Central Administrative Tribunal - Delhi
Shri Pawan Singh vs Govt. Of Nct Of Delhi on 13 May, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
OA No.2923/2012
with
O No. 4156/2012
M.A. No. 3497/2012
ORDER RESERVED ON: 30.04.2013
ORDER PRONOUNCED ON:13.05.2013
HONBLE MR. G. GEORGE PARACKEN, MEMBER (J)
HONBLE MR. SHEKHAR AGARWAL, MEMBER (A)
OA No. 2923/2012
Shri Pawan Singh, Roll No.730467
S/o Shri Rajender Singh
VPO Issapur, Barvan Pana,
Near Pole NO.70, New Delhi. Applicant
OA No. 4156/2012
1. Shri Devi Ram, Roll No.753581
S/o Shri Umed Singh
V.P.O.-Chamaria,
Tehshil & District Rohtak, Haryana.
2. Shri Jaipal Singh, Roll No.742946
S/o Shri Partap Singh
V.P.O.-Girawar, Tehsil-Meham,
District Rohtak, Haryana. Applicants
By Advocate: Shri Yash Pal Rangi.
Versus
Govt. of NCT of Delhi, through:
1. The Chief Secretary,
Govt. of NCT of Delhi,
New Secretariat,
IP Estate,
New Delhi.
2. Commissioner of Police,
Police Head Quarters,
IP Estate, MSO Building,
New Delhi.
3. Deputy Commissioner of Police
(Establishment),
Police Head Quarters,
IP Estate, MSO Building,
New Delhi.
4. Deputy Commissioner of Police
(Recruitment Cell),
New Police Line,
Delhi. ..Respondents
By Advocate: Mrs. Rashmi Chopra.
O R D E R
Shri G. George Paracken:
Both these Original Applications are identical in nature and, therefore, they are disposed of by this common order.Facts in OA No.2923/2012
2. Applicant, an ex-serviceman belonging to OBC category, is an aspirant for the post of Constable (Executive) Male in Respondents-Delhi Police. They notified 2622 vacant posts of Constable (Executive) Male in the Employment News of 29th October 4th November, 2011. Out of them, 1311 posts were meant for unreserved category, 708 for OBC category, 402 for SC category and 201 for ST category. As per the reservation policy, 10% of the total posts in every category are reserved for Ex-servicemen. There was also stipulation in the aforesaid notification which reads as under:-
10% vacancies are reserved for Ex-servicemen in each category as per rules. Note: Out of 10% quota meant for Ex-servicemen, 50% of such quota will be reserved for following categories of Ex-servicemen (a) Having served in Special Forces/NSG (Special Action Group) or (b) Having received QI Qualified Instructors grading in the Commando Course or (c) Officers from the Navy/Air Force who have worked in the specialized Commando type units.
Note:- The personnel of Central Para Military Forces are not eligible to apply under Ex-servicemen category.
The said stipulation was based on the Delhi Police (Appointment & Recruitment) Amendment Rules, 2011, notified on 08.02.2011. The relevant part of the said amendment is as under:-
Out of the 10% quota meant for Ex-servicemen, half, i.e., 50% of such quota, will be reserved for the following categories:-
(i) Having served in the Special Forces/NSG (Special Action Group).
(ii) Having received as QI Qualified Instructors grading in the commando course.
(iii) Officers from the Navy/Air Force who have worked in the specialized commando type units.
Thus, in the unreserved category there has been reservation for a total 131 posts for Ex-servicemen. Similarly, in OBC category, in SC category and in ST category, 71 posts, 40 posts and 20 posts respectively have been reserved for Ex-servicemen. Out of them 50% of the posts have been earmarked for the categories mentioned in the aforementioned amended Recruitment Rules.
3. A total of 2539 candidates cleared the Physical Endurance and Measurement Test followed by Written Test and qualified for medical examination. They have also been cleared from the point of view of police verification. However, 83 posts of Ex-servicemen could not be filled up due to non-availability of candidates.
4. As the Applicant has qualified in the Physical Endurance and Measurement Test and appeared in Written Test for the aforesaid post but not selected, he made enquiries through applications made under Right to Information Act, 2005. Respondents informed him, vide letter dated 25.06.2012, that while the minimum marks required for qualifying the written examination by the Ex-servicemen was only 30% marks, he got 38% marks. By a subsequent letter dated 22.08.2012, he was informed as under:-
(i)&(ii) No post in ex-servicemen (General and OBC) categories are vacant.
14 posts are lying vacant in ex-servicemen (SC) category.
(iv) 9 posts are lying vacant in ex-servicemen (ST) category.
(v) 13 posts are lying vacant in ex-servicemen (commando) (General) category.
(vi) 17 posts are lying vacant in ex-servicemen (commando) (OBC) category.
(vii) 20 posts are lying vacant in ex-servicemen (commando) (SC) category.
(viii) 10 posts are lying vacant in ex-servicemen (commando) (ST) category.
5. According to the Applicant, even though, admittedly, 17 posts are lying vacant under the Ex-servicemen (OBC) category and he has qualified for appointment under the said category has been denied appointment on the ground that those unfilled vacancies fall within the aforesaid 50% of the vacancies meant for Ex-servicemen (OBC categories) (i) for those who have served in the Special Forces/NSG (Special Action Group); (ii) those who received as QI Qualified Instructors grading in the commando course; and (iii) for those officers from the Navy/Air Force who have worked in the specialized commando type units. The Respondents are keeping those vacancies unfilled as sufficient number of candidates belonging to the aforesaid categories were not available and those who belong to other category of OBC ex-servicemen are considered not entitled for them.
5. The contention of the Applicant is that the aforesaid amendment to the Delhi Police (Appointment & Recruitment) Rules, 1980 is ultra vires and, therefore, the same is liable to be quashed and set aside. His contention is that there cannot be any reservation within the same reserved category. In this regard he has relied upon the judgment of the Honble High Court of Andhra Pradesh dated 28.05.2012 in PIL Nos.22 of 2012 R. Krishnaiah Vs. Union of India represented by its Secretary, General Administration Department, New Delhi and Others. In the said Writ Petition the petitioner was challenging the Resolution to the effect that a sub-quota of 4.5% for socially and educationally backward class of citizens belonging to minorities has been created for reservation in admission in some central educational institutions. The carving out was from 27% reservation for OBCs who were entitled to reservation in admission to central educational institutions. The OBCs having 27% reservation have been broken up into two segments: one segment of 22.5% reservation for OBCs and the second or balance segment of 4.5% reservation for socially and educationally backward class citizens belonging to minorities. The High Court has held that in the absence of any rational classification no sub-quota can be saved by resorting to Article 15(5) and Article 16(4) of the Constitution. Out of detailed examination of the issue, the High Court came to the conclusion that carving out of a sub-quota of 4.5% in favour of backward classes belonging to minorities out of the 27% reservation for OBCs made by the Government of Andhra Pradesh is unconstitutional. Therefore, the Resolution to that effect passed by the Government was quashed and set aside. The relevant part of the said judgment is as under:-
26. The next question is whether the sub-quota can be saved by resorting to Article 15 (5) and Article 16 (4) of the Constitution. Absence of any rational classification.
27. Assuming it is permissible to identify different categories only on the ground of religion, for such a classification to be constitutionally permissible, it must rest upon a distinction that is substantial and not illusory (State of Kerala Vs. N.M. Thomas).
XXX XXX XXX
39. It is true that the Supreme court has permitted the sub-classification of backward classes into more backward classes. Indeed, in Indra Sawhney Vs. Union of India it is held that there is no constitutional bar to the classification of backward classes into more backward classes for the purposes of Article 16(4) of the Constitution. But the fact remains that there is a statutorily prescribed mode for identifying backward classes, namely, through the NCBC Act and, therefore, that procedure must mandatorily be followed. The Central Government cannot unilaterally add to the list of backward classes nor can it cull out a more backward class from the list, without reference to the NCBC.
6. He has also relied upon the judgment of the Apex Court in B. N. Nagaranjan Vs. State of Mysore AIR 1966 SC 1942 wherein it was observed as under:-
It is hardly necessary to mention that if there is a statutory rule or an act on the matter, the executive must abide by that act or rule and it cannot in exercise of the executive power under Art. 162 of the Constitution ignore or act contrary to that rule or act.
7. Further, according to the Applicant, as per information received from the Ministry of Home Affairs, Government of India, NSG is a para-military force and they cannot be included in the category of Ex-servicemen.
Facts in OA No. 5126/20128. Applicants in this case are also Ex-servicemen. They belong to the general category. They were also aspirant for the posts of Constable (Executive) Male as in the case of Applicant in OA No. 2923//2012. They have also qualified in the Physical Endurance, Measurement Test and Written Test. They have also been denied appointment only because of the reservation within the 10% reservations for ex-servicemen in terms of the Delhi Police (Appointment & Recruitment) Amended Rules, 2011.
9. The Respondents have filed their reply. According to them, the Lt. Governor of NCT of Delhi, vide Notification dated 08.02.2011, amended the Delhi Police (Appointment and Recruitment) Rules, 1980 to give 50% reservation out of 10% quota meant for Ex-servicemen in general for those who served in Special Forces/NSG (Special Action Group), those who received QI Qualified Instructors grading in the commando course and those officers from the Navy/Air Force who have worked in the specialized commando type units. According to them, they issued the Notification to fill up 2622 vacancies for the post of Constable (Executive) Male in Delhi Police and the requisite quota/reservation to Ex-servicemen as per the aforesaid Notification was as under:-
Sl.
No Category Category-wise Vacancies Notified 10% quota of vacancies reserved for Ex-Serviceman in each category 50% Vacancies (out of 10% quota) was reserved for Special Force/NSG, Qualified Instructor grading in the commando course & Officers from the Navy/Air force, who have worked in specialized commando type unit.
1 Genl.
(UR) 1311 131 65 2 OBC 708 71 35 3 SC 402 40 20 4 ST 201 20 10 Total Notified Vacancies 2622 262 130 In response to the aforesaid advertisement, Applicant Shri Pawan Singh (OA No. 2923/2012) applied in the Ex-servicemen OBC category. He qualified the Physical Endurance and Measurement Test and the written test. The final select list of 2539 candidates was declared on 22.05.2012. Out of 262 (10% quota) vacancies meant of Ex-servicemen, 83 vacancies could not be filled up due to non-availability of suitable candidates from ex-servicemen quota. The details of 262 vacancies were as under:-
Column (1) (2) (3) (4) (5) (6) (7) Category 10% reserved for Ex-Serviceman category 50% reserved for Ex-Serviceman (Other category) 50% reserved for Ex-Serviceman (Commando category) Filled up vacancy of Ex-Serviceman (other category) Filled up vacancy of Ex-Serviceman (commando category) Unfilled vacancy of Ex-Servicemen (other category) Unfilled vacancy of Ex-Servicemen (commando category) Genl. 131 66 65 66 52 NIL 13 OBC 71 36 35 36 18 NIL 17 SC 40 20 20 06 NIL 14 20 ST 20 10 10 01 NIL 09 10 TOTAL 262 132 130 109 70 23 60 The cut-off marks for ex-servicemen were as under:-
Category SC ST OBC Genl.
Ex-Servicemen (Other) 30 33 46 48 Ex-Servicemen (Commando) NIL (no candidate selected) NIL (no candidate selected) 30 30
10. In the reply filed by the Respondents in OA No. 4156/2012, they have stated that Applicant No.1 Shri Devi Ram secured 36 marks and the Applicant No.2 Shri Jai Pal Singh secured 35 marks. However, since the cut-off marks for general category Ex-servicemen being 48 marks in the case of Ex-servicemen (other), they could not be selected.
11. We have heard the learned counsel for the Applicant, Shri Yash Pal Rangi and the learned counsel for the Respondents, Mrs. Rashmi Chopra. The only issue for our consideration in this OA is whether impugned Annexure A-2 notification called the Delhi Police (Appointment and Recruitment) Amended Rules, 2011 is constitutional or not even though the learned counsel for the Applicant has also stated that some of the categories included in the aforesaid notification are not ex-servicemen at all.
12. It is seen that the President has promulgated rules called the Ex-Servicemen (Re-employment in Central Civil Services and Posts) Rules, 1979, vide Government of India, Ministry of Home Affairs, Department of Personnel & A.R. Notification No.39016/10/79-Estt.(C) dated 15.12.1979 to regulate the recruitment of ex-servicemen in Central Civil Services and Posts. According to Rule 2 (c ) ibid, ex-servicemen means a person who has served in any rank (whether as a combatant or as a non-combatant) in the Regular Army, Navy and Air Force of the Indian Union but does not include a person who has served in the Defence Security Corps, the General Reserve Engineering Force, the Lok Sahayak Sena and the paramilitary forces; and
(i) who has retired from such service after earning his/her pension; or
(ii) who has been released from such service on medical grounds attributable to military service or circumstances beyond his control and awarded medial or other disability pension;
(iii) Who has been released, otherwise than on his own request, from such service as a result of reduction in establishment; or
(iv) who has been released from such service after completing the specific period of engagement, otherwise than at his own request or by way of dismissal or discharge on account of misconduct or inefficiency, and has been given a gratuity, and includes personnel of the Territorial Army, of the following categories, namely:-
(i) pension holders for continuous embodies services;
(ii) person with disability attributable to military service; and
(iii) gallantry award winners.
The Territorial Army Personnel will be treated as ex-servicemen with effect from 15.11.1986.
13. Rule 4 of the aforesaid rules provide for Reservation of Vacancies and it reads as under:-
(1) Ten pen cent of the vacancies in the posts of the level of Assistant Commandant in all paramilitary forces; ten per cent of the vacancies in each of the categories of Group C posts and of such posts in each Group C Service, and twenty per cent of the vacancies in each of the categories of Group D posts and of such posts in each Group D service including permanent vacancies filled initially on a temporary basis and temporary vacancies which are likely to be made permanent or are likely to continue for three months and more, to be filled by direct recruitment in any year shall be reserved for being filled up ex-servicemen:
Provided the percentage of reservation so specified for ex-servicemen in a category of posts shall be increased or decreased in any one recruitment year to the extent to which the total number of vacancies reserved for ex-servicemen, Scheduled Castes and Scheduled Tribes (including the carried forward reservations for SC and ST) and for any other categories taken together, falls short or in excess, as the case may, of fifty per cent of the vacancies in that category of posts filled in that year:
Provided further that in case of an increase in the reservation for the ex-servicemen under the preceding proviso, the additional vacancies so made available for them shall be utilized first for the appointment of disabled ex-servicemen and if any such vacancies still remain unfilled thereafter the same shall then be made available to other ex-servicemen.
(2) Out of the vacancies reserved for being filled by ex-servicemen, vacancies shall be reserved for candidates belonging to the Scheduled Castes and Scheduled Tribes in accordance with such orders as are issued in this behalf by the Central Government from time to time.
Provided that if any ex-servicemen belonging to the Scheduled Caste or Scheduled Tribe is selected, his selection shall be counted against the overall quota of reservations that shall be provided for the Scheduled Tribe is selected, his selection shall be counted against the overall quota of reservations that shall be provided for the Scheduled Castes or Scheduled Tribes in accordance with the orders issued by the Central Government from time to time (3) No vacancy reserved for ex-servicemen in a post to be filled otherwise that on the results of an open competitive examination shall be filled by the Appointing Authority by any general candidate, until and unless the said authority-
has obtained a Non-availability Certificate from the employment exchange (where a requisition is placed on an employment exchange);
has verified the non-availability of a suitable candidate by reference to the Director-General, Resettlement and recorded a certificate to that effect; and has obtained approval of the Central Government.
14. Thus, it is seen that Central Government has already made rules governing reservation of vacancies for ex-servicemen. In the said rules, the terms ex-servicemen has been clearly defined. According to the said definition, only Person who have served in any rank in Army, Navy and Air Force are considered as ex-servicemen. It has also been held very clearly that persons who have served para military forces are not ex-servicemen. When Central Government in its rules has defined the term ex-servicemen in a particular manner, the State Government cannot make a rule contrary to it. According to the notification dated 08.02.2011, the same was issued by the Government of NCT of Delhi through the Lt. Governor in exercise of powers conferred by sub-section (1) and (2) of Section 147 of the Delhi Police Act, 1978. The said rules empowers the Lt. Governor to make rules for carrying out the purpose of said Act which includes recruitment to the Delhi Police under clause (b) of section 5. Such a notification cannot be inconsistent with the rules made by the Central Government. For the definition of ex-servicemen contained in the Rules made by the Central Government, those who served Special Forces/NSG (Special Action Group) are not ex-servicemen. If they are ex-servicemen before joining such forces, they would automatically be included in the definition of ex-servicemen. Again those received the QI (Qualified Instructors) grading Commando Course do not come within the definition of ex-servicemen while officers from the Navy/Air Force are already considered as ex-servicemen, there cannot be a sub-group of personnel who have worked in the specialized Commando type units. We also agree with the learned counsel for the Applicant that the reservation within reservation allowed by the Respondents are not based on rational classification.
15. In the above facts and circumstances of the case, we allow this OA. Consequently, we quash and set aside impugned notification No.13/44/2009/HP-I/Estt dated 08.02.2011 reserving 50% out of the 10% quota meant for ex-servicemen to the following categories:-
(a) Having served in Special Forces/NSG (Special Action Group).
(b) Having received QI Qualified Instructors grading in the Commando Course.
(c) Officers from the Navy/Air Force who have worked in the specialized Commando type units.
Consequently, the impugned notification issued by the Respondents in the Employment News of 29th October - 4th November, 2011 for appointment against 2622 vacancies of Constables (Executives) Male is also quashed and set aside to the extent it has provided for reservation of 50% out of the 10% of vacancies reserved for Ex-servicemen (a) Having served in Special Forces/NSG (Special Action Group) or (b) Having received QI Qualified Instructors grading in the Commando Course or (c) Officers from the Navy/Air Force who have worked in the specialized Commando type units. The Respondents shall, therefore, prepare the select list of ex-servicemen category of candidates who qualified the requisite test afresh ignoring the Delhi Police (Appointment and Recruitment) Amendment Rules, 2011 within a period of two months from the of receipt of a copy of this order. If any candidate (s) who have already been appointed but not coming within the fresh select list, and it is found necessary to cancel his/their appointments, the Respondents may do so after due notice to them. The Respondents shall consider the Applicants and all other similarly placed persons for appointment to the post of Constable (Executive) against the 10% seats reserved for ex-servicemen, if their names appear, in revised select list. Those who are found eligible shall be appointed as such with retrospective effect within one month thereafter with all consequential benefits being enjoyed by their counter parts except backwages. The Respondents shall issue necessary appointment orders in their favour in implementation of the aforesaid directions within a period of 2 months from the date of receipt of copy of this order.
16. There shall be no order as to costs.
(SHEKHAR AGARWAL) (G. GEROGE PARACKEN)
MEMBER (A) MEMBER (J)
Rakesh