Central Administrative Tribunal - Delhi
Rajesh Varoon vs Union Of India on 10 February, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
O.A. No. 4221/2011
With
O.A. No. 385/2013
O.A. No.1116/2013
O.A. No.1125/2013
Reserved on: 05.12.2013
Pronounced on :10.02.2014
HONBLE MR. G. GEORGE PARACKEN, MEMBER (J)
HONBLE MR. SUDHIR KUMAR, MEMBER (A)
OA No.4221/2011
Rajesh Varoon,
S/o Shri Gangoo Ram,
R/o SA-136, Shastri Nagar,
Ghaziabad. .. Applicant
(By Advocate: Shri A.K. Shukla)
Versus
1. Union of India
Through:
Secretary, Ministry of Urban Development,
Nirman Bhawan,
New Delhi.
2. Union of India,
Through:
Secretary, Department of Personnel & Training,
Old JNU Campus,
New Delhi.
3. Central Public Works Department,
Through:
The Additional Director General (Training),
Nirman Bhawan,
Training Institute CPWD, New Delhi.
4. The Superintendent,
Engineer, Training Institute,
CPWD, Nirman Bhawan,
New Delhi. .. Respondents
(By Advocate:Shri Nasir Ahmed)
OA No.385/2013
1. Shri Dinesh Kumar
S/o Shri Har Prasad Sharma
Aged about 57 years
O/o CPWD ACD-IV, Vidyut Bhawan
Connaught Place, New Delhi,
R/o F/7/435, Raj Nagar,
Back Side of Sangam Cinema,
Loni Boarder, Ghaziabad.
2. Shri Shashi Kant Bhalla
S/o Late Shri S.P. Bhalla
Aged about 60 years
O/o PWD M-151-N-DAP Lane,
Vikas Puri, New Delhi
R/o 16/12, Tilak Nagar,
Delhi.
3. Shri Ajay Gupta
S/o Late Shri N.P. Gupta
Aged about 42 years
O/o Engineering Directorate,
HQ Domestic Airport,
Mehram Nagar, New Delhi
R/o C-309, Sarojni Nagar,
New Delhi.
4. Shri Mehender Singh
S/o Late Shri Gyant Ram
Aged about 48 years
O/o CPWD, ED-1/SD-V,
North Block, New Delhi
R/o H.No.83,Village Bakal,
PO Alipur, Delhi.
5. Shri Mahesh Kumar Pidihar
S/o Shri Jeth Ram Didihar
Aged about 50 years
O/o ACD-4, Vidyut Bhawan,
CPWD, New Delhi
R/o RZ-575, Gali No.3,
Main Sagarpur, Delhi-46.
6. Shri Ramesh Kumar
S/o Shri Hira Lal
Aged about 43 years
O/o SD-III/ED-X,
CPWD Andruj Gang, New Delhi
R/o Quarter No.53-B, Sector-4,
Pushp Vihar, New Delhi-17.
7. Shri Budh Ram
S/o Shri Girdhari Lal
Aged about 47 years
O/o AE-IIB/CPWD,
Rashtrapati Bhawan,
New Delhi
R/o House No.1496, Budh Ram,
Gali No.10B, Sawtanr Nagar,
Narela, Delhi-40.
8. Shri Ravinder Kumar
S/o Shri Daryao Singh
Aged about 45 years
O/o SE Lucknow, Central Civil,
CPWD, Kendriya Bhawan,
Aliganj, LKO-220024
R/o Type-III/2, CPWD
Staff Quarter,
Akasha Parishan,
Pocket-A, Jankipuram,
Lucknow-226021.
9. Shri Kamal Kumar
S/o Shri Din Dayal
Aged about 44 years
O/o Sub Div-III/PACD/CPWD,
South Block, New Delhi
R/o Kamal Kumar C/o Ram Ratan
House No.75, Gali No.3,
Village & P.O. Kheda Kala,
Near Mohan Ada.
10. Shri Main Pal
S/o Shri Yad Ram
Aged about 49 years
O/o Assistant Engineer
Central Sub Division-I,
Dehradun, CPWD
R/o Chawderbani Khalsa,
Titan Road, Mohabeywala,
Dehradun-24800.
11. Shri Naveen Kumar Bhasin
S/o Shri K.C. Bhasin
Aged about 47 years
O/o E.D-8, CPWD,
Vidyut Bhawan,
New Delhi. ..Applicants
(By Advocate: Shri T.D. Yadav).
Versus
Union of India Through
1. The Secretary,
Ministry of Urban Development,
Nirman Bhawan,
New Delhi.
2. The Secretary,
Department of Personnel & Training,
Old JNU Campus,
New Delhi.
3. Central Public Works Department,
Through:
The Additional Director General (Training),
Nirman Bhawan,
Training Institute CPWD,
New Delhi.
4. The Superintendent,
Engineer, Training Institute,
CPWD, Nirman Bhawan,
New Delhi.
(Official Respondents in OA No.4221/2011)
5. Rajesh Varoon
S/o Shri Gangoo Ram
R/o SA-136, Shastri Nagar,
Ghaziabad
(Applicant in OANo.4221/2011). Respondents
(By Advocate: Shri Nasir Ahmed and Shri A.K. Shukla)
OA No.1116/2013
1. Mr. C.R. James
(Electrician)
RZ-101/4, Gali No.43,
Sadh Nagar Part-II,
Palam Colony, New Delhi-45.
2. Mr. Ajit Singh
(Senior Draughtsman)
Quarter No.117-D, Ground Floor,
Type-III, Ground Floor,
Type-III, Sector-4,
Pushp Vihar, New Delhi-47.
3. Mr. Chander Prakash
(Senior Draughtsman)
289, Sector-I, Sadiq Nagar,
New Delhi-110049.
4. Mr. Parveen Kumar
(Senior Draughtsman)
E-14, Soami Nagar,
New Delhi-17.
5. Mr. Bir Singh
(Foreman)
B-30, Brijwasi Mohalla,
Sultanpur, Mehrauli,
New Delhi-110030.
6. Mr. Malay Kumar Purkait
(F.P.)
59-T, Sector 4, Raja Bazar,
Gole Market,
New Delhi-110001.
7. Mr. Rajesh Agarwal
(LDC)
G-27/181, Sector-3,
Rohini, Delhi-85.
8. Mr. Jai Singh Ahlawat
(Foreman)
86-D, LIG Flat,
J-Block, Phase-I,
Ashok Vihar, Delhi-52.
9. Mr. Gajpal Singh
(Wireman)
Street No.J-936,
Kadli Bari Marg, New Delhi-01.
10. Mr. Shravan Kumar
(Work Assistant)
RZF-777/21, Gali No.16,
Raj Nagar-II, Palam Colony,
New Delhi.
11. Mr. Rajnarayana Prasad Roy
(Work Assistant)
WC-1/5, Teen Murti Lane,
New Delhi-11.
12. Mr. Rajbir Singh
(Electrician)
H.No.17/175, Gali No.4,
Mahavir Park, Bahadurgarh,
Haryana-124507.
13. Mr. Gopal Dutt
(Wireman)
13-A, East Guru Angad Nagar,
Gali No.01, Delhi-92.
14. Mr. Ram Prasad Tiwari
(Beldar)
DA/564, Prakash Vihar,
Near Shiv Mandir,
District Palwal, Haryana.
15. Mr. Navender
(Ferro-Printer)
Village and P.O. Bhalut
District Rohtak,
Haryana.
16. Mr. Anil Kumar
(Plumber)
RZ-30-J, 216/2,
West Sagarpur,
New Delhi-110046.
17. Mr. Pradeep Kumar Sarkar
(OS)
EE Khatkahti, Central Division,
G.C. CRPF, P.O. Khatkhati,
Assam-782480
Also At
H.No.65, Jaunapur,
Mahraule, New Delhi-47.
18. Mr. Jayanta Sutradhar
(LDC)
P-206, Airport Colony,
Guahati-15
Also At:
H.No.65, Jaunapur
Mahraule, New Delhi-47.
19. Mr. Devender Malhotra
(Draughtsman)
B-105, Noida, Sector-15,
UP. ..Applicants
(By Advocate: Mohd. Muzahir Husain)
Versus
1. Union of India
Through:
Secretary, Ministry of Urban Development,
Nirman Bhawan,
New Delhi.
2. Union of India,
Through:
Secretary, Department of Personnel & Training,
Old JNU Campus, New Delhi.
3. The Additional Director General (Training),
Through:
Director General (Works), CPWD,
Govt. of India,
M/o Urban Development,
Nirman Bhawan, New Delhi.
4. The Additional Director General (S&P),
CPWD, Govt. of India,
M/o Urban Development
Nirman Bhawan,
New Delhi. .. Respondents
(By Advocate : Shri Nasir Ahmed and Shri Yogesh Sharma in
MA No.2312/2013)
OA No. 1125/2013
1. Om Prakash Sharma (age about 50 years)
Working as D/Man Grade-II (Civil)
S/o Late Shri Chattar Singh
O/o Director of Consultancy Services,
Nirman Bhawan, New Delhi
R/o B-12, Pocket-2, Kendriya Vihar,
Sector-82, Noida.
2. Jitender Singh (Age about 41 years)
Working as D/Man Grade-II (Civil)
S/o Shri Dilip Singh
O/o UFWS Division-4,
Pant Marg, New Delhi
R/o House No.499,
Village & Post Dichaon Kavan,
New Delhi.
3. Anil Kumar (Age about 41 years)
Working as D/Man Grade-II (Civil)
S/o Shri Kunwar Singh
O/o PWD (M-132), Jail Road, Tihar,
New Delhi
R/o House No.RZ-74/1A, Gali No.10,
East Sagar Pur, New Delhi-46.
4. Ramesh Kumar (Age about 48 years)
Working as D/Man Grade-II (Civil)
S/o Shri Lal Chand
O/o PWD (M-433),
FFC, Jhandewalan, New Delhi
R/o C-21A, Anand Vihar, Uttam Nagar,
New Delhi-59.
5. Jagpal Singh Joon (Age about 42 years)
Working as D/Man Grade-II (Civil)
S/o Late Shri Hoshyar Singh
O/o Parliament House Civil Works Division,
36, GRG Road, New Delhi-1,
R/o New F-34, Shastri Nagar,
Delhi-110052. .Applicants
(By Advocate: Shri M.K. Bhardwaj)
Versus
CPWD
1. The Secretary,
Govt. of India,
Ministry of Urban Development,
Nirman Bhawan, New Delhi-11.
2. The Director General of Works,
Central Public Works Department,
Nirman Bhawan, New Delhi.
3. The Director
Distance Education Council,
IGNOU Maidan Garhi,
New Delhi-110068. .Respondents
(By Advocate : Shri A.K. Shukla and Shri Nasir Ahmed)
ORDER
Shri G.GeorgeParacken, M(J) The controversy in all these Original Applications is with regard to the cut-off dates to reckon the educational qualifications prescribed in the Notice dated 27.10.2011 issued by the Respondent-Central Public Works Department (CPWD for short) based on which the Limited Departmental Competitive Examination (LDCE for short) for appointment to the posts of Junior Engineer (Civil & Electrical) was held on 05.02.2012. The aforesaid clauses in the said notice are reproduced as under:-
A. Cut-off date for possessing degree/diploma certificate:-
(i) for filling up of vacancies for the year 2006-07 and 2007-08 the cut-off date for possessing diploma certificate is 31.12.2007. The candidates who have appeared in final year exam of degree/diploma as on 31.12.2007 are also eligible to appear/apply for the said vacancies.
(ii) for filing up vacancies for the year 2008-09, 2009-10 and 2010-11 the cut-off date for possessing diploma certificate is 30.06.2008, 30.06.2009 and 30.06.2010 respectively. The candidates who have appeared in final year exam of degree/diploma as on 30.06.2008, 30.06.2009 and 30.06.2010 respectively are also eligible to appear/apply for the said vacancies.
B. Cut-off date in respect of date of joining for the eligibility of a candidate for becoming due for consideration for the vacancies of the particular year will be Ist January of the year, five years preceding to the year of consideration, for example:
for filling up of vacancies for the years 2005-06, 2006-07, 2007-08, 2008-09, 2009-10 and 2010-11, the cut-off date is 1st January, 2000, 1st January, 2001, 1st January, 2002, 1st January, 2003, 1st January, 2004 and 1st January, 2005 respectively. It means those candidates who have joined the department on or before 1st January, 2001 would be eligible for the vacancies for the year 2005-06 and similar dates for other years. The number of recruitment-year wise vacancies proposed to be filled up on the basis of the aforesaid LDCE was as under:-
Junior Engineer (Civil) Recruitment Year Total SC ST OBC UR 2006-07 12 02 01 03 06 2007-08 05 01 NIL 01 03 2008-09 11 01 01 03 06 2009-10 04 01 NIL 01 02 2010-11 06 01 NIL 02 03 Total 38 06 02 10 20 Junior Engineer (Electrical) Recruitment Year Total SC ST OBC UR 2006-07 06 01 NIL 02 03 2007-08 03 NIL 01 02 2008-09 04 01 NIL 01 02 2009-10 05 01 NIL 01 03 2010-11 05 01 NIL 01 03 Total 23 04 NIL 06 13 The closing date for receipt of the completed applications was 09.12.2011.
2. According to the Applicants in OA No.4421/2011, in the aforesaid notification dated 27.10.2011, no proper system for fixing the cut-off dates was followed. According to them, the only criterion for determining eligibility should have been that the candidate should have completed 5 years of service in the department and should possess degree or diploma from an institute recognized by Central Government or equivalent qualification. Further, according to them, there was no justification for the Respondents to introduce the criterion, that too for the first time, that the eligibility qualification should have been obtained before 31.12.2007 and the candidates should have joined on or before 01.01.2000 in the department and they should have a minimum of five years qualifying service as on 01.01.2005. According to them, those conditions were detrimental to the interest of the candidates who had completed their eligibility/educational qualification after 01.01.2005. On the other hand, the Respondent while including the vacancies of 2010 in the notification dated 27.10.2011, arbitrarily excluded the vacancies for the year 2005-06. Thus, the total vacancies have been reduced from 110 to 38.
3. The Applicant has already completed the eligibility criterion of 5 years service in the department. But on account of the arbitrary change in eligibility criterion with regard to the cut-off date for possessing the educational qualification, he was not considered eligible to participate in the selection process. He has, therefore, sought for an order/direction for quashing the notification dated 27.10.2011 and for a further direction to the Respondent to issue a fresh notification for filling up the 5% posts of Junior Engineer including those of the year 2005-06 and to pass an order directing the respondents to fill up the vacancies of each year by the candidates who have completed 5 years of service and fulfilled the eligibility qualification.
4. This Tribunal has earlier allowed the aforesaid OA, vide order dated 16.10.2012, having its operative part as under:-
19. We have heard the learned counsel for the applicant, Shri A.K. Shukla and the learned counsel for the respondents, Shri Nasir Ahmed. The thrust of the argument of Shri Shukla is twofold. First is that in the notification dated 27.10.2011, the respondents have excluded the vacancies for the year 2005-2006 thereby reducing the total vacancies from 110 to 38. As a result, against 23 vacant posts, only 6 posts have been made available to the SC candidates. Similarly, against 10 vacant posts of STs, 2 posts; against 27 vacant posts of OBCs, 10 posts and against the general category candidates, only 20 posts have been advertised. Second is that the respondents-CPWD has arbitrarily fixed the cut-off dates for possessing the educational qualifications in the Annexure A-4 notification dated 27.10.2011 as 31.12.2007 for filling up of vacancies for the years 2006-2007 and 2007-2008, as 30.06.2008, 30.06.2009 and 30.06.2010 respectively for filling up of vacancies for the years 2008-09, 2009-10 and 2010 -11.
20. As rightly argued by the learned counsel for the Applicant Shri A. K. Shukla, the rules framed in exercise of power conferred under the proviso to article 309 is binding on the government and acting contrary to the rules will create problems and dislocation and must be regulated by the rules. Such a rule can be struck down if it violates Articles 14 & 16 of the Constitution of India as held by the Apex Court in A.K. Bhatnagars case (supra). The rules governing the parties in this case is Ministry of Urban Development and Poverty Alleviation (Central Public Works Department) (Subordinate Officers) Junior Engineer (Civil Electrical) Recruitment Rules 2003. (The Method of recruitment as per the said rule is by direct recruitment and it is as under:
(i) 95% by direct recruitment through All India Competitive Examination to be held by the Staff Selection Commission.
(ii) 5% on the basis of a Limited Departmental Competitive Examination to be held by the Central Public Works Department from amongst departmental employees (work charged or regular) with five years continuous service in Central Public Works Department possessing the minimum educational qualifications as prescribed in column (8).
21. The minimum educational qualifications prescribed for direct recruitment as contained in clause 8 thereof is as under:
Diploma in Civil or Electrical or Mechanical Engineering from an Institute recognized by the Central Government or equivalent qualification.
22. In the said rules, no cut-off date has been prescribed in acquiring the prescribed educational qualifications or having the prescribed five years continuous service. Accordingly, rightly the Respondent-CPWD, while issuing the Annexure A-1 notification dated 25.09.2007 for filling up the 5% quota vacancies for the year 2005-2006, no cut-off date for obtaining the educational qualifications has been prescribed. But in the subsequent notifications dated 05.09.2008, 19.01.2011 and 27.10.2011, the RespondentCPWD has introduced the element of cut off dates for acquiring the educational qualifications and the minimum of qualifying service of five years in an arbitrary manner without any authority of law. When the closing date for receipt of applications for the Limited Departmental Competitive Examination 2011 was 09.12.2011, fixing the cut-off dates for possessing degree/diploma/certificate other than a date relatable to the concerned Select List Year is not only arbitrary but also meaningless. In the present case, the Respondent-CPWD has arbitrarily fixed the cut-off dates for possessing the educational qualifications for filling up the vacancies for two Select List years i.e. 2006-07 and 2007-08 as 31.12.2007. But for the subsequent three Select List years i.e. for 2008-09, 2009-10 and 2010-11, three respective cut-off dates namely, 30.06.2008, 30.06.2009 and 30.06.2010 have been prescribed correctly and appropriately. As a result, to compete for the vacancies of the Select List years 2006-07 and 2007-08, the candidates must have acquired the educational qualification by 31.12.2007. In other words, those who have obtained the qualification from 01.01.2008 to the closing date of receipt of applications, i.e., 09.12.2011, were not eligible. We do not find any rationale for such arbitrary fixation of cut-off dates for securing the educational qualifications. It appears that since the vacancies belong to Select List Years 2006-07 and 2007-08, the Respondents thought that candidates, who have secured the qualification upto 31.12.2007, alone should be given the chance. Such fixation is both irrational and illogical. However, fixing the cut-off dates for possessing the educational qualification for filling up the vacancies of the Select List years 2008-09, 2009-10 and 2010-11 as 30.06.2008, 30.06.2009 and 30.06.2010 respectively is correct and appropriate. It is seen that without any rhyme or reason, the Respondent-CPWD arbitrarily fixed 31.12.2007 as the cut-off date for securing the educational qualification for filling up the vacancies for two Select List years, i.e., for the Select List years 2006-07 and 2007-08, while at the same time for the subsequent three Select List years, the cut-off dates have been correctly and appropriately fixed as 30th of June of the respective year, as the Select List years start from Ist of July of a year, and end on 30th of June of the next year. .
23. Similarly, fixing the cut-off date for counting the five years qualifying service as on 01.01.2005, i.e., insisting that the candidates should have joined service on or before 01.01.2000 for appearing in the examination for which the closing date of receipt of the applications was 03.10.2008 was arbitrary. Because of such arbitrary fixation of date, the candidates, who have five years service in the Department prior to the closing date, i.e., those who have joined between 03.10.2003 to 31.12.2004 have been denied the opportunity to appear in the exams. Such arbitrary fixation is in spite of holding LDCEs in succession and the respondents could not get sufficient number of eligible candidates so far. Consequently, in this process they diverted some of the vacancies of the Select List year 2005-2006 to direct recruitment quota, thus depriving the legitimate claims of the candidates applying under the 5% departmental quota. In fact, the respondent-CPWD has created an artificial scarcity of eligible candidates to compete under the 5% departmental quota by illegally and arbitrarily prescribing the aforesaid conditions, thereby creating opportunity to divert those un-filled vacancies to direct recruitment quota. In our considered view, such a condition is absolutely irrational and arbitrary.
24. In the case of Bhupinderpal Singh & others. v. State of Punjab & others (2000) 5 SCC 262, the Apex Court held that in the relevant service rules if a provision has been made with regard to the cut off date, it has to be followed and if no such cut off date was given, then the date fixed in the advertisement shall be followed and in the absence of both, the last date fixed for receiving the applications by the competent authority shall be followed. The relevant part of the said judgment reads as under:
13. Placing reliance on the decisions of this Court in Ashok Kumar Sharma v. Chander Shekhar, (1997) 4 JT (SC) 99; A. P. Public Service Commission v. B. Sarat Chandra, (1990) 4 Serv LR 235 (SC); Dist. Collector and Chairman, Vizianagaram (Social Welfare Residential School Society) Vizianagaram v. M. Tripura Sundari Devi, (1990) 4 Serv LR 237 (SC); Mrs. Rekha Chaturvedi v. University of Rajasthan, (1993) 1 JT (SC) 220 : (1993 AIR SCW 1488 : 1993 Lab IC 1250); Dr. M. V. Nair v. Union of India, (1993) 2 SCC 429 : (1993 AIR SCW 1412 : 1993 Lab IC 1111); and U. P. Public Service Commission, U. P., Allahabad v. Alpana, (1994) 1 JT (SC) 94 : (1994 AIR SCW 2861), the High Court has held (i) that the cut off date by reference to which the eligibility requirement must be satisfied by the candidate seeking a public employment is the date appointed by the relevant service rules and if there be no cut off date appointed by the rules then such date as may be appointed for the purpose in the advertisement calling for applications; ii) that if there be no such date appointed then the eligibility criteria shall be applied by reference to the last date appointed by which the applications have to be received by the competent authority. The view taken by the High Court is supported by several decisions of this Court and is therefore well settled and hence cannot be found fault with. However, there are certain special features of this case which need to be taken care of and justice done by invoking the jurisdiction under Article 142 of the Constitution vested in this Court so as to advance the cause of justice.
25. In the present case, there is no such cut-off date was prescribed in the Recruitment Rules for obtaining the educational qualifications or gaining experience in the department. However, for the purpose of direct recruitment and for determining the age limit, it has been prescribed in the Recruitment Rules that the cut off date shall be the closing date of receipt of the applications. Thus, the cut-off date for acquiring the educational qualifications and experience for appearing in the LDCE being conducted by the respondents under the 5% quota shall be the last date (30th of June) before the start of the respective Select List year on Ist of July. Consequently, all those examinations held in terms of the Annexure A-1 notification dated 25.9.2007, Annexure A-2 notification dated 5.9.2008 and the Annexure A-4 notification dated 27.10.2011 were contrary to the aforesaid general principle. Further, even though the Recruitment Rules, 2003 contain the power to relax the rules, such power could have been invoked only in genuine circumstances and not in cases where the fundamental right of reservation to the prospective candidates are adversely affected. On the other hand, the respondent-CPWD has created an illegal and illusory situation whereby it has been projected that there were no eligible candidates for the post of Junior Engineer in the LDCEs held for the 5% quota. As a result several SC, ST and OBC departmental candidates had been deprived of their right for consideration against those reserved categories for the vacancies available for the year 2005-06. Therefore, the diversion of the 5% vacancies of the year 2005-06 meant for departmental candidates to direct recruitment quota cannot be justified.
26. In the above facts and circumstances of the case, we allow this OA. Consequently, we quash and set aside the notification dated 27.10.2011. Since, the successful candidates have already been appointed on the basis of the results of the LDCE 2008 examination held on 9.11.2008 and the applicant has not sought any relief against it, we do not intend to interfere with the notification dated 5.9.2008. The respondents are, therefore, directed to issue fresh notification for filling up the remaining vacancies under the 5% LDCE quota, including the diverted vacancies of the year 2005-06 after re-diverting them from the direct recruitment quota for the current recruitment year. The respondents shall also declare that the entire backlog vacancies under the 5% quota including the current vacancies will be filled up through the LDCE from among the eligible candidates, who have acquired the eligibility conditions regarding educational qualifications and 5 years continuous service as on the 30th of June before the beginning date of the Select List Year concerned on Ist of July of that year.
There shall be no order as to costs.
5. Thereafter, some of the candidates who have been adversely affected by the aforesaid order of this Tribunal filed MA No.3223/2012 in this OA seeking its modification/review to the extent of allowing that the result of the examination held on 05.02.2012 in terms of notification dated 27.10.2011 to be declared and the promotions based on the said result be made against all the vacancies which are directed to be recalculated by this Tribunal vide aforesaid order dated 16.10.2012 by determining eligibility of the candidates regarding qualification and 5 years of regular service on the last date of receipt of application. However, vide order dated 07.02.2013, the said MA was dismissed as not maintainable. Thereafter, some other candidates who were adversely affected by the aforesaid order also filed RA No. 348/2012 seeking a review of the said order but the same was also dismissed vide order dated 16.10.2012 as not maintainable.
6. Later, the Applicant in OA No.4221/2011 himself has filed Review Application No.95/2013 therein. He sought a direction to the Respondents to reissue the earlier notification dated 27.10.2011 by removing the cut-off date and recalculating/re-diverting the backlog vacancies of the year 2005-06 and to declare the final result of the successful candidates, who appeared in the examination, in terms of the direction of this Tribunal, vide interim order dated 25.11.2011. His prayers in the said RA were as under:-
(a) Pass necessary orders in the present Application for Review, and modify the order dated 16.10.2012 in Original Application No.4221 of 2011 by directing the Respondents to issue the earlier notification dated 27.10.2011 by removing the cut-off date and recalculating/re-diverting the backlog vacancies of the year 2005-06 further declare the final result of the successful candidates as against the notification dated 27.10.2011, who appeared in the examination, in terms of the directions issued by this Honble Tribunal vide interim order dated 25.11.2011; and/or
(b) Pass any order or direction in favour of the Applicant which may be deemed just and proper.
7. The Respondents, in the meanwhile, considering the aforesaid directions of the Tribunal dated 16.10.2012, issued OM No.A-18013/8/20110-EC-VI dated 18.03.2013 deciding as under:-
(i) To include unfilled vacancies of the recruitment year 2005-06 in the examination Notice dated 27.10.2011 with the modification that 5 years continuous service shall be required as on Ist of January of the vacancy year as per the guidelines of Dop&T and extant rules of Government of India;
(ii) Unfilled vacancies will be carried forward to the next subsequent recruitment years till the vacancies are consumed to the extent possible;
(iii) In so far as eligibility is concerned, the candidates should have acquired degree/diploma in engineering as on 30th June of the vacancy year.
(iv) Allow the Respondent, Union of India to declare the result of LDCE, 2011 for JE ( C) and JE (E) and fill up the above vacancies on the basis of this examination.
The effect of the above decision will be modification of Notification dated 27.10.2011 to the following effect:
Junior Engineer (Civil) Recruitment Year Total SC ST OBC UR 2005-06 67* 17 08 33 09 2006-07 12 02 01 03 06 2007-08 05 01 Nil 01 03 2008-09 11 01 01 03 06 2009-10 04 01 Nil 01 02 2010-11 06 01 01 02 02 Total 105 23 11 43 28 Junior Engineer (Electrical) Recruitment Year Total SC ST OBC UR 2005-06 02* Nil 02 Nil Nil 2006-07 06 01 01 02 02 2007-08 03 Nil Nil 01 02 2008-09 04 01 Nil 01 02 2009-10 05 Nil 01 O1 03 2010-11 05 01 Nil 01 03 Total 25 03 04 06 12 *Number of unfilled vacancies after conducting two LDC Exams. in 2007 and 2008.
Para3: Cut-off date for possessing degree/diploma certificate:
for filling up of vacancies for the years 2005-06, 2006-07, 2007-08, 2008-09, 2009-10 and 2010-11, the cut-off date for possessing diploma certificate will be 30th June of the vacancy year as per directions of Honble Pr. Bench, CAT, New Delhi vide its order dated 16.10.2012.
Cut-off date in respect of date of joining for the eligibility of a candidate for becoming due for consideration for the vacancies of the particular year will be Ist January of the year, five years preceding to the year of consideration, for example:
for filling up of vacancies for the years 2005-06, 2006-07, 2007-08, 2008-09, 2009-10 and 2010-11, the cut-off date is 1.1.2000, 1.1.2001, 1.1.2002, 1.1.2003, 1.1.2004 and 1.1.2005 respectively. It means those candidates who have joined the department on or before 1.1.2000 would be eligible for the vacancies for the year 2005-06 and similar dates for other years.
Note: Unfilled vacancies will be carried forward to the next subsequent recruitment years till the vacancies are consumed to the extent possible.
8. In view of the above position, the said RA was allowed vide order dated 08.08.2013 and the OA was restored for re-hearing. Accordingly, it is being reheard.
9. The Review Applicants in RA 348/2012 (supra) have later filed OA No.385/2013 seeking the following reliefs:-
(i) Differ with the judgment and order dated 16.10.2012 in OA No.4221/2011.
(ii) Refer the OA No.4221/2011 and final order dated 16.10.2012 passed by this Honble Tribunal and the instant case to the larger Bench of this Honble Tribunal for proper adjudication.
(iii) The larger Bench may quash and set aside the judgment dated 16.10.2012 in OA No.4221/2011 and resultantly allow the instant OA by directing the Respondents the result of the Applicants of the abovesaid examination held on 05.02.2012 in terms of notification dated 27.10.2011 may be declared because the Applicants herein are fulfilling all the eligibility criteria including recognized Diploma as per Recruitment Rules and Applicants have no concern with the candidate and their eligibility who were allowed in OA No.4404/2011 by this Tribunal because there Diploma is under the consideration with several Ministry and Department who have already confirmed that the diploma acquired through the Distance Mode not recognized through their public notice and the same was reconfirmed vide letter dated 16.10.2012 and also held in judgment dated 06.11.2012 in CWP No.1640/2008 passed by the Punjab and Haryana High Court, due to policy matter it may take long time, therefore, appointment of the Applicants based on the said result shall be declared against all the vacancies. Because the diploma acquired by the Applicants is from recognized and not under the controversies or any doubt.
(iv) To pass any further order as this Honble Tribunal may deem fit and proper in the facts and circumstances of the case.
(v) Award costs.
10. In the said OA they have also filed MA No.1152/2013 seeking a direction to the Respondents to declare the result of LDCE, 2011 for Junior Engineer (Civil) and JE (Electrical) and fill up the vacancies in modification of the Notification dated 27.10.2011 in view of the Respondents OM dated 18.03.2013.
11. Some other Applicants in MA No.3223/2012 (supra) and some new Applicants have also filed OA No.1116/2013 seeking such reliefs which are as under:-
(i) Pass orders/directions for not quashing the entire notification dated 27.10.2011 and further directing the opposite party to amend the notification which has already been issued by the Respondents on 18.03.2013 for amending the above notification on the direction of the Honble Court to filling up the remaining 5% post of Junior Engineer including the year 2005-06 out of total new vacancies which are to be filled up from the departmental cadre amongst the candidates having eligibility and declare the result of the examination LDCE held on 02.05.2012.
(ii) Further directing the respondents to modify the notification dated 18.03.2013 passed by the respondents as written in Para 5(iii) in so far as the eligibility is concerned, the candidates should have acquired a degree/diploma in engineering as on 30th June of the vacancy year, it should be 30th June of Notification year. In the light of OM No.8/58/200-EC-III, Govt. of India, Director General of CPWD, Nirman Bhawan, New Delhi dated 23rd January, 2012.
(iii) To direct the Respondents to declare the result of the Applicants of above LDCE held on 05.02.2012 as mentioned above.
(iv) Pass order/s directing the Respondents to fill up the vacancies of each year on one time basis as per all the employees who have completed 5 years regular service in department and have completed their eligibility qualification on the notification year, i.e., 27.10.2011.
(v) To pass order/s directing the respondents not to impose any condition and to consider all the candidates, who have completed Degree/Diploma till the publication of notification and appeared in the examination and/or
(vi) To pass any other order/direction/s as this Honble Court may deem fit and proper in the facts and circumstances of this case in the interest of justice.
12. Similarly, 4 of the Miscellaneous Applicants in M.A. No.3223/2012 (supra), namely, S/Shri Om Prakash Sharma, Jatinder Singh, Randhir Singh Sagar and another Shri Anil Kumar filed OA No.1125/2013 seeking the following reliefs:-
(i) To declare the action of Respondents in not declaring the result of Limited Departmental Competitive Examination 2011 held on 05.02.2011 as per notification dated 27.10.2011 as illegal, arbitrary and unjustified.
(ii) To declare order dated 16.10.2012 in OA No.4221/2011 as not binding on the Applicants to the extent the notification dated 27.10.2011 has been quashed.
(iii) To hold that the order dated 16.10.2012 in OA No.4221/2011 as not justified inasmuch as, the examination conducted vide notification dated 27.10.2011 has been set aside without hearing the affected parties.
(iv) To direct the Respondents to declare the result of LDCE held on 05.02.2012 as per notification dated 27.10.2011 and give promotion to the Applicants with all consequential benefits as per their merit.
(v) To allow the OA with costs.
(vi) Any other relief which the Honble Tribunal deem fit and proper may also be granted to the Applicants.
13. MA No.2312/2013 has also been filed by the Applicants in OA No.1116/2013 through the learned counsel Shri Yogesh Sharma seeking a direction to clubb OA No.1116/2013 with OA No.4221/2011 and to hear together.
14. We have heard the learned counsel for the parties. It is seen that this Tribunal, vide its order dated 16.10.2012 in OA No.4221/201, has earlier considered the issues raised in all these OAs. The contention of the Applicant therein was that the notification dated 25.09.2007 was issued without any proper system of cut-off date and the only criteria for eligibility was that the candidate should have completed 5 years of service in the department and should possess degree or diploma from the institute recognized by Central Government or equivalent qualification. His further contention was that it was for the first time, that too, without any justification, that the department has introduced the criteria that the eligibility qualification shall be obtained before 31.12.2007 and also those who have joined on or before 01.01.2010 in the department and have a minimum of five years qualifying service as on 01.01.2005 can participate in the examination. Further, the CPWD issued a fresh notification on 27.10.2011 in which the vacancies of the year 2010-11 have been included but the vacancies for the year 2005-06 have been wrongly removed thereby the total vacancies which should have been 110 was reduced to 38. Similarly, against 23 vacant posts, only 06 posts of SC against 10 vacant posts only 02 posts of ST, 27 vacant posts only 10 OBC and general un-vacant post only 20 posts of general candidates were advertised. However, the Applicant has already completed the eligibility criterion of 5 years in department and on account of arbitrary change in eligibility criterion with regard to the date for possessing the educational qualification, he is not considered eligible to participate in the selection process. He has, therefore, sought an order quashing the notification dated 27.10.2011 and further directing the Respondent to issue a fresh notification for filling up the remaining 5% post of Junior Engineer including the year 2005-06 out of total new vacancies which are to be filled up from the departmental cadre amongst the candidates having eligibility and to pass an order directing the respondents to fill up the vacancies of each year on one time basis by all the employees who have completed 5 years in department and have completed their eligibility qualification. Finding merit in the aforesaid contention, this Tribunal vide order dated 16.10.2012, allowed the OA and quashed and set aside the aforesaid Notification dated 27.10.2011. We have also directed the Respondents to issue fresh notification to fill up the remaining vacancies under 5% LDCE quota, including the diverted vacancies of the year 2005-06 after rediverting them from the direct recruitment quota for the current recruitment year. The Respondents were also directed to declare that the entire backlog vacancies under the 5% quota including the current vacancies will be filled up through the LDCE from among the eligible candidates, who have acquired the eligibility conditions regarding educational qualifications and 5 years continuous service as on the 30th of June before the beginning date of select list year concerned as Ist of July of that year. Pursuant to the aforesaid order, the Respondent-CPWD vide its OM No.A-18013/8/20110-ECVI dated 18.03.2013 itself has decided to include unfilled vacancies of the recruitment year 2005-06 in the examination Notice dated 27.10.2011 with the modification that 5 years continuous service shall be required as on Ist of January of the vacancy year as per the guidelines of Dop&T and extant rules of Government of India. They have also modified the cut-off dates for (i) possessing the educational qualifications and (ii) joining the Department for determining the eligibility as under:-
Cut-off date for possessing the educational qualifications:-
for filling up of vacancies for the years 2005-06, 2006-07, 2007-08, 2008-09, 2009-10 and 2010-11, the cut-off date for possessing diploma certificate will be 30th June of the vacancy year as per directions of Honble Pr. Bench, CAT, New Delhi vide its order dated 16.10.2012.
Cut-off date for joining the department:
for filling up of vacancies for the years 2005-06, 2006-07, 2007-08, 2008-09, 2009-10 and 2010-11, the cut-off date is 1.1.2000, 1.1.2001, 1.1.2002, 1.1.2003, 1.1.2004 and 1.1.2005 respectively. It means those candidates who have joined the department on or before 1.1.2000 would be eligible for the vacancies for the year 2005-06 and similar dates for other years.
Thereafter, the Applicant in OA No. 4221/2011 in RA No.95/2011 (supra), himself wanted the notification dated 27.10.2011 to be reissued after removing the stipulation regarding cut-off date for obtaining the eligibility qualification and re-diverting of vacancies of the year 2005-06 and then to declare the final result. The Applicants in OA No.385/2013 (supra), OA No.1125/2013 (supra) and OA No.1116/2013 (supra) are also seeking similar reliefs. The unanimous submission of the parties in all these cases is that the Notification dated 27.10.2011 was not required to be totally quashed. But they also submitted that the Notification dated 18.03.2013 shall be modified to the extent the candidates who have acquired the requisite educational qualifications as on 30th June of the Notification year shall be made eligible. In other words, instead of saying that the candidates should have acquired a degree/diploma in engineering as on 30th June of the vacancy year, it should be 30th June of Notification year. They also sought a direction to the Respondents to declare the result of the LDCE held on 05.02.2012 accordingly.
15. In view of the above position, we modify our order dated 16.10.2012 quashing and setting aside the Notification dated 27.10.2011. However, we quash and set aside the OM dated 18.03.2013 to the extent it says that for filling up of vacancies for the years 2005-06, 2006-07, 2007-08, 2008-09, 2009-10 and 2010-11, the cut-off date for possessing diploma certificate will be 30th June of the vacancy year as per directions of Honble Pr. Bench, CAT, New Delhi vide its order dated 16.10.2012. Further we direct the Respondents to prepare the result of LDCE held on 05.02.2012 making all the candidates who have acquired the prescribed educational qualification as on 30.06.2011 and declare the same at the earliest.
16. Accordingly, all these OAs are disposed of. No costs.
Let a copy of this order be placed in all the files.
(SUDHIR KUMAR) (G. GEROGE PARACKEN) MEMBER (A) MEMBER (J) Rakesh