Central Administrative Tribunal - Delhi
Tapan Neeraj vs Government Of Nct Of Delhi Through on 31 May, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH NEW DELHI Original Application No.1830 of 2011 This the 31st day of May, 2011 HONBLE SHRI JUSTICE V. K. BALI, CHAIRMAN HONBLE SHRI L. K. JOSHI, VICE-CHAIRMAN (A) Tapan Neeraj, 37, Vasant Apartments, Mayur Vihar Phase-I, Delhi-110091. Applicant ( By Shri Padma Kumar S., Advocate ) Versus 1. Government of NCT of Delhi through Chief Secretary, Delhi Secretariat, Players Building, IP Estate, New Delhi-110002. 2. Secretary, Department of Social Welfare, Government of NCT of Delhi, GLNS Complex, Delhi Gate, New Delhi-110002. 3. Secretary, Delhi Subordinate Services Selection Board, FC-18, Institutional Area, Karkardooma, Delhi-110092. Respondents O R D E R Justice V. K. Bali, Chairman:
Tapan Neeraj, the applicant herein, is a physically challenged person. In the present Original Application filed by him under Section 19 of the Administrative Tribunals Act, 1985, he seeks quashing and setting aside of order dated 17.2.2011 (Annexure A-1), vide which his representation dated 2.8.2010 for appointment on the post of Welfare Officer Grade-II in the Department of Social Welfare, Government of NCT of Delhi, has been rejected. The applicant also seeks a direction to be issued to the respondents to fill up the vacancy of physically handicapped as per instructions, taking into account all the vacancies, i.e., 10+34, projected by the 1st respondent, and since the applicant is the only qualified physically handicapped candidate in the list, direction be issued to the respondents to consider appointing him against the PH vacancy. It is also the prayer of the applicant that inasmuch as, his rank is sufficiently higher in the general list as well, without prejudice to the prayers made as mentioned above, direction be issued to the respondents to give him appointment against the total vacancies, i.e., 8+10+34.
2. The facts as projected in the Original Application reveal that the respondents advertised eight vacancies of Welfare Officer Grade-II in the year 2005, but the examination could not be conducted up to August, 2009 even though, the last date for receipt of applications was 29.1.2005. The respondents issued yet another advertisement dated 4-10 August, 2007 for ten vacancies of Welfare Officer Grade-II, wherein it was specifically mentioned that the respondents would reserve the right to increase or decrease the number of vacancies. The applicant applied for the said post as a physically handicapped person. On 18.8.2007, the 1st respondent intimated to the 2nd respondent that 34 more vacancies be filled up through the selection process notified vide advertisement dated 4-10 August, 2007. Examination was conducted in respect of both the advertisements of 2005 and 2007 on 13.9.2009 at the same time and date with same question paper. Result of the examination was published on 19.2.2010 and the name of the applicant figured in the merit list with score of 140 marks at serial number 79 of the result notice. He stood at serial number 5 in the merit list amongst the general category and at number 15 in the combined merit list of all categories, i.e., UR, OBC, SC and ST. On 2.8.2010, the applicant made a representation to the 1st respondents for consideration of his candidature, which has since been rejected vide impugned order dated 17.2.2011. In the order aforesaid it has been mentioned that the department vide letter dated 29.11.2004 had sent requisition for filling up the post of Welfare Officer Grade-II to DSSSB. Bifurcation of posts was as under:
GEN - 04 SC - 01 OBC - 03 [ No post was reserved for physically handicapped candidates. Further, the department vide letter dated 5.1.2006 sent seven posts of Welfare Officer Grade-II to DSSSB, with bifurcation as under:
GEN - 04 SC - 01 OBC - 02 [[ The department further sent three more posts on 10.3.2006. The bifurcation of posts was as under: ST - 01 OBC - 02 [ There were ten reserved posts and not even one out of the said posts was reserved for physically handicapped. It is further mentioned that a certificate had been given mentioning that the number of vacancies reserved for SC/ST/OBC/PH/Ex.SM/Male and Female, as mentioned in column number 2 above, were in accordance with the latest post-based roster/reservation quota fixed by the Government for these communities, and that the certificate had been given in all the requisitions sent to the DSSSB, and, therefore, no physically handicapped person had been selected by DSSSB.
3. We heard arguments in this case on 23.5.2011 when judgment was reserved. Inasmuch as, while dictating the order we found the facts to be different than on the basis of which arguments were addressed before us, we recorded the following order on 25.5.2011, and posted the matter for re-hearing:
Arguments in this case were heard at motion stage on 23.5.2011 when judgment was reserved. It was urged during the course of arguments that before the result of the selection could be finalized, 34 more posts were advertised, and, therefore, the applicant could be appointed against a post which became available later. While preparing the judgment, we, however, find that the pleadings in the OA are that the 34 vacancies in the post of Welfare Officer Grade-II were on contract basis against which the applicant applied and was appointed as well. There was an advertisement for filling up 34 vacancies on 25.3.2008, as mentioned, on contract basis. The applicant is also an orthopedically challenged person and it is his case that one vacancy out of 34 was reserved for his category. The counsel has placed reliance on the judgment of Honble Supreme Court in Balwant Singh Narwal & others v State of Haryana & others [(2008) 2 SCC (L&S) 586].
2. What was urged before us is different than what is pleaded as regards 34 more posts of Welfare Officer Grade-II, and further that the judgment relied upon by the learned counsel, it appears, would not be applicable to the facts of the present case at all. The counsel may explain the contentions raised by him which do not appear to be in tune with the pleadings made in the OA.
3. List the matter for re-hearing on 27.5.2011.
4. There would be no question of allotting a seat to the applicant simply because he is high enough in the merit list, as that would be at the cost of one candidate in the general category, who may be within the vacancies advertised and are to be filled. The applicant would only seek his appointment on the post under contention on the basis of his being physically challenged person, and wanting that more posts as were advertised for filling up, i.e., 34, could also be filled as the requisition for the same was also sent, and if appointments are so made, there would have been a seat reserved for physically handicapped as well. It is urged that in the advertisement itself it is mentioned that more posts could be filled.
5. We have heard the learned counsel representing the applicant and with his assistance examined the records of the case. We do not find any merit whatsoever in the only contention of the learned counsel as noted above. It is no doubt true that we were given to understand while we heard the arguments in this case that the requisition for 34 more posts was also sent, but it would be clear from Annexure A-1 order that no vacancy was reported beyond what has already been mentioned above. Insofar as, 34 more vacancies are concerned, as per the pleadings made in the OA itself, the same were to be filled on contract basis. In fact, this process had already been gone into in 2008 and the applicant was one of the persons appointed on contract basis as well. Requirement of the department for appointment on contract basis cannot be equated with its requirement for filling up regular vacancies. There was no compulsion with the respondents to fill the 34 posts on regular basis, nor were the same ever requisitioned for filling up on regular basis. In fact, we find from the representation made by the applicant dated 2.8.2010, on which the impugned order dated 17.2.2011 has been passed, that he had not even staked his claim for regular appointment against the 34 vacancies, even though he sought preference to be appointed because he was a physically handicapped person and was already holding the post on contract basis. The learned counsel, during the course of arguments on re-hearing, was unable to show any identity of issues involved in the present case and the one on which reliance has been placed in the matter of Balwant Singh Narwal & others v State of Haryana & others [(2008) 2 SCC (L&S) 586].
6. Finding no merit in this Original Application, we dismiss the same in limine.
( L. K. Joshi ) ( V. K. Bali ) Vice-Chairman (A) Chairman /as/