Central Administrative Tribunal - Delhi
Ravindra U Garkal vs Union Public Service Commission on 25 July, 2017
Central Administrative Tribunal
Principal Bench
New Delhi
OA No.4121/2013
Reserved on: 17.01.2017
Pronounced on: 25.07.2017
Hon'ble Mr. Justice Permod Kohli, Chairman
Hon'ble Ms. Nita Chowdhury, Member (A)
Ravindra U Garkal S/o Uddhavrao Garkal,
Assistant Commissioner,
Office of Commissioner of Customs &
Central Excise, N-5 CIDCO,
Aurangabad, Maharashtra. ... Applicant
( By Advocate : Mr. S. K. Rungta, Sr. Advocate, assisted by Mr.
Prashant Singh and Mr. Varun Gupta )
Versus
1. Union of India through
Secretary, Ministry of Personnel,
Public Grievances and Pensions,
North Block, New Delhi.
2. Union Public Service Commission through
Chairman, Dholpur House, Shahjahan Road,
New Delhi-110003. ... Respondents
( By Advocates: Mr. R. N. Singh, Mr. Satyendra Kumar and Mr. Amit
Sinha )
ORDER
Justice Permod Kohli, Chairman :
The applicant is seeking a direction for allocation to the Indian Administrative Service against one of the reserved/backlog vacancies for persons suffering from hearing impairment, in place of his 2 OA-4121/2013 present Service, i.e., Indian Revenue Service (Customs & Central Excise) [IRS (C&CE)], on the basis of his performance in Civil Services Examination (CSE) 2007.
2. Brief facts necessary for purposes of the present OA are that the applicant appeared in CSE 2007. On the basis of his merit, he was allocated IRS (C&CE) vide allocation letter dated 18.12.2008. The applicant applied under physically handicapped category suffering from hearing impairment. It is stated that even though the Parliament enacted the "Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995"
prescribing reservation of 3% in favour of the persons suffering from
- (i) blindness or low vision; (ii) hearing impairment; and (iii) locomotor disability or cerebral palsy, in the posts identified for each disability, under Section 33 of the said Act, but the reservation was not implemented right from the year 1996 onwards. The Government of India also issued office memorandum No.36035/3/2004-Estt.(Res) dated 29.12.2005 consolidating the instructions for implementation of the scheme of reservation for the persons suffering with disabilities. The scheme provided that the persons suffering with disabilities selected on their own merit will not be counted against the vacancies reserved for physically handicapped category. The controversy was considered by the Hon'ble High Court of Delhi vide judgment dated 25.02.2009 in 3 OA-4121/2013 WP(C) No.5429/2008 in case of Government of India through Secretary v Ravi Prakash Gupta, whereby following directions were issued:
"Insofar as IAS is concerned, 785 vacancies were filled from 1996 to 2006. Thus during this period eight number of vacancies were to be reserved for visually handicapped persons. As against eight, only one person belonging to this category was given appointment in the year 2005, leaving seven posts which could be filled in the year 2006. However, in that year only one post from this category has been filled.
The applicant was at serial number five and was a successful candidate. Thus when sufficient numbers of successful candidates were available against the said reserved posts, we fail to understand as to why the requisition for filling up only one post was sent by the DOP&T to the UPSC."
Aforesaid judgment was upheld by the Hon'ble Supreme Court in SLP (C) No.14889 of 2009 vide judgment dated 07.07.2010. The Apex Court made following observations:
"17. While it cannot be denied that unless posts are identified for the purposes of Section 33 of the aforesaid Act, no appointments from the reserved categories contained therein can be made, and that to such extent the provisions of Section 33 are dependent on Section 32 of the Act, as submitted by the learned ASG, but the extent of such dependence would be for the purpose of making appointments and not for the purpose of making reservation. In other words, reservation under Section 33 of the Act is not dependent on identification, as urged on behalf of the Union of India, though a duty has been cast upon the appropriate Government to make appointments in the number of posts reserved for the three categories mentioned in Section 33 of the Act in respect of 4 OA-4121/2013 persons suffering from the disabilities spelt out therein. In fact, a situation has also been noticed where on account of non-availability of candidates some of the reserved posts could remain vacant in a given year. For meeting such eventualities, provision was made to carry forward such vacancies for two years after which they would lapse. Since in the instant case such a situation did not arise and posts were not reserved under Section 33 of the Disabilities Act, 1995, the question of carrying forward of vacancies or lapse thereof, does not arise."
Some similarly situated persons also filed various OAs (OA No.1893/2009 and connected matters) - N. Sharavan Kumar & others v Union Public Service Commission & others seeking implementation of the scheme of reservation in Civil Services, which were decided by this Tribunal vide its judgment dated 08.10.2010 with following directions:
"11. The OAs numbers (mentioned in paragraph 3(i) and 3(ii)) are allowed. The First Respondent is directed to carry out an exercise to work out the backlog vacancies in different services and the vacancies of the year 2008 to consider allocation of the Applicants to suitable services as per their choices. Since this would entail consultation with cadre controlling authorities, we are giving six months time to complete this exercise. The allocation of services to the Applicants would be from the date of allocation of services to the candidates of CSE 2008. The allocation would be on notional basis and the Applicants would not be entitled to back wages, but it would count towards seniority and calculation of increments. If no service is decided to be allocated to any one of the Applicants, detailed, cogent and logical reasons would be recorded in a speaking order, which the Applicants would be at liberty to challenge in a fresh proceeding before the appropriate forum...."5
OA-4121/2013
3. The respondents failed to comply with the aforesaid directions. That seems to have prompted applicants in the aforesaid OAs to file a contempt petition (CP No.74/2013). In the contempt petition, respondent No.2 filed its reply stating therein that persons suffering from blindness had been adjusted against vacancies reserved for them even though they were successful on the basis of general merit, in view of relaxation given to them on account of their disability. It was also disclosed that consequent upon the directions issued by the Tribunal in various OAs, the UPSC had carried out the exercise for working out the backlog vacancies. Accordingly, UPSC vide its letter dated 30.08.2011 recommended names of candidates for being considered for Service allocation against the backlog vacancies of physically handicapped categories. The total backlog vacancies for physically handicapped categories as detailed by UPSC and reported to the Court were as under:
TABLE-1 S. Name of No. of backlog now available for PH categories No. Service LDCP VI HI Total 1. IAS 4 1 8 13 2. IFS 1 2 1 4 3. IPoS 0 0 2 2 4. IP&T/FAS - - - 0 5. IA&AS 2 0 1 3 6. IRS(C&CE) - - - 0 7. IDAS 4 0 0 4 8. IOFS - - - 0 9. IRS(IT) 4 - - 4 10. ICAS 1 1 1 3 11. IRAS - - - 0 12. IRPS - - - 0 6 OA-4121/2013 13. IDES - - - 0 14. SO in AFHQ 0 1 1 2 15. DANICS 2 0 1 3 16. DANIPS 1 0 1 2 17. IIS - - - 0 18. ICLS - - - 0 19. ITS - - - 0 20. PONDICS 1 - - 1 TOTAL 20 05 16 41 Out of the aforesaid vacancies, those for hearing impairment category for the CSE 2006 and CSE 2007 were also worked out. As many as four vacancies were worked out for CSE 2006 and eleven vacancies for CSE 2007. Name of the applicant figures at serial number 9 of the CSE 2007. Relevant extract of the table is reproduced hereunder:
TABLE-2 HI Category CSE 2007 S. Rank Name Service Service Remarks No. allocate provisionally d earlier allocated now/no change in service
9. 636 Ravindra IRS(C& IAS If he get IAS (07) U Garkal CE) he would release one vacancy in IRS (IT)
4. The grievance of the applicant is that despite recommendation by the respondent No.2 and provisional allocation of IAS to the applicant vide the aforesaid recommendation dated 30.08.2011, the applicant has not been upgraded from IRS (C&CE) to IAS against CSE 2007. The applicant has accordingly sought following reliefs:
7
OA-4121/2013 "a) Allow this application.
b) Respondents may be directed to allocate the applicant Indian Administrative Service against of the reserved/backlog vacancies for persons suffering from hearing impairment in place of IRS(C&CE) on the basis of his performance in CSE 2007 with all consequential benefits arising out of the upgradation of service of the applicant by treating his appointment to IAS from the date when he joined IRS(C&CE).
c) Grant any other relief which Your Lordship deem fit and proper in the circumstances of the case.
d) Award the cost."
5. In the counter-affidavit filed by the respondent No.1, reference is made to the judgment of the Hon'ble High Court of Delhi duly approved by the Hon'ble Supreme Court in case of Ravi Prakash Gupta (supra), and the subsequent directions issued in case of N. Sharavan Kumar & others v Union Public Service Commission & others (supra) decided by this Tribunal on 08.10.2010, reproduced hereinabove. Further reference is made to various other cases wherein directions were issued by the Tribunal from time to time. The details of such cases totalling 12 are given in para 3.5 of the counter-affidavit. It is stated that consequent upon the aforesaid directions of the Tribunal in cases referred to hereinabove, an exercise to work out the backlog vacancies was carried out under the control of UPSC, and UPSC vide letter dated 30.08.2011 recommended names of candidates for allocation of Service against backlog vacancies in 8 OA-4121/2013 physically handicapped category. The total number of vacancies year-wise are indicated up to CSE 2009. The details are as under:
Sl. Year Number of
No. vacancies
1. 1996 75
2. 1997 55
3. 1998 55
4. 1999 56
5. 2000 59
6. 2001 59
7. 2002 70
8. 2003 89
9. 2004 91
10. 2005 87
11. 2006 89
12. 2007 111
13. 2008 120
14. 2009 131
Total 1147
The respondents have also indicated the sub category-wise vacancies under the physically handicapped category as worked out by UPSC. The service-wise and category-wise vacancies for physically handicapped category are reflected in the following chart:
S. Name of No. of backlog now available for PH categories No. Service LDCP VI HI Total
1. IAS 4 1 (+1) 8 13 (+1) 2. IFS 1 2 1 4 3. IPoS 0 0 2 2 4. IP&T/FAS - - - 0 5. IA&AS 2 0 1 3 6. IRS(C&CE) - - - 0 7. IDAS 4 0 0 4 8. IOFS - - - 0 9. IRS(IT) 4 - - 4 10. ICAS 1 1 1 3 11. IRAS - - - 0 12. IRPS - - - 0 13. IDES - - - 0 14. SO in AFHQ 0 1 1 2 9 OA-4121/2013
15. DANICS 2 0 1 3
16. DANIPS 1 0 1 2
17. IIS - - - 0
18. ICLS - - - 0
19. ITS - - - 0
20. PONS-CS 1 - - 1 TOTAL 20 05 (+1) 16 41 (+1) The respondents have also referred to the roster prepared for the 100 vacancies. In the said roster, out of 100, first vacancy is reserved for visually impaired category; 34th vacancy for hearing impaired category; and 67th for LDCP category. It is accordingly stated that as against total 1147 vacancies and keeping in view the 3% reservation for physically handicapped category, out of which 1% each is reserved for hearing impaired and LDCP categories, the vacancies for each such category are worked out as - visually impaired - 12;
hearing impaired - 12; and LDCP - 11. It is also the case of the respondents that allocation of Service has been from CSE 2006 onwards. It is stated that the following principles were adopted with the approval of the competent authority for allocation of Service against backlog vacancies:
"(i) Allocation of service would be considered to candidates pertaining to CSE-2006 onward and not prior to CSE-2006 due to the following reasons:-
a) There are neither any claimant nor there are any court orders.
b) The High Court of Delhi while calculating the number of vacancies for Shri Ravi Prakash Gupta clubbed the vacancies from Civil Service Examination-1996 to Civil 10 OA-4121/2013 Service Examination-2006 and issued mandamus to offer appointment to the candidate who was at 5th slot in CSE-2006.
The judgment of the HC of Delhi has been upheld by the Hon'ble Supreme Court of India.
c) UPSC has also indicated that no recommendations for any candidate CSE-
2007 has been made as dossiers of candidates of CSE-2007 has been destroyed as per Record Retention Scheme as there were no pending court case. It implies that records to CSE 2007 would not be available, and no recommendations from UPSC would be available in this regard.
(ii) Allocation of service would be finalized after taking into account the rank, preferences, year of CSE of the candidates recommended in the Main/original list and candidates now recommended by UPSC from the backlog list. A candidate having higher rank and belonging to earlier CSE years is to be accorded precedence over the lower rank candidates of the same CSE year and candidates of subsequent CSE.
(iii) Vacancy utilized by a candidate from main/Original list would be released for the subsequent candidates in the original as well as fresh list given by UPSC, if the higher ranked candidate from the Original List, is now proposed allocation to higher service."
It is further stated that the service allocation was made against the backlog vacancies in accordance with the CSE Rules and the principles mentioned in para 12.3. It is also the case of the respondents that the above principles were accepted by this Tribunal in its orders dated 10.04.2012, 26.04.2012 and 18.05.2012 in CP No.105/2012 in OA No.2717/2011 filed by one Ashish Thakur; and 11 OA-4121/2013 CP No.153/2012 in OA No.2717/2010 filed by Ajit Kumar. Ajit Kumar was recommended by UPSC on the basis of CSE 2009. His claim was rejected. Both the contempt petitions were dismissed on account of compliance of the directions. It is stated that the direction was to carry out the exercise to work out the backlog vacancies in different services, and since the backlog vacancies were worked out, the consideration was accorded against the backlog vacancies on the basis of the principles laid down. Regarding the claim of the applicant, it is mentioned that the applicant was allocated IRS (C&CE) by the Department in CSE 2007 against hearing impaired category. It is mentioned that similar directions were issued by the Hon'ble High Court in the writ petition against the Tribunal's order dated 30.05.2012 in case of Pankaj Kumar Srivastava and another and the Department has decided to file appeal against the High Court's order, which is under active consideration. Regarding the claim of the physically handicapped category, it is mentioned that all the persons belonging to physically handicapped category are provided extra time of 30 minutes at each paper as per Note (iii) below para 2 of Section II-B of the Rules for CSE, and in this manner all physically handicapped candidates cannot be adjusted against general merit, as they have availed relaxation in medical parameters vis-a-vis those prescribed for non-physically handicapped candidates. The respondents have sought dismissal of the OA. 12
OA-4121/2013
6. In the rejoinder filed by the applicant, the averments made in the OA have been reiterated. The applicant has further stated that backlog as indicated by UPSC vide letter dated 30.08.2011 has not been worked out properly and the same is contrary to the judgment of the Tribunal as well as the Apex Court. Regarding the claim of the respondents that they intend to file appeal against the judgment dated 11.10.2013 of the Delhi High Court in case of Union of India v Pankaj Kumar Srivastava and another [WP(C) No.4902/2013], it is stated that the same is only a device and the decision is a belated one. The applicant has further referred to judgment of the Hon'ble High Court, wherein the following observations have been made:
"18. ..... We also direct the petitioner to apply its mind with regard to the fulfilment of the medical standards by the differently abled persons and issue appropriate guidelines in this regard, since Sh. S.K. Rungta, learned senior counsel appearing for the party impleaded had pointed out that the physical standards to be fulfilled by the differently abled persons have to be laid down separately and the medical standard for the general candidates cannot be made applicable to them.
19. Since the matter pertains to a very important issue concerning differently abled persons who have struggled to avail equal opportunities in the matter of employment, we are constrained to direct the Secretary DOPT to personally oversee the exercise with required seriousness and urgency to ensure that the persons of the differently abled category are not unduly deprived the benefits which have been made available to them under the Persons with Disabilities 13 OA-4121/2013 (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995.
20. On the subject of whether the applicants before the Tribunal who were allowed a scribe and were provided 30 minutes extra time to write the paper were granted the benefit of a relaxed standard, we find that the CSE Rules provide as to what would constitute the relaxed standards and they are:- (i) Additional number of attempts allowed to certain reserved categories including persons suffering with disabilities in terms of Rule 4 of Civil Service Examination Rules; (ii) Relaxation in upper age limit in terms of Rule 6 of Civil Service Examination Rules; and (iii) Relaxation of minimum qualifying marks for persons with disabilities as prescribed in Rules 15 & 16 for persons with disabilities. Thus, the Rule itself envisages that allowing a scribe and providing extra time for writing the answers would not be amounting to availing a relaxed standard. This being so, the very foundation of the challenge has no peg to anchor itself on to."
7. The respondents have relied upon the judgment of the Tribunal in OA No.458/2013 and connected matters in case of Amit Kumar Goyal & others v Union of India & others, decided on 01.08.2016. The claim of the applicants in the aforesaid OA to shift the physically handicapped category candidates, who had secured marks more than the last selected general category candidate, to the general category and the resultant vacancies in the physically handicapped category to be filled up by the next candidates from the respective physically handicapped category on the basis of their merit and choice in the relevant examination, has been declined by the Tribunal primarily on the ground of non-joinder of necessary parties. The Tribunal made following observations: 14
OA-4121/2013 "45. Unlike in the case of General Manger, South Central Railway, Secunderabad vs A.V.R. Siddhanti (supra), this is not a case where the policy of the Government ( Meritorious Reserved Candidate (MRC), would be treated only as General Category candidates) is under attack, and it is only its non-observance that has been under attack. As such, this Tribunal has necessarily to pass an order which would have direct and proximate impact on the selection of various other candidates. In such case, non joinder of parties becomes fatal to the case.
46. Acceding to the prayers of the applicant in all the three cases would mean large scale changes in the general list. We fully concur with the case of the respondents. The persons have joined, undergone training and are already ensconced in their respective service in different states. Now, to order a change in these parameters would amount to causing a drastic change. Such matters shall be deemed to unsettle the settled matters. More than that, the fact that the parties who would be affected by the order of this Tribunal should the OA be allowed not being impleaded, non joinder of parties in this case is held as fatal to the very O.A.
47. In view of the fact that due to the above legal aspect, the OA is liable to be dismissed, there is no need to go into the merits of the case and accordingly all the O.As are dismissed."
Another judgment relied upon by the respondents is dated 31.05.2016 in OA No.225/2013 in case of Pawan Kumar v Union of India & others. In this case the prayer for allocation of service on the basis of merit has also been declined on the basis of following observations:
"14. The respondents have clearly stated in their replies that no backlog vacancies are available in IAS or IFS for accommodating the applicant, which gets further fortified from the fact that the backlog vacancies cannot be carried forward for more than two years. Taking all these factors into consideration and 15 OA-4121/2013 also bearing in mind the ratio laid down by the Hon'ble Supreme Court in Ravi Prakash Gupta (supra), we are of the clear view that the prayers of the applicant in this OA cannot be considered and that too at this belated stage."
8. We have carefully considered the pleadings of parties noticed by us and the judgments referred to hereinabove. The facts of the present case are clearly distinguishable. In the cases referred to by the respondents and noticed by us, the claims were for shifting the physically handicapped category candidates selected against reserved vacancies to general category on the basis of their higher merit, and to fill up the consequential vacancies from the physically handicapped category persons, which clearly means displacement of general category candidates who may be ousted from service to adjust the physically handicapped category candidates. Such general category candidates were not made parties and thus non-joinder of necessary parties was found fatal. In the latter case, it has been observed that backlog vacancies cannot be carried forward for more than two years. In the present case, the UPSC had carried out the exercise to identify the backlog vacancies and even made recommendations vide its letter dated 30.08.2011. Name of the applicant was recommended at serial number 9 under the physically handicapped category, i.e., hearing impairment. In the entire reply the respondents have not explained as to whether those vacancies against which these recommendations are made have been utilized. 16
OA-4121/2013 There is absolutely no mention about those vacancies which were worked out and found to be available as backlog vacancies. The applicant was recommended for IAS against the identified backlog vacancies. Why the recommendations have not been implemented is missing from the entire counter affidavit. In respect to the similar recommendation in the case of Pankaj Kumar Srivastava, the respondents have simply stated that they intend to file an appeal against the judgment of the Delhi High Court. This counter affidavit was filed on 30.05.2014, whereas the matter was heard on 17.01.2017. Mr. R. N. Singh has not explained as to whether any appeal has been filed against the order passed in P. K. Srivastava (supra) before the Hon'ble Supreme Court and the outcome thereof. The directions in Ravi Prakash Gupta's case (supra) referred to by us, both by the High Court and the Apex Court, are clear and categorical in nature. The backlog vacancies were to be worked out. An exercise has been carried out in implementation of the directions of the Hon'ble Supreme Court. In the said exercise vacancies have been identified from various Services and on the basis of merit acquired by the physically handicapped category candidates, recommendations have been made. The applicant has been duly recommended by UPSC but the recommendations have not been implemented till date for no valid reasons, at least no reason whatsoever has been disclosed to the Tribunal.
17
OA-4121/2013
9. In absence of any such plea, what to say of valid ground, this OA deserves to be allowed. The respondents are accordingly directed to implement recommendations of UPSC made vide its letter dated 30.08.2011 to allocate IAS to the applicant against the backlog vacancies already identified for CSE 2007. The allocation shall be effected from the date of joining of the applicant to IRS (C&CE). Such allocation shall, however, be notional and the applicant would be entitled to only notional benefits from the date of joining till the date of such allocation, and actual benefits from the date of re-allocation to IAS. His seniority shall also be fixed on the basis of his allocation to IAS. No costs.
( Nita Chowdhury ) ( Justice Permod Kohli ) Member (A) Chairman /as/