Central Administrative Tribunal - Delhi
Satya Prakash vs Union Of India Through Secretary on 14 August, 2013
Central Administrative Tribunal Principal Bench OA No. 1744/2007 Reserved on: 23.07.2013 Pronounced on: 14.08.2013 Honble Mr. Justice Syed Rafat Alam, Chairman Honble Dr. Birendra Kumar Sinha, Member (A) Satya Prakash s/o late Dr. Mudrika Prasad 201-B, Pocket-C, Siddhartha Extension, New Delhi 110 014. Applicant (By Advocate: Shri Huzefa A Ahmadi, Senior Advocate with Shri Shree Prakash Sinha, Shri Janmejay & Shri Rohan Sharma for applicant) Versus 1. Union of India through Secretary, Ministry of Personnel P.G. & Pensions, Department of Personnel & Training, North Block, New Delhi 110 001. 2. The Director General, Central Industrial Security Force (CISF), Block No.13, CGO Complex, Lodhi Road, New Delhi 110 003. Respondents (By Advocate: Shri Rajesh Katyal) O R D E R By Dr. Birendra Kumar Sinha, Member (A):
The instant Original Application is directed against the Order No.E-32015(4)/2/ACs(GD)/2006/PERS.I/163 dated 02.03.2007 issued by respondent no.2 whereby the post of Assistant Commandant (Group-A) in the CISF had been offered to the applicant on the basis of CSE Main Examination, 1996 [CSE-1996, for short] and in view of the subsequent decision of the Honble Supreme Curt in the case of Union of India and Another versus Satya Prakash and Others [(2006) 4 SCC 550]. The applicant has sought the following relief(s):-
(a) Direct the Respondents to grant pay scale, seniority and status of the other recruits of CSE, 1996 to the applicant in view of its earlier order dated 02/03/2007 in OA No. 216/2004; and
(b) Direct the respondent no.1 to allocate any other Group A service or DANIPS Group B in which there are vacancies to be filled through CSE, 1996; the same being of higher preference of the applicant and the same would be in the spirit of the judgment of the Honble Supreme Court as reported in (2006) 4 SCC 550; and
(c) Grant all other consequential benefits as permissible.
2. The case of the applicant, in brief, is that he was declared successful in CSE-1996 but was denied appointment on account of incorrect interpretation of Rule 16 of CSE Rules, 1996. The applicant was, therefore, compelled to file OA No.294/1998 in this Tribunal which was dismissed vide its order dated 03.05.1999. The aggrieved applicant preferred CWP No.3561/1999 along with another candidate namely Anil Kumar of CSE-1994, which was allowed by the Honble High Court of Delhi, vide its order dated 10.09.2002. The respondents in that CWP, that being the respondents in the instant OA, moved an SLP against the order of the Honble High Court in CWP No. 3561/1999, which was later admitted and numbered as Civil Appeal No.5505-5507/2003. The said Appeal was considered and decided by the Honble Supreme Court vide orders dated 05.04.2006 whereby the judgment of the Honble High Court was upheld with the following directives:-
18. By way of illustration, a reserved category candidate, recommended by the Commission without resorting to relaxed standard (i.e. on merit) did not get his own preference 'say IAS' in the merit/open category. For that, he may opt a preference from the reserved category. But simply because he opted a preference from the reserved category does not exhaust quota of OBC category candidate selected under relaxed standard. Such preference opted by the OBC candidate who has been recommended by the Commission without resorting to the relaxed standard (i.e. on merit) shall not be adjusted against the vacancies reserved for the Scheduled Castes, Scheduled Tribes and other Backward Classes. This is the mandate of proviso to sub-Rule 2 of Rule 16.
19. In other words, while a reserved category candidate recommended by the Commission without resorting to the relaxed standard will have the option of preference from the reserved category recommended by the Commission by resorting to relaxed standard, but while computing the quota/percentage of reservation he/she will be deemed to have been allotted seat as an open category candidate (i.e. on merit) and not as a reserved category candidate recommended by the Commission by resorting to relaxed standard. The Honble Supreme Court further directed the Union of India to make allocation of service to the applicants within a period of one month from the date of the order. The applicant filed a Contempt Petition No. 13/2007 accusing the Union of India of not complying with the orders of the Honble Supreme Court in its true letter and spirit. It is the case of the applicant that during the pendency of the Contempt Petition, the DOP&T allocated CISF to the applicant as well as to his co-petitioner Anil Kumar in CWP No.3561/1999 before the Honble High Court. The applicant, however, kept on seeking extension for joining the Service from time-to-time. The applicant also filed IA No. 6 of 2007 before the Honble Supreme Court seeking inter alia allocation of another Group A Service failing which DANIPS Group-B. The Honble Supreme Court vide orders dated 21.09.2007 did not grant any relief to him directly regarding allocation of DANIPS Group-B or any other Service, but permitted him to file Original Application before the Tribunal in case the occasion so arises relating to seniority and other service benefits. The order of the Honble Supreme Court reads as under:-
The dismissal of the contempt petition would not preclude the petitioner to file OA before the Tribunal if occasion so arises with regard to his appointment, seniority and other benefits in CISF.
IA No.6 of 2007 is disposed of accordingly. 2A. This Original Application was heard, at the first instance, on 15.03.2013. After having considered the pleadings of the rival parties, the documents filed by them and the arguments advanced by their respective counsels, it appeared that there remained a hazy area for which further hearing was required. Accordingly, the parties were heard afresh on 23.07.2013 on the limited issue of the effect that the order of the Honble High Court of Delhi would have vide its judgment in WP (C) No.5869/2008 in the matter of Satya Prakash versus Union of India and Others wherein the Honble High Court had arrived at the opinion that it was not at all open to the applicant to agitate his appointment to some Service other than the CISF, thereby closing the gates for further consideration of alternative Service to the applicant. On the basis of the arguments, another issue had been added for consideration namely, that whether withdrawal of SLP(C) No.31372/2008 by the applicant before the Honble Supreme Court and the afore-cited order of the Honble High Court have enabled the afore decision in WP(C)No.5869/2008 to attain finality. The net result is that the order of the Honble High Court has a guillotine effect upon the quest of the applicant to seek alternative allocation of service.
3. The applicant thereafter had filed the instant OA seeking parity in terms of pay scales, seniority and other service benefits with other candidates who appeared in CSE-1996. It is alternatively prayed that any other Service or DANIPS GroupB where vacancy might exist could be allocated to him taking notice of his superior performance in CSE-1996. This Tribunal considered the matter and conclusively decided as under:-
4. The attempt of the applicant was to draw substance from the decision of the Supreme Court in Anurag Patel Vs. UPSC and Ors. (2005(9) SCC 742), and Mr. Singh presented argument that it would have been possible for applicant to take a stand that substantive allotments of the year 1996 would have to be brought about in strict implementation of the Supreme Court judgment and the entire steps retraced, thus suggesting a veiled threat to the 1st respondent that after the judgments, they were on slippery grounds, and if he put his foot down, results may be unsavory. But we are afraid, such submissions may not be possible to be fielded with success at this late hour. We are surprised that in spite of an offer, the applicant finds pleasure in filing applications, and in this course get his own appointment postponed. The apprehension expressed was that by accepting the appointment, his chances for improving his career would be totally sealed unless assurances was obtained right now to get the matters set right. But as Mr. Katyal points out, by order dated 21.09.2007, the Supreme Court had given him sufficient elbowroom in this area and it is not as if the applicant is without any remedy.
5. We do not find that there are any circumstances highlighted for us to hold that the applicant has been subjected to inequitable treatment after he obtained the judgment from the Supreme Court. When a Constitutional Body of the status of the UPSC submits that possibilities for allotment had been thoroughly examined, we may not be justified in probing further into the matter. It could not be conceived that they have any prejudice to him on his cause. There are, therefore, no circumstances, which compel us to issue direction for a re-allotment leading to unsettling appointments made over a decade.
4. Against the order of dismissal of the Original Applicant, the applicant approached the Honble High Court of Delhi by way of CWP No. 5869/2008 wherein the Honble High Court observed in para 5 of its order that the petitioner had raised issues with regard to his pay scale, seniority etc. and alternatively for allocating any other Group A Service in which a vacancy might exist. These issues, as observed by the Honble High Court, had not been comprehensively dealt with by the Tribunal particularly with regard to his pay scale and seniority etc. The Honble High Court further observed that this could have been on account of the fact that the applicant had not complied with the orders passed by the Honble Supreme Court qua his joining the CISF. It was on this account the Honble High Court remanded the case to this Tribunal with specific directives to consider the other issues that have not been comprehensively dealt with by it. For the sake of adequate clarity, the relevant portion of the order of the Honble High Court needs to be quoted, which reads as under:-
10. The petitioner had also made a prayer in the clarification application for a direction for seniority, pay scale and other consequential benefits as are available to his batch mates in Group A Civil Service and that he should not be put to any dis-advantage in his continuance of service in the CISF or in his promotions given the fact that he is a late entrant and had objected to joining the CISF.
11. It is in this background that the Supreme Court gave liberty to the petitioner to file an Original Application with regard to his appointment and other benefits in the CISF.
12. It is quite clear to us that in view of the averments made in the clarification application, the prayer made in the clarification application and the order passed by the Supreme Court, that the only relief granted to the petitioner was with reference to his joining the CISF. In our opinion, it is not at all open to the petitioner to agitate his appointment to some service other than the CISF.
13. With these observations, we remit the matter to the Tribunal for a consideration on the other issues that have not been comprehensively dealt with by it. It is in this backdrop, the instant Original Application has to be adjudicated by the Tribunal.
5. It is apt to be noted here that in the instant OA the applicant has arrayed the Union of India through Secretary, Ministry of Personnel, P.G. & Pensions, DOP&T as the first respondent, and the Director General, Central Industrial Security Force (CISF) as the second respondent. Both the respondents have filed their respective counter replies. The applicant has also filed rejoinder and additional affidavits with the leave of the Tribunal. In addition, the applicant has also filed brief notes of arguments.
6. In his pleadings and brief notes of arguments, the applicant has stated facts more or less what have been narrated above. Learned counsel for the applicant has argued that this Tribunal, while disposing of OA No.1744/2007, recorded in paragraph 1 of its order dated 04.08.2008 that it had extended the period of joining the CISF by the applicant. Further, in paragraph 4 of the same very order the Principal Bench of this Tribunal had recorded the submissions of respondent no.2 that clarificatory order dated 21.09.2007 of the Honble Supreme Court has provided sufficient scope to the applicant to approach the Tribunal for alternative appointment in case that the applicant cannot be given seniority and other retiral benefits in the CISF. The Honble High Court vide its judgment dated 17.10.2008 in WPC No.5869/2008 has also referred to the prayer of the applicant in OA No. 1744/2007 regarding his alternative allotment to some other Service; the same being of higher preference of the applicant would be in the spirit of the judgment of the Honble Supreme Court as reported in 2006 (4) SCC 550. The learned counsel for the applicant seeks sustenance from the observation of the Honble High Court in para nos. 6 & 7 of its order dated 17.10.2008 that the order of the Tribunal did not cover all issues relating to pay scales, seniority of the applicant perhaps on account of the fact that he was yet to comply with the orders of the Honble Supreme Court relating to joining the CISF. However, the fact remains that the Honble Supreme Court has given him liberty to fight for allocation of alternative Service to the CISF in such eventuality that the possibility of granting him seniority and other benefits at par with his would have been batch mates of CSE-1996 have been fully and conclusively rejected. In the event the seniority and other benefits are not granted to him at par with those who were declared successful in CSE-1996 and joined the CISF, the alternative prayer of allocating him some other service and/or DANIPS GroupB will have to be considered. This was a necessary condition inbuilt into the directions of the Honble Supreme Court vide its clarification dated 21.09.2007. The learned counsel for the applicant has also drawn a parallel to the case of one Anil Kumar who was selected in CSE-1994 and was co-respondent with the applicant before the Honble Supreme Court. The Honble Supreme Court had ordered in his case that if he could not be allowed seniority and other benefits as per his batch mates of CSE-1996 due to procedural reasons his allocation stood to be changed. He referred to the directives issued by this Tribunal on 08.11.2012 directing the respondents to apprise about the decision taken in the matter of his erstwhile co-respondent Anil Kumar. In this regard, he has filed additional affidavit on 06.12.2012 wherein a reference has been made to OM dated 21.06.2011 of the communication of respondent no.1 to MHA as to whether the requisite seniority could be granted to his erstwhile co-respondent Anil Kumar on the basis of CSE-1994 in view of the judgment of the Tribunal in OA No. 3588/2009 filed by Anil Kumar. The DOP&T further stated that the question of allocating any other service to Anil Kumar would arise after the MHA had declined to provide the requisite seniority to him and suggest allocation of other service. However, later on in reversal of his earlier stand, the respondent no.1 has noticed that an alternative suggested by MHA was not workable and a counter suggestion was made to relax the rules of CISF so that Anil Kumar could be given seniority along with his batch mates. However, the same had been denied to Anil Kumar by the MHA/CISF vide OM dated 21.06.2011 and the noting dated 18.07.2011 which have been placed at Annexure AZ (Colly.). The learned counsel for the applicant wanted this Tribunal to take note of the fact that the batch mates of Anil Kumar had already been promoted to the rank of Commandants. Likewise, in the case of the applicant as well, his seniority should have been placed below one Ms. Anuradha who had been placed at serial no.103 in the seniority list of Deputy Commandant whereas his seniority has been fixed at serial no.213 in the seniority list of Assistant Commandant. This indicates that the OM of the DOP&T dated 01.10.2007 cannot be implemented in the case of the applicant as well as his erstwhile co-respondent Anil Kumar of CSE-1994. The learned counsel appearing for the applicants sought to argue that since an alternative had already been provided by the Honble Supreme Court as admitted by this Tribunal and the respondent no.1 as well as MHA, it should be operationalized in the form of finding and placing the applicant suitably in CSE or DANIPS Group-B alternatively.
7. During the course of the arguments, the learned counsel for the applicant very chivalrously offered that he would not be claiming any arrears of pay though the seniority in that service was a non-negotiable. In this regard, the learned counsel for the applicant has also referred to the documents obtained through the use of instrumentality of the Right to Information Act, 2005 which clearly indicate that in their internal notings of both the CISF and the MHA have referred to impediments involved in granting the seniority in both the cases of the applicant as well as Anil Kumar. He has also made a reference to the fact that Anil Kumar was given a preference of four years. However, the DPC held on 08.12.2011 considered his promotion to the grade of Deputy Commandant against the vacancy year of 2011-12 and declared him unfit due to being in SHAPE-II.
8. In the third place, the learned counsel for the applicant in order to convince us, submitted that the respondent no.2 had made an issue of his client approaching the Honble Courts/Tribunals for vindication of his grievances and had given him a posting in J&K instead of sending him for training to the NISA at Hyderabad. The applicant had no objection whatsoever to undergo the training. However, the fact that he was sent to a combat zone like J & K without being trained would pose a risk to his life. His objection was only against this. He has since joined the training. He had filed a representation against his posting and after considering the representation of the applicant, the DG, CISF subsequently changed his posting. In the fourth place, the applicant has also drawn parallel to the case of one Amitabh Kumar Sinha who had also appeared along with him in CSE-1996. He was working as Deputy Director General in the Central Trade Service and was re-allocated to the Indian Revenue Service (IRS) in the Senior Time Scale i.e. in the scale of Deputy Commissioner of Income Tax and was directed to join basic training at National Academy of Direct Taxes, Nagpur in compliance with the order dated 16.1.2000 passed by the Patna Bench of this Tribunal. The learned counsel for the applicant further submitted that all Courts have the powers to grant the larger relief and the same would be in consonance with the orders of the Honble Supreme Court and High Courts as well as in the case of Amitabh Kumar Sinha, referred to earlier and that of Rajesh Shah. It is none of the fault of the applicant that he was not allocated a Service at the first instance as per his entitlement and the matter took almost 10-11 years to get decided. He has an invariable right to seek his better prospectus in Service. These facts are well acknowledged by the respondents and they have referred to OM dated 09.05.2012 wherein it has been provided:-
2. It is clarified that the relative seniority of all direct recruits is to be determined in the order of merit in which they are selected for such appointment on the recommendations of Union Public Service Commission. Direct Recruits appointed as a result of an earlier selection would be senior to those appointed as a result of subsequent selection i.e. the candidates belonging to Civil Service Examination-2005 would be senior to the candidates belonging to Civil Service Examination-2006, the candidates belonging to Civil Service Examination-2006 would be senior to the candidates belonging to Civil Service Examination-2007 and so on, irrespective of their date of joining in the respective services, subject to fulfillment of other conditions, if any. The applicant had relied on the decision of Honble Supreme Court in the matter of Anurag Patel versus Union Public Service Commission [(2005 (9) SCC 742]
9. The learned counsel appearing for the respondents has vehemently opposed the Original Application. They have filed their counter affidavit on 20.02.2008 and thereafter filed replies to the respective additional affidavits filed on behalf of the applicant.
10. The first argument that has been taken by the learned counsel for the respondents is that 90% of this case is already covered by the earlier decisions of the Tribunal, Honble Supreme Court and Honble High Court of Delhi and that it is being re-agitated beyond the directives issued by the Honble Courts. The Honble Supreme Court in its judgment dated 05.04.2006 had directed the appellant to allot jobs to the respondents within a period of one month from the date of its order. In pursuance of the said order, the applicant along with others who were party to the case were allocated the service against the left out vacancies of the relevant years. In order to undertake this exercise of the left out candidates in that year who could not be allocated to any service was done by them so that interest of such left out candidates who approached the UPSC for allocation of Service at a later stage on the basis of the order of Honble Supreme Court could be accommodated as per their turn. The learned counsel for the respondents submitted that this procedure had been strictly followed and accordingly the applicant was allocated to CISF and was informed vide letter dated 11.05.2006. The applicant again moved a Contempt Petition bearing CP No. 13/2007 along with IA No. 6 of 2007 in the above CP before the Honble Supreme Court. This contempt petition came to be ultimately decided. The learned counsel for the respondents has strongly emphasized that the applicant was only entitled to CISF as per the procedure of service allocation. However, the applicant was reluctant to join the CISF and wanted any of the two services i.e. CSS and AFHQ in which, as per the applicant, vacancies were available in the relevant year. However, the respondents have strongly denied the existence of such vacancies. The applicant appears to have calculated the vacancies in the aforementioned service by subtracting number of candidates who joined their respective Services allocated to them, as obtained under the Right to Information Act, 2005, from the vacancies notified for that Service. In the Government, once the process of allocation is over in a particular examination year, no further changes are made notwithstanding the fact that some candidates allocated to a Service may choose to resign or not to join the service. Were it to be otherwise, the Service allocation would devolve into a never ending process. In his arguments in the contempt petition No.13/2007, the applicant had pressed his claim for allocation either to CSS or DANIPS Group-B, the same had been considered by the Honble Supreme Court but was not acceded to.
11. In the second place, the learned counsel for the respondents submitted that the applicant deliberately chose not to join the CISF the service allocated to him under the expectation that it would impair his prospects of getting another Service as per his choice. The applicant came to this Tribunal seeking seniority at par with other candidates as per CSE-1996 or alternatively to allocate him either DANIPS Group-B or any other Service where vacancies existed to be filled up through CSE-1996. He also requested for postponement of his joining. This Tribunal was indulgent enough to grant him extension of joining time but did not accede to his claim for allocation of an alternative Service and dismissed the Original Application on the ground that when a Constitutional Body of the status of Union Public Service Commission submitted that possibilities of allotment have been thoroughly examined, the Tribunal was precluded from probing further into the matter. Against this order, the applicant went in appeal. He also filed an SLP against the order of the Honble High Court dated 17.10.2008 in WPC No. 5869/2008 wherein the impugned order along with the order of the Tribunal in OA No. 1744/2007 were assailed on a number of grounds including that the Honble High Court overlooked the right bestowed upon him to re-agitate his issue at the appropriate forum in case he failed to get seniority and other service benefits etc. at par with his colleagues in CSE-1996; he has been wrongly denied a job by the respondents at the first instance; the Honble High Court had failed to appreciate the core of the judgment reported in 2006(4) SCC 550 in the matter of Union of India and Others versus Satya Pal Singh (supra) as to how the remaining vacancies were to be filled through CSE-1996 which should have been allotted to the applicant as per his order of preference; the Honble High Court had wrongly assumed that the applicant had not complied with the order passed by the Honble Supreme Court for joining CISF whereas his joining period stood extended by the Tribunal; the applicant had to resign his job in M/s. NTPC where he attained sufficient seniority to join the CISF; the Honble High Court had also erred in holding that the applicant could not agitate his claim for allocation to some other Service other than the CISF; that the applicant has been embroiled in a protracted legal battle for more than a decade now; that the Tribunal had erred in not holding as to how the remaining vacancies were to be filled up; that Honble High Court also erred in not considering the decision of the Honble Supreme Court in the matter of A.B. Bhogeshwarudu Versus Andhra Pradesh Public Service Commission & Anr. [JT 1989(4) SC 130] that the remaining vacancies should be filled by the candidates of the same year; the Tribunal has gravely erred in making remarks that the applicant is finding pleasure in filing applications and in that course getting his own appointment postponed. This SLP was withdrawn by the applicant on 12.10.2011 keeping in view the subsequent developments. Thereby the judgment of the Honbe High Court attained finality and the fate of the applicant in seeking alternative allocation of service stood sealed.
12. The learned counsel for the respondents further argued that the order of the Honble High Court dated 17.10.2008 has finally closed the option of being granted other Service to the applicant, relevant part whereof is being reproduced as under:-
7. Now that the petitioner has joined the CISF, we think that it would be appropriate if the Tribunal examines the grievances of the petitioner.
8. Learned counsel for the petitioner submits that the Tribunal should also look into the question whether the petitioner can be allocated a service other than the CISF. In our opinion, this issue is no longer open for re-consideration particularly in view of the order passed by the Supreme Court passed in IA No.6/2007 in Contempt Petition (C) No.13/2007 in Civil Appeal No. 5505-5507/2003 (decided on 21st September, 2007) in which the Supreme Court gave liberty to the petitioner to file an Original Application before the Tribunal, if the occasion so arises, with regard to his appointment, seniority and other benefits in the CISF.
11. It is in this background that the Supreme Court gave liberty to the petitioner to file an Original Application with regard to his appointment and other benefits in the CISF.
13. It is significant to note that both the applicant and the respondents have relied upon the case of Anil Kumar to elicit support for their rival stands. While referring to the case of Anil Kumar with whom a parallel has been sought to be drawn by the applicant, the learned counsel for the respondents has referred to the reply to the additional affidavit filed by the respondents on 12.12.2012. While on the face of it, the two cases do have a thread of commonality receiving through them, there is a difference between the two cases. Anil Kumar joined CISF in 2007 and completed his basic training during the period from 07.07.2007 to 27.06.2009. The applicant on the other hand has not done his basic training till 29.10.2012. The probation of Anil Kumar was successfully completed and the MHA had given him relaxation of 2 years and 9 months in the residency period for his promotion from Assistant Commandant to Deputy Commandant to which he was promoted on 16.04.2012 on the basis of the recommendations made by the DPC held on 08.12.2011 for the vacancy year 2011-12 and he was placed at serial no.1 in the seniority list of the Assistant Commandant of CISF as issued on 31.12.2010. Therefore, the two cases are altogether different and no parallel can be drawn by the applicant beyond a certain point. The learned counsel for the respondents further vehemently argued that the promotions granted to officers in CISF are governed by their recruitment rules. It is an Armed Force where troops have to be commanded. No concession can be given beyond what is provided in the recruitment rules and it is also beyond the competence of the Tribunal to grant such concessions.
14. We have carefully perused the pleadings of both the parties including the affidavits, additional affidavits and replies/rejoinders thereto filed by the respective parties and the written brief notes filed by the applicant. Apart from above, we have very carefully listened to the arguments advanced on both sides and on the basis of the same, following issues need to be answered in order to arrive at a satisfactory conclusion of this Original Application:-
Whether the order of Honble Supreme Court dated 07.09.2007 in CP No. 13/2007 can be interpreted to mean that the doors have been left open to the applicant to agitate the issue of his allocation in another service open?
Whether it is possible under the recruitment rules of CISF to grant parity to the applicant at par with other would have been batch mates on the basis of CSE 1996?
Whether the order of the Honble Supreme Court in CP No. 13/2007 provides a compulsory direction that the issue of the allocation of alternative service should be necessarily considered once it has been found that it is not feasible to grant parity in pay and other service conditions to officers who had joined service on the basis of CSE 1996?
What parallel can be drawn between the cases of the applicant and of his former co-respondent Anil Kumar?
Whether the order of the Honble High Court dated 17.10.2008 passed in WP(C) No.5869/2008 coupled with withdrawal of SLP(C) No.31372/2008 from the Honble Supreme Court has a guillotine effect on consideration of allocation of alternate service to the applicant?
Whether it is legally possible for this Tribunal to issue directives for consideration for the other service in view of its earlier decision particularly in the case of Amitabh Kumar Sinha?
Whether it is appropriate in the general fitness of things and in the interest of justice of maintaining the integrity and structure of services for this Tribunal to consider granting of concessions beyond the recruitment rules?
What relief(s), if any, can be provided to the applicant?
15. In so far as the first issue is concerned, the entire question hinges on the fact that whether the order of the Honble Supreme Court dated 21.09.2007 in IA No.6/2007 in CP No.13/2007 can be interpreted to mean that the applicant has been left free to agitate the issue of his allocation in another service open. It is true, as it appears from the pleadings and records, that the applicant was reluctant to join the CISF and he also indicated preference of two of the Services notably a Service under any Group A or DANIPS Group B. The applicant initially, despite being selected in the CSE-1996, was denied appointment and, therefore, he had to knock the doors of several judicial fora right upto the Honble Supreme Court in order to secure his appointment. The directive of the Honble Supreme Court was to allow jobs to the respondents with others within a period of one month from the date of its order. As obviously, this directive was not to be construed for an arbitrary allotment of Service but allotment as per the existing rules and observing the principles of equity. The applicant had to go to the Honble Supreme Court vide CP No. 13/2007 for getting its order implemented. While the matter was pending consideration, the impugned offer of appointment letter dated 02.03.2007 had been issued to the applicant thereby rendering the cause of action infructuous. The applicant was not satisfied with this offer though within the terms of directive of the Honble Supreme Court no Service had been specified. Therefore, the applicant accepted the offer, though reluctantly, as mentioned in earlier part of the order. However, he had approached the Honble Supreme Court for a clarification. The Honble Supreme Court considered the arguments of the applicant and his plea for grant of alternative Service. In its clarification, the Honble Supreme Court held as under:-
The dismissal of the contempt petition would not preclude the petitioner to file OA before the Tribunal if occasion so arises with regard to his appointment, seniority and other benefits in C.I.S.F. It is to be noted from a plain reading of the order reproduced above that it has three parts (i) it does not preclude the protection of the petitioner from filing the Original Applicant in future; (ii) the Original Application is to be filed in such eventuality when benefits relating to appointment, seniority and others are denied to him; and (iii) this denial is only in respect of CISF. In other words, what the Honble Supreme Court has left open is that in case the applicant does not feel satisfied or have some outstanding grievances relating to matters of his appointment, seniority and other benefits in the CISF, he may agitate the same. What the applicant has argued is that the term of appointment would include not only appointment to the CISF but to other Services as well whereas for one reason or the other, he is not able to get his due parity within the CISF.
16. The argument of the learned counsel for the respondents, on the other hand, is differently placed. The respondents at no point of time have denied this order or implication thereof. However, they have sought to cap it by stating that the order of the Honble Supreme Court has been complied with in its true letter and spirit. In case the applicant still harbors grievances relating to the aforesaid issue of appointment, seniority and other benefits, he may approach the Tribunal within the strict four walls of his allocation to the CISF. In other words, the allocation to CISF has attained finality, but the matters within this given boundaries of CISF could always be agitated. That right to agitate grievances, we suppose, exists to all serving Government employees and it is of no exception.
17. On consideration of the above arguments, it does appear that what weighed in the minds of the Honble Judges while passing this order is that they were able to foresee that there would be difficulties in finalizing/fixing the seniority and granting other benefits to the applicant. Hence, their lordships have specified that since the matter has been adjudicated by the highest court in the country, it should not get blocked on this account and that right continues. We further suppose that this right relates to the grievances within the CISF. Once the applicant has joined the CISF, his grievances would only arise in respect of CISF only. The fact that the Honble Judges have included the term appointment, which they could have easily left out, indicates that somewhere in their mind the thought of alternative appointment was not ruled out. It, however, stands to reason the Honble Judges did not intend to make this right unrestricted; instead it would be subject to answer that we would arrive at in respect of the other issues raised. For the time being, we let this issue rest with the contention that indeed the Honble Supreme court has left a door open for future adjudication of grievances but how long this door would remain open is a question to be determined in relation to collateral issues raised.
18. Insofar as second issue is concerned, in answer to this issue it needs to be clarified that the appointments to the Central Civil Services and other specified Services are made by the Union Public Service Commission through the Common Examination System (CES). There are elaborate rules and procedures governing the allocation of Services vide which such allocations are to be made. Once a person has been allocated to a certain Service, he becomes a Member of that Service subject to the recruitment and other rules like Leave Rules, TA Rules, LTC Rules, etc. governing that particular service. All Services are governed by this body of rules which could be loosely classified as Cadre Rules governing that particular Service. Like others, CISF is having its own set of recruitment rules which, inter alia, provides for training, the different grades, issue of promotions from one grade to another, the eligibility for such promotions and the manner in which such promotions are to be granted. It is an admitted fact that all the persons, who have been allocated CISF after having competed in CSE-1996 and joined the said organization, are now in position of Senior Commandants. It is to be always borne at the back of the mind that CISF is a Uniformed Force which has self defined areas of duties and operation besides guarding the industrial establishments. It would always be called upon for Internal Security duties in any part of the country and they are also bound to render their services even in disturbed areas like J&K and others. The essential ingredients which weigh in these consideration while deciding the eligibility for promotion are that of basic training, seniority in service, work experience and physical fitness etc. These are governed by their prescribed measures. We have taken a note of the arguments of the learned counsel appearing for the respondents that the CISF have very rigid criteria for such promotions based among issues as have been cited above and others. These cannot be overlooked. Hence, even though nominally the applicant was to carry a seniority of the year 1996, he could not be placed right below Ms. Aradhana who is above him for the simple reason that the post of a Commandant carries certain eligibility criteria which have been acquired by dint of hard work and experience. A direct recruit is first appointed as Assistant Commandant then he is promoted as Deputy Commandant and thereafter as Commandant. For making each of these positions, one has to undergo a scrutiny of his eligibility and fitness at the hands of the Departmental Promotion Committee (DPC) and these being non-negotiable cannot be dispensed with. It is obvious that the applicant has joined the Service as late as in the year 2008 by which time his other batch mates would be serving as Deputy Commandant and have even been promoted as Commandant and might have gained some years of experience behind them. As per the recruitment rules, it is not possible to short-circuit all these procedures and stages and to be placed where he would have been otherwise had he been appointed in the year 1996.
19. This question is accordingly answered in a simple and straightforward no, as it is not possible to grant concession to the applicant and for that matter be any person overreaching in supersession of the prescribed eligibility criteria and procedures.
20. Insofar as issue no. 3 is concerned, what the applicant has sought is that option provided to the applicant to knock the doors of the Tribunal over the issues which have been discussed in relation to Issue No.1 is a compulsive directive. The directive can simply be interpreted either to allow him the seniority or consider him for the alternative Service and this fact is necessarily considered when it has been found out that it is not possible to grant him parity in pay and other service conditions at par with the officers placed below in the UPSC or CSE generated seniority. As opposed to this, the argument of the respondents, as we have discussed while dealing with Issue No.2, is that as per the recruitment rules it is not possible to grant the seniority to the applicant. However, at the same time, the directive of the Honble Supreme Court is that to grant alternative Service is not a compulsive direction by which the Tribunal and/or other Courts are bound. The right, at best, can extend to consideration which will depend upon number of other factors and is not something which had been mandated by the Honble Supreme Court.
21. We have considered both these issues. Definitely, as it has been discussed in Issue No.1, the right to consideration is there. However, we have to interpret what is a compulsive right. A compulsive right would be where there is an element of binding to consider and grant. However, to our mind, this was clearly not the one what the Honble Supreme Court had intended. Had the Honble Supreme Court intended this to be a compulsive right then it would have ordered, at the first instance, that in case it is not possible to grant parity, some other Service would be allocated to the applicant, but that is not so. Therefore, the legal inference which a prudent man would draw is that the applicant has a right to be considered at a place where he would have been as per the seniority decided by his placement in the CSE-1996, the other service conditions would follow. Where he has difficulty in assertion of these rights, he would be at liberty to approach the Court/Tribunal. However, in the same breath, we would also like to add that nowhere has the Honble Supreme Court made it binding upon the Tribunal that in case these rights are not forthcoming, the applicant shall be allocated another Service. Obviously, when this claim is preferred, the Tribunal is free to consider it either individually or conjointly with the other governing factors. It would appear from the issues framed that there is no cut and dried solution to the plea of the applicant that either place him below Ms. Anuradha or allocate him another Service. The Tribunal also has to consider the difficulties of the Government and take into account the other attenuating factors before it comes to any finding in relation to that issue. The Tribunal has to further take into account the averments of the applicant pleaded before the other Courts namely the Honble Supreme Court and the Honble High Court and their findings and observations on the subject.
22. We leave this Issue to rest at this.
23. Insofar as Issue no. 4 is concerned, the arguments of both the parties have already been noted. There is a remarkable dissimilarity between the cases of Anil Kumar and that of the applicant. Anil Kumar was declared successful in CSE-1994 while the applicant was successful in CSE-1996. Both were co-respondents in the case before the Honble Supreme Court. However, Anil Kumar joined CISF in 2007 while the applicant joined in the year 2008 one year later. Anil Kumar completed his basic training w.e.f. 07.07.2008 to 27.06.2009 while the applicant has not completed the basic training till date because he wanted to try his luck in court room battles for getting allocated another Service. The information provided under the Right to Information Act, 2005 reveals that he has not done his basic training as his case was pending adjudication before the Honble Supreme Court. However, the Honble Supreme Court had observed that he should proceed for training failing which he would be at his own risk. He was directed by the Department to undergo the basic training but he refused to do so by giving his own interpretation to the order of the Honble Supreme Court. In the case of Anil Kumar, it has been declared that he has successfully completed the basic training whereas the applicant reported for the said training at NISA on 30.10.2012 and he has yet to complete the same. The MHA has given relaxation of 2 years and 9 months to Anil Kumar towards the residency period meant for his promotion from Assistant Commandant to Deputy Commandant and in case of the applicant the question of relaxation would not arise at all as he is yet to complete his requisite training successfully. In the case of Anil Kumar, the DPC for promotion to the rank of Deputy Commandant was held on 08.12.2011 for the vacancy year 2011-12 and he was promoted w.e.f. 16.04.2012 having been found fit whereas in the case of the applicant the question of promotion does not arise because he is yet to complete his basic training which is one of the essential requirements. Moreover, Anil Kumar was placed at serial no.1 in the seniority list of Assistant Commandant, CISF on 21.01.2010 in pursuance of the DOP&T instructions while the applicants seniority has been considered along with the directly recruited officers who joined in 2008 and he has been assigned seniority at serial no. 361 i.e. above one Daniel Dhananjay. Thus, we find that there is a sharp contrast between the profiles of those officers who initially had sailed in the same boat or had undergone the same travails in order to secure their appointments.
24. We have also to consider as to why and how this difference has arisen. It appears from the pleadings and submissions on record that while Anil Kumar had demurred to the orders of the Honble Supreme Court by accepting the offer and joined the post in CISF, the applicant in all probability did consider that joining in CISF would impair his future claim for allocation of another Service. In other words, his heart was all set to secure another Service and he was even prepared to sacrifice his prospects in the CISF in pursuit of another Service. It is a classic case of chasing ones own shadows. This sufficiently answers this Issue.
25. In so far as Issue No.5 is concerned, the applicant relies upon the order of Honble High Court of Delhi dated 17.10.2008 passed in WP(C) No.5869/2008 as do the respondents. The stand of the applicant is that the order of the Honble High Court, vide its paras 5, 6, 8 & 10, leaves it open to the applicant to agitate issues relating to his pay scale, seniority etc. in CISF before this Tribunal. This would imply that while the applicant can challenge the seniority and service conditions in CISF, it was no longer open to him to challenge his appointment in CISF itself in view of the dismissal of the SLP and the order passed in his clarificatory application. This apparently gives rise to a seeming contradiction. However, when read together, the effect of this order is that without joining the CISF, the petitioner cannot challenge his appointment in CISF itself and seek appointment in another Service.
26. Per contra, from the pleadings of the respondents, it has clearly emerged that it is not possible to restore the seniority to the applicant to the original place as per the UPSC ranking primarily on account of the fact that the CISF being a uniformed Service operating under the battle conditions. On the other hand, Honble High Court has permitted the applicant to agitate the issue of seniority and service conditions in CISF. The effect of the order of the Honble High Court in WP(C) No. 5869/2008 has, therefore, to be seen contextually in the event of his failure to get the seniority due in the CISF. The contention of the applicant is that the Honble Supreme Court did not close the door finally in respect of allocation of another service and impliedly permitted the same after the applicant joins the CISF and has raised grievances relating to seniority and other service matters. We are afraid that the said submissions cannot be conceded as the Honble High Court has already considered the same and has finally rejected the same.
27. The learned counsel for the respondents has vehemently opposed the plea of the applicant and has debunked the interpretation of paragraph 11 of the order of the Honble Supreme Court (supra). He has argued that the applicant committed a legal hara kiri he opted to withdraw the SLP before the Honble Supreme Court. The order of the Honble High Court has to be read both in true letter and spirit. This makes it abundantly clearly that the applicant is effectively debarred from agitating this issue in future. It was left open to the applicant to challenge this order which he has omitted to do. It is beyond the jurisdiction of this Tribunal to set aside or reverse the order of the Honble High Court in this matter. Therefore, the order of the Honble High Court has attained finality. No matter how much we may sympathize with the case of the applicant, there is no way in which any relief could be granted to the applicant in terms of allocation of alternative service.
28. During the course of re-hearing, we have concentrated on this issue. There is no denying that the clarificatory order of the Honble Supreme Court leaves a door open to the applicant to agitate issues relating to seniority and service conditions which has been further supported by the afore cited order of the Honble High Court. At this moment, we cannot afford to loose sight of the basic judgment of the Honble Supreme Court in the case of Union of India and Another versus Satya Prakash and Others (supra).
29. The genesis of the entire litigation is an injustice meted out to the applicant by the respondents in not allowing proper cadre to him, as per his entitlement. The aforementioned order of the Honble Supreme Court in Union of India and Another versus Satya Prakash and Others (supra) addresses this injustice. Honble Supreme Court has held as under:-
22. At the risk of repetition, the Commission recommended 737 candidates against 737 posts. So far OBC category is concerned, 174 candidates were recommended against 174 posts. We are totally at a loss as to what had happened to those remaining services/posts after allocation of services to all the candidates in terms of their preferences. We say no more.
23. In the view that we have taken, we do not see any infirmity whatsoever in the orders impugned passed by the High Court, which would warrant our interference. These appeals are devoid of merit and are dismissed with costs, quantified at Rs. 10,000/- for each of the respondents. The appellant is directed to allot jobs to the respondents within a period of one month from today.
30. The Honble Supreme Court, vide its clarificatory order dated 21.09.2007 has left an enabling provision whereby the seniority and other service conditions of the applicant could be challenged. It has been challenged elsewhere in relation to other issues but we find that it is not possible to assign full seniority to the applicant. The question is that what happens next. The Honble High Court has remanded this case to the Tribunal vide its order dated 17.10.2008 for consideration of the other issues that have not been dealt with. The Honble High Court in the same very order has reproduced paragraph 13 of the clarification application wherein the issues of allocation of vacancies and services were agitated. While remanding the case to the Tribunal, the Honble High Court has directed that the issues which have not been comprehensively dealt with by it should now be discussed and finally decided. However, the concluding portion of paragraph 11 virtually sinks the fate of the applicant as the opinion of the Honble High Court has effectively closed the gates for the petitioner for allocation of another service. We agree with the learned counsel for the respondents to the limited extent that all along while rejecting the afore cited order of the Honble High Court, one invariably gets the impression that the Honble High Court has treated the allocation of alternative service as a closed chapter. We further agree with the learned counsel for the respondents that the order has to be read both in letter and spirit. Herein lies our dilemma; when we read the order of the Honble High Court in WP(C) No. 5869/2008 in consonance with the clarificatory order of the Honble Supreme Court dated 21.09.2007 and the earlier paragraph nos. 8, 9, 10 and 11, we find that there is an inherent logic in the argument of the learned counsel for the applicant that while he is free to agitate the issue of seniority and other service conditions in CISF, what would happen if he could not get the same. On the other hand, letters of paragraph 12 of the order of the Honble High Court are explicit: The only relief that has been granted to the applicant was that of joining the CISF implying thereby that the applicant is no longer free to agitate the issue of allocation of alternative service. This is a case where the spirit rebels against the letters. However, when we read this order in its entirety, we are left with the question that what happens if the due seniority is not allowed to the applicant in CISF. While answering the question in part in favour of the applicant and part against him, we would take up this issue finally when we come to the relief, if any, to be granted to the applicant.
31. In relation to issue no. 6 Amitabh Kumar Sinha was a successful candidate and was allocated Central Trade Service in August, 1997. He protested against his allocation on the basis that it was not in terms of preferences exercised by him and that he had revised his preference at a certain point of time. The revised preference had been duly communicated to the UPSC as well but the same went unanswered. The respondents did not even reply to the notice. Aggrieved, Amitabh Kumar Sinha filed OA No.670/1997 before the Patna Bench of this Tribunal, which was decided by the Tribunal vide its order dated 16.11.2000 directing the respondents to treat the Original Application as his representation and consider the same. Pursuant to the directions of the Tribunal, the respondents, upon consideration, re-allocated him the IRS Group A Service despite the fact that all the vacancies in the IRS had already been filled up by the DOP&T. Likewise, in the case of one Pradeep Kumar Singh - a Junior Engineer in Central Public Works Department, who was appointed as Section Officer in the Department of Agriculture & Cooperation and was given Non-Functional Grade, was accordingly fixed when he came to join the said Service. The applicant had questioned by means of his rejoinder affidavit dated 11.02.2008 as to why the DOP&T overlooked the objections of CISF as endorsed by the MHA towards inclusion of the applicant in CISF at this age and under what circumstances the DOP&T had refused to accept the request of the MHA to re-allocate him to some other Group A Service as has been mentioned in the DOP&T noting dated 25.02.2007. Accordingly, in his brief written submissions, the applicant resiled from his earlier stand of allocation of alternative Service and has stooped down to even accepting the CSS Group B Service for which it is clear that OM dated 01.10.2007 of DOP&T cannot be followed in the case of the applicant. The learned counsel for the applicant has stated that the respondents have apprised that there are vacancies in CSS/AFHQ to be filled through CSE 1996, which can be allocated to the applicant provided he makes a prayer for it and this Tribunal permits the same. The applicant has prayed for allocation of CSS which was not a higher preference indicated by him and the same is, therefore, not covered by any of the orders passed in this case so far. It has been further prayed that under these circumstances, this Tribunal may direct the respondent- DOP&T to allocate CSS, GroupB with all consequential benefits to the applicant in the interest of justice as was done by co-equal Bench of this Tribunal in the case of Anil Kumar of CSE-1994.
32. Here, it is to be understood clearly that the allocation of Service is made by the DoPT. As referred to earlier by dealing with the arguments of the respective parties, the respondents have defended the allocation saying that it could not have been done in any other way. Here, we have to understand that the propriety and integrity of the allocation is not directly in question. What is in question is whether the Tribunal has competence to issue directive for consideration for allocation of other Service and whether, particularly in the light of the decision in the case of Amitabh Kumar Sinha (supra), it should do so in view of the decision in other cases, the directives of Honble Supreme Court and the Honble High Court and other collateral issues as have been raised in the instant order.
33. In the case of Amitabh Kumar Sinha the facts were entirely different. The respondents did not even file a counter reply and, therefore, the Tribunal had directed that the matter should be considered by the Department. Pursuant to the direction of the Patna Bench of this Tribunal, the claim of the applicant was considered and he was re-allocated IRS, which is a Group A Service. Here, the matter is hotly contested and the respondents have clearly contended that the allocation could not have been made in any other way. The competence of the Court/Tribunal to issue such directive is unquestioned but the fact remains that should it do so. This would be dealt with in relation to other issues.
34. Insofar as Issue No. 7 is concerned, the answer does not require much elaboration for discussion. We have already taken a note of the arguments of the learned counsel for the respondents that the services conditions are governed by the recruitment rules. Likewise, CISF has its own set of recruitment rules which are nowhere under challenge. What has been sought in the instant case is that either full parity should be given to the applicant along with his would have been batch mates or issue directive to consider his claim for allocation of another Service. Suffices it to hold at the present that no matter how pressing the claims by an individual may be, a Service always remains larger than all such individuals. Hence, whether relaxation in rules would be feasible or not would only be hypothetical in nature in respect of challenge to the recruitment rules. What we could hold at this juncture is that the respondents should consider the claim of the applicant. What has been applicable in the case of Anil Kumar would also hold true in the case of the applicant as and when he completes his basic training. This is the farthest that this Tribunal could do.
35. Now we come to the final of the issues as to whether the applicant is entitled to any of the reliefs or not? Here, we take note of the arguments of the learned counsel for the respondents that all the doors have been closed to the applicant by the order of the Honble High Court dated 17.10.2008. The Honble High Court has taken note, in its order under reference, of the submissions of the applicant before the Honble Supreme Court while seeking the clarification that there were serious contradictions in the submissions of the respondents regarding carrying forward vacancies and information provided by the respondent no.1 to respondent no.2. The issue of allocation of job to him could not have been raised in the contempt petition as the same would be beyond its scope. The applicant had apprehended that serious consequences would flow to his disadvantage; it would be in the interest of justice that he should be allowed to re-agitate the issue of allocation of job to him in appropriate judicial forum as justice is a virtue which transcends all barriers. Neither the rule of procedure nor technicalities of law can stand in its way. Even the law bends before justice. He was aware of the difficulties that he would suffer in CISF as being late entrant. The Honble High Court considered this issue and held as under:-
12. It is quite clear to us that in view of the averments made in the clarification application, the prayer made in the clarification application and the order passed by the Supreme Court, that the only relief granted to the petitioner was with reference to his joining the CISF. In our opinion, it is not at all open to the petitioner to agitate his appointment to some service other than the CISF. In view of the aforesaid observation of the Honble High Court, we are of the view that the applicant is precluded from re-agitating the issue of allocation of another Service. Besides, we cannot ignore the fact that while the applicant was selected in the year 1996, he joined the Service only on 15.09.2008 and directing allocation of another Service to him after a lapse of almost 16 years now would amount to virtually opening a Pandoras box of litigation and unsettling the hitherto settled positions.
36. Now we summarize the definite issues under the framework of harmonious consideration. The Honble Supreme Court did indeed leave a door open for the applicant. However, we take a note of the fact that the service conditions of the applicant in CISF would be governed by their recruitment rules which did not permit parity. Though the Tribunal could have issued the order but the clear cut finding that reconsideration for allocation of another Service is ruled out stands in his way. Another factor to be considered here is that the applicant had filed an SLP against the Honble High Courts order dated 17.08.2010 which was subsequently permitted to be withdrawn by the Honble Supreme Court and, therefore, the order of the Honble High Court has attained finality.
37. At the end, we would like to hold that it is admitted that the applicant was serving in NTPC where he was having his own seniority. It also needs to be taken cognizance that despite being placed in the general list, he was not given appointment and he had to litigate for a long period of 11-12 years in order to safeguard his right. Therefore, at the earliest he could join in the year 2007 and the fact that he delayed his joining in anticipation of the relief from the Courts can perhaps be construed to be an error of judgment on the part of the applicant. However, even by pursuing the litigation, withdrawal of SLP by him from the Honble Supreme Court has sealed his fate. We also consider the fact that the decision to join the CISF was his own decision. Litigation has always been an uncertain thing and nobody can predict that whether the outcome of the litigation would only be in his favour and in his favour alone. Therefore, he could have chosen at that point of time not to join the CISF and retained his seniority. Therefore, the choice not to join his Service and further to have chosen to litigate from 2007 onwards is one of his own making and none other can be blamed for that.
38. We are of the view that in light of the order of the Honble High Court dated 17.10.2008, the question relating to allocation of alternative service is no more open to be adjudicated. The applicant cannot rake up the same at this stage. We find support from the decision of the Honble Supreme Court in the matter of Shanker Raju versus Union of India and Others [2011 (2) SCC 132] wherein it has been held as under:-
10. It is a settled principle of law that a judgment, which has held the field for a long time, should not be unsettled. The doctrine of stare decisis is expressed in the maxim "stare decisis et non quieta movere", which means "to stand by decisions and not to disturb what is settled." Lord Coke aptly described this in his classic English version as "those things which have been so often adjudged ought to rest in peace." The underlying logic of this doctrine is to maintain consistency and avoid uncertainty. The guiding philosophy is that a view which has held the field for a long time should not be disturbed only because another view is possible. This has been aptly pointed out by Chandrachud, C.J. in Waman Rao v. Union of India, (1981) 2 SCC 362 at pg. 392 thus:
"40. ... for the application of the rule of stare decisis, it is not necessary that the earlier decision or decisions of longstanding should have considered and either accepted or rejected the particular argument which is advanced in the case on hand. Were it so, the previous decisions could more easily be treated as binding by applying the law of precedent and it will be unnecessary to take resort to the principle of stare decisis. It is, therefore, sufficient for invoking the rule of stare decisis that a certain decision was arrived at on a question which arose or was argued, no matter on what reason the decision rests or what is the basis of the decision. In other words, for the purpose of applying the rule of stare decisis, it is unnecessary to enquire or determine as to what was the rationale of the earlier decision which is said to operate as stare decisis."
This principle has been further corroborated in the case of H.S. Vankani and Others versus State of Gujarat and Others [AIR 2010 1714].
The question of allocating seniority as per the list drawn up by the Union Public Service Commission is also not found feasible for the simple reason that the recruitment and the rules governing conditions of the host organization do not permit the same. The matter has already been covered in respect of Issue No.3 in this very order. It is not that we do not have sympathy for the applicant but at the same time it is equally true that he himself is responsible for his own plight. He did not join following the allocation and instead went in for litigation. It is well recognized that his right to litigate would have remained unaffected by his joining.
39. In totality of facts and circumstances of this case, we find the Original Application being devoid of merit and the same is accordingly dismissed without there being any order as to costs.
(Dr.Birendra Kumar Sinha) (Syed Rafat Alam) Member (A) Chairman /naresh/