Central Administrative Tribunal - Delhi
Arvind Kumar vs Staff Selection Commission (Ssc) on 2 November, 2023
(OA No.417-2022)
(1)
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A. No.417/2022
Reserved on: 16.10.2023
Pronounced on: 02.11.2023
Hon'ble Mr. R.N. Singh, Member (J)
Hon'ble Mr. Sanjeeva Kumar, Member (A)
Mr. Arvind Kumar,
Vill Chakiya, PO Birouri,
Distt Jaunpur (UP). ...Applicant
(By Advocate : Ms.Riti Sarkar)
Versus
1. The Chairman,
Staff Selection Commission,
Block No.12, CGO Complex,
Lodhi Road, New Delhi.
2. The Commissioner of Police,
Delhi Police Head Quarters,
Jaisingh Road,
Delhi, PIN 110001. ...Respondents.
(By Advocates: Sh Amit Yadav for R-2 & Ms.Nidhi
Jain for Shri R.K.Jain for R-1)
ORDER
Hon'ble Mr. Sanjeeva Kumar, Member (A):
The applicant has filed the present OA under Section 19 of the Administrative Tribunals Act, 1985, seeking the following reliefs:-
8.1. Quash and set aside the Impugned orders i.e. order by respondent No.1 dated 12.02.2021 (Annexure A-1), Final order passed by Respondent No.2 on date (OA No.417-2022) (2) 10.03.2021 (Annexure A-2), Employment Notification dated 09.01.2016 to the extent of its illegality (Annexure A-3) and Termination order dated 16.12.2019 (Annexure A-4), alongwith other orders incidental or consequential thereto 8.2 Reinstate the applicant in service with consequential benefits w.e.f. 16.12.2019, the date of termination of service 8.3 Direct the respondents to make a final merit list afresh in the exam, after quashing and setting aside the final merit list dated 08.09.2017, w.r.t. the competitive SI in Delhi Police and CAPF 2016 exam, and implement it forthwith.
8.4. Award cost in the instant case, and 8.5 grant any other relief or relieves as to this Hon'ble Tribunal may deem fit and proper in the facts and circumstances of the case."
2. The case, in brief, as mentioned in the OA is that the applicant had undergone various specialized courses during his long service career of 20 years which includes QUICK REACTION TEAM COURSE. The applicant had successfully completed the aforementioned course vide QRT Course NO. 26 which was held at Air Force Station, Bareilly from 07.06.2004 to 04.07.2004 and was issued a certificate accordingly by the competent authority.
(OA No.417-2022) (3)
3. The applicant in pursuance of the employment notification issued by Staff Selection Commission (in short SSC) vide F. No. 3/1/2016-P&P-11 dated 09.01.2016 for recruitment of Sub-Inspectors in Delhi Police, CAPFs and Assistant Sub-Inspector applied for the same as an Ex- Serviceman (ESM) and further under the Special Quota in the Ex-serviceman as prescribed in clause 2.3 of the Notification dated 09.01.2016.
4. The applicant claims that Respondent No. 1 (SSC) in the Employment Notification dated 09.01.2016 ibid, provided illegal reservation categories as reproduced hereinafter:
"2. Vacancies: Vacancies will be determined in due course.
Note: Candidates selected for appointment for posts of SI in CAPFs and ASI in CISF are liable to serve anywhere in India.
2.1 Reservation for SC ST OBC/ ExS/etc. category is available as per extant Govt. Orders and as communicated by the departments reporting vacancies.
2.2 In Delhi Police reservation is available for Ex- Servicemen and special categories of Ex-Servicemen as detailed below:
2.3 Out of 10% quota meant for Ex-Servicemen, 50% of such quota will be reserved for the following categories:-
(i) Having served in the Special Force/NSG (Special (OA No.417-2022) (4) Action Group) OR
(ii) Having received a QI "Qualified Instructors" grading in the commando course.
OR
(iii) Officers from the Navy/Air Force who have worked in the specialized commando type units.
NOTE:In case sufficient number of Ex-Servicemen candidates under categories at (i), (ii) and (iii) are not available, the unfilled vacancies will be filled from amongst other available Ex-Servicemen candidates. Note-VII: OBC certificates issued by Government of National Capital Territory of Delhi (GNCTD) for candidates for OBCs listed by GNCTD but not included in OBCs will be accepted for post of SI in Delhi Police only for reservation and age relaxation purposes."
5. The applicant has contended that the aforesaid criteria vide 2.3 of the Notification has been quashed and set aside while declaring it unconstitutional by this Tribunal in the case of Shri Pawan Singh vs The Chief Secretary Govt. of NCT of Delhi, decided on 13.05.2013 in as much as it created a special quota within the 10% reservation quota meant for ESM whereupon the Respondent No.2 approached the Hon'ble High Court of Delhi vide W.P.(C) 5430/2013 under the title Commissioner of Police vs Sh Pawan Singh. Though the Hon'ble High Court was pleased to dismiss the petition vide order dated 23.10.2013, the (OA No.417-2022) (5) respondent authorities continued to recruit the candidates as per the above illegal criteria.
6. Nevertheless, notwithstanding the above, the applicant in order to claim the benefit under the clause 2.3 as prescribed in the advertisement submitted the aforementioned Quick Reaction Team (QRT) Course Certificate to the SSC at the time of document verification and medical examination. The applicant was again called by SSC for document verification, during the selection process whereby original documents were carried by the applicant including the QRT Certificate which was duly considered as a competent certificate. Having scored 217.50 marks in written examination (Tier-I + Tier-II), the applicant was placed in his category i.e. ESM/OBC, selected and recommended for Sub Inspector (Exe) in Delhi Police. Accordingly, he was called for document verification by the office of respondent No.1 where he produced all the documents to respondent No.1 including the certificate dated 01.07.2004 against the claim for 50 percent quota out of 10 percent quota reserved for Ex-servicemen.
7. Subsequently, the applicant was called for the joining in the month of March 2018 and the applicant reported on (OA No.417-2022) (6) 19.03.2018 and produced all documents, including QRT Certificate, again to the official of Recruitment Cell (R-Cell).
8. The applicant further submit that the R-Cell having been satisfied in all respect to the competency of the applicant, handed over an offer of appointment of Sub Inspector (Exe) in the pay scale of Rs.9300-34800 in pay band with grade pay of Rs.4200/- on the basis of examination 2016 vide an order dated 27.3.2018.
9. But the applicant was surprised to receive a Show Cause Notice (SCN) dated 12.10.2019 under Rule 5(1) of CCS (TS) Rules, 1965 providing 30 days to submit the reply, inasmuch as the same SCN leveled allegations against the applicant being punitive in nature and carrying social stigma.
10. The applicant responded to the show cause notice but the DCP without considering the facts and grounds mentioned therein terminated the applicant from the service vide letter No. 10294-393/E-HAE/OND dated 16.12.2019. In the termination order, the main reason mentioned inter alia is the QRT Certificate, which although being found in order, was not as per required eligibility conditions. The relevant portion of termination order is reproduced below:
(OA No.417-2022) (7) "After consideration of his reply and on the basis of documents, it has been observed that main reason for taking action under Rule 5(1) of CCS (TS) Rules, 1965 is on the basis of his QRT certificate, which is found in order but not as per required eligibility conditions making him ineligible for the post.
11. The applicant being aggrieved by the termination letter made a representation to the Commissioner of Delhi Police which was rejected.
12. The applicant reiterates that, he being oblivious to legal status of illegal criteria, so as to claim the reservation under special quota for Ex-servicemen based on the QRT Certificate dated 01.7.2004, had submitted the bonafide certificate which was initially accepted after due verification but was unreasonably not found to be in order subsequently.
13. The respondents in their counter reply have stated that candidate Ex-PSI Arvind Kumar, Roll No.5105003950, Belt No.D/3183, PIS No.16180192 (herein-after-called the applicant) had provisionally been selected to the post of SI (Exe) in Delhi Police against Ex-Servicemen category, Special Category 'Commando' through combined recruitment examination to the post of SI in Delhi Police, CAPFs & ASI in CISF-2016 conducted by the Staff Selection Commission (in short as SSC) subject to verification of character & (OA No.417-2022) (8) antecedents and documents verification. After receiving dossiers of all the provisionally selected candidates to the post of SI (Exe) in Delhi Police from the recruiting agency i.e. SSC, the candidates including the applicant were called for completion of necessary codal formalities viz. documents checking, filling up Attestation Form, verification of character & antecedents. The applicant had submitted a certificate, mentioning therein the heading as 'QUICK REACTION TEAM COURSE issued to member 'Kumar A' by Air Commodore, Air Officer Commanding, AF Station, Bareilly, in response to claim against 'Commando' proficiency which was subjected to verification.
14. The said commando certificate and other certificate were sent for verification to the issuing authority Air Officer, Air Force Station, Bareilly, U.P.-2430002 vide DCP/Rectt. Cell, NPL, Delhi's office letter No.2474/Rectt. Cell (SI/NPL dated 11.05.2018 with apropos reminder bearing letter No.5375/Rectt. Cell (SI)(DA-1)/NPL dt. 10.12.2018 to ascertain whether the 'QRT Course' (Certificate) fits as per criteria required for the said post & category. In response, Sh. B.S. Krishnan, Squadron Leader, Officer-In-charge Organization, Air Officer Commanding replied vide letter (OA No.417-2022) (9) No.15W/711/1/3/Org dated 28.12.2018 enunciating therein as under:-
Para 3 The above named individual is not a serving member of this Station; hence his personal documents are not being maintained at this Station. The certificate issued by this Station dated 01 Jul, 04 for the individual having undergone Quick Reaction Team Course conducted from 07 Jun, 04 to 04 Jul, 04 seems to be in order.
Para 4: However, having just undergone Quick Reaction Team Course from 07 Jun, 04 to 04 Jul, 04 the individual does not meet any of the following laid down criteria (as per your letter dated 10 Dec,
18) for subject selection:-
(a) Having served in the Spl. Forces/NSG or
(b) Having received a Qualified Instructor grading in the commando course or
(c) Officers from the Navy/Air Force who have worked in the specialized commando type units."
Para 5 Additionally, it has been verified that the certificate dated 26 Mar, 18 signed by WO I/C Sports has not been issued by the official whose signature is borne on the subject certificate, hence not found genuine. A copy of the same is annexed herewith and marked as Annexure-'R/5'.
15. The disciplinary authority in the light of above thoroughly examined the case and gone through the facts & reply submitted by the applicant and observed that the applicant does not fulfill the eligibility criteria required for the said post as per his selection category. The applicant was terminated from the service vide DCP/Outer North (OA No.417-2022) (10) Distt., Delhi's office order No.10294-393/E-1/HAE/OND dated 16.12.2019 accordingly. Aggrieved by the punishment of termination, the applicant had also filed a representation dt. 07.10.2020 addressed to the CP/Delhi in Outer-North Distt. The same was considered & rejected by the Head of Department. Keeping in view the above, respondents have contended that it is quite clear that the applicant was rightly terminated from the service under Rule 5(1) of Central Civil Service (Temporary Service) Rules-1965 by the disciplinary authority vide aforementioned order dt. 16.12.2019 as the applicant failed to produce/submit the eligible commando certificate as required against his selection category.
16. As regards quashing & setting aside of criteria enshrined under 2.3 of the Notification reg. 50% reservation for Special categories (Commando) out of 10% quota meant for Ex-Servicemen vide judgment de 23.10.2013 pronounced in CWP No.5430/2013 Commissioner of Police, Delhi Vs. Pawan Singh, the respondents submit that the candidate Pawan Singh, Roll No.730467 had applied for recruitment to the post of Const.(Exe) in Delhi Police Exam, 2011 under Ex-Servicemen (other) OBC category. He had secured total 38 marks (secured total 39 marks, after re-
(OA No.417-2022) (11) evaluation of answer sheets of all the candidates, in revised result) and failed to make the grade under his category as the cut off marks (minimum qualifying marks) for Ex- Servicemen (other) OBC category was 46. The candidate has approached this Tribunal through OA No 2923/2011 titled Pawan Singh Vs. GNCTD Ors. and challenged the notification of the recruitment published in the Emp. News of 29 October-4 November, 2011 and requested to consider his appointment against vacancies of Ex-Servicemen (Commando) OBC category as the cut off marks (qualifying marks) for Ex-Servicemen (Commando) OBC category was
30. The same was allowed by the this Tribunal vide judgment dt. 13.08.2013 quashing & setting aside the said notification to the extent that it provided reservation of 50% out of 10% vacancies reserved for Ex- Servicemen and directed the respondent to prepare the select list of Ex- Servicemen category of candidates who qualified the requisite test afresh ignoring the Delhi Police (Appointment & Rectt.) Amendment Rules, 2011. Aggrieved by the ibid judgment, Delhi Police (Respondent No.2) had approached the Hon'ble High Court of Delhi vide CWP No.5430/2013 titled Commissioner of Police/Delhi Vs. Pawan Singh. The same was dismissed by the Hon'ble High Court vide common (OA No.417-2022) (12) order/judgment dt. 23.10.2013. Against the said judgment, Delhi Police (Respondent) has approached the Hon'ble Supreme Court vide S.L.P.(C) No.1980/2014. During hearing on 03.02.2014, the Hon'ble Supreme Court ordered that "the petitioner is permitted to continue with the recruitment process limited only to the personnel belonging to the Ex- Servicemen of the Armed Forces". The matter is sub-judice in the Hon'ble Supreme Court now and the ratio of the said judgment does not apply in this case.
17. We have perused the pleadings on record and also heard Ms. Riti Sarkar, learned counsel for the applicant and Shri Amit Yadav for respondent No.2 and Ms. Nidhi Jain for Shri R.K.Jain for respondent No.1.
18. Several grounds have been taken by the learned counsel for the applicant, including erroneously reserving 50% of the 10% of quota meant for the Ex-SM for specialized skill, creating a separate category/class within the Ex. Servicemen which we have heard carefully. We have also perused the impugned orders and find that the disciplinary authority has passed a detailed order but the (OA No.417-2022) (13) same cannot be said about the impugned passed by the appellate authority which reads as follows:
"The representation dated 07.10.2020 addressed to the CP/Delhi preferred by Ex. PSI (Exe.) Arvind Kumar, No. D/3183 (PIS No.16180192) against the punishment of termination of service vide order No.10294-393/E- I/Estt./OND, Delhi dated 16.12.2019 was placed before the Commissioner of Police, Delhi for consideration and decision. The Commissioner of Police, Delhi has passed the following remarks:-
"CONSIDERED AND REJECTED"
In view of above the Ex. PSI may please be informed accordingly. The contents of this memo. may also please be got noted from the Ex.PSI (Exe.) Arvind Kumar, No D/3183 against his proper receipt with signature and date and the receipted copy having received by the Ex. PSI as proof may please be supplied to this Hdqrs for record."
19. We are surprised that such a non-speaking order has been passed to dispose of a representation which runs into more than 40 pages wherein the applicant has taken a number of grounds and cited catena of judgments in his support. However, the appellate authority has decided not to consider any of these grounds/supporting judgments and passed the aforesaid order. Since this is a case of termination of service, it was all the more necessary that the grounds raised should have been duly considered. In fact, the appellate authority was under obligation to indicate the reasons as to how the order passed by the (OA No.417-2022) (14) disciplinary authority is sustainable, more particularly in the light of a detailed representation submitted by the applicant.
20. The appellate authority is vested with the power to assess the record and before he comes to a conclusion a detailed discussion needs to be undertaken, but in the instant case, the only observation made by the appellate authority confirming the punishment of termination is that he has considered and rejected it. The same order has been communicated by the ACP on behalf of Additional Commissioner of Police Headquarters, Delhi. Thus, the appellate authority has not taken the pains to go through the facts of the case and no reason is assigned as to why the representation submitted by the applicant needs no consideration. We do not find any basis for exercise of such power. It was incumbent upon the appellate authority to consider whether the findings are justified/whether the penalty is excessive or adequate and pass appropriate orders. As we are aware the appellate authority vide exercising powers may pass an order confirming, enhancing, reducing or set aside the penalty or remitting the case back to the authority which imposed the penalty (OA No.417-2022) (15) or any other authority in his discretion, as deemed fit, but only after due consideration. We find that the appellate authority's order has not shown any application of mind and he has not taken an independent decision. Moreover, the impugned order is totally cryptic and non-speaking, as he has merely affirmed the decision of the disciplinary authority. There is nothing to indicate that the appellate authority has passed the order after considering the documents produced, the inquiry report, the explanation of the officer, the order of the disciplinary authority and the representation submitted by the applicant. Therefore, we are of the view that the appellate authority has not discharged his duties as an independent authority by merely passing a one sentence order, affirming the decision of the disciplinary authority. The appellate authority has not even adopted the language implied by the disciplinary authority in a matter which culminated into termination.
21. In view of the above, we have no hesitation to hold that the appellate authority has not exercised his appellate jurisdiction in the manner known to law. We are, at this stage, not going into the merit of the case, but we find that the impugned order passed by the disciplinary authority is (OA No.417-2022) (16) speaking and comprehensive, capturing the details of the case at length and hence we do not find any reason to interfere with the same. In such circumstances, we can only quash the appellate order and direct the appellate authority to consider the same in accordance with law.
22. In view of the facts and circumstances, without going into the merit of the case further, the impugned order of the appellate authority dated 10.03.2021 is hereby quashed and set aside. The appellate authority is hereby directed to dispose of the appeal dated 07.10.2020 by passing a reasoned and speaking order. In the interest of justice, the petitioner shall be given a personal hearing by the said authority and the appellate authority shall dispose of the appeal as expeditiously as possible and preferably within a period of three months from the date of receipt of a certified copy of this order. In the meanwhile, the petitioner will not be given any other relief. The OA is allowed to the extent indicated above. However, there shall be no order as to costs.
(Sanjeeva Kumar) (R.N.Singh)
Member (A) Member(J)
(OA No.417-2022)
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/kdr/