Central Administrative Tribunal - Delhi
Shri Bijender Singh vs Govt. Of Nct Of Delhi Through on 17 November, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH : NEW DELHI Original Application No.1000/2010 New Delhi, this the 17th day of November, 2011 Coram: HONBLE MR. G. GEORGE PARACKEN, MEMBER (J) HONBLE DR. VEENA CHHOTRAY, MEMBER (A) 1. Shri Bijender Singh, S/o Shri Ranjeet Singh, R/o 1349, Gulabi Bagh, Delhi 110 007 2. Shri Rajbir Singh, S/o Shri Bhim Singh, R/o F-35, ITI Pusa Campus, New Delhi 110 012 Applicants (By Advocate: Shri D.S. Mahandru) Versus Govt. of NCT of Delhi through 1. Chief Secretary, Govt. of NCT of Delhi Alipur Road, Delhi 2. The Director, Training & Technical Education, Govt. of NCT of Delhi, Muni Maya Ram Marg, Pitampura, Delhi Respondents (By Advocate: Ms Rashmi Chopra) O R D E R
By Dr. Veena Chhotray:
Through this OA filed under Section 19 of the Administrative Tribunals Act, the applicants are seeking the following reliefs:-
(a) direct the respondents to consider the case of the applicants for appointment to the post of Group Instructor pursuant to the panel in which they were selected w.e.f. the date when the vacant posts became available;
(b) direct the respondents to grant all the consequential benefits to the applicants w.e.f. the date of their appointment as Group Instructors; and
(c) pass such further order or orders which this Honble Tribunal may deem fit and proper in the facts and circumstances of the present case.
2. This is the second round of litigation. In pursuance of the Tribunals orders dated 13.11.2009 in the earlier OA 3188/2009, the respondents have considered the representation dated 1.12.2009 by the applicants and found it not acceptable vide their order dated 15.01.2010 (Annex. A/1). This order is under challenge in the present OA.
3. The MA 1292/2010 for joining together is being allowed.
4. The brief factual matrix of the case is that the applicant no.1, Shri Brijender Singh had been appointed in the year 1992 as a Work Attendant under the Directorate of Training and Technical Education, GNCTD. The applicant No.2, Shri Rajbir Singh had been appointed as an Instructor Diesel Mechanic in the year 1989.
4.1 The claims being agitated through this OA are for appointment to the posts of Foreman Instructors/Surveyors/Senior Technical Assistants etc. on the basis of a recruitment process held in the year 1995. The posts of Foreman Instructors were subsequently renamed as Group Instructors.
The selection process in this case was under the Direct Recruitment Quota. Besides the candidates sponsored through the Employment Exchange, departmental candidates could also participate. The selection was made through the Staff Selection Committee. Against a total number of 14 vacancies (9 unreserved besides vacancies in the reserved categories), the SSC recommended 12 names for appointment (i.e. no recommendations had been made for 2 ST Vacancies for want of candidates). The impugned order mentions that the appointment orders for all the 12 recommended candidates were issued on 24th July, 1995.
4.2 While making its recommendations, the SSC had also drawn a wait listed panel of 5 candidates. The names of both the applicants in this OA had been included in the panel. Both of them are in the UR category. It is the case of the applicants that despite certain consequential vacancies having arisen as a result of resignation/retirement of the appointees (two in numbers as revealed through the RTI) at least 10 vacant posts of Group Instructors had become available after the panel had been drawn. It is also averred that in the wait listed panel of five, three persons were no more the claimants. The reasons stated are: Shri Pradeep Kumar at serial No.1 having been promoted as GI, Shri Subhash Chander Dabas at serial no.2 being out of India for the last many years and Shri Pramjeet Sing at serial no.4 having already retired.
Thus, virtually only both the present applicants are the hopefuls. The applicants grievance is that despite clear cut vacancies being available at the relevant time, the applicants who had been duly selected and placed in the panel had not been appointed to the post of Foreman Instructors (re-designated as Group Instructors). This action of the respondents is stated to be illegal, arbitrary, malafide and therefore, liable to be set aside.
5. In this case there was also a trajectory of series of litigations before the Tribunal as well as the Honble Delhi High Court. These had been filed on behalf of the non-selected candidates on the point of challenge to the selection process itself. As a cross litigation, the selected candidates had also sought judicial remedies to assert their rights. However, ultimately the selection process was not set aside. The litigation and counter litigation were by other candidates. The present applicants, who had sought intervention in the Writ Petition before the High Court, had been allowed to be impleaded. However, while remitting the matter to the Tribunal on the limited issue of the successful candidates being duly qualified or not, no mention was made regarding the intervention petition. As this litigation background is not really relevant to the issues now being agitated, we do not consider it necessary to go further into their details.
The fact that the names of these two persons had been included in the wait listed panel has not been disputed by the respondents; nor have they raised the plea about their not being duly qualified. The issues, on the other hand, are entirely different.
6. The respondents have rebutted the applicants contentions factually on multiple scores: (i) It is their stand that at the relevant point of time no posts of UR category were vacant; as against the total 14 vacancies (under the DR quota) 12 persons had been appointed as per the recommendations of the Staff Selection Committee. The two vacancies unfilled were under the ST category to which the applicants who belong to the UR category can have no claim. (ii) It is further stated that after the recruitment in question under Direct Quota, no other process for filling up the posts under DR quota was initiated by the Department.
The impugned order explains by way of background the introduction of the New Staffing Pattern w.e.f. 2003 making certain structural changes in these posts. Besides, incorporating these changes by way of amendment in the RRs in the year 2007, the posts of Group Instructors were brought 100% under the promotion quota (distinguished from the earlier rule of 66 2/3% Promotion Quota and 33 1/3% Direct Recruitment Quota). It is also stated that the 74 vacant posts of Group Instructors have been filled vide order dated 10.12.2007. (iii) The consequential vacancies referred in the OA are stated to have occurred after several intervening years from the date of the panel. The first replacement vacancy had occurred on 25.5.1999; the second on 30.6.2005 and the third on 30.11.2008. The other vacancies, about which information on the basis of RTI is being relied upon, are said to be not relevant in the present context:
..the applicants have asked information under RTI Act, 2005 regarding vacancies arose after the appointment of 12 persons on 24.07.1995 and the department gave them the number of vacancies that arose year wise under direct quota, under promotional quota and reserved category wise (SC/ST. Further as per the respondents:
.Here, the question is not regarding the fresh vacancies arose from 24.07.1995 onwards. The larger question is as to whether the reserve panel can be operated for fresh vacancies or not. ..
8. The respondents have referred to the instructions by the DOPT on the subject of Reserve Panel. The DOPT OM dated 14.5.1987 (Annex. R/2) stated that whereas according to the earlier instructions, the reserve list could be used both for replacement vacancies as well as for fresh vacancies of identical nature, on reconsideration in consultation with the UPSC the matter had been reviewed. It was now decided that reserve lists were not to be operated for fresh vacancies. Spelling out the multiple reasons for such a view, it had been opined by the UPSC that such a practice shuts out the candidates who may have not applied considering the number and places of vacancies; or the candidates who may have become eligible in the meantime. Thus, use of reserve panel for fresh vacancies was reviewed as coming in conflict with the Fundamental Rights guaranteed to all citizens of India under Article 14 of the Constitution.
The DOPT OM dated 18.1.1990 issued in continuation with these instructions has also been referred (Annex R/1). It had been reiterated that wherever possible UPSC was to draw a panel of candidates in order of merit to be kept in reserve. Such a panel was to be used for filling up replacement vacancies in contingencies arising due to factors like non-joining of the candidates, events such as resignation or death. However, a limit of one year had been prescribed for such contingencies.
It is contended by the respondents that the UPSC, the highest Recruiting Government Organization, is following the aforesaid instructions. Further, it is stated that the UPSC while conveying its recommendations regarding the direct recruitment had mentioned in its communication that a reserve panel under the normal circumstances is valid for 18 motnhs from the date of finalization of the recommendations of the Commission and can be extended upot 2 years in exceptional cases. In the same context it had also been specified that the user departments could make such requests only when a candidate did not join within the time and the vacancy had been caused within one year of joining of the recommended candidate.
Relying upon the aforesaid background of Govt. guidelines on the subject, the counter reply makes the following submissions:-
In view of the above, the submission is made that all the 12 officials appointed vide order dated 24.07.1995 on the recommendations of the Staff Selection Committee joined in the department on the post of Foreman Instructors now renamed as Group Instructors etc. and none of them neither resigned the post nor any post fell vacant in the event of death of the official within one year from the date of recommendations of the SSC. Hence, the present O.A. needs rejection at the outset devoid of merit. Further it is submitted:
In this connection, it is stated that in accordance with the instructions contained in O.Ms issued by DoP&T, Govt. of India from time to time, the reserved panel are to be operated only in case of replacement vacancies and not for the fresh vacancies under direct quota. Hence, the contention of the applicants is beyond the facts and cannot be considered under the rules. Thus, as per the respondents. in view of the factual position of the case neither in equity nor law are in favour of the applicants.
9. As per the respondents they have already reexamined the claims being agitated by the applicants. The order dated 15.1.2010 is stated to be a detailed and reasoned order against which the applicants did not have any just cause to re-agitate the matter.
10. Having considered the facts of the case, the respective submissions by both sides and the law on the subject, we do not find the claims raised in the instant OA as tenable. The main reasons are summed up below:
The claims of the applicants arise from a selection process that had taken place in the year 1995. The intervening litigations, not withstanding the claims are grossly time barred.
The applicants are raising the claims for appointment on the basis of a wait listed panel, that too against replacement vacancies arising after a gap of several years (10 to 14 years). Besides they are also relying upon occurrence of fresh vacancies subsequently and the information in respect of which has been garnered by the applicants under the RTI.
However, all these grounds are not in consonance with law. The settled position being about a candidate not even a selected and recommended one, least of all a wait listed one having no indefeasible legal right for appointment. In respect of the reserve panel, the respondents have cited DOPT instructions about such panels being used only for replacement vacancies occurring within a limited period and not for fresh vacancies. No contrary instructions by way of rebuttal have been shown to us. Even in a catena of judgments, the Apex Court has reiterated the law about the normal validity period of a select panel being 1 year. In Girdhar Kumar Dadhich & Anr Vs State of Rajasthan & ors {(2009) 1 SCC (L&S) 543}, it was held by Honble Supreme Court:
Validity of a select list would ordinarily remain valid for one year. Duration if extended must be done according to law.
The Honble Apex Court in its recent judgment in Rakhi Ray & Ors Vs. High Court of Delhi & Ors {(2010) 1 SCC (L&S) 652} laid down the law that the process of selection comes to an end with the filling up of notified vacancies, and a waiting list cannot be used as a reservoir to fill up vacancies coming into existence after issuance of the notification/advertisement. Further it was held that appointments made beyond the number of vacancies advertised is without jurisdiction and is violative of Articles 14 and 16 of the Constitution of India.
In its subsequent Judgment in State of Orissa & Anr Vs Rajkishore Nanda & Ors {(2010) 6 SCC 777} also reiterating the same law, it was held by the Honble Apex Court that select list cannot be treated as a perpetual reservoir for purposes of appointment. Further, no relief can be granted by the Court on the basis of the expired select list.
After a careful perusal of the respondents order dated 15.1.2010, we find no reason to take a different view. We duly note the fact of the restructuring in the department, the amendment of Rules relating to the posts of Group Instructor and the due consideration of the claims of both the applicants at appropriate level in accordance with the
11. Resultantly, the OA is found utterly devoid of merit and dismissed hereby with no orders as to costs.
(Dr. Veena Chhotray) (G. George Paracken)
Member (A) Member (J)
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