Central Administrative Tribunal - Delhi
Sh. Rajeev Kumar Saha vs Union Of India Through on 26 March, 2015
Central Administrative Tribunal
Principal Bench, New Delhi.
OA-361/2015
MA-285/2015
Reserved on : 23.03.2015.
Pronounced on : 26.03.2015.
Honble Mr. G. George Paracken, Member (J)
Honble Mr. Shekhar Agarwal, Member (A)
1. Sh. Rajeev Kumar Saha,
Assistant,
Aged 32 years,
S/o Sh. Rajesh Kumar Saha,
RZ-28A, Street No.7, Duraga Park,
Palam, New Delhi-110045.
2. Nitesh Kumar Srivastav,
Assistant,
Aged 40 years,
S/o Sh. S.K. Srivastav,
H-2, Shakarpur,
Delhi-110092.
3. Mahendra Kumar,
Assistant,
Aged 40 years,
S/o Sh. P.D. Joshi,
588/Sector-12, R.K. Puram,
Delhi-110022.
4. Hena Akhtar,
Assistant,
Aged 35 years,
D/o Sh. Agha Rasid Akhtar,
T-25/5, SF, Khalki Ext.,
Malviya Nagar,
New Delhi.
5. Santosh Kumar Tiwary,
Assistant,
Aged 37 years,
S/o Sh. Kamleshwar Tiwary,
Flat No. 938 F, Timarpur,
New Delhi.
6. Mahesh Narayan Singh,
Assistant,
Aged 36 years,
S/o Sh. Braj Kishor Singh,
1/212, Press Colony,
Mayapuri, New Delhi.
7. Kundan Kumar,
Assistant,
Aged 38 years,
S/o Sh. Surendra Pd. Gupta,
E-2/1813, Chankya Place-1,
Near C-Janakpuri,
New Delhi-110059.
8. Suman Kumar,
Assistant,
Aged 30 years,
S/o Sh. Ram Pravesh Singh,
D-337, Indra Park,
Opp. DMRC Depot.,
Najafgarh,
New Delhi-110043.
9. Manoj Kumar,
Assistant,
Aged 30 years,
S/o Sh. Ram Aasrey,
RZ-48, Pancheel Colony,
Mahavir Enclave-III,
New Delhi-110059.
10. Sarfaraj Alam,
Assistant,
Aged 31 years,
S/o Md. Ali,
D-9/2 FF, Okhla Vihar,
New Delhi-110025.
11. Ajay Kumar,
Assistant,
Aged 40 years,
S/o Sh. Bharat Lal Singh,
A-71, Nand Ram Park,
Uttam Nagar,
New Delhi-110059.
12. Madhu Gupta,
Assistant,
Aged 40 years,
D/o Sh. Gurdev Paul,
13/2, Pushp Vihar,
Sector-1, New Delhi-110017.
13. Biswajit Saha,
Assistant,
Aged 44 years,
S/o late Sh. Chittranjan Saha,
K-755, Sanjay Nagar,
Sector-23, Ghaziabad,
UP.
14. Kumar Vishal,
Assistant,
Aged 37 years,
S/o Sh. Rajender Singh,
113-B, Platinum Enclave,
PKt.-I, Sector-18, Rohini,
Delhi.
15. Surendra Kumar,
Assistant,
Aged 32 years,
S/o Sh. Ganesh Mochi,
H.No.118/1, Ext-2, Nagloi,
New Delhi. .. Applicants
(through Sh. C. Hari Shanker, Sr. Counsel with Sh. S. Sunil, Advocate)
Versus
1. Union of India through
The Secretary,
Ministry of Railways,
Railway Bhawan,
New Delhi.
2. Union Public Service Commission
Through : Chairman,
Dholpur House,
Shajahan Road,
New Delhi. .. Respondents
(through Sh. Shailender Tiwari and Sh. Amit Yadav for Sh. Ravinder Agarwal, Advocate)
O R D E R
Mr. Shekhar Agarwal, Member (A) MA No. 285/2015 filed in this OA for joining together is allowed for the reasons stated therein.
2. The applicants are working as Assistants in the Railway Board Secretariat Service (RBSS). According to them, their next promotional post is that of Section Officer, which is filled in accordance with Rule-9 of RBSS Rules, 1969, which reads as follows:-
9. Recruitment to the Section Officers and the Assistant Grades:-
(1) Regular vacancies in the Section Officers Grade shall be filled on the following basis, namely:-
(a) Twenty percent of the regular vacancies in the Section Officers Grade shall be filled by direct recruitment on the basis of the results of a competitive examination held by the Commission for this purpose from time to time.
(b) Eighty percent of vacancies shall be filled by appointment of persons included in the Select List for the Section Officers Grade and such appointment shall be made in the order of seniority in the Select List except when for reasons to be recorded in writing, a person is not considered fit for such appointment on his turn;
Provided that if sufficient number of candidates are not available for filling up of the vacancies in any recruitment year, either by direct recruitment or by appointment of persons included in the Select List for Section Officers Grade, the vacancies shall be carried forward and added to the number of vacancies of the same mode of recruitment to be filled in the subsequent recruitment year.
Provided further that no such vacancies shall be carried forward for more than two recruitment years, beyond the year to which the recruitment relates, where after the vacancies, if any, belonging to one mode of recruitment shall be transferred as additional vacancies for the other mode of recruitment.
3. In accordance with Clause-9(1)(a) of the aforesaid Rule, an advertisement was issued by the Department of Personnel & Training on 28.09.2013 for holding the Competitive Examination for the years 2012 and 2013. The applicants appeared for the 2013 Examination. According to them, through RTI application, they have come to know that all together there were 28 vacancies for the recruitment year 2012 and 11 for the year 2013. Against this, the respondents have appointed 08 persons for the year 2012 and 11 persons for the year 2013. The contention of the applicants is that if for the year 2012, only 08 vacancies could be filled then the remaining 20 vacancies should have been transferred to the year 2013 and in that year 20 transferred vacancies along with 11 existing vacancies should have been filled. Against that the respondents have filled only 11 vacancies for the year 2013 and have carried forward the unfilled vacancies of 2012 to the 2014 examination. The applicants have contended that the action of the respondents was contrary to the statutory rules cited above, according to which the vacancies were to be carried forward to the subsequent recruitment year. The applicants made representations requesting Respondent No.1 for carrying forward the unfilled vacancies of the year 2012 to the year 2013. However, no response has been received from the respondents. Hence, the applicants have filed this O.A. before us seeking the following relief:-
(i) to direct Respondent No 2 to carry forward the unfilled/backlog vacancies in the post of Section Officers, Grade RBSS/Category III of 2012 to 2013.
(ii) to direct Respondent No 2 to recommend the applicants names for inclusion in the select list prepared for 2013, and
(iii) consequently to direct Respondent No 1 to appoint the applicants as Section Officers pursuant to the inclusion of their names in the select list prepared for 2013.
(iv) direct Respondent No. 1 to pass suitable instructions for granting consequential benefits while complying with the directions of the Honble Tribunal.
(v) to grant costs to applicants.
(vi) to pass such order or orders as may be deemed fit and proper in the interests of justice.
4. In their reply, the respondent Railways have submitted that they had requested the UPSC to carry forward unfilled vacancies for the year 2012 to the year 2013. However, their request was not acceded to by the UPSC.
5. UPSC have also filed their reply in which they have stated that the conduct of Section Officers/Stenographers Limited Departmental Competitive Examination by the Commission was badly interrupted after the examination year 2004 due to several complications. Therefore, in consultation with DoP&T, a conscious decision was taken to hold the examination in a clubbed mode to fill up vacancies for multiple years. Further, they have stated that the Commission, as a matter of policy, do carry forward unfilled vacancies of a particular post to the next year provided the examination is held for a single year. However, in a combined/clubbed examination for more than one year the Commission is not in a position to follow the principles because of certain compulsions, which are as follows:-
(i) The firm number of unfilled vacancies in a category for a particular year cannot be determined by the Commission at the time of preparing final results of a particular year since there would be some common candidates (recommended for both Section Officer and Stenographer (Gd. B/Gd.1 of the same year, repeat candidates [Recommended for both Section Officer and Stenographer (Gd.B/Gd.1) in two/three successive years] and special cases like resignation or inclusion of a successful candidate in a previous Select List under the seniority quota or in exceptional circumstances like refusal to accept promotion on examination quota.
(ii)As per the normal practice of management of unfilled number of vacancies, these are computed and then reported to the Commission by the Cadre Controlling Authorities (CCA) as per the vacancy rosters prepared and maintained by them. Computation of vacancies for each year is required to be done by the Cadre Controlling Authorities after declaration of final results till conclusion of the joining by candidates being appointed to arrive at a firm credible number of vacancies remaining unfilled in a particular year to be carried forward to subsequent year(s) or to be diverted to other modes of recruitment/selection/promotion. The Commission cannot enter into that domain of respective Cadre Controlling Authorities of the Government. In a combined examination for multiple years, where results of two three years are to be declared simultaneously by the Commission, execution of the whole exercise as explained above is neither feasible nor would be error-free.
6. We have heard both sides and have perused the material on record. While we appreciate the administrative difficulties of UPSC as expressed in carrying forward unfilled vacancies of one year to the next year when clubbed examination is conducted, in our opinion the action of the respondents is contrary to the Statutory Rules. The Rules clearly provide that unfilled vacancies of a particular year will be carried forward to the subsequent year. Merely because of administrative difficulties, UPSC cannot be permitted to violate the Statutory Rules. If it was impossible for them to follow this Rule in cases of clubbed examination, they should not have held clubbed examination at all. Even if clubbed examination was held, declaration of result could have been staggered or UPSC could have adopted any other method that they deemed appropriate but Statutory Rules had to be followed. By diverting vacancies, which were meant for 2013 to 2014, UPSC have deprived the applicants and such other similarly placed candidates for being considered for appointment in the year 2013. It is possible that in the next year i.e. 2014 some of these persons may become ineligible for appearing in the said examination. Even if they are eligible they will have to appear in the examination again and compete with a fresh lot of candidates. This obviously would be unjustified and unfair to them. The applicants cannot be deprived of their right to be considered against available vacancies of the year 2013.
7. We, therefore, allow this O.A. and direct the Respondent No.2 UPSC to carry forward the unfilled back log vacancies of Section Officer Grade-RBSS Category-III of 2012 to 2013. Thereafter, the applicants shall be considered for appointment against the same on the basis of the result of the 2013 examination. In case, they are found fit for inclusion in the select list, their names shall be recommended to Respondent No.1 Ministry of Railways for appointment as Section Officers. Ministry of Railways on their part shall consider appointing the applicants once their names are received from UPSC and in case they are found fit, they shall be so appointed along with consequential benefits of seniority and pay fixation. This exercise will be completed within a period of eight weeks from the date of receipt of a certified copy of this order. No costs.
(Shekhar Agarwal) (G. George Paracken) Member (A) Member (J) /Vinita/