Central Administrative Tribunal - Delhi
Shri Karamvir (Roll No.713465) vs Govt. Of Nct Of Delhi Through on 3 June, 2011
Central Administrative Tribunal Principal Bench OA No.273/2010 New Delhi, this the 3rd day of June, 2011 Honble Mr. George Paracken, Member (J) Honble Dr. Ramesh Chandra Panda, Member (A) Shri Karamvir (Roll No.713465), Recruit SI (Ex) in Delhi Police, Constable (Ex.) in Delhi Police, PIS No.28030755, s/o Shri Satbir Singh, R/o 230 Salahpur Majra Dabas, Delhi-110081. . Applicant. (By Advocate : Shri Anil Singal) Versus 1. Govt. of NCT of Delhi through Commissioner of Police, Police Head Quarters, IP Estate, New Delhi. 2. Deputy Commissioner of Police, Recruitment, New Police Lines, Kingsway Camp, Delhi. Respondents. (By Advocate : Shri B.N.P. Pathak) : O R D E R : Dr. Ramesh Chandra Panda, Member (A) :
Constable Karamvir, working in Delhi Police, the Applicant herein, has come to the Tribunal under Section 19 of the Administrative Tribunals Act, 1985 with following relief(s) :-
1. To direct the respondents to consider the applicant against SC Category 55 vacancies for the post of SI (Ex.) in the Recruitment-2009 in which he has qualified and appoint him to the post of SI (Ex.) with all the consequential benefits since he secured more marks than the last SC Category candidate who was selected since the applicant secured 128 marks whereas the cut off marks for last SC Category candidate is 126.
To award costs in favor of the applicant and To pass any order or orders which this Honble Tribunal may deem just & equitable in the facts & circumstances of the case.
2. The factual matrix of the case, as stated in the OA would reveal that Respondents issued Recruitment advertisement-2009 (Annexure-A1) for filling up 400 posts of SI (Exe.) in Delhi Police. In SC Category, there were 7 vacancies for the departmental candidates and 55 in open category taking the total to 62. It is the case of the Applicant that he applied under SC Category for which (55+7) 62 total vacancies in the rank of SI (Ex.) are reserved, for which he was eligible for both categories, as on the cut off date (01.01.2009) he was below the age of 30 years. It is averred that the Applicant qualified in the Physical, Written Examination and interview but he did not find his name in the final list of selected candidates under SC-Open Category nor under Departmental SC Category when the final result was declared. A copy of Final Result is at Annexure A-3. Using the instruments of the Right to Information Act, he came to know from the Respondents vide information letter dt. 17.11.2009 (Annexure A-4) that he secured total 128 marks whereas the last selected candidate in SC-Open Category vacancies was having 126 marks and in SC-Departmental Category the cut off mark was 136. It is further the case of the Applicant that he was considered only against Departmental SC Category vacancies by the Respondents. The last selected candidate was having 136 marks as a result of which, he did not find his name in the final list of selected candidates. It is alleged that the Respondents are not considering the case of the Applicant under SC-Open Category despite the fact that he should have been first considered against SC-Open-Category as he is below the age of 30 years and only when he did not qualify in that category, his candidature should have been considered against SC Departmental Category. Hence, the Applicant feels prejudiced in the matter of recruitment to the post of SI (Exe.) in Delhi Police. In this background the Applicant has approached this Tribunal for redressal of his grievances.
3. We heard Shri Anil Singal, learned counsel representing the Applicant and Shri B.N.P. Pathak, learned counsel appearing for the Respondents .
4. Shri Anil Singal, submits that the Applicant is aggrieved by the impugned orders as those are vindictive in nature. The Applicant has secured total 128 marks without resorting to any relaxed standards available to Departmental SC Category candidates and, he is to be considered first against the SC-Open Category in which he stands qualified as the last selected candidate in SC-Open Category vacancies is having 126 marks. He urges that the SC Candidates who are below the age of 25 years should have been first considered against Unreserved 172 vacancies. If not selected then those who are below the age 30 years they should have been considered against SC Open Category 55 vacancies. Failing which, if not selected, those who are below the age of 40 years and falls under departmental category they should have been considered against Departmental Unreserved Category 21 vacancies. If not selected then those who were above the age 40 years and fall under departmental category they should have been considered against Departmental SC Category 7 vacancies. But the Applicant was considered in the last category i.e. Departmental SC Category. Had the Applicant been not a departmental candidate, he was still eligible to appear in the test as SC-Open-Category candidate. Therefore, he should be first considered against 55 SC Category vacancies since 7 Departmental SC Category vacancies were reserved for those who are either not eligible in other categories or those who were eligible in other categories also but could not qualify in same. Shri Singal placed his reliance on the judgment of Honble Supreme Court in the case of MCD Versus Veena and Others reported in 2001-6-SCC at page 571 to state that if the Applicant was not successful in SC Departmental Category, the Respondents should have considered him in SC-Open Category.
5. Controverting the above grounds of the Applicant, Respondents through the reply affidavit submitted that the direct recruitment for the post of SI (Exe.) Male was governed by the Rule 7 of Delhi Police (Appointment and Recruitment) Rules, 1980 and the Standing Order No. 321/2009. Shri Pathak learned counsel for the Respondents informs that the Applicant has applied in the Departmental SC Category and he secured 128 marks whereas the cut off mark in the category being 136, he has not been successful. He contends that the Applicant has not applied for SC-Open Category as may be seen from the Application form filled by him. Refuting the contention of the Applicants counsel that the Applicant applied for both SC-Open Category and SC Departmental Category, Shri Pathak would contend that the Applicant had specifically ticked SC and Departmental in the appropriate columns. Hence, Applicants candidature was considered only in SC Departmental Category. As he was unsuccessful in that category and as he secured 128 marks whereas the last candidate in SC-Open Category got only 126 marks, as a matter of his after thought he pleaded in the OA to direct the Respondents to consider his candidature in the SC-Open Category. This being the request coming after the results have been declared, his request is not acceptable as per the law laid by Honble High Court of Delhi in the matter of Jata Shankar Shukla Versus UPSC and Others [WP(C) No.20916/2002 decided on 17.7.2002].
6. On 24.5.2011 when the case came up for hearing, we heard the counsels and requested the Respondents to file an affidavit and our orders are as follow :-
OA No.913/2010 OA No.273/201024.05.2011 Present : Shri Anil Singal counsel for applicants in both OAs.
Ms. Alka Sharma counsel for respondents in OA No.913/2010.
Shri B. N. Prasad Pathak counsel for respondents in OA No.273/2010.
Both these cases (OA No.913/2010 and OA No.273/2010) are identical in nature. Arguments have been heard in detail. However, both the learned Counsel for the respondents want to file an additional affidavit to indicate the basis on which the Applicant was considered only as a departmental candidate and not as an open category candidate. The counsel for the applicant has, however, referred to the reply of the Respondents and stated that there was a clear submission on their part that he was not considered as an open category candidate only for the reason that he has applied only as a departmental candidate whereas he had applied both as a open category candidate and as a departmental category candidate.
The request of the counsel for the respondents is allowed. Let the affidavit, as desired by them, may be filed within three days time.
List for further consideration on 30.05.2011. Issue Dasti. The counsel for the Respondents filed the affidavit on 30.5.2011. We finally heard the case on 2.6.2011. It is stated by the Respondents in the said affidavit that the Applicant being a Constable in Delhi Police and having applied for the post of SC/Departmental Category is well aware of the scheme of advertisement of the vacancies under open category and departmental category.
7. We have given our careful considerations to the above contentions advanced by the rival parties and have perused the pleadings as well. The only controversy that comes up for our consideration and determination is whether the Applicant is entitled to be considered in SC-Open Category vacancies for the post of SI (Exe.) Male in Delhi Police as per the Recruitment Advertisement-2009?
8. Before we dwell on the above issue, it is apt to first consider the applicability or otherwise of the judgments relied on by the parties.
9. Shri Singal referred to the judgment of Honble Supreme Court in the matters of MCD Versus Veena and Others [2001-6-SCC-571] to buttress his argument that if the Applicant was not eligible in the Departmental SC Category he should have been considered in the Open-SC Category. In the above relied case, the facts are different. The candidates applied for the posts of primary and nursery teachers in the MCD, New Delhi in the OBC Category but due to non production of proper certificate in respect of OBC, the Honble Apex Court directed the Appellant to consider them in Genegal Category. Present case in the OA is different and dissimilar to the above facts. Caste based reservation and production of SC Certificate is not the issue. We, therefore, note that the ratio set in the above judgment of Honble Supreme Court is not applicable in the present OA.
10. In Jata Shankar Shuklas case (supra), the Honble High Court of Delhi decided a case where the Appellant was a candidate for Civil Services (Preliminary) Examination, 2002 and indicated Agriculture (Code-01) as his optional subject but he claimed that he had indicated History (Code-10) as his optional subject in the application form. On perusal of the Application form produced by the UPSC, the Honble High Court found that he had filled 01-Agriculture in the Column-19 and held that there was no mistake in the admit card. The ratio laid in this case is that a candidate cannot change the information furnished in the application form at a subsequent change. The learned counsel for the Respondents would submit that the above ratio would be applicable in the present OA as the Applicant having given the information as SC-Departmental Candidate, after the examination result was published he claimed a change to SC-Open Candidate. We find, there is strength in the contention of the Respondents counsel.
11. At this stage, we may advert to the advertisement, application forms of the Applicant and associated facts for analysis. Admittedly, the Recruitment of Sub-Inspector (Executive-Male in Delhi Police-2009 advertisement furnished interalia the information which is relevant to determine the issue flagged in this OA.
I Item No.1 in the Advertisement :
1. Applications are invited to fill 400 vacant posts of Sub-Inspector (Executive)-Male in Delhi Police under the following categories in he pay scale of PB-2 Rs.9300-34800+Grade pay Rs.4200/- and other allowances as admissible. Recruitment will be held at Delhi for which candidates from all parts of the country fulfilling conditions mentioned hereunder can apply :-
UR OBC SC ST Total Open 172 68 55 25 320 Departmental 21 09 07 03 40 Ex-Servicemen 21 09 07 03 40 II Item 6 and 7 in the Advertisement :
6. Category : Candidate should Tick ( ?) the right category to which he belongs.
Example : If candidate belongs to general category, the box against General category should be tick marked as ( ?).
7. Other Category : Candidate should tick (?) the right category to which belongs.
Example
(i):- If candidate is applying as an ex-serviceman, then tick (?) the box and write the date of discharge.
(ii) If candidate is applying as a departmental candidate, then tick the box and write the date of enlistment. III Item 6 and 7 in the Application form 6. Category
1. SC
2. ST
3. OBC
4. General
5.
6.
7.
7. Other Category
8.
12. The Advertisement by Delhi Police is unambiguous about the following (i) the vacancies are to be filled up only by direct recruitment through a selection procedure; (ii) the candidates have option of 3 categories viz (1) open, (2) Departmental, and (3) Ex-Serviceman, (iii) number of vacancies earmarked for UR and Reserved has been clearly mentioned (iv) the reserved vacancies have been quantified for SC, ST and OBC, (v) the advertisement provides an application form to be filled up by the candidates wherein it has interalia provides the candidates to tick (?) Item No.6 and 7 for which the advertisement provides the guidance at para No.6 & 7 to the candidate to tick (?) the right category to which the candidate belongs; (vi) the tick (?) is to be marked in item No.6 for the UR or Reserved Candidate where 4 boxes exist for SC, ST, OBC and UR; (vii) in the item No.7, there are only two boxes viz Ex-servicemen and Departmental candidate and (viii) the candidate applying for any of these two categories in item has to tick (?) according to the candidates eligibility. These facts lead us to infer that if a candidate does not belong to Ex-Servicemen and Departmental Categories, the candidate need not have to tick this item No.7. Thus such candidate, as per the advertisement will be automatically considered by the Respondents in the Open Category. If such candidates belonging to any of the categories mentioned therein as SC/ST/OBC/UR ticks the relevant box, the candidate will be considered accordingly. The counsel for the Applicant contends that the Applicant belongs to SC Category which he has ticked and as such he should have been considered for SC-Open Category. The Respondents counsel contradicts the same to say that once the Applicant exercises option in other categories in Item No.7, he cannot be considered in the open category. Between, these two interpretations by the parties, we are not convinced of the stand taken by the Applicant and we find logic and rationality in the stand of the Respondents.
13. Admittedly, the Applicant belongs to SC Category and has ticked the SC box in his application form. There is no issue on this point. But the claim of the applicant in the OA is that he should have been considered for two categories of vacancies viz (i) SC-Open Category and (ii) SC-Departmental Category. This claim has come in the OA. He has not raised this issue at the time of submitting the application with the Respondents. Is he entitled to change his option after the result of the selection process published? On this question, the law laid by Honble High Court of Delhi in Jata Shankar Shuklas case (supra) that the candidate cannot change the information furnished in the application form at a subsequent stage is fully applicable here. Once the Applicant exercised the option in item 7 as Departmental Candidate, cannot now claim that he should be considered in the open category. The advertisement and the application form do not envisage for a candidate to apply for two categories mentioned in item No.6, even if the candidate is eligible for more than one category mentioned therein. In case of the Applicant, it is noticed that he is qualified to apply as open SC candidate or Departmental SC Candidate. He chose to be considered as Departmental SC Candidate and now his claim to change to be treated as open SC candidate is not legally and procedurally admissible.
14. It so happened that in the selection for the vacancies the cut off mark for the open SC Candidates is lower (126) than the Departmental SC Candidates (136) and the Applicant having secured 128 marks , he is taking chance through the OA seeking direction to consider him for the vacancies in Open SC Category. This in our opinion is an after thought. But, once he has exercised his option to be considered in the Departmental SC Category, he cannot get favourable order from the Tribunal to treat his candidature in the Open SC Category.
15. Considering the facts and circumstances of the case and our analysis above, we come to the considered conclusion that the Applicant is not entitled to be considered in the SC Open Category vacancies.
16. Resultantly, finding no merits in the Original Application, the same is dismissed. There is no order as to costs.
(Dr. Ramesh Chandra Panda) ( George Paracken )
Member (A) Member (J)
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