Central Administrative Tribunal - Delhi
Punish vs Govt. Of N.C.T. Of Delhi on 16 November, 2011
CENTRAL ADMINISTRTIVE TRIBUNAL PRINCIPAL BENCH : NEW DELHI Original Application No.3433/2010 New Delhi, this the 16th day of November, 2011 CORAM: Honble Mr. G. George Paracken, Member (J) Honble Dr. Veena Chhotray, Member (A) Punish, S/o Shri Rajender Singh, R/o H.No.355, Vill-Alipur, Delhi 110 036 Applicant (By Advocate: Shri Ajesh Luthra) Versus 1. Govt. of N.C.T. of Delhi Through the Chief Secretary, 5th Floor, Delhi Sachivalaya, New Delhi 2. The Principal Secretary (Home), GNCT of Delhi, 5th Floor C Wing, Delhi Sachivalaya, New Delhi 3. The Director General (Prisons), GNCT of Delhi, Prisons Headquarters, Near Lajwanti Garden Chowk, Janakpuri, New Delhi 4. The Chairman, Delhi Subordinate Services Selection Board, Govt. of NCT of Delhi, F-18, Karkardooma, Institutional Area, Delhi 92 Respondents (By Advocate: Ms Rashmi Chopra) O R D E R
By Dr. Veena Chhotray:
The applicant had been appointed as an Assistant Superintendent under the Directorate General of Prisons, GNCTD (Res.3) on the basis of a recruitment process undertaken through the DSSSB during the years 2008-09. This was under the OBC category. Subsequently, however, vide the impugned order dated 28.9.2010 his services have been terminated under sub-rule (1) of Rule 5 of the Central Civil Services (Temporary Service) Rules, 1965. By way of relief, the OA seeks quashing and setting aside the impugned order (Annex. 1) qua the applicant with all consequential benefits.
In response to the prayer for interim relief, directions have been issued restraining the respondents from giving effect to the impugned order.
2. The learned counsels Shri Ajesh Luthra and Ms Rashmi Chopra would argue the case respectively for the applicant and the respondents.
3. The brief facts are that in response to the Advertisement No.01/2008 under the Post Code 12/08, vacancies were advertised for the post of Assistant Superintendent in Central Jail. Initially the number of vacancies advertised under the OBC category was 7. Subsequently, however, the same was modified to make it a total of 12. The applicant had participated in the aforesaid selection process and as per the Result Notice declared on 1.5.2009, his name had been included as the last serial no. in the total 11 candidates provisionally selected under the OBC category (Annex. A/3). The applicant had scored 109 marks in the main examination. By the OM dated 14.5.2009 the applicant had been offered appointment as Assistant Superintendent in Central Jail (Annex. A/4). He joined the post and also completed the six months pre-induction training.
3.1 In the meanwhile, certain developments took place because of which the DSSSB had to have a re-look at the earlier merit list recommended for posts under various categories including the OBC. This was because after declaration of the results and putting the entire merit list on the web site of the Board, references from some candidates intimating discrepancies in the merit list were received and the matter had to be re-checked. In this background, vide their letter dated 26.6.2009 the DSSSB requested the Office of the D.G. (Prisons) to keep in abeyance appointment of three candidates belonging to different categories. This, inter alia, included the name of the applicant under the OBC category (a reference to this communication is found at Annex B/1 with the CA). In their reply dated 16.7.2009 the user department of course informed about the applicant having joined in the meanwhile and having been posted after attending the in-service training. In these circumstances, the services of the applicant were not kept in abeyance and the applicant continued to work (Annex. A/5). However, redrawing the merit list as per marks of Part-II (Descriptive Main Examination), and in the event of the same marks being scored by more than one candidate, determining the order of merit taking the date of birth as the criteria; another communication was sent by the DSSSB to the DG (Prisons) vide their Office Order dated 26.12.2009 (Annex B/1 only). It was intimated that under the OBC category cancelling the earlier recommendation in favour of the applicant, instead the name of one Shri Rajpal Singh was recommended. The said Shri Singh, though scoring the same marks as 109, had been ranked higher in merit than the applicant considering his seniority in age (the date of birth of Shri Rajpal Singh was 1.4.1982, whereas that of the applicant 10.11.1982).
This resulted in passing the order dated 28.9.2010 by the respondent no.3, terminating the services of two earlier selected candidates, including the present applicant before us. Challenging this order had occasioned the present OA.
4. While arguing the case, the main thrust of the learned counsel, Shri Ajesh Luthra would be that the services of the applicant were being terminated despite vacancies being available. In support, it would be argued that as against 12 notified OBC vacancies (including the subsequent modification), the merit list as per the Result Notice dated 1.5.2009 was only in respect of 11 candidates. Further, it would be submitted that even on redrawing of the merit list, the said Rajpal Singh had not in fact joined the Department.
To substantiate the point further, the learned counsel Shri Luthra would also submit that out of the originally recommended candidates, 5 persons had not joined and the Prisons Department by a communication dated 17.7.2009 had requested the DSSSB to forward 5 more dossiers from the final merit list. Admittedly, three candidates in the list of those not having joined, belonged to the OBC category. Thus as per the learned counsel, a total of 5 vacancies under the OBC category were available; and still the respondents were unjustifiably terminating the services of the applicant after having appointed him. The impugned action would be averred to be an illegal invocation of the powers under Rule 5 (1) of the CCS (Temporary Service) Rules.
5. The aforesaid contentions would be rebutted by the respondents learned counsel Ms Rashmi Chopra. It would be submitted that even after the modification the number of vacancies under the OBC category was 11 and not 12. The mention of 12 vacancies in this regard at page 1 of their Counter Reply would be averred to be an inadvertent mistake. As regards the request for substitute candidates, their stand would be that the same had not been acted upon by the DSSSB. In support, the copy of a letter dated 4.7.2008 issued from the Services Department of the GNCTD and addressed to the DSSSB would also be produced before us. As per this letter, the Government was not in favour of preparation of a supplementary / additional panel. Further, it had been advised that the results were to be confined to the number of vacancies for which requisition was received before finalization of result and in such cases also no supplementary or additional panel needed to be prepared.
It would also be submitted by Ms Chopra that as per the revised merit position communicated by the DSSSB, the name of the applicant had figured at serial 5. This list shows that all these candidates though scoring 109 marks had been arranged on the basis of seniority in age. Thus, it would be argued that the claims now being contended on behalf of the applicant were not tenable.
The learned counsel would also justify the decision of termination referring to the specific condition stipulated in para-2 of the offer of appointment. As per this letter, the appointment was on temporary basis. Further, para-2 had specified that the appointment could be terminated at any time by one months notice or one months salary in lieu thereof without assigning any reason. Thus, as per the learned counsel, the applicant did not have any legal right to back-up his claims.
6. On the point of the respondents not maintaining any waiting panel, the applicants learned counsel would register a strong objection. To buttress his argument, reliance would be placed on the GOI Instructions enclosed vide Annexure A/7. As per these instructions, in the matter of direct recruitment by competitive examinations, it had, inter alia, been laid: If however, some of the candidates recommended / allotted for appointment against the specific number of vacancies reported in respect of a particular examination do not become available for one reason or other, the Commission may be approached within a reasonable time for replacements from the reserves, if available. The learned counsel would emphasize that the present case was not seeking accommodation against future vacancies but in respect of consequential vacancies from the same panel. As per Shri Luthra, taking a contrary view as was being done by the respondents in not maintaining any waiting panel would not be in consonance with the aims and objectives of selection i.e. to find meritorious candidates to fill the vacancies from among eligible persons.
7. Having carefully considered the respective submissions and the material on record, we need to clarify a few factual aspects first. As regards the total number of vacancies notified in this recruitment process under the OBC category varying versions have come before us about the number being 12 or 11. The applicants learned counsel, Shri Luthra has also sought to include in the number of vacancies available, the three OBC vacancies occurring as a result of non-joining of the selected candidates.
7.1 To proceed further, another pertinent issue is the redrawn merit list by the DSSSB and the position of the applicant therein. As per the Counter Reply this was as follows:-
REVISED MERIT POSITION OF CANDIDATES WITH MARKS 109 AS PER THEIR AGE:-
OBC CATEGORY MARKS 109:-
S. No. R.No, Name Cat Com D.O.B. Short Listed Marks Remarks
1. 01210716 RAMBABU RAY OBC GO 05.08.77 S-GEN 109 NE OBC (BR) 2 01214580 RAJPAL SINGH OBC 01.04.82 S-GEB 109 Left 3 01211779 SUBDOH GAHLOT OBC 09.05.82 S-GEN 109 No vacancy 4 01214547 MANOJ KR RANA OBC 01.08.82 S-GEN 109 No vacancy
5. 01210722 PUNISH OBC 10.11.82 S-GEN 109 Wrongly Sel OBC-11 6 01210722 SARITA YADAV OBC 08.12.82 S-OBC 109 No Vacancy
7. 01210254 PRADEEP OBC 19.07.83 S-OBC 109 NE OBC (HR) The learned counsel, Shri Ajesh Luthra would argue before us about the first two names not being material in the context. Serial no.1, Ram Babu Ray because as per the remarks column, being an OBC from Bihar, he had been found not eligible under the OBC category. Serial no.2, Rajpal Singh because he had left, and had not joined. Accepting these two contentions, the fact remains that the name of the applicant ranks at serial no.3, with two candidates above him.
7.2 Thus in case the total number of vacancies is taken as 12, five unfilled vacancies under the OBC category remained. Even if the submission of the respondents learned counsel about the total number of vacancies being 11 instead is accepted, there would be four vacancies. This is considering the fact that the DSSSB had originally vide the Result Notice dated 1.5.2009 recommended a list of only 11 candidates including the present applicant. After the re-scrutiny vide their communication dated 26.12.2009, instead of the applicant the name of Shri Rajpal Singh had been recommended; admittedly he had not joined. Thus in the minimum 1 and maximum 2 vacancies remained. Adding to it the 3 vacancies caused due to non-joining of the other 3 OBC candidates (Annex A/6) the number of unfilled vacancies would go upto 4/5.
Thus, even considering the third ranking of the applicant in the redrawn merit list, he has a chance for being appointed against an available OBC vacancy.
8. The next issue that deserves our consideration is about the respondents stand of non-operation of any waiting panel. This is stated to be defended by the fact of the request of the user department for providing 5 substitute names not having been acceded to by the DSSSB on this very ground. Further, the instructions issued by the Government of NCTD have also been relied upon. These instructions and their context are being reproduced in toto:-
GOVERNMENT OF NATIONAL CAPITAL TERRITORY OF DELHI SERVICES DEPARTMENT (III) 7TH LEVEL, b WING, DELHI SECRETARIAT I.P. ESTATE, NEW DELHI-110 113 (http://services.delhigovt.nic.in) No.F.16(3)/DSSSB/2008/S-III/2360 Dated: 04/07/08 To The Chairman Delhi Subordinate Services Selection Board, Government of N.C.T. of Delhi, FC-18, Institutional Area, Karkardooma, Delhi-110 302 Sub: Regarding decision to maintain panels of 10% of declared vacancies for a period of one year or the next date of examination, for all future recruitments.
Sir, Kindly refer to your D.O. letter No.F.1(137)/LC/DSSSB/06/4062 dated 21.05.2008, asking if a panel of 10% of declared vacancies for a period of one year or the next date of examination which ever is earlier, for all future recruitments is acceptable to this Government or not. In this regard, I am directed to inform you that this Government is not in favour of preparation of a supplementary panel/additional panel.
Further, it is advised that results be confined to the number of vacancies for which requisition is received before finalization of result and in such cases no supplementary panel/additional panel need to be prepared. To illustrate further, for the post of LDCs, the following requisitions were sent:-
On 21.06.2006 requisition sent for 774 posts On 06.02.2007 requisition sent for 143 posts On 14.08.2007 requisition sent for 455 posts On 06.06.2008 requisition sent for 407 posts Total : 1779 posts As the requisition for 1779 post was sent to DSSSB, DSSSB may provide list of 1779 candidate in conformity with DSSSB advertisement mentioning that the vacancies are subject to change (increase or decrease).
This issues with the prior approval of the Chief Secretary, Govt. of NCT of Delhi Yours faithfully Sd/-
(SONIKA SINGH) DEPUTY SECRETARY (SERVICES) From a bare reading of this letter, it does not appear that the GNCTD policy of non-preparation of the supplementary panel also covers consequential vacancies arising as a result of non-joining of the selected candidates, as is the case here. On the other hand, the DOP&T instructions cited before us by the applicants learned counsel provide clear guidelines for filling up such vacancies from the existing list of selected candidates wherever available.
9. There is also no averment of these vacancies having been carried forward to a subsequent selection process. In its various recent judicial pronouncements on the subject, the Honble Apex Court has not favoured claims of selected candidates from an exhausted select list or from the waiting list, on the basis of a particular recruitment process against additional vacancies notified subsequently or against future vacancies [Rakhi Ray & Ors Vs High Court of Delhi; reported as (2010) 1 SCC (L&S) 652/State of Orissa & Anr Vs Raj Kishore Nanda & Ors, as reported (2010) 2 SCC (L&S) 313]. However, the facts of the present case are distinguishable as they instead pertain to the un-filling of the notified vacancies and consequential vacancies arising out of non-joining of selected candidates.
10. Though the results were declared on 1.5.2009; however, the redrawn merit list was in December 2009,thus the claims of the applicant is within one year of the validity period only. The fact of the applicant having been not only appointed to the post but also working in that capacity after completing a six months pre-induction training for nearly one year lends additional weight to his claim.
11. Eve though as per the terms of appointment, the respondents did have a right under Para 2 of the Appointment Officer to terminate the services of the applicant with one months notice, the overall factual gamut of the case cannot be brushed aside while testing the respondents action on the anvil of fair play and reasonableness. The Honble Apex Court in Man Singh vs State of Haryana & Ors (2008 (7) SCALE 750) had observed:
.Any act of the repository of power whether legislative or administrative or quasi-judicial is open to challenge if it is so arbitrary or unreasonable that no fair minded authority could ever have had it.
12. Under the circumstances, we do not find any justification for the respondents to terminate the services of the applicant. Resultantly, the impugned termination of services qua the applicant is quashed and set aside. The applicant would be treated as having continued in service with normal consequential service benefits admissible as per law such as increments, seniority, being counted for promotion/ACP as well as pensionary benefits.
The OA is allowed in terms of the aforesaid directions. However, parties would bear their own costs.
(Dr. Veena Chhotray) (G. George Paracken)
Member (A) Member (J)
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