidates belonging to UR category instead of 39, the said action is in violation of Article 14 and 16 of the Constitution of India as well as law laid down by the Hon'ble Apex Court as well as the Hon'ble High Court in this regard.
5. Per contra, on receipt of notice issued by this Tribunal, the respondents have appeared and deniéd the claim of the applicant by filing reply. The respondents have mainly contended as under:-
| . 5.1, It is stated that the respondents have invited applications from eligible candidates vide Employment Notice No. D/L-37/Vol-VHI/170 dated 25.9.2013 for 7 0.a, 351,01679.2018 with m.a.891.2019, m.a. 802.2022 filling up total: 75 vacancies fot' the post of regular Mazdoor (69 ¢ General, 27 OBC and 09 ST) in Diglipur Division by way of direct recruitment in terms of the recruitment rules i.e. "Andaman -& Nicobar Administration (Group 'C' (Industrial) posts in the Department of Environment and Forests) Recruitment Rules, 2010".
Further, in the said vacancy notice it has been categorically mentioned that , the vacancies advertised "may vary at the time of recruitment."
| 5.2. Itis stated that after conducting the Physical Endurance Test (Level I & Level - ID) for the candidates who applied for the post of regular Mazdoor in Diglipur Division, the fespondents vide notice dated 19.3.2018 ~ notified the schedule for Trade Test (Level III) and directed the candidates . . who qualified in Level I & Level II to appear for trade test as per the notified Schedule and details stated therein (Annexure R/9 refer).
Thereafter, in the month of June, 2018 the respondents have - published 'the Consolidated, Mark List of 335 Candidates who qualified in Level I, I & HW for recruitment for the post of RPS Mazdoor in Diglipur ° Forest Division. (Annexure R/3 collectively refer) 5,3, Ld. Counsel for the. respondents submits that Hon'ble Apex Court i in ' the case of R.K. Sabharwal & ors. v. State of Punjab & ors. decided on 10.2.1995 [reported in 1995 (2) SCC 745] held that "when a percentage of reservation ds fixed in respect of a particular. cadre and the roster indicates the reserved points, it has to be taken that the posts shown at the . reserved points are to be filled from 'amongst the members of reserved categories and the candidates belonging to the General category are not entitled to be considered for the reserved posts. On the other hand, the __ reserve category candidates can compete for the non-reserved posts and in the event of their appointment to the said posts, there number cannot be added and taken into consideration for working out the percentage of reservation,"
Gt! | 4 oo! 8 0.4. 351.01679.2018 with m.a.891.2019, m.a. 802.2022 Further, Hon'ble Apex Court in the said judgment had also held that "to maintain the roster. based reservation. and the posts/vacancies are required to be earmarked as per the respective reservation Of each category. The posts/vacancies earmarked for each category are as such required to be filled up in-order to maintain the balance between the posts allocated for reserved category and the general category."
It is also submitted that vide Circular dated 4.12.2015 the A&N Administration informed all Appointing Authorities that Post Based Reservation Roster (PBR) in respect of ST @ 8% and for OBC @ 38% , respectively under Direct Recruitment process be made and the identical posts/vacancies need to be earmarked and prescribed by the Government of India. (Annexure R/IV, R/ XVI & R/XIII refer).
5.4," Ld. Counsel for the respondents would argue that while following the mandate as laid down by 'the Hon'ble Apex Court as well the. instructions issued by A&N Administration in the circular referred hereinabove for the purpose of determining the vacancies to be filled up for the post of regular Mazdoot in Diglipur Division in respect to each categories, it has come to the notice of the respondents that out of total 229 sanctioned posts of Regular Mazdoor, as per 38% reservation for OBC category, total 87 posts were earmarked for OBC category. Out of the said 87 posts earmarked for OBC category, it was 'found that total 39 posts ts were occupied by the OBC candidates and two posts were temporarily. diverted, hence, there exists 46 sanctioned vacancies instead of 27 advertised vacancies. In other words,. since 46 vacancies were available for OBC category, the respondents have proceeded to. enhance' the advertised vacancies in order to maintain the Post Based Reservation roster.
5.5. Further, 18 posts were occupied by the ST candidates i.e. 8% of total 'sanctioned posts. Therefore, no vacancy as such were available to be filled SL 9 0.8. 351.01679,2018 with m.a.891.2019, m.a. 802.2022 . up under ST category, though in: the vacancy notice 9 vacancies were notified for said ST category. Herice, no ST candidate have been considered to be selected under ST category quota.
So far, filling up the vacancies of Regular Mazdoor in respect to the candidates belonging to General category are concerned, it is required to mention that.out of 118 sanctioned posts for UR category (i.e. 51% of total '229 sanctioned posts), it was found that 99 posts were already. occupied. Therefore, only 19 vacancies remained unfilled and same were required to be filled by UR candidates as. per the vacancy position at the time of recruitment. In other words, it was found that 19 vacancies were available |
- for UR categories instead of 39 advertised vacancies.
Ld. Counsel for the official respondents in support of aforesaid submissions have also placed on record the details of the existing vacancies in a tabular form, which is reproduced hereinbelow:
'Category Share ~ of | Entitled | Seats Temporarily | First | Vacancy Total entitlement | seats as { Occupied | diverted notice | as on Seats per ~ {seats | |(75 | 17.10.2018 roster posts) 229 UR 51% 118 " 99 0 39 19 (UR) ST 8% 18 - 18 - 0 09 0 ; ; ; (12% ; |. of 75)
-OBC 38% 87 39 2 27 | 46(OBC) (36% of 75) PH 3% 6 8 0 0 229 164 75 65 5.6. "By referring to the aforesaid vacancy position, it is submitted that instead of
75. vacancies, there existed only 65 vacancies (19 for UR & 46 for OBC).
Accordingly, as per the roster of reservation with reference to the post of Regular Mazdoors in Diglipur Division (RAV) the respondents have notified merit list of the 65 candidates (which consists of first 19 meritorious UR category candidates oY 10 0.a, 351,01679.2018 with m,a.891.2019, m.a. 802.2022 Se 46 OBC candidates) on 17.10.2018 (Annexure R/V). All the selected candidates were directed to appear for the necessary medical examination and have also informed them that their appointment will be subject to being declared medically fit by the Medical Superintendent/Chief Medical Officer & verification of character-and antecedents as well satisfactory report thereof. (R/V refer) 5.7. It is stated that on publishing the merit list of the candidates, the office of the respondents had received representation from few candidates regarding their eligibility in OBC category as they were considered in General Category in the present merit list. In the meantime, the competent authority vide letter dated 22.10.2018 (Annexure R/V) advised the Divisional Officer, Diglipur to keep the appointment of regular Mazdoor under Diglipur Division in abeyance immediately till further orders. Hence, no appointment orders were issued in favour of any of the selected candidates whose names have been enlisted in the final merit / selection list dated 17.10.2018.
5.8. It is submitted-that in the meantime, the applicants herein have approached ' this Tribunal and: this Tribunal vide order dated 22.11.2018 had by way of ad interim relief directed that the final result of the selection will abide by the outcome of this application.
Further, by way of order dated 14.6.2019, 'this Tribunal restrained the respondents from filling up the vacancies notified in 2018 for which select list was published on 17.10.2018.
Thereafter, during pendency of this O.A., the respondents have filed their detailed reply and had also filed an M.A. No. 351/00802/AN/2022 for vacating the interim relief. Ld: Counsel for the respondents by referring to the additional ground stated in the said M.A. would argue that as on 31.7.2013 there were 47 vacancies, however, taking into account the anticipated vacancies, the Division had advertised 75 vacancies (39 Gen, 27 OBC, 9 ST) with a condition that it may vary. Further, it is stated that the advertised vacancies were arrived by applying 11 0.a. 351.01679.2018 with m.a.891.2019, m.a. 802.2022 the reservation percentage on the available vacancies i.e, 36% of 75 for OBC and 12% of 75 for ST, .whereas, it should have been calculated based on total 'sanctioned strength of regular Mazdoor in the Diglipur Division by following reservation roster prepared in line with the law laid down by: the Constitution Bench of the Hon'ble Apex Court in R.K. Sabharwal & ors. (supra) atid other judgments.
5.9. It is submitted that while the recruitment process and before preparation of the final merit list, the percentage of reservation (A&N Islands) in respect of ST category has been refixed @ 8% instead of 12% and for OBC 38% instead of 36%. In this regard, the A&N Administration had issued instructions to maintain the respective reservation of the ST/OBC category while appointment through . direct recruitment. Accordingly, actual: vacancy including the anticipated vacaricy ' that accrued till 17.10. 2018 i.e. completion of entire selection process, was 65 vacancies instead of advertised 75 'vacancies. Therefore, final select list was prepared for 65 candidates in order of merit and the respondent Diglipur Division proceeded ahead with the recruitment procedure since there was a condition in the vacancy notice that the number of vacancy "may vary at the time of recruitment." Therefore, the final merit/selection list dated. 17.10.2018 is just and proper and same is based on actual available vacancy to be filled up by respective category of candidates.
5.10: At this stage, Ld. Counsel would also argue that the respondents are also in the process of preparation of waiting list of the qualified candidates.
5.11. Ld. Counsel for the respondents submits that in the vacancy notice it was ~ categorically made known to the candidates that number of vacancies "may vary at the time of recruitment" and by accepting the said terms and conditions of the Vacancy Notice, they have submitted their application under UR category. Since the respondents had found that out of 118 Posts of UR category at Diglipur, 99 posts have been occupied and only 19 vacancies were available to be filled up.
12 0.a. 351.01679.2018 with m.a.891.2019, m.a. 802.2022 Under the circumstances, the variation or reduction in the number of notified vacancies at the time of declaration of the final merit/select list cannot be said to be contrary to the conditions stipulated in the vacancy notice or recruitment rules.
5.12 Ld. Counsel by referring to the judgment passed by Constitution Bench of the Hon'ble Apex Court in Shankarsen Dash v. Union of India [(1991) 3 SCC 47 = (1991) SCC (L&S) 800] submits that it is a settled law that mere inclusion of "name of a candidate in the select list does not confer on such candidate any vested right to. get an order of appointment. Further, in the case of State of Orissa v. Raj Kishore Nanda, reported in (2010) 6 scc 777, it was held that, "a person whose Hame appears in the select list does not acquire any indefeasible right of appointment. Empanelment at the best is a condition of eligibility for the purpose of appointment and by itself does not amount to selection or create a vested right to be appointed. The vacancies have to be filled up as per the _ statutory rules and in conformity with the constitutional mandate."
5,13. It is submitted that in the case of the applicants, their names do not appear even in the select list prepared in-accordance with law. Therefore, no violation of Article 14 of the Constitution has been committed by the respondents as alleged by the applicants in the present O.A. It is submitted that the respondents have followed the reservation roster as per the dictum laid down by the Hon'ble Apex Court as well the provisions stipulated in the recruitment rules and the vacancy notice while preparing and declaring the list of merit /selection list in respect to UR and OBC category which is in fact based on actual available vacancies. There ' is no other intention whatsoever on the part of the appointing authority to increase the vacancy in respect to OBC category. As such, the said action on the part of the respondents are in consonance with recruitment rules and settled principle of law ' in this regard. Ld. Counsel for the respondents submits that the applicants are not entitled for any relief as sought for and the respondents be allowed to proceed with the recruitment process by vacating the interim relief granted by this Tribunal.
joe 13 0.a. 351.01679.2018 with m.a,891,2019, m.a. 802,2022
6. The applicants have filed a rejoinder wherein they have contended that the OBC candidates can be considered in the General Category only if they are successful on their own-merit and if they have not got any relaxation in the selection process initiated by the authorities. They have also stated that except one OBC candidate, no other OBC | candidate was found more meritorious than the applicants. It is submitted that it is incorrect on. the part of the authorities to contend that there were 229 sanctioned posts of Regular Mazdoors for Diglipur Division. It is also not correct to maintain post based roster Division wise. The Recruitment Rules stipulates that there were 2454 posts in the Forest Department and the respondent authorities on their own cannot divide the post in _ Division. The authorities ought not to have increased the vacancies of OBC category. It is submitted that though: the conditioris stipulated in the vacancy notice that "number of vacancy may vary" , meaning thereby that the total number of vacancies can increase or decrease , but it does not mean that the authorities can increase the vacancies of a particular category by reducing the vacancy of another category. The action on the part of the respondents to vary the vacancies of 'the post in question based on reservation is 'an
-illegal act and same is required to be set aside. According to Ld. Counsel, the authorities cannot shift the vacancies from one category to another after he selection process is initiated.
61. Additionally, it is contended in the rejoinder that if the authorities have - followed the reservation policy strictly, at thé most, only 4 candidates would come in between the selected General candidates and the applicants. Accordingly, only 4 posts of General category candidates can be reduced. Therefore, the authorities, in the said: circumstances, will have to fill up 35 posts in the General Category.
6.2. Ld. Counsel for the applicant by referring to the Judgement passed in Vijay Kumar & ors. v. State of Bihar & ors. passed by the Hon'ble Patna High Court would submit that.the recruitment in a respective category cannot exceed 50% of the vacancies. According to Ld. Counsel for the applicant, filling of 46 vacancies _ 'of OBC category will amount to exceeding the 50% ceiling of reservation, KUL 14 0.a. 351.01679.2018 with m.a.891.2019, m.a. 802.2022 . . , | therefore, the action of the respondents to increase the vacancies in respect to OBC category is in violation of Article 14 & 16 of the Constitution of India and depriving meritorious candidate of UR category, since the number of vacancies has been reduced during the selection process.
7. On behalf of the private respondents, Md. Tabraiz submits that despite having ' their names listed in the final merit/select list, the said selected candidates are being deprived of their legitimate right of being appointed as regular Mazdoor. He request to vacate the interim order and directions bé issued accordingly,
8. 'Heard Ld. Counsel for the parties.and examined the documents on record.
9, In the present case it is not in dispute that the method of recruitment of the post of Mazdoor i in department of A & N Environment & Forest is 100% by direct recruitment in terms of conditions stipulated in the Schedule to the Recruitment Rules ie. "A & N Administration (Group 'C' (Industrial) posts in the department of Environment & Forest) Recruitment Rules, 2010". In the said rules, it has been stipulated that nothing in this rule - shall affect reservation for the Scheduled Castes, Scheduled Tribes and Other Special Categories of persons in accordance with the orders issued by the Central Government from time to time in this regard.
"Further, it is noticed that the respondents while notifying the vacancy notice in the year 2013 for filling up 75 vacancies (39 Gen, 27 OBC, 9 ST) had specifically mentioned 'in the said- vacancy notice that said number of vacancies may vary at the time of recruitment. By accepting the said terms and conditions of said vacancy notice, the applicants herein had submitted their applicants under UR category. The names of the applicants figured in the Combined Mark List along with other qualified candidates published by the respondents in month of June, 2018 (Annexure R/T refer). Subsequently, the:respondents have published final merit/select list on 17.10.2018 of 65 candidates out of which 19 under Gen category and 46 under OBC category. The name of .
| the applicants herein did not find place-in the final merit/select list dated 17.10.2018.
Thus, being aggrieved, the applicants has approached this Tribunal by filing the present OA. | So _ v2 15 oa, 351,01679:2018 with m.a.891.2019, m.a. 802.2022 - ON The core submission on the behalf of the applicant is that instead of advertised 27 vacancies for OBC category, the respondents have arbitrarily increased the number of vacancies of OBC category to 46, At the same time, the respondents have reduced the number of vacancies in respect to General category from 39 advertised vacancies to 19 while publishing the final merit list. According to the applicant, the respondents have illegally 'enhanced the number. of vacancies in respect to OBC category and deprived .them of their legitimate claim for appointment under UR category.
10. Per-contra,. as noted hereinabove, the respondents have denied the claim of the applicant and explained the 'vacancy position as per reservation roster as well the reason for varying the number of vacancies.
"
11. It can be seen. that out of total. 229 sarictidned: strength of Mazdoor (Regular Mazdoor) in Diglipur Forest Division, 118 posts earmarked for Gen/UR category, 'out of which 99 posts of UR. has been occupied by the candidate of the said category and only 19 vacancies remained unfilled as on the date of publication of the merit/select list in the month of October, 2018. :
11.1. At the samé time, as 'per 38% reservation prescribed for OBC category in the Andaman & Nicobar Administration, there were 87 posts reserved for OBC category out of total sanctioned strength under OBC category, 39 posts were occupied. Thus, 46 vacancies were available to be filled up by way of direct recruitment. |
- There were no vacancies available under ST category, since total 18 sanctioned strength of post were already occupied. 11.2. Accordingly, instead of 75 advertised vacancies, the respondents have published the final merit list/select list of the candidates in respect to 65 available vacancies on 17.10.2018. The. 'said merit list dated 17.10.2018 consists of 19 candidates belonging to Gen category and'46 of OBC category. It can be seen that
- for change in number of vacancies than the advertised vacancies have been Va explained by the respondents as 'stated hereinabove.
. 16 | 0.a, 351.01679,2018 with m.a.891.2019, m.a. 802.2022 11.3. It is noticed that as per the law laid down by the Hon'ble Apex Court in RK. Sabharwal (supra) and the instructions contained in circular issued by A&N Administration in respect to maintdining the reservation roster prescribed for each category, the respondents herein in adherence to the said dictum of the Hon'ble Apex Court as well as in terms of Recruitment Rules for providing reservation to .each category have found that already 99 "posts of UR category have been occupied and only 19 vacancies were available to be filled, up under the said category and accordingly have notified the list of most meritorious 19 candidates under UR category in the final merit/select list.
12. - Under the circumstances, it cannot be said that the respondents have arbitrarily reduced the vacancies which were advertised in respect to UR category. At the same time, the action of the respondents to increase the number of advertised vacancies from 27 to 46 for OBC category cannot be termed as arbitrary or illegal. ' It is reiterated that in the vacancy notice, it was categorically mentioned by the respondents that the number of vacancies "may vary at the time of recruitment", Undisputedly, by accepting the conditions stipulated in the said Vacancy: Notice, the applicants. herein have applied. Having accepted the terms and conditions stipulated in the vacancy notice it is not open for the candidates to raise the grievance that the vacancies advertised are'in variance to that advertised.
It can be seen that only 19 vacancies were available under UR category to be filled up by direct recruitment. Under the circumstances, the stand of respondents to select only 19 candidates of UR category as per available 19 'vacancies instead of 39 vacancies advertised, the said action in our considered view cannot be said to be arbitrary or dehors
- the rules as well the terms of Vacancy Notice as well. Therefore, the submission: of the applicants that the respondents have published the final merit list in contravention to the terms and conditions as stipulated in the vacancy notice and reservation policy, in our considered view, is not tenable.
17 '0.a.:.351.01679.2018 with m.a.891.2019, m.a. 802.2022 The judgment relied upon by the Ld. Counsel for the applicant wherein the ratio laid down cannot be disputed. However, same ig not applicable 'to the facts and circumstances of the present case.
"13. The submission of Ld. Counsel for the applicants that the respondents have publistied the merit/select list in respect to OBC category candidates by increasing the number of vacancies which was advertised and as such against the permissible 50% limit of reservation is also not tenable in light of what has been discussed hereinabove. In this regard, it is reiterated that as per the recruitment rules, the post in question is required to be filled up by way of direct recruitment and as per the available vacancies the respondents had varied the vacancy position. The said action cannot be said to be arbitrary or illegal.
14. It is settled principle of law that mere inclusion of name of a candidate in the combined mark list does not confer on such candidate any vested right to get an order of appointment Shankaran Dash (supra) refer. Even otherwise, the candidate whose name appears in the select list does not acquire any indefeasible right for appointment. This Tribunal is conscious about the settled principle of law that excess recruitment to the advertised vacancies is restricted 1f same has not been declared earlier ot it was not incorporated in the terms and conditions as stipulated in ithe Vacancy Notice/Advertisement. | In the present case, as noted hereinabove, the respondents at the very first instance i.e. at the time of publication of vacancy notice have categorically "declared" that "the 'number of vacancies as advertised may vary at the time of recruitment".
- It is reiterated that out of total strength of 229 posts of Regular Mazdoor, 164 posts are occupied by various categories of candidates and there exists only 65 vacancies to be filled up (19 for UR & 46 for OBC) instead of advertised 75 vacancies, the respondents | have prepared the final select list. The publication of final merit/select list of the candidates against available 65 vacancies on 17.10.2018, in our considered view, the said action of the respondents cannot be said to be contrary to the Recruitment Rules as well Yar the terms and conditions laid down in the vacancy notice.
18 0.a. 351.01679.2018 with m.a.891.2019, m.a. 802.2022
15. In view of the above, the O.A. lacks merit and is dismissed. The M.A. No. 351/00802/2022 for vacating the interim order stands allowed. Interim relief, if any, stands vacated. At this juncture, we hold that it is open for the respondents to carry on with the recruitment process in respect to the candidates selected 'as per merit / select list dated 17.10.2018.
(Suchits Kr. Das) . os (Jayesh V. hairavia) Administrative Member Judicial Member ~ Sp