Central Administrative Tribunal - Delhi
Vikram (Roll No.403101) (Sc) vs Govt. Of Nct Of Delhi on 17 August, 2011
Central Administrative Tribunal Principal Bench, New Delhi O.A. No.4408/2010 And O.A.No.4409/2010 This the 17th day of August 2011 Honble Shri M. L. Chauhan, Member (J) Honble Shri Shailendra Pandey, Member (A) OA 4408/2010 Amnish Kumar (Roll No.438762) (OBC) Date of birth 28.9.1989 s/o Shri Yadram Singh r/o VPO Kheri Tehsil Dadri Distt. Gautam Budh Nagar UP OA 4409/2010 Vikram (Roll No.403101) (SC) Aged about 22 years s/o Shri Rajesh r/o H.No.223/8, Lalheri Road Near Govt. Girls School Ganaur Distt. Sonepat Haryana ..Applicants (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 Vijay Pandita) O R D E R
Shri M.L. Chauhan:
By this common order, we propose to dispose of both the aforementioned OAs, as common questions of facts and law are involved.
2. Brief facts, so far relevant for the decision of these cases, are that during the year 2009, an advertisement to fill up 6141 posts (3101 UR, 1658 OBC, 921 SC and 461 ST) of Constable (Executive) (Male) in Delhi Police was published in the leading newspapers dated 20.2.2009 by giving reservation to ex-serviceman candidate in each category as well as reservation to SC/ST/OBC as per rules. In response to the said advertisement, the applicant in OA-4408/2010 applied for the said post under OBC category whereas the applicant in OA-4409/2010 applied under SC category.
3. The grievance of the applicants in these cases is regarding their appointment to unfilled posts belonging to their respective category. It may be stated that the said selection was subject matter of decision in Gaurav Kumar v. Govt. of NCT of Delhi & others (OA-2007/2010 with connected OAs) decided on 4.5.2011. At this stage, it will be useful to reproduce paragraphs 6 to 11 of the said order, which thus read as under:-
6. When the attention of the learned counsel for the applicants was drawn to some of the cases where the applicants were claiming appointment against the unfilled vacancies of OBC category and in some cases even the applicants have not obtained the cut off mark and also there were number of persons, who were above merit than the applicants, learned counsel submits that he will be satisfied if the direction is given to the respondents to fill up the unfilled vacancies, which, according to the learned counsel for respondents, could not be filled in because steps for filling up the same are under process and he is not arguing the matters on merits. According to the learned counsel, he will also be satisfied if a direction is issued to the respondents to fill up 220 unfilled vacancies as per merit list prepared by them and in some cases the applicants, who are higher in merit, may be given appointment against the unfilled vacancies in respective categories.
7. On the basis of arguments advanced by the learned counsel for the applicants to the aforesaid limited extent, the orders in the cases in hand were reserved and the respondents were directed to file status report about 220 vacancies of Constable (Executive) shown lying pending in the counter reply, which are pending issuing appointment letter with the recruitment cell for various reasons stated in the reply affidavit and as noticed above. The respondents have filed the status report on 29.4.2011, which is taken on record. At this stage, it will be useful to quote the relevant portion, which thus reads:
It has been intimated vide letter under reference that O.A.No.305/2011 Braj Pal Vs. Govt. of NCT of Delhi & Others came up for hearing before the Honble CAT on 27.04.2011 and after hearing the Honble CAT kept the order reserved and directed to file the status of 210 vacancies of Const. (Exe.) shown lying pending in the counter reply. In this regard it is submitted that a final list of 6031 successful candidates was declared on 25.12.2009. Out of 6031 candidates, 5811 have joined the Department as already mentioned in the counter reply and remaining cases of 220 candidates (6031-5811-220) instead of 210 as shown earlier in the counter reply due to clerical mistake were under process at that time. Now, the present status/details of 220 candidates is as under:-
1. Out of 220 candidates, candidatures of 160 candidates have been cancelled. The list of 160 candidates (category wise) along with reasons of cancellation of their candidatures is annexed as R-1.
2. Out of 220 candidates, cases of 60 candidates are still pending/under process for various reasons. The list o 60 candidates (category wise) along with reasons is annexed as R-2.
3. After declaration of final result, 35 candidates did not join the department, as such, in place of these candidates, a second merit list of 35 candidates out of 5% extra pass candidates was declared for the replacement of candidates who were selected but not joined the Department due to various reasons. The list of 35 candidates, whose candidature were cancelled and the list of 35 candidates, who were allowed to join in place of these candidates, are annexed as R-3 & R-4 respectively. Besides, during the process of recruitment cycle 2009 (Phase-I), a notification for recruitment cycle 2009 (Phase-II) to fill up 6302 vacancies of Const. (Exe.) Male was also published in the leading news papers and Employment News dated 07.11.2009. The copy of notification given in Employment News is annexed as R-5.
4. The vacancies were filled up according to merit.
It is also submitted that the Honble CAT vide order dated 28.04.2010 in TA No.1131/2009-S.K. Saini & Others Vs. GNCT, Delhi & Others along with 20 other connected matters filed on similar grounds has been dismissed earlier. The copy of order dated 28.04.2010, is annexed as R-6. (2010) 2 SCC 637, Rakhi Ray Vs. Delhi High Court Annexure R-7.
8. From the undisputed facts, as stated above, it is evident that 220 vacancies of Constable belong to different categories remained unfilled. It is also evident that 160 vacancies have been cancelled. The cases of 60 candidates are still pending/under process for various reasons for the purpose of giving appointment. Paragraph 3 of the status report, as stated above, further reveals that after declaration of final result, 35 candidates did not join the department and in place of these candidates, a second merit list of 35 candidates was declared for the replacement of candidates who were selected but not joined the department due to various reasons. Thus, practically, only 25 candidates could not have been offered appointment against the vacant posts.
9. From the material placed on record, it is also evident that the respondents have also taken steps and issued notification for recruitment cycle 2009 (Phase II), which was published in the leading news papers dated 7.11.2009. It is also evident that the process for recruitment cycle 2009 (Phase II) was initiated to fill up the vacancies in accordance with the merit. Thus, the question, which requires our consideration at this stage, is whether in the facts and circumstances, as noticed above, direction can be issued to the respondents to fill up the unfilled vacancies of recruitment cycle 2009 (Phase I). In other words, whether the select list of recruitment cycle 2009 (Phase I) still survives and can be made operative, especially when the subsequent select list of recruitment cycle 2009 (Phase II) is over.
10. According to us, in view of the peculiar facts and circumstances of the case, we are of the view that no mandamus can be issued to the respondents to fill up the unfilled vacancies of Constable (Executive) for the recruitment cycle 2009 (Phase I), especially when the selection for the Constable (Executive) (Male) pertaining to subsequent recruitment cycle 2009 (Phase I) is also over and even as per own showing of the applicants the unfilled 37 vacancies of the recruitment 2009 (Phase I) has already over carried over to recruitment 2009 (Phase II). We agree with the submissions made by the learned counsel for respondents that no direction can be given for filling up of the vacancies from the wait list when the subsequent select list is also over and the wait list comes to an end and is operative till such date the subsequent selection has not been carried out. At this stage it will be useful to quote the decision of the Apex Court in State of Orissa & another v. Rajkishore Nanda & others, JT 2010 (6) SC 33 whereby the Apex Court in some what similar circumstances has held that it is not necessary to fill up all the posts advertised and the select list is valid for a one year and no appointment can be given after that. A question similar to one, which we are called upon to decide, came up for consideration before the Apex Court in State of U.P. & another v. Nidhi Khanna & another, (2007) 2 SCC (L&S) 225 and the Apex Court held that once a fresh select list is prepared pursuant to a subsequent advertisement, person empanelled in the earlier select list issued under an earlier advertisement is not entitled to be appointed.
11. In view of the law laid down by the Apex Court in the aforesaid case and the fact that selection process in respect of subsequent recruitment cycle is already over, we are of the view that the select list/waiting list of the previous recruitment cycle cannot be made operative even in respect of unfilled vacancies.
4. Thus, in view of the finding recorded by this Tribunal in the aforementioned OAs, relevant portion of which has been reproduced above, the applicants herein are not entitled to any relief.
5. That apart even if the matters are considered in the light of the factual position, as projected by the applicants in these OAs, they are not entitled to any relief.
6. So far as the applicant in OA-4409/2010 is concerned, it may be stated herein that the applicant has also filed OA-1288/2010 regarding appointment against unfilled 345 vacancies. Admittedly, the said OA has been dismissed. In this case, the grievance of the applicant is regarding unfilled 37 vacancies, including 3 vacancies belonging to SC/ST categories, which have fallen vacant on account of resignation of selected persons. Thus, this OA has to be considered in the light of the limited plea taken by the applicant in para 4.7 of the OA and also limited relief sought for by the applicant (Vikram).
7. It may be stated herein that applicant in OA 4409/2010 belongs to SC category and only 3 vacancies have fallen vacant on account of resignation of selected persons. The respondents in their reply affidavit have categorically stated that the minimum cut off marks for selection to the post of Constable in SC category is 55, whereas the applicant has not secured even minimum cut off marks. Thus, according to the respondents, even on merits the applicant cannot be given any appointment. It is stated that there are 20 to 25 persons over and above the applicant and some of the candidates, who have obtained minimum 55 marks, could not have been given appointment against the aforesaid 3 vacancies meant for SC category. Thus, in these facts and circumstances of the case, the applicant has not made out any case for our interference.
8. Learned counsel for applicants has also drawn our attention to various orders of this Tribunal to the effect wherein directions were given to the respondents to consider the case and pass appropriate orders. Learned counsel for applicants further submits that such limited direction may be given in these cases also.
9. We have given due consideration to the submissions made by learned counsel for the parties and we are of the view that such a contention deserves out right rejection. The applicant (Vikram) has not obtained minimum cut off marks, as such any direction given by this Tribunal shall not be in consonance with law and no such direction could have been given, which may lead to consider the claim of this applicant on merits by the Department, more particularly when 20 to 25 persons, who are better in merit than the applicant in OA-4409/2010, could not be given appointment against the so-called three vacant posts of SC category.
10. Our view is fortified by the decision of the Apex Court in the case of C. Jacob v. Director of Geology and Mining & another, (2008) 2 SCC (L&S) 961 wherein it has been held that the Tribunal should be circumspect in issuing such direction as it ultimately leads to consideration of case on merits at subsequent stages.
11. Similarly, in the case of applicant in OA-4408/2010, the respondents have specifically stated that there are 5 to 7 persons above than this applicant, who could not be given appointment for want of vacancies against the OBC category.
12. Thus viewing the matter from any angle, we are of the view that there is no substance in both the OAs, which are accordingly dismissed. No costs.
Let a copy of this order be kept in both files.
( Shailendra Pandey ) ( M.L. Chauhan )
Member (A) Member (J)
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