Central Administrative Tribunal - Delhi
Jitender Singh vs M/O Personnel,Public Grievances And ... on 6 December, 2016
Central Administrative Tribunal
Principal Bench, New Delhi
OA No. 1738/2014
Order Reserved on: 11.08.2014
Order Pronounced on: 06.12.2016
Hon'ble Mr. V. Ajay Kumar, Member (J)
Hon'b le Dr. B.K. Sinha, Member (A)
Jitender Singh,
Assistant Commissioner,
Aged 37 years,
S/o Shri Rajender Singh,
R/o Office of Commissioner of Income Tax,
Sector-14, Hissar, Haryana-1250001 - Applicant
(By Advocates: Mr. Narender Hooda senior counsel assisted by Ms.
Nida Doon and Mr. Avira Dhirendra)
VERSUS
1. Union of India
Through the Secretary,
M/o Personnel, P.G. & Pensions,
North Block, New Delhi
2. Union Public Service Commission,
Through Chairman,
Dholpur House,
Shahjahan Road,
New Delhi-110003 - Respondents
(By Advocate: Mr. Avtar Singh Chauhan)
ORDER
Dr. B.K. Sinha, Member (A):
The applicant, in the instant case, is aggrieved with non- allocation of the Indian Revenue Service (IRS) (IT) to him in spite of recommendation by the UPSC for the said service.
2. The case of the applicant, briefly, stated is that he is suffering with locomotor disability or Cerebral Palsy and he is entitled to the benefits as provided under Section 33 of the Persons with Disabilities 2 (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (hereinafter referred to as "the Disability Act"). Section 33 of this Act reserved 3% of the posts for persons with 40% or more disabilities, out of which, 1% is reserved for persons suffering with blindness and loco vision, hearing impairment and locomotor disability or cerebral palsy. The applicant appeared in CSE-2006 for the first time and based upon his performance and general merit, he was allocated IDAS. The applicant again appeared in CSE-2010 for better allocation of service and got 840 rank as a consequence of which he was allocated IRS (IT) with effect from the date of joining.
3. The applicant has prayed for the following reliefs:-
"(a) Allow this application.
(b) Respondents may be directed to treat the upgradation of the service allocation of the applicant from IDAS to IRS(IT) from the date of his joining IDAS consequent upon wrong allocation of that service to the applicant in CSE 2006 and further direct the respondents to give all consequential benefits to the applicant from the said date of his joining IDAS viz.
Dec.2007 including seniority and payment of different between the pay scale of an officer in IDAS and those in IRS(IT) from that date and other similar service benefits.
(c) Grant any other relief which Your Lordship deem fit and proper in the circumstances of the case.
(d) Award the cost."
4. The applicant has adopted the following principal ground for his Application:-
i. The allocation of the applicant had been wrongly made to IDAS on the basis of CSE-2006 because the policy of reservation for persons suffering with disability had not been correctly implemented as per the scheme of reservation as contained in Section 33 of the Disability 3 Act and the stipulations made in OM dated 29.12.2005.
The applicant further submits that though he was selected on his own merit, he was entitled to the benefit of reservation in various Civil Services and on that basis, he should have been allocated IRS (IT), non-allocation of which is violation of judgments of the Hon'ble Supreme Court in Govt. of India through Secretary & Anr. vs. Ravi Prakash Gupta & Ors. (SLP No. 14889/2009) decided on 07.07.2010 and The National Federation of the Blind vs. Union Public Service Commissioner & Ors. [(1993) 2 SCC 411, as reservation is to be computed on the basis of the vacancies in total cadre strength and not identified post alone, which had been done in the present case. This position has been reiterated by the Tribunal in a number of decisions.
5. The respondents have filed a counter affidavit rebutting the averments of the applicant, except insofar as they relate to factual matrix. The respondents fairly submitted that in this case, the vacancies should have been calculated @ 3% with 1% for each of the services. In this case, the Hon'ble High Court held in WP (C) No. 5429/2008 that 785 vacancies were filled from 1996 to 2006 of which 8 vacancies were reserved for visually handicapped persons against which only one person belonging to this category was appointed in the year 2005, leaving 7 posts, which could be filled up in the year 2006. The applicant was at SI. No.5 and was a successful candidate. When sufficient number of successful candidates were unavailable against the said reserved posts, the Court held that "we fail to understand that as to why the requisition of filling up only one 4 post was sent by DoP&T to the UPSC". The Hon'ble Supreme Court upheld the decision of the Hon'ble High Court in Govt. of India through Secretary & Anr. vs. Ravi Prakash Gupta & Ors. (supra) and held that the department should have earmarked vacancies of physically disabled persons to IAS and other services from 1996 onwards. The fact that the department had not done so, did not extinguish the rights of the candidates, who could have otherwise been selected, had the reservation been in existence. This has since been accepted by the department.
6. The counter affidavit takes us on a meandering path dealing with all cases that have arisen. They have also submitted the Table- 3 which depicts the picture in respect of LDCP category for CSE- 2006, which reads as under:-
S.N Rank Name Service Service Remark
o. allocated provisiona
lly
allocated
Now/No
change in
service
CSE-2006
5. 43 NAGARGOJE IAS IAS (NO No change is
MADAN CHANGE) proposed as the
BIBHISHAN candidate had
been allocated
service of 1st
preference along
with the other
CSE candidates
6. 382 SUHASLY IAS IAS (No -do-
Change)
7. 434 Kranti IRS (IT) IAS If he get IAS (01),
he would release
one vacancy in
IRS (IT)
8. 453 Kumar Avikal IRS (IT) IAS If he get IAS (02),
Manu he would release
one vacancy in
IRS (IT)
9. 459 SUMIT KAUR IRS(IT) IAS If he get IAS (03),
he would release
one vacancy in
IRS (IT
10. 462 BHEDA IRS(c&ce)(2 IRS (IT) If he get IRS (IT),
) he would release
PRIYESH one vacancy in
IRS (C&CE)
5
KISHORE
11. 464 ABHISHEK IA&AS IAS If he get IAS (04),
he would release
SINGH one vacancy in
IA&AS
12 465 ROHIT KUMAR IRAS IFS If he get IFS
(backlog), he
would release one
vacancy in IRAS
13. 466 Ratinder kaur ICAS IRS (IT) If he get IRS (IT),
he would release
one vacancy in
ICAS
14. 467 JITENDER IDAS IRS (IT) If he get IRS (IT),
he would release
one vacancy in
IDAS.
15. 470 AJAY KUMAR IDAS IRS(C&CE If he get IRS
DIXIT ) (C&CE), he would
release one
vacancy in IRPS.
This also led to spate of litigation. OA No. 2271/2012 filed by one Ajit Kumar had been rejected by this Tribunal with the following order dated 26.11.2013:-
"The appellant herein shall issue instructions to all the departments/public sector undertakings/Government companies declaring that the non- observance of the Scheme of reservation for persons with disabilities should be considered as an act of non-obedience and Nodal Officer in department/ public sector undertakings/ Government companies, responsible for the proper strict implementation of reservation for person with disabilities, be departmentally proceeded against for the default."
It is evident from the above that all the directives are prospective by nature. The chain of events begins by modification of OM dated 29.12.2005 and the subsequent OMs making without full alignment to the orders of the Court. The directives also command the appropriate Government to compute the number of vacancies available in all the establishments and further identify the posts for disabled persons within a period of three months from the date of the order. This shall be followed by Step No.(iii) to the departments, public sector undertakings, Government companies that non-compliance with the reservation for disabled persons with disabilities shall be construed as an act of disobedience.
17. Thus, in view of the above discussions, we find that the applicant has failed to substantiate his claim. It is also an admitted fact that he has already been allocated to IDAS and, therefore, is not on the street. We have invariably a feeling that the applicant is merely fishing just to try his luck. The Original Application is accordingly dismissed without any order as to costs."
This triggered of another spate of litigation. Some of the applicants in the above OA, viz. Pankaj Kumar Srivastava, Abhishek Kumar, Shivam Kumar and Rahul Mittal, were not recommended by the 6 UPSC and were hence not allocated to any of the Service for CSE- 2008 against the plethora of vacancies under Visually Impaired (VI) category of PH. They came before the Principal Bench of this Tribunal in OA No. 3493/2011, 3209/2011, 3494/2011 and 3988/2011. The Tribunal, vide their order, dated 30.05.2012, held that an extra half an hour and other facilities provided to the visually impaired applicants did not amount to relax standards. The respondent no.1 - UPSC carried out the exercise and informed that based on the performance/marks secured in the Civil Service (Main) Examination, 2008 by candidates recommended against the PH.2 (Visually Challenged) quota, the applicant did not qualify for being recommended (against the PH.2 quota) in terms of the Hon'ble CAT, PB, New Delhi judgment on the basis of the marks obtained by him. As the applicant had not qualified for Personality test for the C.S. (Main) Examinations of 2009, it was intimated that in terms of the judgment of the Hon'ble CAT referred, no relief could accrue to him.
7. The matter was further brought before the Hon'ble High Court in W.P.(C) No. 4902/2013. The Hon'ble High Court, vide order dated 11.10.2013, had disposed of the said Writ Petition. The operative portion of the judgment is reproduced below:-
"Since the matter pertains to a very important issue concerning differently abled persons who have struggled to avail equal opportunities in the matter of employment, we are constrained to direct the Secretary DOPT to personally oversee the exercise with required seriousness and urgency to ensure that the persons of the differently abled category are not unduly deprived the benefits which have been made available to them under the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.
20. On the subject of whether the applicants before the Tribunal who were allowed a scribe and were provided 30 minutes extra time to write the paper were granted the benefit of a relaxed standard, we find that the CSE Rules provide as to what would constitute the relaxed standards and they are:- (i) Additional number of attempts allowed to certain reserved categories including persons suffering with disabilities in terms of Rule 4 of Civil Service Examination Rules; (ii) Relaxation in upper age limit in terms of Rule 6 of Civil Service Examination Rules; and (iii) Relaxation of minimum qualifying marks for persons with disabilities as prescribed in Rules 15 & 16 for persons with disabilities. Thus, the Rule itself envisages that allowing 7 a scribe and providing extra time for writing the answers would not be amounting to availing a relaxed standard. This being so, the very foundation of the challenge has no peg to anchor itself on to."
8. To cut the long story short, the matter has now been brought before the Hon'ble Supreme Court in SLP No. 19291/2014 challenging the judgment of the Hon'ble High Court dated 11.10.2013 and the same is still subjudice before the Hon'ble Supreme Court of India.
9. The applicant has filed the rejoinder to the reply which inter alia submits that in almost all cases, each allocation of service, after determining backlog vacancies, has already been given effect to. The chart showing the names of Shravan Kumar, Avinash Bansal, Ajit Kumar, Purnima Jain and Rajesh Kumar at SI. Nos. 1,5,7,9 and 12 provided by the respondents in their counter affidavit is reproduced as under:-
SI. No. Name/disability/CSE Year Details of the Date of order court case
1. Shravan Kumar, (Visually OA No. 8.10.2010 Impaired) 2008. 100% blind 1893/2009 - CAT PB
2. Rahul Mittal (Visually OA 2105/2009 -do-
Impaired) 2008. Fully Blind
3. Pankaj Kumar Srivastava OA No. -do-
(Visually Impoaired) 2008. 2105/2009 Partially Blind
4. Shivam Kumar (Visually OA No. -do-
Impaired) 2008. Partially Blind 1986/2009
5. Avnish Bansal (Hearing OA No. -do-
Impaired) 2008. Has also
cleared CSE 2009 with 1538/2009
rank no. 873. Allocated to
IRS (C&CE)
6. Ashish Singh Thakur OA No. 8.10.2010
(Visually Impaired) Cleared
CSE 2008 with rank no. 2717/2009
435. Allotted IPoS. Fully
blind.
7. Ajit Kumar (Visually OA No. -do-
Impaired) Cleared CSE
2008 with rank no. 208. 2369/2009
Allotted IRPS. Fully Blind
8. Srinivasulu Budigi (visually OA No. 24.1.2011
impaired) cleared CSE 2008
with rank number 583,
8
allotted to IIS. Fully blind. 4001/2010
9. Purnima Jain (visually OA -do-
impaired) (75%) claiming
appointment from CSE No.3792/2010
2008
10. Ajit Kumar (OH) CSE 2006 OA No. -do-
& 2008
2717/2010
11. Pawan Kumar (visually OA No. 15.2.2011
impaired) 2009 partially
blind 4026/2010
12. Rajesh Kumar (OH) 435/2011 21.03.2011
claiming appointment from
CSE-2007 or 2008
Hence, it is only in the case of the applicant that he has not re- allocated IRS (IT) Service as desired by him.
10. We have carefully gone through the pleadings as also the documents so adduced and the law citations relied upon by the parties. We have also patiently heard the oral arguments advanced by the learned counsels appearing for the respective parties.
11. On the basis of the above, two issues to be decided by us are as follows:-
(i) Whether the OA is maintainable on account of non-
joinder of necessary parties? and
(ii) Whether pendency of the SLP before the Hon'ble Supreme Court will have the effect of abatement of the instant case before us or this Tribunal can proceed to decide the case notwithstanding the SLP before the Hon'ble Supreme Court?
12. We take issue no.1 relating to maintainability in the first instance. We have already taken note of the argument of the learned counsel for the respondents, that the applicant is asking in fact is 9 that his seniority should be antedated from the date of his joining the service of IDAS on the basis of CSE-2006. There are several intervening layers of officials, who were recruited during this period and who were on job. The applicant will have a jump in the seniority and will sit over their heads. This cannot be done without including these persons as parties at least in representative capacity, as their seniority is likely to be get adversely affected by such an order. Therefore, they are necessary parties and they must necessarily be impleaded and heard before any such order were to be passed.
13. It is an admitted fact that the applicant was selected for IDAS on the basis of CSE-2006. The applicant thereafter appeared in CSE- 2010 and was allocated IRS (IT). The plea of the applicant is to treat the upgradation of his service allocation from IDAS to IRS (IT) from the date of his joining IDAS with all consequential benefits, including seniority and pay scales. This will tantamount to the affect that the officers recruited in IRS (IT) say on the basis of CSE-2007, who has been senior to the applicant, would become his junior and so would be other officers recruited up to CSE-2010. Thus, their service prospects were to be adversely affected.
14. The question here is that whether such persons, who have not been impleaded and who stand to be adversely affected on account of any order passed in this case, conceding the application, are necessary parties to this lis in an afore situation.
15. In this regard, it is first necessary to understand the concept of necessary and proper parties. The Hon'ble Supreme Court in Udit Narain Singh Malpaharia vs. Additional Member Board of Revenue, Bihar & Anr., AIR 1963 SC 786, has held as follows:- 10
"7. To answer the question raised it would be convenient at the outset to ascertain who are necessary or proper parties in a proceeding. The law on the subject is well settled : it is enough if we state the principle. A necessary party is one without whom no order can be made effectively; a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding."
16. The Hon'ble Supreme Court in Vijay Kumar Kaul & Ors. vs. Union of India, 2012(7) SCC 610 referred to the decision of Udit Narain Singh Malpaharia vs. Additional Member Board of Revenue, Bihar (supra) and held as under:-
"28. Another aspect needs to be highlighted. Neither before the tribunal nor before the High Court, Parveen Singh and Ors. were arrayed as parties. There is no dispute over the factum that they are senior to the Appellants and have been conferred the benefit of promotion to the higher posts. In their absence, if any direction is issued for fixation of seniority, that is likely to jeopardise their interest. When they have not been impleaded as parties such a relief is difficult to grant. In this context we may refer with profit to the decision in Indu Shekhar Singh and Ors. v. State of U.P. and Ors. AIR 2006 SC 2432 wherein it has been held thus:
"There is another aspect of the matter. The Appellants herein were not joined as parties in the writ petition filed by the Respondents. In their absence, the High Court could not have determined the question of inter se seniority."
29. In Public Service Commission, Uttaranchal v. Mamta Bisht and Ors. AIR 2010 SC 2613 this Court while dealing with the concept of necessary parties and the effect of non- impleadment of such a party in the matter when the selection process is assailed observed thus:
"7. ...In Udit Narain Singh Malpaharia v. Additional Member, Board of Revenue, Bihar and Anr. AIR 1963 SC 786, wherein the Court has explained the distinction between necessary party, proper party and proforma party and further held that if a person who is likely to suffer from the order of the Court and has not been impleaded as a party has a right to ignore the said order as it has been passed in violation of the principles of natural justice. More so, proviso to Order I, Rule IX of Code of Civil Procedure, 1908 (hereinafter called Code of Civil Procedure) provide that non-joinder of necessary party be fatal. Undoubtedly, provisions of Code of Civil 11 Procedure are not applicable in writ jurisdiction by virtue of the provision of Section 141, Code of Civil Procedure but the principles enshrined therein are applicable. (Vide Gulabchand Chhotalal Parikh v. State of Gujarat AIR 1965 SC 1153; Babubhai Muljibhai Patel v. Nandlal, Khodidas Barat and Ors. AIR 1974 SC 2105; and Sarguja Transport Service v. State Transport Appellate Tribunal, Gwalior and Ors. , AIR 1987 SC 88).
8. In Prabodh Verma and Ors. v. State of U.P. and Ors. AIR 1985 SC 167; and Tridip Kumar Dingal and Ors. v. State of West Bengal and Ors. (2009) 1 SCC 768 : AIR 2008 SC (Supp) 824, it has been held that if a person challenges the selection process, successful candidates or at least some of them are necessary parties."
17. In J.S. Yadav v. State of U.P. & Anr., (2011)6 SCC 570, the Hon'ble Supreme Court has held as under:-
" 32. No order can be passed behind the back of a person adversely affecting him and such an order if passed, is liable to be ignored being not binding on such a party as the same has been passed in violation of the principles of natural justice. The principles enshrined in the proviso to Order I Rule 9, of the Code of Civil Procedure, 1908 provide that impleadment of a necessary party is mandatory and in case of non-joinder of necessary party, the Plaintiff/Petitioner may not be entitled for the relief sought by him. The litigant has to ensure that the necessary party is before the Court, be it a Plaintiff or a Defendant, otherwise the proceedings will have to fail. In Service Jurisprudence if an unsuccessful candidate challenges the selection process, he is bound to implead at least some of the successful candidates in representative capacity."
18. The matter has been summed up in a recent case by the Hon'ble Supreme Court in Poonam vs. State of U.P. & Ors. MANU/SC/1240/2015, which held as under:-
"50. We have referred to the said decision in extenso as there is emphasis on curtailment of legal right. The question to be posed is whether there is curtailment or extinction of a legal right of the Appellant. The writ Petitioner before the High Court was trying to establish her right in an independent manner, that is, she has an independent legal right. It is extremely difficult to hold that she has an independent legal right. It was the first allottee who could have continued in law, if his licence would not have been cancelled. He was entitled in law to prosecute his cause of action and restore his legal right. Restoration of the legal right is pivotal and the prime mover.12
The eclipse being over, he has to come back to the same position. His right gets revived and that revival of the right cannot be dented by the third party."
19. In the instant case, we have already held that the seniority of the intervening officers, who have hitherto been senior to the applicant, stand to be affected by a decision in his favour. Therefore, their legal rights, by virtue of being appointed by examination process and having secured seniority upon merits, stand to be curtailed. Therefore, they are necessary parties. No order can be passed at their back, affecting their rights. Hence, the OA is dismissed for non- joinder of necessary parties, while giving liberty to the applicant to approach this Tribunal after having cured the defect. In view of this finding regarding maintainability, the other points are left open. No costs.
(Dr. B.K. Sinha) (V. Ajay Kumar) Member (A) Member (J) /lg/