Central Administrative Tribunal - Delhi
Shri Devinder Kumar S/O Shri Brij Lal ... vs Union Of India & Others Through on 4 March, 2011
Central Administrative Tribunal Principal Bench O.A. No.395/2010 New Delhi this the 4th day of March, 2011 Honble Mr. K.B.S. Rajan, Member (J) Honble Dr. (Mrs.) Veena Chhotray, Member (A) Shri Devinder Kumar s/o Shri Brij Lal Gulyani r/o B2B/304 Janakpuri, New Delhi ..Applicant (By Advocate: Shri M K Bhardwaj) Versus Union of India & others through 1. The Secretary Ministry of Labour Shram Shakti Bhavan, New Delhi 2. The Central Provident Fund Commissioner Employees Provident Fund Organization Bhavishya Nidhi Bhavan, 14, Bhikaji Cama Place New Delhi-66 3. The Regional Provident Fund Commissioner EPFO, Regional Office (Delhi-North) 28, Wazirpur Industrial Area Community Centre, New Delhi-52 ..Respondents (By Advocate: Shri Satpal Singh) O R D E R
Dr. K.B.S. Rajan:
The applicant at the material point of time functioning as UDC, was an aspirant for the post of (Enforcement Officer/Assistant Accounts Officer (EO/AAO). A limited Departmental Competitive Examination was conducted in 2003 and as per the records, the applicant had secured marks, which are more than the minimum qualifying marks and hence was declared PASS and subject to vacancy. Annexure A-3 (last page) refers. Vide Annexure A-2A order dated 03-11-2003, the result of the departmental Examination was declared in which two individual were declared as having come in Merit No. 1 and 2 in the General category. Vide Annexure A-2 order dated 05-11-2003, vacancies were arrived at 2 for General Category, 2 for SC Category and 1 for S.T. The applicant penned a letter to the Central Provident Fund Commissioner vide Annexure A-3 letter dated 02-01-2004 that the calculation of vacancies appeared to be incorrect. Again in October, 2004 the applicant had made another representation on the same issue. Annexure A-4 refers. Once again on 7th January 2005 the applicant penned another representation on the same point, claiming that vacancies for reserved categories, carried forward for more than 3 years are liable to be de-reserved and in respect of EO/AAO, the vacancies for general category ought to be three and not two. Once again, his request was renewed in March 2005, vide Annexure A-5. He made efforts to have the carried forward SC posts converted into a General Category post through filing Oa No. 2268 of 2005, which was disposed of with a direction to the respondents to consider the grounds pleaded by the applicant in the O.A. afresh and decide the issue by a speaking order. Annexure A-6 refers. Respondents having rejected the claim of the applicant, the applicant moved the Tribunal again through OA No. 1059 of 2007, which was dismissed, vide Annexure A-7. Undaunted by the successive failure, the applicant obtained through RTI certain information relating to the vacancies for the year 2003-04. Vide communication dated 13th June, 2008 the respondents gave the requisite information, vide Annexure A-8. The statement issued reflecting the post Based Roster was indicating the 22nd, 23rd and 24th posts, meant for Unreserved as Vacant. Hence, the applicant resurrected his claim by filing an application dated 23rd September, 2008. The Regional Provident Fund Commissioner Delhi (North) by his communication dated 14th October, 2008 informed the Central Provident Fund Commissioner while forwarding the representation of the applicant along with that of two others, stated that according to the review PC held in connection with regularization in EO/AAO cadre in Delhi Region under the Examination Quota (General -3, SC 3 and ST 01) total 7 vacancies existed for the year 2004. Annexure A-11 refers. The same was repeated in another communication dated 19th February, 2009 vide Annexure A-12(colly). Vide order dated 21st September, 2006, the respondents have given a speaking order wherein, while accepting that apart from the notified vacancies, there was one more vacancy that arose, the same was however, belonged to the reserved category. When the applicant again moved the Tribunal in OA No. 3014 of 2009, the Tribunal vide its order dated 26th October, 2009 ( Annexure A-17) directed the respondents to consider the case of the applicant and pass a speaking order. Annexure A-18 is the speaking order, which stated that the applicant was not declared successful in the 2003 examination and that there was only two vacancies under the general category. It has also been stated therein that as per the standard uniform practice being followed by the department in the event of any new vacancy arising with the respective effect either due to administration actions or judicial directions, there have been carried forward to the next/subsequent years for getting them filled through the next drive of that specific mode of recruitment. However, in no case the vacancies notified and the examination results already declared in the past by the Examination wing have been revised after the declaration of the results.
2. The applicant has filed the OA against the above mentioned order of the Tribunal vide annexure A-18.
3. Respondents have contested the OA. They have stated that the applicant was not declared successful in the examination and as such the question of his appointment does not arise. They have further stated that the vacancy position was first arrived at 1, while later on there were found to be two vacancies under the General Category and the same had been consumed by appointing those who stood in the merit in the competitive examination. They have further stated that after such selection, if at a distance of time it is ascertained that there have been vacancy of the past, the same would not be given retrospective effect but would, as per prevailing practice, be treated as a new vacancy.
4. Applicant has filed his rejoinder reiterating his stand as contained in the O.A.
5. Counsel for the applicant argued that the determination of vacancies shall be accurate as could be seen from the general guidelines. The guidelines state that the vacancies in the cadre of Enforcement Officer/Assistant accounts Officer in each Region and in the cadre of Superintendent in Head Office that may be filled in a year shall be notified before the declaration of the result of the examination. The examination shall however be conducted only in such Regions/Head Office where the vacancies are not notified in any year against the examination quota. Again, the counsel relied upon a decision in WP ) 3255 of 2010 decided by the High Court on 12-05-2010. Likewise the applicant relied upon judgment dated 08-09-2009 in WP ) 278 of 2009.
6. Arguments were heard and documents perused. The nature of the examination is only competitive and not qualifying. Though the respondents have indicated that the applicant has passed in the examination, the same is qualified by the term, subject to vacancy Two individuals in the merit list have already been appointed against two posts for that year. Though the applicant had tried to establish that there were three vacancies, the respondents have stated that when due to review of the vacancy position in pursuance of certain orders of the Tribunal as contained in reply to para 4.11 and 4.12, any such vacancy that had been found existing, could only be filled up in the next year examination and the same is the practice. We are not prepared to turn down the above submission, for, a vacancy when found available for a previous year can be filled only prospectively and when it is a practice, the same cannot be ignored. It is pertinent to observe here that where a practice has been in existence, the same cannot be ignored. Only when such a practice is deviating from the prescribed statutory rule that the practice may have to be marginalized. In this regard, the following decisions would be appropriate to be referred to:-
(a) Bimlesh Tanwar v. State of Haryana,(2003) 5 SCC 604 , wherein the Apex Court has observed as under:-
52. In this case also, although there does not exist any statutory rule but the practice of determining inter se seniority on the basis of the merit list has been evolved on interpretation of the rules. A select list is prepared keeping in view the respective merit of the candidates.
(b) State of W.B. v. Manas Kumar Chakraborty,(2003) 2 SCC 604 wherein the Apex Court has observed as under:- :
As to whether a person not holding the substantive rank of DGP could be posted as DG&IGP, the question appears to have been admitted, either as a matter of rule or practice, that in the Karnataka cadre an officer not holding the substantive post was ineligible to the post as DG&IGP.
) K.C. Gupta v. Lt. Governor of Delhi, 1994 Supp (3) SCC 408 wherein the Apex Court has observed as under:-, The TGTs (Middle) who were in the lower grade/scale of pay till 27-5-1970 became unreasonably ambitious to be reckoned as equals to the TGTs in higher grade from the date of their initial appointment which within no stretch of any rule or practice can be said to be justified.
(d) U.P. Public Service Commission, U.P. v. Alpana, (1994) 2 SCC 723 wherein the Apex Court has observed as under:- :
No rule or practice is shown to have existed which permitted entertainment of her application.
(e) N. Suresh Nathan & Anr. vs. UOI & Ors. [(1992) Supp. (1) SCC 584], wherein, while considering the question of promotion to the post of Assistant Engineer in the Public Works Department, the Apex Court had occasion to consider the construction of the service rules in consonance with the long-standing practice in the concerned department and it was held that such long standing practice was to be preferred. (This case was cited and applied in the case of State of UP vs Santosh Kumar Mishra SLP (C) No. 20558 decided on 3rd August 2010)
(f) In Shailendra Dania & Ors. vs. S.P. Dubey & Ors. [(2007) 5 SCC 535], the Apex Court had also the occasion to consider the possibility of two views being taken while interpreting a particular set of service rules. In such a situation, the Apex Court held that the rules should be interpreted in consonance with the practice followed by the department for a long time. In fact, while arriving at such a conclusion, this Court had also the occasion to consider the earlier case of N. Suresh Nathan (supra).
7. In view of the above, the OA is devoid of merits and hence, the same is dismissed. No cost.
( Dr. Veena Chhotray ) ( Dr. K.B.S. Rajan ) Member (A) Member (J) /sunil/