Central Administrative Tribunal - Delhi
Dharmendra Kumar Vidhyarthi vs Staff Selection Commission on 15 October, 2024
1
OA No.3967/16
(Ct-4)
Central Administrative Tribunal
Principal Bench
New Delhi
OA No.3967/2016
Order reserved on 24.09.2024
Order pronounced on 15.10.2024
Hon'ble Mrs. Harvinder Kaur Oberoi, Member (J)
Hon'ble Dr. Sumeet Jerath, Member(A)
1. Dharmendra Kumar Vidyarthi
S/o Sh. Kameshwar Singh
R/o G-6, Shivam Appts, Sunder Garden, Dimna Road,
PO-Mango, Jamshedpur, Jharkhand
Group 'B', Aged about 39 years
2. Sanjeeb Kumar Karna
S/o Late Sh. Hari Deo Lal Karna
R/o C/o Madan Singh Antiwan
Makan No. - 5.
Siddharth Vihar, Tarli Kandoli, Dehradun, Uttarakhand
- 248001.
Group 'B', Aged about 39 years
3. Aftab Alam, S/o Sh. Abdul Ghafoor
R/o D. No. 43-7-2 1st Floor
Railway New Colony, Visakhapatnam-530016 Group
'B', Aged about 38 years
4. Amit Kumar, S/o Sh. Giridhari Modi
R/o Modi Tola, AT+PO Sultangaj
Distt. Bhagalpur, Bihar-813213
Group-'B', Aged about 35 years
...Applicant
(By Advocates: Neeraj Kumar Sharma and Mr. Ajesh Luthra)
Vs.
1. Union of India, Through its Secretary Department of
Personnel & Training, Ministry of Personnel, Public
Grievance & Pension, North Block, New Delhi.
2. Staff Selection Commission through its Chairman
(Head Quarter), Block No 12,
CGO Complex, Lodhi Road
New Delhi-110054
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OA No.3967/16
(Ct-4)
3. The Chairman, Central Board of Direct Taxes, Ministry
of Finance, Directorate of Revenue
9th Floor, Lok Nayak Bhawan, Khan Market
New Delhi-110003.
4. Chief Commissioner of Income Tax (North East Region)
Central Board of Direct Taxes Office of the Principal
Chief Commissioner of Income Tax, Aaykar Bhawan,
1st Floor, Christian Basti
G.S. Road, Guwahati-781005.
5. Controller General of Defence Accounts
Through its Controller General, Ulan Batar Road,
Palam, Delhi Cantt., Delhi-110010.
6. Controller of Defence Accounts Ridge Road, Jabalpur-
482001
(Service of Respondent No. 4 through Respondent No. 3 and
of Respondent No. 6 through Respondent No. 5, may be
effected)
...Respondents
(By Advocate: Mr. Gyanendra Singh)
ORDER
Hon'ble Mrs. Harvinder Kaur Oberoi, Member(J) The present OA has been filed by the applicants seeking the following reliefs:-
a) Quash and set aside the impugned order dated 26/07/2016 placed at Annexure A/1 above, to the extent it denied the benefit of Ex-servicemen status to the applicants for purposes of appointment consequent to their selection towards CGLE-2013 and
b) Direct the respondents to further consider and appoint the applicants to the nominated posts
c) Accord all consequential benefits including monetary and seniority benefits.
d) Award costs of the proceedings; and 3 OA No.3967/16 (Ct-4)
e) Pass any order/relief/direction(s) as this Hon'ble Tribunal may deem fit and proper in the interests of justice in favour of the applicants".
2. The brief facts of the case are as under:-
2.1 In pursuance of an employment notification issued by the Staff Selection Commission to fill up various posts under various Ministries/Organisations of the Union of India by way of Combined Graduate Level Examination 2013, the applicants applied for the same and participated in the selection process. The closing date of receipt of applications was 15/02/2013. It is pertinent to mention that the notification was issued in January 2013 and the Tier-l examination was conducted on 21/04/2013. The applicants had applied for the same while they were in the Nation's defense services except applicant No. 2, who had already been discharged on 31/01/2012. The details of each applicant concerning their services are as under:-
Sl. Name of Dept. & Date of Roll No.& Selected Date of No the joining in Civil Rank & discharge . applicant employment obtained in nominate from Armed CGLE 2013 d on the Forces basis of CGLE 2013 to the post of
1. Dharmendr Punjab National 220150861 Income 31.012.201 a Kumar Bank 07.07.2014 9 Rank - Tax 3 Vidyarthi 5145 Inspector
2. Sanjeeb CGDA (Auditor) 220104350 Income 31.01.2012 Kumar 04.08.2014 6 Rank- Tax Karna 5134 Inspector 4 OA No.3967/16 (Ct-4)
3. Aftab Alam Trainee/Apprentic 800701207 Income 31.07.2012 e Railway 7 Rank- Tax 21.07.2014 5143 Inspector
4. Amit Kumar State Bank of 320151473 Auditor in 31.01.2013 India 10.04.2013 3 Rank- CGDA 8974 2.2 After clearing the Tier-l examination, the applicants were directed to appear for the Tier-II examination on 29/09/2013.
2.3 However, as learned counsel for the applicants contended, due to mass irregularities in the examination, vide Order dated 23.04.2014 passed by this Tribunal in TA No 48/2013, the entire selection process was scrapped, and the examination was rescheduled.
2.4 It is submitted that the re-exam CGL (Tier-I) examination 2013 was conducted on 27.04.2014. The applicants once again participated and qualified for the Tier-l examination and appeared in the Tier-II re-examination conducted by SSC on 21.09.2014. The results whereof were declared on 31.10.2014, wherein the applicants were declared to have obtained 354, 363.25, 354.25 and 287.5 marks respectively.
2.5 Subsequently, the applicants were interviewed and their document verifications were also conducted in January 2015. 5 OA No.3967/16
(Ct-4) 2.6 It is further contended that vide interim Order dated 19.02.2015 passed in OA No.330/00094/2015 this Tribunal (Allahabad Bench) stayed the publication of final results. However, the same was ultimately vacated on 12.03.2015 and on the same day, SSC declared the final results after 2 years of the initiation of the process.
2.7 Applicant Nos.1, 2, and 3 were declared selected for the post of Income-Tax Inspector in Central Board of Direct Taxes and were allocated to the office of Principal CCIT, Guwahati (NER). Applicant No. 4 was declared selected for the post of Auditor in CGDA.
2.8 Further, it is stated that during the interregnum, the DoPT vide OM dated 14.08.2014 clarified that if an Ex- servicemen applies for various vacancies before joining any civil employment, he/she can avail all the benefits of reservation as Ex-servicemen for any subsequent employment. The aforesaid OM was issued by DOPT since the Ex-servicemen at the time of their release or discharge from the Armed Forces normally apply for more than one vacancy on the civil side and join such civil employment which comes first to him while results of other selections are still awaited. This affects chances of Ex-servicemen in the case of direct recruitment for subsequent suitable employment. An Ex-servicemen, generally applies for more 6 OA No.3967/16 (Ct-4) than one civil employment intending to settle himself in the civil side after his discharge from the Armed Forces. Such an Ex-servicemen would not wait for the results of other selection processes where he had applied but would take up the very first civil employment because there is no certainty that he would be selected for any other civil employment, the results of which are still awaited or the selection process is still on. Therefore, the Ex- servicemen were being affected in their career prospects on the civil side. To obliterate the hardship being faced by the Ex-servicemen, the said OM dated 14.08.2014 was issued by the Government, same reads as under:-
"In terms of this Department's Notification No. 3,9016/10/79-Estt(C) dated 15 December, th 1979 as amended from time to time and which was last amended vide Notification No.36034/1/2006-Estt (Res) dated 4 October, th 2012, the benefit of reservation to ex-servicemen is available at ten percent of the vacancies in Group C posts and twenty per cent of the vacancies in Group D posts in all the Central Civil Services and posts. Benefit of reservation is also extended at ten percent of the vacancies in the posts upto of the level of Assistant Commandant in all para-military forces to be filled by direct recruitment.
2. Vide this Department's O.M. No. 36034/27/84- Estt.(SCT) dated 02.05.1985, it was decided that once an ex-serviceman has joined the Government job on civil side after availing of the benefits given to him as an ex-serviceman for his re-
employment, his ex-serviceman status for the purpose of re-employment in Government would cease. It was also decided that on his joining the civil employment, he would be deemed to be a civil employee and would accordingly be entitled to 7 OA No.3967/16 (Ct-4) only such of the benefits like relaxation of age etc. as admissible to civil employees in the normal course. Vide this Department's O.M. No. 36034/21/87-Esu.(SCT) dated 07.11.1989, it was clarified that the instructions of 02.05.1985 shall not apply to those ex-servicemen who have been re-employed or are re-employed by private companies/ autonomous bodies/ public sector undertakings/ government offices on casual/ contract/ temporary ad-hoc basis and who can be removed from such service at any time by their employer concerned.
3. An ex-serviceman at the time of his release or discharge from the armed forces normally applies for more than one vacancy, but in case he/she joins any civil employment due to early declaration of results/selection, he/she is not entitled for the benefit of reservation for ex-servicemen for subsequent employment. It has been brought to the notice of this Department that the aforesaid instructions are affecting the chances of ex- servicemen in the case of direct recruitment for subsequent suitable employment.
4. The matter has, therefore, been considered in consultation with Department of Ex-servicemen, Ministry of Defence. It has now been decided that if an ex-serviceman applies for various vacancies before joining any civil employment, he/she can avail of the benefit of reservation as ex- serviceman for any subsequent employment. However, to avail of this benefit, an ex-serviceman as soon as he/she joins any civil employment, should give self- declaration/undertaking to the concerned employer about the date-wise details of application for various vacancies for which he/she had applied for before joining the initial civil employment. Further, this benefit would be available only in respect of vacancies which are filled on direct recruitment and wherever reservation is applicable to the ex-servicemen.
5. The above Orders shall take effect from the date of issue of this Office Memorandum.
6. All the Ministries/Departments are requested to bring the above instructions to the notice of all appointing authorities under their control for information and compliance."8 OA No.3967/16
(Ct-4) 2.9 It shall not be out of place to mention here that applicant No.1 had joined Punjab National Bank as a Clerk on 07.07.2014 after his discharge on 31.12.2013. Likewise, applicant No. 2 joined the post of Auditor in CGDA on 04.08.2014 under selection in CGLE-2012. Applicant No. 3 joined the Indian Railways as an apprentice (trainee) on 21.07.2014. Applicant No. 4 joined the State Bank of India as a Clerk on 10.04.2013. The reasons are obvious. The delay in the culmination of CGLE-2013 has been fatal and the applicants could not sit idle awaiting the culmination of CGLE-2013 with the uncertainty of selection. 2.10 It is submitted that despite the nominations of the applicants to the Administrative Ministries by the SSC, the applicants were not issued offer(s) of appointment on the ground that they were not entitled to the Ex-servicemen quota as they are already employed on the civil side. The matter was referred by the Administrative Ministries to the Staff Selection Commission for clarification. 2.11 It is stated that during the aforesaid process, the Chairman Staff Selection Commission took a decision to apply the DoPT OM dated 14.08.2014 in the cases of the applicants. It is pertinent to mention here that vide the said communication, the OM dated 14.08.2014 has been 9 OA No.3967/16 (Ct-4) extended to similarly situated Ex-servicemen namely Sh. Potta Srinivasa Rao (Roll No. 9001007117) and Sh. Aditya Prakash (Roll No. 9001030575) and orders were issued on 22.05.2015 by the SSC Head Quarters upon a reference made to them by the SSC (Karnataka-Kerala Region). The record of the respondents further reveals that in November- December 2015, 42 Ex-servicemen (12 from SSC Western Region, 30 from SSC Eastern Region), similarly placed to the applicants, were further nominated by the SSC (Eastern Region) and they, too, have been appointed. 2.12 It is further stated that not only this, 4 similarly placed Ex-servicemen have been nominated by the SSC (Eastern Region) and appointed by CBDT pursuant to pronouncement of the Order on the issue by Calcutta Bench of the Tribunal in OA No. 570/2015.
2.13 It is further added that the Hon'ble High Court of Karnataka vide its judgement dated 16.10.2012 in Writ Petition No. 29840-841/2009 (S-KAT) has already over-ruled the view that the Ex-servicemen are prohibited from claiming reservation under Ex-servicemen's category, to any higher post, for the second time. Hon'ble Karnataka High Court had referred to a Full Bench judgment of Punjab and Haryana High Court in the case titled Harbhajan Singh vs. State of Punjab & Anr., reported as 1977 (2) SLR 130 where the 10 OA No.3967/16 (Ct-4) Punjab & Haryana High Court had observed that if an Ex- servicemen is otherwise eligible for appointment, there is no reason or justice in excluding him from appointment on the ground that he accepted some other employment in the meanwhile.
2.14 The Staff Selection Commission has referred the issue to the DoP&T which, in turn, vide the impugned order dated 26.07.2016 held that the OM dated 14.08.2014 will not apply to the applicants. It is submitted that the aforesaid order is illegal, arbitrary and discriminatory for reasons mentioned hereinabove.
2.15 It is further added that the relaxation is availed at the time of appointment and not at the time of application. The applicants had applied against various recruitment processes when they were still serving the Armed Forces and were due for their discharge/release from the Armed Forces within one year. At the time of availing relaxation admissible to Ex- servicemen in pursuance to participation in CGLE-2013, the OM dated 14.08.2014 had already come into force and therefore, the applicants cannot be denied their appointment pursuant to CGLE-2013 and the respondents must necessarily grant the status and relaxations as admissible to the Ex-servicemen for the instant recruitment process also. 11 OA No.3967/16 (Ct-4) 2.16 In addition to this, it is argued that various Regions of Staff Selection Commission have already applied the OM dated 14.08.2014 to the similarly placed Ex-servicemen in CGLE-2013 itself and that the respondents cannot discriminate against the applicants. However, in the present case, even though the Chairman Staff Selection Commission deliberated at length and decided to extend the benefits to all Ex-servicemen, still not implemented its own decision and the matter was referred to DoPT, for the first time, for reasons best known to SSC. It is submitted that the SSC has granted similar benefits to others. The Chairman of the SSC has taken a view that the benefit of OM dated 14.08.2014 should be extended to the applicants as well. As per the CGLE-2013 advertisement, the decision of the Chairman, SSC has to be final. There appears to be no valid reason for the SSC to forward the matter to DoP&T and there is no valid reason for the DoP&T to take a different view.
2.17 By the impugned order dated 26.07.2016, the respondents have created an artificial line of distinction between the Ex-servicemen candidates of CGLE-2013. It is submitted that Ex-servicemen candidates are a class in themselves and there cannot be a class within a class. All Ex- Servicemen candidates towards a specified recruitment are a class and equal irrespective of the circumstance where one 12 OA No.3967/16 (Ct-4) Ex-servicemen candidate has already joined civil employment prior to 14.08.2014 or not. An Ex-servicemen candidate of CGLE-2013 who had already joined a civil employment prior to 14.08.2014 cannot be different from such other Ex- servicemen CGLE-2013 candidates who joined some other civil employment after 14.08.2014. This is so because, if both such candidates get selected pursuant to CGLE-2013, it shall not be reasonable not to grant a second time benefit of relaxation to one candidate and deny the same to the other candidate.
2.18 Further, the OM dated 14/08/2014 is a declaratory notification. It is not a procedural OM. Vide said OM, it has been declared that the Ex-servicemen would be entitled to their status and benefits admissible to Ex- servicemen even for subsequent appointments on the civil side. The declaratory OMs have a retrospective effect.
3. It is pertinent to point out here that applicant Nos.1 and 4 are not in Central Govt. Service, till date as their employment in the nationalised banks is not towards civil posts. Applicant No. 3 is employed as a Traffic Apprentice (Trainee) only on provisional and temporary basis. The representations filed by the applicants have now been rejected vide the impugned order.
13OA No.3967/16 (Ct-4)
4. Learned counsel for the applicants has also pointed out that the respondents are now filling the vacancies meant for them by appointing others or carrying forward those vacancies.
He supports his contention that the services rendered in a nationalized bank have been held to be a non civilian post in terms of the decision rendered by the Hon'ble High Court of Karnataka in T.S. Varghese vs. Reserve Bank and Ors. {1980 (1) KAR LJ 300} on 20.11.1979. The relevant portion of the said judgment reads as under:-
"8. In the light of the above discussion, I hold that the petitioner, who is an employee of the Reserve Bank of India does not hold a civil post under the Union Government as claimed by him. Therefore, provisions of Art. 311(1) has no application and consequently, the contention urged by the petitioner that Regulation 47(2) of the Reserve Bank of India State Regulation is violative of Art. 311(1) of the Constitution has to be rejected."
Hence, the present OA has been filed.
5. Objecting to the claim of the applicant, different counter affidavits have been filed by respective respondents. The stand of all the respondents is more or less the same that all the four applicants qualified the Tier-I and Tier-II examination in the CGLE, 2013 under the category of Ex-Servicemen and, therefore, the Commission considered their candidature in the said category. When the applicants were called for interview and document verification it was noticed that all of 14 OA No.3967/16 (Ct-4) them had already availed of the benefit under the ex- servicemen quota while joining their earlier employment.
6. As argued by learned counsel for the respondents it is worthwhile to submit that the Govt. of India, M/o Personnel & Training OM dated 02.05.1985 stipulates that once an ex- serviceman has joined the Government job on the civil side after availing of the benefits given to him as an ex- serviceman for his re-employment, his ex-serviceman status for re-employment in Government ceases. Thus, he cannot claim again the benefit of the ex-serviceman quota.
7. Thereafter, the DOP&T issued another OM dated 07.11.1989. In terms of the said OM it was stipulated that the provisions contained in OM dated 02.05.1985 shall not apply to those ex-serviceman who have been re-employed or are re-employed by Private companies/autonomous bodies/public service undertakings/government Offices on casual/contract/temporary ad hoc basis and who can be removed from such service at any time by their employer concerned.
8. It is further stated that the DOP&T subsequently, issued another OM dated 14.08.2014 to the effect that an ex- serviceman can avail the benefit of reservation as an ex- serviceman for any subsequent employment from the date of 15 OA No.3967/16 (Ct-4) issue of the said OM provided he gives a self declaration/undertaking to the concerned employer about the date-wise details of application for various vacancies for which he had applied for before joining the initial civil employment.
9. Applicant No.1 joined the civil employment in Punjab National Bank on 07.07.2014 and after qualifying the CGLE 2013, he was selected to the post of Income Tax Inspector in Central Board of Direct Taxes (CBDT). Applicant No.2 was appointed in civil employment as CGDA (Auditor) on 04.08.2014 based on CGLE 2012. He was selected and nominated on the basis of CGLE 2013 as Income Tax Inspector in CBDT. Applicant No.3 joined as a Trainee/Apprentice Railway on 21.07.2014. He was selected as per CGLE 2013 to the post of Income Tax Inspector in CBDT. Similarly, applicant No.4 joined civil employment in State Bank of India on 10.04.2013. He was selected and nominated as per CGLE 2013 to the post of Auditor in CGDA.
10. It is pertinent to point out here that all the applicants while joining the civil posts had availed of the benefit of reservation of ex-serviceman. Hence, their cases of seeking the benefit under OM dated 14.08.2014 was rejected by the respondents as they all joined civil posts prior to the effective date of the aforesaid OM, after getting benefit of reservation 16 OA No.3967/16 (Ct-4) under ex-serviceman quota. Hence, the action of respondents in rejecting the claim of the applicants is justified and in accordance with the law.
11. We have heard the learned counsel for both the parties and perused the records.
12. It is not in dispute that all the applicants joined their earlier employment prior to the effective date of OM dated 14.08.2014, that too, after getting the benefit under ex- servicemen quota. However, applicant Nos. 1 and 4 are not in Central Govt. Service, as their employment in the nationalised banks is not towards civil posts. Applicant No.3 is employed as a Traffic Apprentice (Trainee) only on provisional and temporary basis which according to the OM dated 07.11.1989 is not covered under the civil post, being not a permanent post. Hence, the cases of applicant Nos.1, 3 and 4 are fit cases to be given the benefit of OM dated 14.08.2014. They are entitled for the benefit of as mentioned in the said OM.
13. Accordingly, the OA is allowed with respect to applicant Nos.1, 3 and 4. The impugned order dated 26.07.2016 with respect of the said applicants is quashed and set aside. The respondents are directed to consider and appoint these applicants to the posts on which they have been nominated 17 OA No.3967/16 (Ct-4) as per their merit in the batch. These applicants shall also be entitled to seniority and annual increments and other benefits, however, on a notional basis.
14. Coming to the case of applicant No.2, it is seen that the applicant was appointed in civil employment as CGDA (Auditor) on 04.08.2014 pursuant to his selection in CGLE- 2012 under ex-servicemen quota. He again filed application for CGLE-2013 and achieved 5134 rank and nominated for the post of Income Tax Inspector in CBDT. The OM dated 14.08.2014 reiterates the earlier OMs dated 02.05.1985 and 07.11.1989 wherein it has been stated that "once an ex- serviceman has joined the Government job on civil side after availing of the benefits given to him as an ex-serviceman for his re-employment, his ex-serviceman status for the purpose of re-employment in Government would cease". Thus, the applicant having availed the benefit under the Ex-serviceman quota in CGLE-2012, he cannot claim the same twice i.e in 2013 as well. Further, the chance to avail the benefit more than once has been granted by the OM dated 14.08.2014 in specific cases where a declaration is made by the employee while filling up the forms for subsequent employment. The applicant filled up the form in 2012 and 2013 i.e. in different years, therefore, he could not have given the details of subsequent employments of 2013 in 2012. Secondly, the OM 18 OA No.3967/16 (Ct-4) dated 14.08.2014 had become effective from the date of issuance i.e. after joining of a civil post by applicant No.2 i.e. on 04.08.2014. Hence, he cannot claim the benefit of OM dated 14.08.2014. Accordingly, the OA is dismissed qua applicant No.2.
15. MA, if any, also stand disposed of.
16. No order as to costs.
(Dr. Sumeet Jerath) (Harvinder Kaur Oberoi) Member(A) Member(J) /vb/