Central Administrative Tribunal - Delhi
Ajit Kumar vs Union Public Service Commission on 26 November, 2013
Central Administrative Tribunal
Principal Bench
OA No. 2271/2012
Reserved on: 19.11.2013
Pronounced on:26.11.2013
Honble Mr. Justice Syed Rafat Alam, Chairman
Honble Dr. Birendra Kumar Sinha, Member (A)
Ajit Kumar
2-C/o Ritam Kumari,
J-202, Delhi Rajdhani Appt,
Plot No.80, IP Extension,
Patparganj, Delhi 92. Applicant
(By Advocate: Mr. Rabin Majumdar)
Versus
1. Union Public Service Commission
through Chairman,
Dholpur House,
Shahjahan Road,
New Delhi 110 003.
2. Union of India through Secretary,
M/o Personnel, P.G. & Pensions,
North lock,
New Delhi. .Respondents.
(By Advocate: Sh. Naresh Kaushik for R-1
Sh. R.N. Singh for R-2)
O R D E R
By Dr. Birendra Kuamr Sinha, Member (A):
The instant Original Application is directed against the order of the respondent no.2 dated 23.03.2012 (Annexure A-1) whereby the applicant has been provisionally allocated the Indian Defence Accounts Service, Group A (hereinafter referred to as IDAS) from CSE-2009, impugned in this case. To the contrary, the applicant has sought the following relief(s):-
Direct the respondents to produce the entire records pertaining to the backlog vacancies from 1996 in respect of the disabilities under Disabilities (Equal Opportunities, Protection of Rights & Full Participation) Act, 1995 and the allocation to various services including IAS, IFS, IRS etc. for various CSE examinations particularly for the year 2001, 2006 and 2009.
Hold and declare that the applicant is entitled for allocation in the reserved category of LDCP to IAS on the basis of CSE 2001, 2006 and also 2009 and accordingly direct the respondents to allocate the applicant for the year 2001, alternatively 2006 and 2009 as may be found and determined by the Honble Tribunal.
Any other order that may be deemed fit and appropriate in the circumstances of the case may also be passed.
2. The case of the applicant, briefly narrated, is that he is Locomotor disabled, this category being entitled to 1% reservation out of 3% quota for disabled in terms of Section 33 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 [hereinafter referred to as Persons with Disabilities Act, 1995]. The applicant had applied and qualified the CSE 2001 under this quota and was entitled for allocation to IAS, but was denied the benefits because the reservation had not been given effect from the year 1996. The applicant appeared and qualified in CSE 2006. He, therefore, claims that he was entitled to appointment to the Indian Administrative Service (for short IAS) on the basis of vacancy position, including the backlog vacancies in the reserved category for LDCP. However, the applicant was denied the allocation despite the fact that visually handicapped persons, on the basis of the vacancies calculated from the year 1996, were appointed. The applicant again appeared in CSE 2009 and qualified the same on the basis of which he became entitled to appointment to the IAS but the same was denied to him. The applicant thereupon filed OA No. 2717/2010 which was decided by this Tribunal vide a common order dated 24.01.2011 along with OA No.3792/2010 and OA No.4001/2010 drawing parity of reasons given in the case of N. Shravan Kumar etc. versus Union Public Service Commission & Anr. [OA No.1893/2009 and connected Original Applications decided by a common order dated 08.10.2010), directing the respondents to consider the case of the applicant for appointment to IAS. The respondents accordingly, vide the impugned order, carried out an exercise for service allocation/re-allocation to all the candidates available in the original lists from CSE 2006 to CSE 2009 and to the candidates newly recommended by the UPSC, keeping in view the total number of vacancies available in the original list from CSE 2006 to CSE 2009 and the vacancies subsequently worked out as backlog. The applicant was provisionally appointed to IDAS from CSE 2009 leading to the instant OA. Keeping in mind the CSE year of the candidate, the rank secured by a candidate in that examination and the preference given for various services in the detailed Application Form CSE (Main) Examination.
3. The applicant has adopted the following grounds to support his claim:-
The respondents had been directed by the Honble High Court of Delhi in the matter of Ravi Prakash Gupta Versus UPSC & Others [WP(C) No.5429/2008 decided on 25.02.2009] to allow reservation from the year 1996 onwards and to offer appointment to the petitioner therein against the clear vacancy existing in the IAS on the basis of his position in the merit list. In case the vacancies were filled up by diverting the same to the other categories, it would be for the respondents to carry out necessary exercise for restoring those vacancies. This decision was challenged by the respondents before the Honble Supreme Court which, vide its order dated 07.07.2010, upheld the decision of the Honble High Court of Delhi. The applicant submits that since the backlog position from 1996 vis-`-vis the allocation to IAS and IRS has never been properly explained or brought before this Tribunal, he remained entitled to allocation to IAS.
In terms of the afore order of the Honble High Court in Ravi Prakash Gupta Versus UPSC & Others (supra), the applicant was entitled to appointment to IAS or to higher service of his choice as per CSE 2001. However, he has even been deprived of appointment on the basis of CSE 2006. The applicants entitlement to CSE 2006 stands admitted in his earlier OA No.2717/2010.
The respondents have not properly calculated the backlog vacancies from the year 1996 for allocation in different categories as a result of which the applicant has not been accommodated. Had the vacancies been calculated and taken into account properly, he would have been entitled to appointment in CSE 2001 or alternatively in CSE 2006 and definitely in CSE 2009 [Para 5.7 to para 5.9].
4. The respondent no.1 has filed a counter reply refuting the relief(s) sought for by the applicant in this Original Application. It has been submitted by the respondent no.1 that this Tribunal in N. Shravan Kumar etc. versus Union Public Service Commission & Anr. [OA No.1893/2009 and connected Original Applications decided by a common order dated 08.10.2010) had directed the respondents 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. The respondent no.1 admits that the applicant was a candidate in CSE-2001, CSE-2006 and CSE-2009. However, on the basis of the result of the written examination in these years, he was called for the personality test but could not get selected finally. In terms of the Tribunals order dated 24.01.2011 passed in an earlier Original Application filed by the applicant, bearing OA No. 2717/2010, this exercise has been carried out and provided that there were a total number of 44 vacancies reserved for P.D. categories including 16 in the IAS from 1996 to 2009. No candidates of CSE-2007 could be recommended as their dossiers had been weeded out under the record retention scheme. The respondent no.2 vide its communication dated 30.08.2011 forwarded the application dossiers of 13 PH [(10-PH.1 (LDCP), 02 PH.2(Visually Impaired) and 01 (Hearing Impaired)] category candidates in respect of CSE-2008 and also application dossiers of 9 PH [(08 PH.1(LCDP) and 01 PH.2(Visually impaired) category candidates in respect of CSE-2009. In the list provided by the respondents, the name of the applicant appears at serial no.8 below seven persons, namely, Pawar Sandip Nanaso, Ratinder Kaur, Chanbasha M.(OBC), Neeraj Singh, Rajiv Wadhera, Mahesh Chanda Jewalia(OBC) and Sultan Singh (OBC). The respondents have further submitted that the directive in the case of Ravi Prakash Gupta Versus UPSC & Others (supra) was to appoint the petitioner herein and other visual impaired category candidates securing higher marks than him in CSE 2006 to IAS. It did not cover LDCP. Therefore, it was not possible to make such appointments from other categories securing higher marks as the same would run contrary to the directive of this Tribunal.
5. The respondent No.2 have also filed their counter affidavit wherein they have strongly rebutted the contention of the applicant to the effect that if the backlog vacancies had been calculated at 6 in place of 4 then he would have been selected for IAS on the basis of CSE 2009. The respondent no.2 has affirmed that the applicant could not have been allocated to IAS as his name had not been recommended by the UPSC for CSE-2001 and CSE-2006. However, upto CSE 2009, there were 47 candidates above him whose names have also been provided in the affidavit in paragraphs 8 to 10. In view of this, the applicant could not have been allocated the IAS even if the number of vacancies were to be increased. The respondent no.2 further claims that the case of the applicant is hit by constructive res judicata and limitation.
6. The applicant had moved a Contempt Petition bearing CP No.153/2012 in OA No.2717/2010 for non-compliance of the Tribunals order dated 24.01.2011 passed in OA No.2717/2010 on grounds of willful disobedience. The same points were also contended before this Bench of the Tribunal in the Contempt Petition No.105/2012. This Bench of the Tribunal, after having gone into the full facts relating to allocation of cadre, found that there was no willful disobedience on the part of the respondents and hence dismissed the contempt petition giving the applicant liberty to file separate Original Application if he was still aggrieved.
7. The applicant has filed a rejoinder wherein he has stated that the vacancies for LDCP have not been calculated properly. He has further submitted that two candidates namely Ms Ratinder Kaur (Rank 466) and one Jitender Singh (Rank 467), who were allocated for ICAS & IDAS post in CSE 2006 in LDCP category, have now been allocated IRS on the basis of CSE-2008 and CSE-2010 respectively. The applicant further submitted that two persons namely Rohit Kumar Niranjan (Rank 465) and Ajay Kumar Dixit (Rank 470) still exist in LDCP category for allocation to IAS post from the backlog seats whereas the applicant has a better claim to IAS in respect of the backlog vacancy. The applicant has reiterated that original applicant was allocated from CSE 2009 in IDAS from backlog seats. But the original applicant, who had better claim, was discriminated unconstitutionally by the respondents by not forwarding his due claim in respect of CSE 2001 or CSE 2006 for the IAS post.
8. We have gone through the pleadings of the parties as well as the documents submitted by them and listened to the arguments advanced by their respective counsels. To our mind, the issues to be determined by us are simply the following:-
Whether the applicant is entitled to appointment on the basis of CSE-2001 examination to IAS and/or to a Service of his choice?
Whether the applicant is entitled to appointment to IAS on the basis of CSE-2006 examination?
Whether the applicant is entitled to appointment to IAS on the basis of CSE-2009 examination?
What relief, if any, can be granted to the applicant?
9. In so far as the first and second of the issues are concerned, the entire case takes birth from the order of the Honble High Court in the case of Ravi Prakash Gupta Versus UPSC & Others [WP(C) No.5429/2008 decided on 25.02.2009]. The Honble Court, after having taken a stock of the reservation of seats, took note of the fact on the basis of the affidavit filed by respondent no.2 that seats were not adequately reserved as provided by Section 33 of the Persons with Disabilities Act, 1975, it has been provided as under:-
We have already noted above that the petitioner herein appeared in the Main Examination in October, 2006 and was called for interview in May, 2007, the results whereof were declared in 2007. Thus in the year 2007, the entire backlog namely 7 vacancies in this category were available to be filled. However, glossing over the said office memorandum, the respondents chose to fill only one vacancy.
We may note that the position contained in the aforesaid OM is again reiterated by the DOPT in its OM dated 10.12.2008.
In view of the aforesaid, this writ petition is allowed. The order dated 07.04.2008 passed by the Central Administrative Tribunal is hereby set aside. Consequently, OA 1397/2007 preferred by the petitioner before the Tribunal stands allowed. Since clear vacancy is available to which the petitioner can be accommodated on the basis of his position in the merit list, Mandamus is issued to the respondents to offer him appointment to the said post by issuing appropriate appointment letter within six weeks from today.
In case the vacancies are filled up by diverting the same to the other categories, it will be for the respondents to carry out necessary exercise for restoring these vacancies in the category of visually handicapped persons and offer the petitioner appointment as such. The petitioner shall also be given his seniority along with his batch mates who took the examination in the year 2006 and his pay shall be fixed notionally on that basis. However, the actual pay shall be given to him from the date he joins. The petitioner shall be entitled to costs of Rs.25000/- and respondent No.1 shall pay the costs to the petitioner. As already stated, this order was affirmed by the Honble Supreme Court vide its order dated 07.07.2010. However, the fact remains that CSE-2006, as per the case of Ravi Prakash Gupta Versus UPSC & Others (supra), had been treated as a line of demarcation as even the petitioner therein was not given the back wages and his pay was directed to be fixed notionally. The vacancies had to be re-worked in order to provide relief to the petitioner and the allocation had also to be re-worked/worked out so that a person in senior position is not put to disadvantageous position by allocating a Service to a persons placed below. Therefore, working out of the vacancies and re-allocation of the Cadre has been done from 2006 onwards by taking into account the backlog vacancies from the year 1996 onwards. We also take note of the fact that there was no prayer for any direction to re-open the examination/allocation prior to 2006 in Ravi Prakash Gupta Versus UPSC & Others (supra).
10. Even more important fact that is borne out from the affidavits filed by the respondent nos. 1 & 2 is that the applicant had not been recommended in the CSE 2001 and CSE-2006 by the UPSC. Hence, in absence of recommendation to this effect, the question of his being allocated the IAS or a Service of his choice does not arise. It is quite beyond the competence of this Tribunal to go behind the recommendation of the UPSC and beyond what has been decreed by the Honble High Court in Ravi Prakash Gupta Versus UPSC & Others (supra) and affirmed by the Honble Supreme Court. Hence, these two issues are decided against the applicant.
11. In so far as the Issue no.3 is concerned, the only point to be considered is that where does the applicant stand in order of merit in CSE-2009 and/or whether any person has been allocated the IAS above the applicant. In this regard, the counter affidavit filed on behalf of the respondent no.2 has clearly stated that there are 47 persons above the applicant from CSE-2006 to CSE-2009. The reply affidavit of respondent no.2 to the rejoinder of the applicant states that one Bibhishan was allocated to IAS against unreserved vacancy. It is further stated that upto CSE-2009, 7 candidates from LDCP category including Bibhishan were allocated to IAS. As per prescribed reservation of 1% for LDCP category of PH, there should have been 11 vacancies in LDCP category upto CSE-2009 out of the total 1147 vacancies for IAS. The respondent further admits that considering the fact that said Bibhishan should not have been computed against the LDCP category vacancies and there should have been 5 backlog vacancies in LDCP category upto CSE-2009 against 4 vacancies proposed and approved. However, this is not going to help the applicant as in the case of Ravi Prakash Gupta Versus UPSC & Others (supra) Honble High Court of Delhi issued a mandamus to offer appointment to the candidate who was at 5th slot in CSE-2006. The UPSC has already taken a stand that the dossiers of the candidates of CSE-2007 have been destroyed as per record retention scheme. The additional affidavit filed by the respondent no.2 states as under:-
5. To sum up, there are 11 vacancies in IAS in LDCP category upto CSE-2009. Altogether, 7 candidates including one candidate with rank number-43 in CSE-2006 has been allocated to IAS. As per Rules, rank number-43 should have been counted against UR vacancy and thus there should have been five backlog vacancies in LDCP category. However, against the same, 4 vacancies were reported to UPSC. Since service allocation against backlog vacancies in LDCP category has still not been done on confirmed basis, the same can be done treating 5 vacancies in IAS in LDCP category. But, no additional name will be recommended by UPSC as in the first instance itself against 20 backlog vacancies in LDCP category reported by this Department and other CCAs, they had recommended only 18 candidates. There are 47 candidates above the applicant belonging to previous CSE years or at the higher merit in the CSE-2009 (in which the name of the applicant has been recommended) who have better claim for allocation to IAS as stated above in reply of para 8-10.
6. It is submitted that the applicants claim that his name has been recommended from CSE-2001 and 2006 for allocation of service, is factually incorrect. It is reiterated that even if there is one additional vacancy in LDCP category by adjusting rank-43 in CSE-2006 against unreserved vacancy, the applicant will not get IAS by any stretch of imagination on the basis of his rank in CSE-2009.
7. It is submitted that it is clear from the above that the applicant cannot be allocated IAS, since his name had not been recommended from CSE-2001 and 2006 and there are 47 candidates above in merit/CSE year who has better claim than that of the applicant to be allocated for IAS. The application is misleading the Honble Tribunal. The allegations made by the applicant are baseless and the result of his imagination.
12. It is obvious that no allocation of Service can be made superseding a superior in merit even within the reserved category. Considering the fact that there are 47 candidates above the applicant in order of merit, we find that there is no way that the applicant appears to be getting the IAS even if the plea of the applicant regarding enhancement of seats were to be accepted. We further find that there is no reason for the applicant to challenge the order of merit of those 47 candidates above him. This issue is accordingly decided against the applicant.
13. The applicant has drawn the attention of this Tribunal towards a recent decision in the case of Union of India and Another versus National Federation of the Blind and Others [Civil Appeal No.9096/2013 arising out of SLP (Civil) No. 7541 of 2009 decided on 08.10.2013] and submitted that the Honble Supreme Court has completely changed the rules of the game by holding that employment is a key factor in the empowerment and inclusion of people with disabilities and that the disabled people are out of job not because their disability comes in the way of their functioning but because there are social and practical barriers that prevent them from joining the workforce. Thus, the disabled persons live in poverty and in deplorable conditions. An obligation has been cast upon the Government of India under various International Treaties relating to human rights in general and disabled persons in particular with statutory application to protect the rights of such disabled persons. Though an Act to this effect was enunciated way back in 1995 but it has failed to deliver the required benefits to the disabled persons. The Honble Supreme Court has further held as under:-
51) Thus, after thoughtful consideration, we are of the view that the computation of reservation for persons with disabilities has to be computed in case of Group A, B, C and D posts in an identical manner viz., computing 3% reservation on total number of vacancies in the cadre strength which is the intention of the legislature. Accordingly, certain clauses in the OM dated 29.12.2005, which are contrary to the above reasoning are struck down and we direct the appropriate Government to issue new Office Memorandum(s) in consistent with the decision rendered by this Court.
52) Further, the reservation for persons with disabilities has nothing to do with the ceiling of 50% and hence, Indra Sawhney (supra) is not applicable with respect to the disabled persons.
53) We also reiterate that the decision in R.K. Sabharwal (supra) is not applicable to the reservation for the persons with disabilities because in the above said case, the point for consideration was with regard to the implementation of the 42 scheme of reservation for SC, ST & OBC, which is vertical reservation, whereas reservation in favour of persons with disabilities is horizontal. In the light of this, the entire case has been thrown wide open. It would imply that a fresh re-calculation of the vacancies will have to be done and fresh allocation has to be made on the basis thereof. The learned counsel for the applicant further submitted that the applicant should have been allocated the Indian Administrative Service in the year 2006 itself in the light of the admitted fact that 5 vacancies existed at that point of time. This decision has further strengthened the case of the applicant, particularly when re-assessment of the vacancies is to be made the scope is likely to be further enhanced.
14. All other issues having been discussed, the moot question arising here is what is to be the impact of the judgment in Union of India and Another versus National Federation of the Blind and Others (supra) on the fate of this case. This question was patently posed to the learned counsel for the respondent no.2 who was of the opinion that this is not likely to have any impact whatsoever as the directives given are prospective by nature. Admittedly, some provisions of the OM of the Government of India dated 29.12.2005 have been ordered to be struck down. However, what the Government under the directives of the Honble Supreme Court required is to delete the offensive portions of the OM dated 29.12.2005 and to issue fresh orders, which is in consistent with the point in question in the instant case. The Honble Supreme Court has further held that reservation for persons with disabilities has nothing to do with the ceiling of 50% as held in the case of Indra Sawhney vs. Union of India and others [AIR 1993 SC 477] as it was related to vertical reservation for SC, ST and OBC whereas the reservation in favour of the persons with disabilities is horizontal by nature.
15. The learned counsel appearing for the UPSC has, by and large, supported the reply of the respondent no.2 and has reiterated that the job of the UPSC is only to conduct the examination and submit the merit list within the terms for the examination and recruitment enunciated by the respondent no.2. Therefore, whatever has been submitted by the respondent no.2 in this regard relating to the number of vacancies cannot be questioned by the UPSC as such. He was further of the opinion that the instant judgment does not impact the UPSC at all or the facts of the case in hand as it is likely to have only a future application.
16. In order to ascertain that whether the judgment of the Honble Supreme Court in the case of Union of India and Another versus National Federation of the Blind and Others (supra) impact the position of the instant case, we have to look upon the directives issued therein which have been as follows:-
54. In our opinion, in order to ensure proper implementation of the reservation policy for the disabled and to protect their rights, it is necessary to issue the following directions:
We hereby direct the appellant herein to issue an appropriate order modifying the OM dated 29.12.2005 and the subsequent OMs consistent with this Courts order within three months from the date of passing of this judgment.
We hereby direct the appropriate Government to compute the number of vacancies available in all the establishments and further identify the posts for disabled persons within a period of three months from today and implement the same without default.
The appellant herein shall issue instructions to all the departments/public sector undertakings/Government companies declaring that the non-observance of the Scheme of reservation for persons with disabilities should be considered as an act of non-obedience and Nodal Officer in department/ public sector undertakings/ Government companies, responsible for the proper strict implementation of reservation for person with disabilities, be departmentally proceeded against for the default. It is evident from the above that all the directives are prospective by nature. The chain of events begins by modification of OM dated 29.12.2005 and the subsequent OMs making without full alignment to the orders of the Court. The directives also command the appropriate Government to compute the number of vacancies available in all the establishments and further identify the posts for disabled persons within a period of three months from the date of the order. This shall be followed by Step No.(iii) to the departments, public sector undertakings, Government companies that non-compliance with the reservation for disabled persons with disabilities shall be construed as an act of disobedience.
17. Thus, in view of the above discussions, we find that the applicant has failed to substantiate his claim. It is also an admitted fact that he has already been allocated to IDAS and, therefore, is not on the street. We have invariably a feeling that the applicant is merely fishing just to try his luck. The Original Application is accordingly dismissed without any order as to costs.
(Dr. Birendra Kumar Sinha) (Syed Rafat Alam)
Member (A) Chairman
/naresh/