Central Administrative Tribunal - Delhi
Brijesh Moolvanshi vs Comm. Of Police on 20 October, 2021
1 O.A. No1810 of 2015
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No.1810
1810 of 2015
Orders reserved on : 21.09.2021
Orders pronounced on ::20.10.2021
0.2021
(Through Video Conferencing)
Hon'ble Shri A.K. Bishnoi, Member (A)
Hon'ble Mr. R.N. Singh, Member (J)
1. Brijesh Moolvanshi, SI (Exe.)
Aged 35 years,
S/o Shri Dinesh Kumar Mulvanshi,
D 193, Ganga Vihar, Delhi.
D-193,
2. Bijendra Sharma, SI (Exe.)
Aged 36 years
D 96 A Gali No.5, Ganga Vihar, Delhi
D-96
... Applicants
s
(through Advocate Shri S. Sunil)
Versus
us
1. Union of India
Through its Secretary,
Ministry of Home Affairs,
North Block, New Delhi.
2. Commissioner of Police,
Police Headquarters,
I P Estate,
New Delhi.
3. Staff Selection Commission (SSC)
Through its Chairman,
CGO Complex,
Lodhi Road,
New Delhi.
... Respondents
(through Advocates Shri S.M. Arif, Shri Hanu Bhaskar and
Mrs. Rashmi Chopra)
Chopra
2 OA No.1810/2015
ORDER
Hon'ble Mr. R.N. Singh, Member (J) :
The applicants, two in numbers, have approached this Tribunal by way of the present OA, filed under Section 19 of the Administrative Tribunals Act, 1985, to challenge the order dated 16.7.2013 issued by the respondent no.3 (Annexure A/1) purportedly passed in compliance of the Order/Judgment dated 16.3.2011 (Annexure A-6) passed by this Tribunal in OA 471/2009, titled HC (Ex.) Irshad vs. Union of India and others read with Order/Judgment dated 13.12.2011 (Annexure A-7) passed by this Tribunal in OA 1942/2011, titled Bijesh Moolvanshi and others vs. Union of India and others in the first round of litigation by the present applicants.
2. The applicants have prayed for the following reliefs:-
"(i) to quash and set aside the impugned order dated 16.7.13, as being contrary to the Recruitment Rules;
(ii) to direct the respondent to fill up 50% vacancies i.e. 229 vacancies out of 458 vacancies in the manner indicated in para 4.8 of the present OA and if the applicants stands selected in they be appointed to the post of S.I (Exe) Male in Delhi Police with all consequential relief;
(iii) to call for the records relating to the present case, 3 OA No.1810/2015
(iv) to grant costs of this appeal, to the appellants herein, and
(v) to pass such other order or orders as may be deemed fit and proper in the interests of justice."
3. The brief facts leading to the present OA are that an advertisement (Annexure A/2) was issued by the respondent N.3 for holding Combined Graduate Level Examination- 2004 (hereinafter referred to as 'CGLE- 2004') for recruitment to the post of Sub Inspector (Exe.) (hereinafter referred to as 'SI (Exe.)') in Delhi Police. It was provided therein in the said notification that the provisional vacancies for the post of SI (Exe.) in Delhi Police were 94. The applicant No.1 and 2, who have been working as Head Constable and Constable respectively in Delhi Police, had applied and participated in the said examination. They participated in CGLE-2004 (Preliminary) as well as in CGLE-2004 (Main). However, in the final result issued in April 2008, the names of the applicants did not figure in the said result and the applicants found that results were declared only in respect of 59 vacancies in the said post and the applicants did not figure in the final result owing to the methodology contrary 4 OA No.1810/2015 to the relevant Recruitment Rules adopted by the respondents. Rule 7 of the Delhi Police (Appointment and Recruitment) Rules, 1980, which governs the appointment to the post of SI (Exe.) reads as under:-
"50% of vacancies in the rank of Sub-Inspector (Executive) is to be filled by direct recruitment and 50% by promotion, out of 50% direct quota, 10% of the post shall be filled by Limited Department Competitive Tests from amongst Constables, Head Constables and ASI with minimum 5 years of service."
4. The applicants under Right to Information Act vide letter dated 19.6.2007 (Annexure A-3) came to know that there were 333 vacancies to be filled up in the rank of SI (Exe.) in the year 2004, only 239 vacancies were filled up by promotion and 94 vacancies had been advertised for the purpose of direct recruitment. They also found that while declaring the final results, respondent No.2 further reduced the vacancies from 94 to 59. It has been asserted by the applicants that action of the respondents has been illegal and in violation of the Rules in as much as out of 294 vacancies of the post in question in accordance with the aforesaid Rules, 50% thereof, i.e., 149 was required to be filled up by promotion and 149 by direct recruitment. Further 10% of 149 vacancies, i.e., 14.9 (15) was required 5 OA No.1810/2015 to be filled up by limited departmental competitive examination. It is averred by the applicants that 239 vacancies on the basis of promotion has been done on 'post based roster' system, i.e., on the principle of vacancies arising on account of death, retirement, dismissal or promotion of a promotee has to be filled up by promotion and similarly arising by direct recruitment has to be filled by direct recruit. It is further asserted in the present OA that the principle adopted for filling up 239 vacancies in the rank of SI (Exe.) is contrary to the law laid down by the Hon'ble Apex Court in the case of State of Punjab and others vs. R.N. Bhatnagar and another, reported in 1999 SCC (L&S) 513 (Annexure A-4). It is also pleaded in the OA that the applicants have come to know from the respondents' letter dated 19.9.2014 that the total number of vacancies available to be filled up for the post of SI (Exe.) has been 458 and thus, the vacancies to be filled up had been much higher than which were earlier informed to the applicants. Had the respondents applied the extant rules referred to hereinabove, out of 50% of these 458 vacancies, the vacancies could have been 229 under the direct recruitment and 10% thereof i.e. 23 vacancies in place of 6 could have available for filling up 6 OA No.1810/2015 the post of SI (Exe.) in the year 2004 and the applicants could have been entitled for consideration for appointment to the post of SI (Exe.) on the basis of their participation and performance in the aforesaid examination. In this background, the applicants have approached this Tribunal earlier by way of OA 1942/2011 and they have prayed for the following reliefs therein:-
"(a) To call for the records relating the case direct the respondents to fill up 50% i.e. 149 vacancies out of the 298 vacancies available and meant to be filled up in the rank of S.I. (Exe) in Delhi Police in the recruitment year 2004 but illegally and wrongly reduced, quashing the decision of the respondents to fill up only 59 vacancies for the post of S.I. (Exe.).
(b) To award costs in favour of the applicants, and
(c) To pass any order or orders which this Hon'ble Tribunal may deem just and equitable in the facts and circumstances of the case."
5. During the pendency of the said OA 1942/2011 filed by the applicants, the same issue came up for consideration of this Tribunal in OA 471/2009, titled HC (Ex.) Irshad vs. Union of India and others and this Tribunal vide Order/Judgment dated 16.3.2011 (Annexure A-6) disposed of the said OA by taking into consideration of all relevant facts and relevant rules, i.e., Delhi Police (Appointment and Recruitment) Rules, 1980, the 7 OA No.1810/2015 precedents, all the defence and arguments on behalf of the respondents. Para 12 of the said Order/Judgment dated 16.3.2011 passed in the said case of HC (Ex.) Irshad (supra) reads as under:-
"12. Considering the totality of facts and circumstances of the case, guided by the judicial precedents, and the statutory Rule in the subject, we are of the considered view that the Respondents having not calculated the vacancies of SI (Exe) Male, the vacancy position for the promotees has been advantageous and for the direct recruits it has been disadvantage. Taking note of the promotions already granted by the Respondents, we do not want to disturb such promotions already held. However, we come to the firm conclusion that persons competing in the direct recruitment stream including 10% departmental candidates have been prejudiced. We, therefore, direct the Respondents to recalculate the vacancies in the 10% departmental quota, as per the Rule 7 and thereafter consider the case of the Applicant subject to his eligibility, suitability and the marks obtained by him in the examination for the year 2004. In case, he is found suitable and gets selected for appointment to the post of SI (Exe) male, the same shall be given effect to prospectively. Respondents are directed to complete the above exercise within 9 weeks from the date of receipt of a certified copy of this order."
6. The OA 1942/2011, filed by the applicants herein along with one another, was taken up for consideration by this Tribunal, it was contended on behalf of the applicants that the matter was squarely covered by the Order/Judgment rendered by this Tribunal in the case of HC (Ex.) Irshad (supra) as well as other similar matters, 8 OA No.1810/2015 however, it was contended on behalf of the respondents that the Order/Judgment of this Tribunal in the case of HC (Ex.) Irshad (supra) was under challenged before the Hon'ble High Court of Delhi vide Writ Petition (Civil) No.5592/2011 and operation of the said judgment had been stayed by the Hon'ble High Court and the Writ Petition had been listed for further hearing on 29.3.2012. In this background, this Tribunal vide Order/Judgment dated 13.12.2011 (Annexure A-7) disposed of the said OA 1942/2011, which reads as under:-
"The applicant has filed this OA thereby praying the following reliefs:-
"(A) To call for the records relating the case direct the respondents to fill up 50% i.e. 149 vacancies out of the 298 vacancies available and meant to be filled up in the rank of S.I. (Exe) in Delhi Police in the recruitment year 2004 but illegally and wrongly reduced, quashing the decision of the respondents to fill up only 59 vacancies for the post of S.I. (Exe.).
(B) To award costs in favour of the applicants, and (C) To pass any order or orders which this Hon'ble Tribunal may deem just and equitable in the facts and circumstances of the case."
2. Learned counsel for the applicant submits that the matter is squarely covered by the judgment rendered by this Tribunal in OA 9 OA No.1810/2015 No.471/2009, HC (Ex.) Irshad Versus Union of India decided on 16.3.2011 as well as other similar matters. Learned counsel for the respondents submits that the decision rendered by this Tribunal in the case of Shri Irshad (supra) is under challenge before the Hon'ble High Court of Delhi in Writ Petition No.5592/2011 and operation of the said judgment has been stayed. It is further stated that the matter has been listed for further hearing on 29.3.2012.
3. In view of what has been stated above, we are of the view that the present OA can be disposed of with a direction to the respondents to implement the judgment rendered by this Tribunal in case the writ petition filed by the respondents is dismissed before the Hon'ble High Court of Delhi, within a period of three months from the date4 of judgment.
4. The OA stands disposed of in the aforesaid terms. No costs."
7. The Order/Judgment of this Tribunal in the case of HC (Ex.) Irshad (supra) under challenge before the Hon'ble High Court vide Writ Petition (Civil) No.5592/2011 along with other various other identical cases was disposed of by the Hon'ble High Court of Delhi vide Order/Judgment dated 23.5.2013 (Annexure A-8). Paras 1, 2, 9 to 13 thereof of the said Order/Judgment of the High Court read as under:-
"1. We are concerned in the instant batch of writ petitions with Rule 7 of the Delhi Police (Appointment & Recruitment) Rules, 1980 which reads as under:-10 OA No.1810/2015
"7. Rule of Sub-inspectors (Executive) -
Fifty percent of vacancies in the rank of Sub- Inspector (Executive) shall be filled by direct recruitment and 50% by promotion out of 50% direct quota, 10% of the post shall be filled by limited department competitive test from amongst constables, Head constables, and Asstt. Sub-Inspectors with minimum 5 years of service who shall not be more than 35 years (40 years for Scheduled Castes/Scheduled Tribes candidates) of age on the first day of January of the year if the examination is held in the first half of the year and on the first day of July of the year if the examination is held in the later half of the year. The educational qualifications and other physical standards for the test shall be the same as prescribed in the Rules for direct recruitment to such posts. The unfilled vacancies reserved for the departmental candidates will be carried forward for 3 recruitment years as in the case of vacancies for the scheduled tribe candidate whereafter the unfilled vacancies will be filled by direct recruitment."
2. A perusal of the Rule would reveal that appointment to the post of Sub-Inspector (Executive) has to be made by: (i) Promotion; (ii) Direct Recruitment; and (iii) Limited Departmental Competitive Test. 50% posts have to be filled up by promotion and of the remaining 50%, 10% thereof through the Limited Departmental Competitive Test and the remainder by direct recruitment. Thus, the vacancies have to be allocated in the respective quota each year."
"9. The Tribunal was seized with various Original Applications filed by candidates who had taken the Limited Departmental Competitive Test as also the selection for direct recruitment. In the advertisement inviting applications, the number of vacancies notified was 94 pertaining to the examination relating to the year 2004 and 692 for the year 2007. The department i.e. the Commissioner of Police reduced the same to 59 and 686 respectively taking refuge under the fact that posts had been reduced.11 OA No.1810/2015
10. The view taken by the Tribunal in the impugned decision is that since there is no clarity with reference to the manner in which the reduction has been worked out, the Commissioner of Police has been directed to work out the reduction and spread the same evenly in the 50% promotee quota, 40% direct recruitment quota and 10% quota pertaining to the Limited Departmental Competitive Test.
11. We see no reason why the writ petitions have been filed; for the reason on the principle of law i.e. the effect of reduction in the number of posts of Sub-Inspector and the same being required to be spread out evenly in the three quotas, there is no dispute. Mathematical working thereof needs to be reflected in a tabular form and applied. The decision of the Tribunal only warrants a mathematical application to the agreed legal principle.
12. Since, as noted hereinabove, the picture is not emerging with clarity as to what were the exact number of posts which were abolished and in what manner the consequential spread out of the reduction was worked out, we dispose of the writ petitions affirming the declaration of law by the Tribunal; on which neither party is in dispute. The Commissioner of Police shall work out, with clarity, by indicating in a tabular form the number of posts of SubInspector (Executive)-Male abolished and its consequential impact on the promote quota, direct recruitment quota and LDCE quota for making promotions.
13. Needless to state that the order would be passed within six weeks from today and would be intimated to the respondents of all the writ petitions. With reference to the vacancies available to be filled up in the W.P.(C) No.5592/2011 Page 7 of 7 respective quota, further action would be taken as contemplated by law."
(emphasis supplied) 12 OA No.1810/2015
8. As the directions of this Tribunal in OA No.1942/2011 were not complied with, the petitioners, the applicants herein have approached this Tribunal by way of Contempt Petition No.578/2013 for initiation of contempt proceedings against the respondents. The respondents took a stand that in compliance of the directions of this Tribunal in OA 1942/2011 (supra), they had passed an order dated 16.7.2013 (Annexure A-1) and this Tribunal took a view that even if calculation made by the respondents was wrong, it could not be viewed that they had wilfully disobeyed the directions and, therefore, it would be open to the petitioners to agitate their claim in the original proceedings. Accordingly, the said CP 578/2013 had been disposed of vide Order/Judgment dated 18.12.2014 (Annexure A-10) and in view of the liberty accorded by this Tribunal in the said Order/Judgment dated 18.12.2014 in CP 578/2013, the applicants have approached this Tribunal again by way of the present OA.
9. Pursuant to notice from this Tribunal, the respondent No.3. i.e., Staff Selection Commission, has filed the counter reply and separate counter reply has also 13 OA No.1810/2015 been filed on behalf of respondent no.2, i.e., Commissioner of Police. A rejoinder has been filed in response to the counter reply filed on behalf of respondent No.2. No separate reply has been filed on behalf of respondent No.1.
10. We have heard the learned counsels for the parties.
11. Learned counsel for the applicants has argued that though the impugned order dated 16.7.2013 has purportedly been issued in compliance of the directions of this Tribunal vide Order/Judgment dated 13.12.2011 in OA No.1942/2011 read with the common Order/Judgment dated 23.5.2013 of the Hon'ble High Court of Delhi in Writ Petition (C) No.5592/2011 etc. etc, however, the respondent has again calculated the number of vacancies on the basis of 'post based roster' instead of 'vacancy based roster' in spite of the fact that such action and approach has not been found legal and valid by this Tribunal in the case of of HC (Ex.) Irshad (supra) wherein it was clearly laid down that vacancies were required to be calculated on the basis of 'vacancy based roster' and not on the basis of 'post based roster' and the Hon'ble High Court has given a categorical finding in para 11 of its Order/Judgment dated 23.05.2013 that the decision of 14 OA No.1810/2015 the Tribunal only warrants a mathematical application to the agreed legal principle and has disposed of the said Writ Petition confirming the declaration of law by this Tribunal on which neither party was in dispute. Shri S. Sunil, learned counsel for the applicants, has further argued that vacancy position has been confirmed by the respondents under Right to Information Act and as per the information so given 10% of 229 vacancies available under direct recruitment category for the post of SI (Exe.) were available for filling up in the year 2004 and what has been done by the respondents is not only contrary to the aforesaid provisions of rules and judgment of this Tribunal in of HC (Ex.) Irshad (supra) but also the law laid down by the Hon'ble Apex Court in the case of State of Punjab and others vs. R.N. Bhatnagar and another (supra) as well as OM dated 19.1.2007. Learned counsel for the applicants has added that the applicants have succeeded in the earlier round of litigation and such Order/Judgment of this Tribunal has been upheld by the Hon'ble High Court of Delhi, therefore, they are entitled for the benefits flowing from the said Order/Judgment as the same has attained finality and the impugned order dated 15 OA No.1810/2015 16.07.2013 deserves to be set aside and the OA deserves to be allowed.
12. No separate reply has been filed on behalf of respondent no.1 and Shri Bhaskar, learned counsel appearing for respondent no.1, has submitted that in the present matter the contesting respondent is the respondent no.2.
13. Shri Arif, learned counsel for the respondent no.3, with the assistant of the counter reply, has submitted that the respondent no.3 is a recruiting agency and its role is over after nomination of the candidate(s) to the department(s) for which the candidate(s) has/have been selected and in the present OA, the applicants have challenged the order dated 16.7.2013 passed and issued by respondent no.2 and, therefore, the respondent no.3 has wrongly been impleaded and the same should be dropped from the array of parties.
14. Mrs. Rashmi Chopra, learned counsel appearing for respondent no.2, has not disputed the factual matrix of the case precisely recorded hereinabove. However, she has submitted that the impugned order dated 16.7.2013 has 16 OA No.1810/2015 been passed in compliance of the directions of this Tribunal and only after being satisfied by such compliance, this Tribunal had dismissed the Contempt Petition No.578/2013 in OA 1942/2011 filed by the applicants herein. She has further invited our attention to Para 7 of the Order/Judgment dated 18.12.2014 passed in CP 578/2013 and submitted that this Tribunal has categorically recorded in the said Order/Judgment that Hon'ble High Court of Delhi only viewed that the respondents were required to recalculate the vacancies and had specifically directed the respondents to separate the reduced number of vacancies in different quota. It is not so that the respondents had reduced the total number of posts only. When the total number of posts was reduced then the reduction was also required to be separated with reference to the posts alone. This Tribunal in the said paragraph had also recorded that once pursuant to the directions given by this Tribunal, the respondents have taken a final decision, though the final decision may give rise to the fresh cause of action for instituting the fresh proceedings, but they cannot be said to have disobeyed the directions of this Tribunal and the department cannot be held to be guilty for Contempt of Court. In this regard, 17 OA No.1810/2015 the Tribunal has referred to and relied upon the law laid down by the Hon'ble Apex Court in J.S. Parihar v. Ganpat Duggar & others, reported in JT 1996 (9) SC 611. Mrs. Chopra, learned counsel for respondent no.2, has further submitted that a compilation of judgments filed by her on behalf of respondent no.2 on 11.02.2021 may also be taken into consideration. With the said compilation, the following judgments have been annexed:-
(i) Common Order/Judgment dated 06.05.2009 of this Tribunal in the matter of Yashpal Singh Rajorar vs. Union of India & ors with Sunil vs. Union of India & ors.[OA Nos. 1285 and 1286 of 2008);
(ii) Common Order/Judgment dated 04.07.2011 of this Tribunal in the matter of Rohtas Singh vs. Union of India & ors with Yogesh Kumar vs. Union of India & ors.[OA Nos. 3596 and 4074 of 2010);
(iii) Order/Judgment dated 18.05.2016 of the Hon'ble High Court of Delhi in the matter of Hari Om vs. Commissioner of Police & others (WP(C) No.10489 of 2015);18 OA No.1810/2015
(iv) Order/Judgment dated 29.07.2016 of this Tribunal in the matter of Yashpal Singh Rajora vs. GNCT of Delhi & Anr. (OA No.3363 of 2012); and
(v) Order/Judgment dated 06.09.2018 of this Tribunal in the matter of Avinash Pratap vs. GNCT of Delhi & others (OA No.4416 of 2013).
15. Mrs. Rashmi Chopra, learned counsel for respondent no.2 has also submitted that OM dated 19.01.2007 may also be taken into consideration for proper adjudication of the issue involved in the present OA.
16. We have heard the learned counsels for the parties and have perused the pleadings on record as well as the judgments referred to and relied upon by the learned counsels appearing on behalf of the respective parties.
17. It is not in dispute that the aforesaid Order/Judgment in OA No.1942/2011 was passed after hearing the learned counsels for the parties wherein the applicants had relied upon the Order/Judgment of this Tribunal dated 16.03.2011 in the case of HC (Ex.) Irshad (supra). The only contention on behalf of the respondents was that the Order/Judgment of this Tribunal in HC (Ex.) 19 OA No.1810/2015 Irshad (supra) was under challenge before the Hon'ble High Court of Delhi vide Writ Petition No.5592 of 2011 and the matter had been listed for further hearing on 29.03.2012. The said Writ Petition was decided on 23.05.2013 (Annexure A-8) and the Hon'ble High Court of Delhi, while disposing of the said Writ Petition, categorically affirmed the law declared by the Tribunal with further directions and the said Order/Judgment attained finality. In this background, the law declared by this Tribunal in the case of HC (Ex.) Irshad (supra) and upheld by the Hon'ble High Court of Delhi vide Order/Judgment dated 23.05.2013 is binding. This Tribunal has though closed the aforesaid Contempt Petition preferred by the petitioners including the applicants herein vide Order/Judgment dated 18.12.2014, however, we are of the considered view that the said Order/Judgment of this Tribunal has neither diluted the Order/Judgment of this Tribunal in the case of HC (Ex.) Irshad (supra) upheld by the Hon'ble High Court and in OA No.1942/2011 filed by the applicants herein, nor it could have done so inasmuch as in the contempt jurisdiction, the Tribunal was only to see as to whether non-compliance of the directions of this Tribunal in OA 20 OA No.1810/2015 1942 of 2011 has been wilful and deliberate or not. Therefore, finding/observation of this Tribunal in order dated 18.12.2014 in CP No.578 of 2013 is of no help to the respondents in the present OA. By inviting our attention to various Orders/Judgments noted hereinabove, Mrs. Chopra, learned counsel for respondent no.2 has attempted to argue that the matter pertains to CGLE-2004 and, therefore, after a lapse of more than a decade, the reliefs sought by the applicants in the matter of promotion may not be granted. There may not be any dispute that the matter pertains to CGEL-2004, however, the result thereof was declared only in 2008 and, therefore, similarly placed person, namely, HC (Exe.) Irshad had approached this Tribunal by way of OA No.471 of 2019 and the applicants had approached this Tribunal by way of OA No.1942 of 2011 and OA No. 1942 of 2011 which was disposed of finally on 13.12.2011 and no other defence, including this one, was taken by the respondents except that Order/Judgement of this Tribunal dated 16.03.2011 in the case of HC (Ex.) Irshad (supra) was under challenge before the Hon'ble High Court in Writ Petition (Civil) No.5592 of 2011 and the operation of the said Order/Judgment had been stayed. In this view of the 21 OA No.1810/2015 matter, the argument advanced by the learned counsel for respondent no.2 that after a passage of time, at this stage, reliefs prayed for by the applicants in the present OA may not be granted, is not sustainable in the eyes of law. Moreover, in the case of Yashpal Singh Rajorar (supra), though the Tribunal has recorded in para 8 of its Order/Judgment that 'once the process of recruitment is in an advanced stage, the change in the parameters could result in a lot of administrative work and dislocation for those entrusted with the duties of conducting examination and making appointments, and it has been stated by the respondents that the processing of the result had already been completed before the instant OAs were filed'. However, in the very next paragraph, the Tribunal had directed the respondents therein to consider both the applicants in the said OAs under the OBC category and to call them for interview (if necessary by holding a special interview). Similarly, in the case of Rohtas Singh (supra), this Tribunal again, though noted that the selection of the Constable (Ex.)Male pertaining to subsequent recruitment cycle 2009 (Phase-I) was also over, however, the Tribunal in para 9 had given the directions to the respondents therein to consider the cases of the applicants for 22 OA No.1810/2015 appointment as SI (Exe.) subject to their eligibility and suitability, keeping in view of the merit list of 2007. In the Writ Petition (Civil) No. 10489 of 2015 in the case of Hari Om (supra) filed before the Hon'ble High of Delhi under challenge was the order dated 17.08.2005 of this Tribunal in OA 4266/2014, vide which, in the facts and circumstances, the Tribunal had dismissed the said OA. The Hon'ble High Court had dismissed the aforesaid Writ Petition. However, the facts in the case of Hari Om (supra) were entirely different with those in the case in hand. In the case of Yashpal Singh Rajorar (supra), the applicant therein, while working on the post of Head Constable in Delhi Police, had applied for the post of SI (Exe.), and sought the benefit of OBC reservation, which was denied to him and he had filed OA No.1285 of 2008, which was disposed of along with another OA No.1286 of 2008 vide Order/Judgement dated 06.05.2009 and the said Order/Judgement of this Tribunal was upheld by the Hon'ble High Court of Delhi vide its Order/Judgement dated 22.10.2010 in Writ Petition (Civil) No.7421 of 2010. Though the applicant in the said case was selected on the post of SI (Exe.) under OBC, reserved category, but he requested for cancellation of his candidature due to 23 OA No.1810/2015 domestic problem and such request was accepted and his candidature was cancelled vide order dated 30.11.2009 and subsequently, he moved an application dated 04.08.2011 seeking permission to withdraw his application dated 14.10.2009 and to allow him to join as SI (Exe.) which was declined vide order dated 10.10.2011, thus the facts in the case of Yashpal Singh Rojarar (supra) have been entirely different than those of the case in hand and, therefore, the order of dismissal of the said OA filed by Yashpal Singh Rojarar will also not be of any help to the respondents in the present OA. The reliance of the respondents on the Order/Judgement dated 06.09.2018 of this Tribunal in Avinash Pratap (supra) is also of no help to the respondents for the reason that the applicant therein had approached this Tribunal belatedly, however, in the present case at no stage, there has been the defence of respondents and/or finding of this Tribunal that the claim of the applicants herein had been bad for being barred by limitation and/or for delay and laches. Similarly, once the Tribunal has passed the Order/Judgment in detail taking into account the relevant rules and instructions and allowed the OA filed by HC (Exe.) Irshad (supra) and the principle of law has been 24 OA No.1810/2015 upheld by the Hon'ble High Court, we are of the considered view that the reliance of respondent no.2 on OM dated 19.01.2007 is also of no help to them.
18. In view of the aforesaid, we are of the considered view that the impugned order dated 16.7.2013 (Annexure A/1) is in violation of rules, law upheld by the Hon'ble High Court of Delhi in the case of HC (Exe.) Irshad (supra) and accordingly, the OA deserves to be allowed and the same is accordingly allowed with the following orders/directions:-
(i) Impugned order dated 16.7.2013 (Annexure A/1) is set aside;
(ii) Respondents are directed to calculate the vacancies of SI (Exe.) Male in accordance with Rule 7 of the Delhi Police (Appointment and Recruitment) Rules, 1980 and thereafter consider the case of the applicants in accordance with their merit in the CGEL-2004 and suitability;
(iii) In case the applicants are found suitable and get selected and appointed to the post of SI 25 OA No.1810/2015 (Exe.) Male, they shall be entitled for consequential notional fixation of their seniority and pay keeping in view their merit and direction(s) of this Tribunal in the case of HC (Ex.) Irshad (supra), however, they shall not be entitled for arrears of pay and wages; and
(iv) The respondents shall complete the above exercise within ten weeks of receipt of a copy of this order.
19. However, in the facts and circumstances, there shall be no order as to costs.
(R.N. Singh) (A.K. Bishnoi) Member (J) Member (A) /ravi/