Central Administrative Tribunal - Delhi
Ram Niwas Sharma vs Union Of India on 24 August, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH: NEW DELHI OA NO 2314/2009 NEW DELHI THIS THE 24TH DAY OF AUGUST, 2011 HONBLE MR. G. GEORGE PARACKEN, MEMBER (J) HONBLE DR. VEENA CHHOTRAY, MEMBER (A) Ram Niwas Sharma, An Ex-Serviceman, S/o Shri Chhelu Ram Sharma, R/o 365/3, Near SCO-12A, Prem Nagar, Gurgaon, Haryana-122001 Applicant (By Advocate: Shri Anil Singal ) VERSUS 1. Union of India Through its Secretary, Ministry of Personnel, Public Grievances and Pension, North Block, New Delhi. 2. Staff Selection Commission, Through its Chairman, CGO Complex, Lodhi Road, New Delhi. Respondents (By Advocate Mr. S.M.Arif ) ORDER (ORAL)
MR. G. GEORGE PARACKEN:
The applicant is aggrieved by the denial of appointment to him to the post of Inspector (Examiner) by the respondents for which he qualified in the Combined Graduate Level Examination-2005.
2. The brief facts of the case are that the respondents had issued the Annexure A-1 advertisement for the Combined Graduate Level Examination-2005 for filing up the posts of Inspectors of Income Tax/Inspector (Central Excise)/Inspector (Examiner) in Custom Houses, for which the maximum age limit was 27 years as on 01.01.2006. As regards ex-servicemen and physically handicapped persons were concerned, the age limit was relaxable as per rules. As the applicants date of birth was 16.05.1962 and he is a physically handicapped ex-serviceman retired after having rendered 20 years of service in defence services from 06.01.1981 to 31.01.2001, he was entitled for age relaxation upto 50 years. He has, therefore, submitted his application pursuant to the aforesaid advertisement and he was declared qualified for the post of Inspector (Examiner) and he was allotted to Mumbai Customs vide respondents letter dated 28.07.2008.
3. Thereafter, vide the Annexure A-2 letter dated 22.08.2008, he was called for physical test on 04.09.2008. However, he was not allowed to take the test by the respondents informing him verbally that they will have to seek some clarification from the Staff Selection Commission (SSC for short). Thereafter, the applicant waited for about a year and then made the Annexure A-3 representation dated 21.07.2009. But the respondents, vide the Annexure A-4 letter, informed him that since there was no reservation for ex-serviceman for the post of Inspector (Examiner) for which he qualified in the Combined Graduate Level Examination-2005, he could not be offered any appointment. Thereafter, he approached the respondents requesting them to consider him for an alternate post for which he was eligible and there was reservation for physically handicapped persons. The respondents, however, have not taken any action on his aforesaid request.
4. The applicant has challenged the aforesaid inaction on the part of the respondents and the denial of appointment to him on the ground that the respondents earlier decision to appoint him as Inspector (Examiner) was after due consideration and after having found him eligible for the aforesaid post. His further contention was that he has not made any misrepresentation with regard to his age, category or his status as ex-serviceman or as a Physically Handicapped person. Therefore, they should have considered the case before he has been selected and decided to be appointed. Once such decision has already been taken, they were not expected to go back from the same.
5. The respondents in their reply have, however, submitted that the applicant had applied for Combined Graduate Level Examination, 2005 under the unreserved plus physically handicapped category. The said recruitment was conducted for different categories of posts viz., Assistant Grade, Inspector Income Tax, Central Excise, Preventive Officer, Examiner, UDC/Jr. Accountants, Divisional Account etc. However, some of those posts belong to Group `B (Non Gazetted) and others belong to Group `C posts. The applicant was declared successful in Combined Graduate Level Examination, 2005 in unreserved ex-serviceman category for the post of Inspector (Examiner) in Central Board of Excise and Customs as per the preference exercised by him and on the basis of his merit position in the examination. They have also submitted that as per Para No. 4 (B) (d) of the Notice of Examination, upper age limit in respect of Inspector (Examiner) was relaxable upto a maximum period of 5 years (8 years for OBC and 10 years for SC/ST). As regards ex-servicemen and Commissioned Officers including ECOs/SSCOs were concerned, they should have rendered at least 5 years military service as on 01.01.2006. It was also mentioned in Note I of para No. 4 (A) of the said Notice, the crucial date for age limit was reckoned with reference to the Main Examination which was likely to be held in the first half of 2006. Accordingly, the crucial date was reckoned as 01.01.2006 for determining the age limit. However, the applicant was over aged for the aforesaid post of Inspector (Examiner). Therefore, the case of the applicant for appointment was not processed by the user department. They have also submitted that in Para 22 of notice of the Main Examination, there was a stipulation that a candidate shall be required to indicate in his/her application form for the Main Examination various services/posts for which he/she would like to be considered for appointment in the order of higher preference in case he/she is recommended for appointment by SSC. Again, there was another stipulation below Para No. 22 of the notice which is as under:
The candidate is advised to be very careful while indicating the order of preference for various services/posts. The candidate is also advised to indicate all the services/posts in the order of preference in his/her application form. In case, he/she does not indicate any of the services/posts, it will be assumed that he/she does not want to be considered for those services. Allocation of services to the candidates would be made strictly, keeping in view their position in merit and the order of preferences for various services. The further stipulation in Para 20 of the notice was as under:
The candidates applying for the examination should ensure that they fulfil all the eligibility conditions for admission to the examination. Their admission at all the stage of examination will be purely provisional, subject to their satisfying the prescribed eligibility conditions. If, on verification, at any time before or after the written examination and interview, it is found that they do not fulfil any of the eligibility conditions, their candidature for the examination will be cancelled by the Commission.
6. As regards the applicant was concerned, he was allocated the service as per his preference and he got selected under PH category under Scheme A for the post of Inspector (Examiner) in Central Board of Excise and Customs. As a matter of policy, the Commission does not review the final result under any circumstances, as it will affect the whole result processing. Moreover, the applicant had suppressed the facts to the Commission that he has been declared successful for the post for which he was not eligible. He was keeping quite till his candidature was rejected by the user department. They have further stated that he has also appeared in Scheme B of the Examination which covers Group `C posts of Divisional Accountants/Auditors/Jr. Accountants and UDC but he could not get selected due to his lower merit position as his name figured very low in the list of successful candidates.
7. The learned counsel for the respondents has also relied upon a recent order of this Tribunal in OA 535/2010 Yogender Vs. Union of India & Anr. which, according to him, clearly covers the present case. The relevant part of the said order reads as under:
8. We have heard both the counsel and perused the pleadings also.
9. Along with their additional affidavit, respondents have annexed the revised proforma of the applicant for Combined Graduate Level (Main) Examination 2006 which shows applicant had given the following preference:-
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 M L K J I A N O P Q B C D E F G H
According to the above said proforma, M stands for Inspector (Examiner) in the pay scale of Rs.6500-10500 and is shown to be a Group B post, L stands for Inspector (Preventive Officer) in the same pay scale and is a Group B post. Similarly K stands for Inspector (Central Excise) which too is in the same scale and is shown as a Group B post meaning thereby that applicant had given first three preferences for Group B post in his revised proforma exercising preference/choice for various services/posts.
10. It would be relevant to quote few paras from the advertisement issued by the Staff Selection Commission, pursuant to which, applicant had given his application for taking the Combined Graduate Level (Main) Examination, 2006. This shows that Combined Graduate Level (Main) Examination, 2006 was conducted for the following posts:-
Inspectors of Income Tax/ Inspector (Central Excise) / Inspector (Preventive Officer)/ Inspector (Examiner) in Custom Houses (Group B Non-Gazetted) in the pay scale of Rs.6500-10,500 and Inspector of Posts in the pay scale of Rs.5500-9000.Assistants (Group B Non-Gazetted post) for Offices/Organisations like Central Secretariat Services (CSS), Railway board, Election Commission of India in the pay scale of Rs.6500-10,500 and also in the Offices, viz., Ministry of External Affairs, AFHQ, Department of Tourism etc. in the pay scale of Rs.5500-9000. Assistant Enforcement Officer (Group C Non-Gazetted) in the pay scale of Rs.6500-10,500 and Sub-Inspectors in CBI in the pay scale of Rs.5500-9000/-.Divisional Accountant in the pay scale of Rs.5500-9000, Auditors/ Junior Accountants in the pay scale of Rs.4500-7000 and UDCs in the pay scale of Rs.4000-6000 in various Central Government Departments/Offices.
Para 4 thereof reads as under:-
4. AGE LIMIT (A) (i) 18 to 27 years as on 01.08.2007 for Inspector of Income Tax/Inspector (Central Excise)/Inspector (Preventive Officer)/Inspector (Examiner)/Inspector of Posts/Asstt. Enforcement Officer and Divisional Accountants/Auditors/UDCs etc. (i.e. born not earlier than 02.08.1980 and not later than 01.08.1989).
(ii) 20 to 27 years as on 01.08.2007 for posts of Assistants and Sub-Inspectors in CBI (i.e. born not earlier than 02.08.1980 and not later than 01.08.1987).
NOTE : Candidate should note that the Date of Birth as recorded in the Matriculation / Secondary Examination Certificate or an equivalent certificate available on the date of submission of application form shall be accepted by the Commission and no subsequent request for its change will be considered or granted .
4.(B) The Upper age limit prescribed under para 4(A) will be further relaxable :
(i) Upto a maximum of 5 years if a candidate belongs to a Scheduled Caste or a Scheduled Tribe category.
(ii) Upto a minimum f 3 years if a candidate belongs to OBCs in accordance with t DOP&T OM dated 43013/2/95-Estt.(SCT) dated 25.1.1995 read with amendments made thereunder.
(iii) Upto a maximum of 10 years if the candidate is a physically handicapped persons. Four candidates belonging to SC/ST/OBC who are physically handicapped, the maximum age relaxation of 10 years permissible for physically handicapped (OH/VH/HH) shall be in additional to the age relaxation provided in terms of column (i) and (ii) above;
(iv) Upto the maximum of 5 years to candidates of Jammu and Kashmir who have ordinarily been domiciled in the State of Jammu and Kashmir during the period from 1.1.1980 to 31.12.1989 (Any person intending to avail of the aforesaid relaxation shall submit the certificate from other District Magistrate within whose jurisdiction he/she had ordinarily resided or any other authority so designated in this behalf by the Govt. of Jammu and Kashmir to the effect that he had ordinarily been domiciled in the State of Jammu and Kashmir during the period 1.1.1980 to 31.12.1989);
(v) Upto the age of 35 years (Upto 40 years for members of Scheduled Caste/Scheduled Tribes and 38 years for OBC) in the case of widows, divorced woman and woman judicially separated from other reasons and who are not remarried (For Group C posts);
(vi) Upto the age of three years (8 years for SC/ST and 6 years for OBCs candidates in the case of Defence Personnel disabled in operation during hospital with any foreign country or in a disturbed area and re-assessed as a consequence thereof (For Group C posts).
(vii) Upper age limit is relaxable to retrenched employee of Chuka Hydel Project Authority in Bhutan who were directly recruited to the extent of service rendered by them with the authority (period of service rendered by the retrenched employee will be decided on the basis of certificate Chuka Hydel Project Authority) (For Group C posts);
(viii) Upto a maximum of five years (8 years for OBC and 10 years for SC/ST) for Group B Non-Gazetted) posts viz for Inspector of Income Tax, Inspector (Central Excise), Inspector (Preventive Officer), Inspector (Examiner), Inspector of Posts for Ex. Serviceman and Commissioned Officers including ECOs/SSCOs, who have rendered at least five years Military Service as on 1.8.2007 and have been released on completion of assignment (including those whose assignments are to completed within six months) otherwise then by way of dismissal or discharged on account of misconduct or inefficiency or (i) on account of physical disability attributable to Military Service or (ii) on invalid-ment and in whose case Ministry of Defence issues a certificate that they can apply for civil employment and will be released on a months notice on selection from date of receipt of offer of appointment.
4(C) For Ex Servicemen (Ex.S) for Group C posts are Sub Inspectors in CBI/Assistant Enforcement Officer/Divisional Accountants, Auditors/ Junior Accountants, UDC etc. age concession will be allowed in accordance with the orders issued by the Government from time to time and they will be allowed to deduct Military Service from their actual age and such resultant age should not exceed the prescribed age limit by more than three years.
11. It is also relevant to quota para 19 of the above advertisement which for ready reference reads as under:-
The Commission will have the full discretion to fix separate minimum qualifying marks in each of the papers and in the aggregate of all the papers separately of each category of candidates (viz. SC/ST/OBC//PH/Ex-S/General(UR).Only those candidates who qualify in all the papers as well as in the aggregate would be eligible to be considered for being called for the Personality Test/Interview.
After the Main Examination and the Interview wherever applicable, the Commission will draw up the All India Merit List on the basis of the aggregate marks obtained by the candidates in the Examination and in that order, as many candidates are found by the Commission to have qualified in the Examination shall be recommended for appointment up to the number of unreserved vacancies available.
The Commission will recommend the candidates in the Merit List on the basis of appropriate marks and option given by the candidates in the application form depending on the number of vacancies available. Once the candidate has given first available preference, he will not be considered for the other options. However, Commission reserves the right to nominate the candidate to any post based on the merit position. THE CANDIDATES ARE ADVISED TO EXERCISE OPTIONS IN APPLICATION FORM CAREFULLY. In the Note it was further mentioned as follows:-
Note: The candidates applying for the examination should ensure that they fulfill all the eligibility conditions for admission to the examination. Their admission at all the stages of examination will be purely provisional, subject to their specifying the prescribed eligibility conditions. If, on verification, at any time before or after the written examination and interview, it is found that they do not fulfill any of the eligibility conditions, their candidature for the examination will be cancelled by the Commission.
In para 21 it was further clarified as follows:
A candidate shall be required to indicate in his/her application form for the Main Examination various services/posts for which he/she would like to be considered for appointment in the order of higher preference in case he/she is recommended for appointment by Staff Selection Commission.
While exercising option for Cypher Assistants, candidates may kindly note that at Ministry of External Affairs(Headquarters) on Cyber Bureau functions round the clock selected candidates will thus have to perform duties on shifts in missions abroad. They can also be required to attend office at odd hours depending upon the exigencies of the Cyber Work.
Note:
The candidate is advised to be very careful while indicating the order of preference for various services/posts. The candidate is also required to indicate all the services/posts in the order of preference in his/her application form. In case he/she does not indicate any of services/posts, it will be assumed that he/she does not want to be considered for those services. Allocation of services to the candidates selected would be made strictly keeping in view their position in merit and the order of preferences for various services.
12. From above, three things are absolutely clear:-
(i) A candidate was required to indicate preference in his/her application form various services/posts for which he would like to be considered in the order of higher preference in case he/she is recommended for appointment by the SSC because allocation of services to the candidates selected would be made strictly keeping in view their position in merit and the order of preferences for various services.
(ii) It was made clear in the advertisement itself that the Commission will recommend the candidates in the Merit List on the basis of appropriate marks and option given by the candidates in the application form depending on the number of vacancies available. Once the candidate has given first available preference, he will not be considered for the other options.
(iii) There was a clear Note given in the advertisement itself that the candidates applying for the examination should ensure that they fulfill all the eligibility conditions for admission to the examination. Their admission at all the stages of examination will be purely provisional, subject to their specifying the prescribed eligibility conditions. If, on verification, at any time before or after the written examination and interview, it is found that they do not fulfill any of the eligibility conditions, their candidature for the examination will be cancelled by the Commission.
13. From above, it is evident that everything was made clear in the advertisement itself by the SSC, therefore, it was for the applicant to read the advertisement carefully and then give his preference. It is not even disputed by the applicant that he had given preference for M, L & K in the first, second and third places, which were all Group B posts and he did not fulfill the eligibility condition of age inasmuch as he was above 32 years.
14. Counsel for the applicant placed reliance on para 4 (C) of the advertisement for seeking relaxation as Ex-Serviceman in age, little realizing that para 4 ( C ) of the advertisement refers to only Group C posts whereas applicant had given first three preferences for Group B post. For Group B post, the age limit prescribed under para 4 (A) was 18 to 27 years as on 1.8.2007 which was relaxable up to 5 years in case of Ex-Serviceman as per para 4 (B)(viii).
15. Admittedly, applicants date of birth is 5.5.1968, therefore, if his age is computed as on 1.8.2007, even after giving him the benefit of 5 years, applicant was overaged as on 1.8.2007 because he was 39 years old, whereas from 27 he could have applied up to 32 years by adding the age in relaxation, therefore, naturally he was overaged on the last date of giving his application form for the posts of M, L & K, namely, Inspector (Examiner), Inspector (Preventive Officer) and Inspector (Central Excise), all Group B posts which were Ist three preferences given by the applicant.
16. We have already noted above, it was clearly mentioned in the Note under Para 19 of the advertisement that before filling up their preferences, the candidates should ensure that they fulfill all the eligibility conditions for admission to the examination. If, on verification, at any stage, it is found that they do not fulfill any of the eligibility conditions, their candidature is to be treated cancelled for the examination (emphasis laid). It is thus clear that the candidature was not to be cancelled for the post only but for the entire examination, therefore, the contention of the counsel for the applicant that at best respondents could have cancelled his candidature for Group B post is not tenable. The same is accordingly rejected.
17. It is also clarified in the advertisement itself that once allotment of service/post has been made as per the merit coupled with preference, it would not be changed later on, therefore, contention of the counsel for the applicant that he should have been considered for other Group C post is also without any merit. The same is also accordingly rejected. In fact applicant is responsible himself for the situation, he is facing today because he did not fill up the form carefully.
18. In view of above, we find no merit in the OA. The same is accordingly dismissed. No order as to costs.
8. We have heard the learned counsel for the applicant Shri Anil Singal and the learned counsel for the respondents Shri S.M. Arif. The contention of the applicant is that he had qualified in the examination for the post of Inspector (Examiner) as a Physically Handicapped Ex-serviceman. The fact that there was no reservation for the said post was known to the applicant before he appeared for the same. Since his preference was for the aforesaid post and he was held qualified taking into consideration of the reservation, the respondents decided to appoint him against that post. However, on scrutiny, it was found that there was no reservation for the aforesaid post. We, therefore, do not find anything wrong with the respondents action in cancelling his candidature. It is the duty of the candidate himself to give complete facts so that the respondents could decide his eligibility. Moreover, we find that the decision of the co-ordinate Bench of this Tribunal in OA 535/2010 (supra) squarely covers this case also both on facts as well as on law.
9. In view of the above position, this O.A lacks merit and it is dismissed accordingly. There shall be no order as to costs.
( Veena Chhotray ) ( G. George Paracken ) Member (A) Member (J) SRD