Central Administrative Tribunal - Delhi
Jagat Singh Hooda vs Union Of India on 24 September, 2010
Central Administrative Tribunal Principal Bench O.A. No.2847/2009 New Delhi, this the 24th day of September, 2010 Honble Mrs. Meera Chhibber, Member (J) Honble Dr. A.K. Mishra, Member (A) Jagat Singh Hooda, S/o Shri Dalip singh, R/o T-23B, Railway Colony, Rohtak (Haryana). Applicant By Advocate : Shri Yogesh Sharma. Versus 1. Union of India, through The General Manager, Northern Railway, Baroda House, New Delhi. 2. The Divisional Railway Manager, Northern Railway, Delhi Division, State Entry Road, New Delhi. 3. Asstt. Personnel Officer (Engg.), Divisional Railway Manager Office, Northern Railway, Delhi Division, State Entry Road, New Delhi. ..Respondents By Advocate : Shri Shailendra Tiwary. O R D E R By Honble Mrs. Meera Chhibber, Member (J) :
Applicant has challenged order dated 19.12.2008 (page 11) whereby his request for being considered to the post of Office Superintendent-II (hereinafter referred to as OS-II) has been rejected. He has further sought a direction to the respondents to promote him from the same selection and on the basis of result dated 15.9.2006 as he was already found fit for promotion.
2. The brief facts, as stated by the applicant are that the respondents had issued Notification dated 25.5.2006 for selection to the post of OS-II Engineering Grade Rs.5500-9000 (page 13). There were 42 eligible candidates. Applicants name figured at Sl.No.22. Applicant had passed the written test which is evident from the result declared on 15.9.2006 (page 15). Applicants name figures at Sl.No.13 in the above said provisional panel from where the candidates were to be considered in the DPC to be held on 18.9.2006.
3. Grievance of the applicant in this case is that even though he was placed in the provisional panel but when the next provisional panel was issued on 26.9.2006 (page 12) his name did not figure in the said panel. Being aggrieved, applicant had filed OA No. 2590/2006 which was disposed of on 19.2.2008 by directing the respondents to recalculate the vacancies and deeming it to be 15 at the time when the DPC had met and consider the claim of applicant for promotion as OS-II as per law and from the date it was given to the others by the DPC. In spite of above directions, respondents once again passed order dated 24.3.2008 rejecting the claim of the applicant on the same grounds which were taken by them in their reply to the OA (page 33). At this stage applicant filed MA No. 945/2008 in OA No. 2590/2006 seeking execution of the orders dated 19.2.2008. At this stage, Tribunal noted as follows:-
However, the order passed on 28.3.2008 does not show recalculation deeming the vacancies as 15 and, therefore, rejected the claim of the applicant.
After hearing both the sides, we dispose of the MA by directing respondents to pass a fresh order, complying with our orders in true letter and spirit, within a period of three months from the date of receipt of a copy of this order.
4. Thereafter respondents passed fresh orders dated 23.12.2008 (page 11) which has now been challenged by the applicant in the present OA. It is submitted by the counsel for the applicant that once this Tribunal had directed the respondents to deem the vacancies at the time of DPC to be 15, no other view could have been taken for denying promotion to the applicant. He also submitted that Railway Board vide Circular dated 17.6.2005 decided to do away with direct recruitment as introduced in the categories of OS-II in the pay scale of Rs.5500-9000 and in lieu thereof introduced a Limited Departmental Competitive Examination (hereinafter referred to as LDCE) quota to the extent of 20% posts in OS-II. Further Railway Board had issued circular dated 20.2.2006 in continuation of Circular dated 17.6.2005 to the effect that till such time the prescribed percentage in the category of OS-II is reached, the vacancies may be filled by LDCE and promotion by selection on 50:50 basis. Therefore, in view of above Circular, out of 6 posts of LDCE quota, 3 more posts were required to be filled up by the respondents. As such the panel of 19 posts should have been prepared by them to the post of OS-II in promotion quota. However, in spite of a positive direction given by the Tribunal, respondents have interpreted the Circular dated 202.2006 in their own way only to reject the claim of the applicant on flimsy grounds. Thus the order passed by the respondents is totally illegal and arbitrary, therefore, the same may be quashed and set aside.
5. Respondents have opposed this OA. They have stated that applicant was appointed as Clerk in the grade of Rs.260-400 on 24.5.1984 and was promoted as Sr. Clerk on 19.7.1988 in the grade of Rs.1200-2400 and as Head Clerk in the grade of Rs.5000-8000 with effect from 1.7.2000.
6. Selection for the post of OS-II in the grade of Rs.5500-9000 was conducted on 8.7.2006. Since applicant was eligible, he was also called for the written test. Applicant appeared in the written test and qualified for consideration by the DPC. He was duly considered on 18.9.2006 but was not found fit by the DPC as such he was not placed in the provisional panel dated 26.9.200. They have further stated that applicant had earlier approached this Tribunal wherein certain directions were given to the respondents which were complied with by them, therefore, the Contempt Petition filed by the applicant was dismissed on 13.2.2009 after the court was satisfied. Therefore, present OA is barred by res judicata. The same is, therefore, liable to be dismissed on this ground alone. They have relied on Chandra Prakash Tiwari and Others Vs. Shakuntla Shukla and Others reported in 2002 (6) SCC 127 and Om Prakash Shukla Vs. Akhilesh Kumar Shukla and Others reported in 1986 (Supp) SCC 285 to state that when a candidate appears in the examination without protest and was subsequently not found to be successful, he cannot be allowed to challenge the examination later on. In the instant case applicant appeared in the selection process but when he was not found qualified he is now trying to challenge the selection, therefore, this OA is liable to be dismissed on this ground also.
7. On merits they have stated that sanctioned strength in the cadre of Ministerial Engineering Department is as follows:-
COS 07 OS-I 15 OS-II 29 HC 52
8. They have further explained that the two posts of OS-I and 3 posts of OS-II were created in exigency of the work with the concurrence of Account department extended up to 30.04.2006 and further extended up to 31.03.2007. They have denied that on 22.03.2006 there was one vacant post of OS-I lying vacant against which two persons Shri Brahm Parkash and Smt. Nirmala (SC) were promoted against the UR & SC reserved posts. The promotion of Smt. Nirmala was according to as per extant rules. The selection was held for 16 posts (12 for UR, 2 for SC and 2 for ST). 20% quota for Direct Recruitment in the category of OS-II grade Rs.5500-9000 was introduced by the Railway Board vide letter No.E(NG)1-2005/PMI/20 dated 17/06/2005. Further in terms of Headquarters letter dated 20.02.2006, the vacancies were to be filled on 50:50% basis between promotee quota and LDCE till such time the required percentage was reached.
9. They have explained the significance of the above policy, especially the underlined phrase. The total sanctioned cadre to be divided between PQ and LDCE quota is fixed i.e. 26 for PQ and 6 for LDCE. The Railway Boards circular does not relate to sanctioned cadre but to vacancies only. Hence vacancies occurring are essentially to be filled up in such a way that prescribed cadre limits are not crossed under either quota. Since the division of 50%-50% is only in relation to vacancies and not to sanctioned cadre under PQ and LDCE, hence vacancies which occur are to divided 50%-50% between both quotas but subject to the prescribed limits. This can be demonstrated as under:-
Suppose there had been 10 vacancies then division would be 5 PQ and 5 LDCE, If 12 vacancies, then 6 PQ and 6 LDCE, If 14 vacancies, then 8 PQ and 6 LDCE.
10. At this point maximum prescribed limit of 6 for LDCE limit is reached hence no further vacancies can be diverted to LDCE quota. In the instant case 22 vacancies occurred. Maximum 6 vacancies could only go to LDCE quota, the remaining would be filled by PQ, as such assessment of vacancies has been strictly as per Rly. Boards circular dated 20-02-2006. In view of the facts narrated above, even after re-calculation of vacancies, it is established that the action taken by the administration is correct and applicants claim is not tenable. The 6 posts of OS-II were kept vacant against direct recruitment quota (29 x 20 / 100= 5.8 i.e. (6). The top sheet of processing the selection for the post of OS-II was submitted on 15.05.2006 and no body was going to retire within 15 months. Applicants representation dated 06.10.06 has been disposed off vide this office letter no.758E/561/OS-II/P-4 dated 12.01.2007. They have thus prayed that the vacancies have rightly been calculated as such this case calls for no interference. The same may accordingly be dismissed.
11. We have heard both the counsel and perused the pleadings.
12. It is correct that when applicant had initially approached this Tribunal by filing OA No. 2590/2006, this Tribunal had passed the order as follows:-
OA stands disposed of with a direction to the respondents to recalculate the vacancies and deeming it to be 15 at the time when the DPC had met and consider the claim of applicant for promotion as OS-II as per law and from the date it was given to others by the DPC. Legal consequences to ensue. No costs.
However, perusal of same shows that the stand of the respondents was neither considered nor dealt with while passing the above order. Thereafter, the respondents passed the order dated 24.3.2008 explaining the reasons how the action taken by the respondent is correct and claim of the applicant is not maintainable. However, Tribunal directed the respondents to pass fresh order because it was of the view that respondents had not recalculated the vacancies deeming the same to be 15 on the date of DPC. Thereafter, the respondents passed detailed order dated 19.12.2008 which reads as under:-
The matter has been accordingly re-considered and the vacancies have been recalculated accordingly to Railway Boards direction dated 17-6-2005 and 20-2-2006. In terms of Railway Boards letter No.E(NG)(i)-2005/P(iv)/1/20 dated 17/06/2005, the total cadre of OS-II is 32, accordingly 80% of the sanction strength i.e. 26 posts are to be filled by promotee quota and the remaining 6 posts by LDCE.
Further in terms of Headquarters letter dated 20/02/2006, the vacancies were to be filled in 50:50% basis between promotee quota and LDCE till such time the required percentage was reached.
It would be essential here to understand the significance of the above policy, especially the underlined phrase. The total sanctioned cadre to be divided between PQ and LDCE quota is fixed i.e. 26 for PQ and 6 for LDCE. The Railway Boards circular does not relate to sanctioned cadre but to vacancies only. Hence vacancies occurring are essentially to be filled up in such a way that prescribed cadre limits are not crossed under either quota. Since the division of 50%-50% is only in relation to vacancies and not to sanctioned cadre under PQ and LDCE, hence vacancies which occur are to divided 50%-50% between both quotas but subject to the prescribed limits. This can be demonstrated as under :-
Suppose there had been 10 vacancies then division would be 5 PQ and 5 LDCE, If 12 vacancies, then 6 PQ and 6 LDCE, If 14 vacancies, then 8 PQ and 6 LDCE.
At this point maximum prescribed limit of 6 for LDCE limit is reached hence no further vacancies can be diverted to LDCE quota. Hence, here when we have 22 vacancies occurring, maximum 6 vacancies can only go to LDCE quota, the remaining would be filled by PQ.
As such assessment of vacancies has been strictly as per Rly. Boards circular dated 20-02-2006. In view of the facts narrated above, even after re-calculation of vacancies it is established that the action taken by the administration is correct and your claim is not tenable.
13. It is relevant to note that being aggrieved by this order applicant had filed a Contempt Petition and this Tribunal had looked into the order dated 19.12.2008. The contention which has now been raised by the applicant has also been referred to by the Tribunal while deciding the Contempt Petition on 13.2.2009 which is evident from para 5 thereof wherein it is noted as follows:-
The applicants grievance was that even though admittedly the DPC had found him suitable for the post and placed his name at serial no.13, he could not be included in the panel for motion because the number of general vacancies was taken to the only 12. The contention was that the Respondents had not calculated the vacancies correctly and in accordance with their Circular dated 29.2.2006 whereby instead of 12, the number of vacancies should have been 15. After noting this , Tribunal observed as follows:-
6. The Tribunal vide its order dated 19.2.2008 had dealt with the limited issue of recalculation of vacancies in the instant case in the context of the Railway Boards Circular dated 20.2.2006 and due consideration of the applicants case for promotion as OS-II as per law. The contention of the Respondents that special dispensation of filling up the vacancies on 50:50 basis from the promotion quota and LDCE was subject to the overall quota limit of 80% and 20% for them is found to be acceptable.
The original plea regarding non-issue of a fresh order in pursuance of the Tribunals direction, as raised in the Contempt Petition, no more stands in view of the aforesaid order of the Respondents. Further as the Tribunal had directed the respondents to recalculate the vacancies and consider the case of the applicant for promotion as per law, which has been done in the present case, we do not find any ground for arbitrariness or willful disobedience rendering the Contempt Petition as untenable.
7. For the foregoing reasons, the C.P. is dismissed. There shall be no order as to costs.
14. From above it is clear that the defence taken by the respondents was found to be acceptable to the same Bench who had initially given directions to the respondents. It was also specifically noted that court found no arbitrariness or willful disobedience meaning thereby the court was satisfied with the second order passed by the respondents. Not only the CP was dismissed but no liberty was given to the applicant to agitate the matter any further. In view of above, it is not open to the applicant to once again challenge the same order which found favour with the Tribunal by filing yet another OA.
15. In view of above discussion, the present OA is not maintainable as it has already been adjudicated upon by the Tribunal, therefore, this OA is dismissed. No order as to costs.
(DR. A.K. MISHRA) (MRS. MEERA CHHIBBER)
MEMBER (A) MEMBER (J)
Rakesh