Central Administrative Tribunal - Delhi
Anil Kumar vs Union Of India Through Secretary on 21 March, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA 3588/2009 New Delhi, this the 21st day of March, 2011 HONBLE MR. JUSTICE V.K.BALI, CHAIRMAN HONBLE MR. L.K.JOSHI, VICE CHAIRMAN (A) Anil Kumar, S/o late Shri Mit Narayan Prasad, R/o Bhaisasoor, Ranchi Road Biharsarif, District Nalanda, Bihar. Applicant. (By Advocate: Shri Nidesh Gupta, Sr. counsel with Shri S.P. Sinha) VERSUS 1. Union of India through Secretary, Ministry of Personnel P.G. & Pensions, Department of Personnel & Training, North Block, New Delhi-110001. 2. The Director General, Central Industrial Security Force (CISF), Block No. 13, CGO Complex, Lodhi Road, New Delhi-110003. Respondents. (By Advocate: Shri R.N. Singh and Shri Ravinder Sharma) ORDER
Mr. L.K.Joshi, Vice Chairman (A) In this OA, filed under Section 19 of the Administrative Tribunals Act, 1985, the Applicant is seeking direction to the Respondents in the context of his representation dated 26.06.2009 to the first Respondent, Secretary, Department of Personnel and Training (DOP&T), to allocate him to any other suitable service instead of Central Industrial Security Force (CISF) in accordance with the judgement of the Honourable Supreme Court in Union of India and Another V. Satya Prakash and Others, (2006) 4 SCC 550 or in the alternative to give direction to the Respondents to grant him seniority, pay and allowances, benefit of old pension scheme and other benefits available to the recruits of Civil Services Examination (CSE) 1994.
2. The relevant facts of the case have been given in the following paragraphs.
3. The Applicant successfully competed in the CSE 1994 as an OBC candidate and secured 548th rank. Total number of selected candidates was 707 as against total number of 707 posts. The Applicant was not allocated to any service on the ground that he had not given any preference for any of the services, although the persons below him in the rank in the merit list were allocated to suitable services. The person immediately above the Applicant in OBC category with 546th rank was allocated to Indian Posts and Telegraph Accounts and Finance Services and the candidate immediately below him, with the rank of 549 in the merit list, was allocated to Indian Defence Accounts Service. The representation of the Applicant dated 28.07.1996 was rejected by order dated 08.11.1996. The order dated 08.11.1996, inter alia, gave the following reasons for rejection of his representation:
4. Candidates are allocated to a service based on their merit position, preferences expressed by them and vacancies available in the relevant categories. A reserved candidate who can be allocated to a service of his higher preference without the benefit of reservation, is not adjusted against a reserved vacancy. Also, candidate included in the general merit list of the UPSC who has claimed the benefit of reservation, is given the benefit of such reservation and adjusted a reserved vacancy in a service if he is allocated to the service of his higher preference, only on the basis of his reserved status.
xxxx In the OBC category, there are 173 vacancies in various services/posts for which recruitment was made on the basis of the CSE, 1994.
7. In accordance with the provisions of Rule 16, UPSC have recommended a list of candidates for consideration for appointment to the various services/posts. In the list of the UPSC, there are 31 number of candidates belonging to the OBC category who were in the general merit list. Additionally 173 candidates were recommended service appointments to vacancies in services/posts reserved for OBC candidates.
8. As already stated, the allocation/appointment to various services/posts, it based on the merit and preferences for the services/posts expressed by the candidates and availability of vacancies. In the matter relating to allocation of candidates claiming the benefit of reservation and included in the general merit list, they are considered for allocation to a service of higher preference, first according to their merit in the General Category and if they cannot be so allocated, then they are considered for allocation as a reserved candidates against a reserved vacancies for that category since the candidates cannot be deprived of the benefit of reservation if they can be allocated to a service of their higher preference, only with the benefit of reservation. This is in accordance with the law/principle laid down by the Honble Supreme Court in the case of Ritesh R Shah Versus Y.L. Yamul & others in W.P (Civil) No. 693-95 dated 15/02/1996 reported in JT 1996 (2) SC 495.
9. In Civil Services Examination, 1994, five candidates belonging to the OBC category were allocated to a service of their higher preference without the benefit of reservation and for the purpose of allocation to a service/post they were treated as general candidates and the slots to which they were allotted have not been adjusted against the reserved vacancies in these services/posts. The list of such candidates is at Annexure I. Twenty-six candidates who were included in the general merit list of the UPSC and claiming the benefit of reservation as OBC candidates were allocated to services/posts as reserved candidates since such candidates cannot be deprived of the legitimate claim and benefit of reservation for allocation to a service of their higher preference merely because they have been included in the general merit list of the UPSC under Rule 16.
10. Other vacancies for OBC candidates in various services/posts have been filled up by candidates recommended by the UPSC for appointment to services/posts who have claimed the benefit of reservation and recommended by the UPSC as such. The list of such candidates is at Annexure III.
11. Since there are only 173 vacancies in the OBC category in various services and posts, certain candidates belonging to that category and recommended by the UPSC for appointment against vacancies for OBC candidates in services/posts cannot be allocated to any service/post due to lack of vacancies and Shri Anil Kumar is one of such candidates. The list of candidates who could not be allocated to a service is at Annexure-V. The Applicant approached this Tribunal in OA number 2624/1996 for redressing of his grievance that he was not allocated any service by the DOP&T. The plea of the Applicant did not find favour with the Tribunal. He then approached the Delhi High Court in Civil Writ Petition number 3562/1999. Another candidate, Satya Prakash, had also filed a similar Civil Writ Petition number 3567/1999. The High Court decided the Writ Petitions by treating the case of Satya Prakash as the lead case by its judgement dated 10.09.2002 reported in (2002) 99 DLT 749, by which the Writ Petitions were allowed. The respondents therein were directed to allocate suitable jobs to the appellants. The matter was carried to the Honourable Supreme Court by the Union of India in Civil Appeal number 5505-07/2003, which was dismissed by judgement dated 05.04.2006. Pursuant to the judgement of the Honourable Supreme Court, the DOP&T, by its letters dated 11.05.2006 and 22.05.2006, allocated the Applicant to Central Industrial Security Force (CISF) on the basis of CSE 1994. The Applicant made a representation dated 02.06.2006 to the Respondent, DOP&T, that he should have been allocated to a better service than CISF from among the remaining un-allocated posts of CSE 1994.
4. Meanwhile, an identical case came before this Tribunal in OA number 216/2004, Rajesh Kumar Sah V. Union of India and another, which was decided by judgement dated 02.03.2007, along with OA number 1611/2004. The applicant therein was successful candidates of CSE 2001 and CSE 1999. The Tribunal gave the following directions:
14. Persons, who had been selected along with them might have improved their career substantially. Therefore, applicants have to be placed at appropriate position, if possible by accepting their preferences, or in any case conferring on them residuary positions, duly taking note of principles of allotment statewise and other attendant requirements. They have to be accommodated at appropriate place in the seniority positions, as if they had come to the service, from the date on which persons below their respective ranks came to be appointed. The assignment of seniority should be with notice to affected persons. They will be deemed as having joined duty as above for all purposes, including fixation but monetary benefits will be confined and available only from the day they join duty. (emphasis added)
5. Even after the allocation of the Applicant to CISF, he did not receive any letter of appointment. A Contempt Petition was filed by Satya Prakash before the Honourable Supreme Court. It was only after that the CISF issued a letter of appointment dated 02.03.2007 to the Applicant herein. It has been averred in the OA and not denied by the Respondents that initially the CISF had opposed the appointment of the Applicant on account of his age and the Ministry of Home Affairs, the cadre controlling authority, had endorsed this view and referred the matter back to the Respondent, DOP&T. The Ministry of Home Affairs requested the DOP&T to allocate any other Group 'A' service to the Applicant. The first Respondent had filed an affidavit before the Honourable Supreme Court in the Contempt Petition admitting that there were vacancies in other services, which could be allocated to the petitioner instead of CISF, provided the petitioners made a request and the Court gave a direction in that regard. The said affidavit has been placed at pages 75 to 93 of the paper book. Although the Contempt Petition was dismissed, yet in IA number 6/2007 filed by Satya Prakash, the Honourable Supreme Court observed thus:
The dismissal of the contempt petition would not preclude the petitioner to file OA before the Tribunal if occasion so arises with regard to his appointment, seniority and other benefits in C.I.S.F.
6. Information had also been collected under the Right to Information (RTI) Act, 2005 about remaining vacancies in various services for CSE 1994 to CSE 1998 by Satya Prakash and also given by the Respondent, DOP&T, before the Delhi High Court in the Writ Petitions filed by Satya Prakash, which have been placed at Annex K and Annex L (Colly). The information culled from Annex K and Annex L has been placed in paragraph 4.XIII of the OA, which has been reproduced below:
4.XIII That it be appreciated that a bare comparison of Annexure-K as well as letter dated 19/02/2007 (Annexure-L (Colly) would reflect that in the Indian Revenue Service there were 25 vacancies in the General Category and 14 vacancies were in the OBC Category. As against this only 23 persons in the General Category and 13 persons in the OBC Category joined the said post. It be noted that in General Category there are two vacant posts in the Indian Revenue Service and similarly in the OBC Category there is one vacant post in the same service. It be further noted that even in Delhi and Andaman Nicobar Islands Civil Services there are 5 vacancies unfilled in the General category for the CSE, 1994 batch and in the Delhi and Andaman Nicobar Islands Police Services there are three unfilled vacancies in the General Category through CSE, 1994. For the reference of this Learned Tribunal the following chart is prepared on the basis of Annexure-K and Annexure-L (Colly), which reflects upon the vacancy position through CSE, 1994.
INDIAN REVENUE SERVICE, GROUP `A CATEGORY Vacancies General O.B.C. S.C. S.T. Total Posts to be filled as per Annexure-K 25 14 07 04 50 Posts filled as per Annexure-L (Colly) 23 13 06 05 47 Vacant Posts 02 01 01 01 03 DELHI AND ANDMAN & NICOBAR ISLANDS CIVIL SERVICES GROUP `B CATEGORY Vacancies General O.B.C. S.C. S.T. Total Posts to be filled as per Annexure-K 10 04 04 02 20 Posts filled as per Annexure-L (Colly) 05 04 03 02 14 Vacant Posts 05 00 01 00 06 DELHI AND ANDMAN & NICOBAR ISLANDS CIVIL SERVICES GROUP `B CATEGORY Vacancies General O.B.C. S.C. S.T. Total Posts to be filled as per Annexure-K 05 02 02 01 10 Posts filled as per Annexure-L (Colly) 02 02 01 01 06 Vacant Posts 03 00 01 00 04 The Respondent, DOP&T, followed the practice of re-allocation of vacancies, which remained unfilled. The information in this regard has been placed at Annex M (Colly). Further, in response to the query under RTI Act, 2005, the following information was given by the DOP&T:
Services in which vacancies are available for allotment on the basis of CSE, 1994 General OBC SC ST Total S.N Serv-ice Vacan-cies Candi-dates allotted Shortfall Vac. Cand.
Allot. Short Vac. Cand.
Allot. Short Vac. Cand.
Allot. Shor. Vac. Cand.
Allot. Short
01. CISF 18 06 12 08 08 00 06 06 00 03 02 01 35 22 13
02. CSS 34 02 32 13 13 00 12 05 07 06 01 05 65 21 44
03. RBSS 03 00 03 01 01 00 01 01 00 01 00 01 06 02 04
04. AFHQ 24 00 24 12 12 00 07 02 05 05 00 05 48 14 34
05. CBI 03 00 03 01 01 00 00 00 00 01 01 00 05 02 03 82 08 74 35 35 00 26 14 12 16 04 12 159 61 98
7. The Applicant joined CISF on 01.10.2007. He represented to the second Respondent, Director General, CISF on 15.10.2007 to give him all the benefits available to the persons allocated to the service on the basis of CSE 1994. He made further representation on 03.04.2008. He made another representation to the first Respondent, DOP&T, on 30.06.2008 in this regard. However, these representations were of no avail. However, as would be seen from the correspondence placed at Annex T (Colly) that the benefit of seniority and other attendant benefits have been given to Pradeep Kumar Singh, CSE 1996 (CSS), A Ibrahim Sheriff of CSE 1999 (RPF) and Rajesh Kumar Sah, CSE 2001 (AFHQ).
8. The learned senior counsel for the Applicant would vehemently contend that in spite of the availability of vacancies in other services for CSE 1994, the Respondents were strangely reluctant to allocate those services to the Applicant. He would advert to the additional affidavit filed by the Respondents on the instructions of this Tribunal to give information regarding unfilled vacancies in various services in CSE 1994 and point out that the Respondent, DOP&T, had only given information about the CSS, stating that there were no unallocated vacancies. In this context paragraph 4 of the additional affidavit has specifically been adverted to and quoted below:
4 That it is submitted that there were 13 (thirteen) vacancies under OBC category to be filled up in CSS and at the time of allocation of service to the candidate recommended by UPSC from CSE-1994. The 13 candidates (rank-532, 557, 559, 568, 591, 592, 603, 611, 616, 623, 625, 634 and 639) from OBC category were allocated CSS. Thus, there were no vacancies unallocated in CSS for CSE-1994. Therefore, it is not possible to allocate CSS to the applicant at this stage. He would contend that the Respondent has concealed the information regarding unallocated posts in CSS for unreserved vacancies. It was pointed out that, according to the information received under the RTI Act, 2005, placed at page 142 of the paper book, 32 vacancies remained unfilled in CSS from amongst General category. He would contend that at this time it would be in the interest of justice and equity that even the posts remaining vacant in the General category should be re-allocated to the Applicant. Moreover, as per the information received under the RTI Act, 2005, vacancies remained un-allocated in IRS, DANICS and DANIPS, as averred in paragraph 4.XIII of the OA. He would take serious exception to the reply of the Respondents to the above mentioned paragraph 4.XIII, wherein it is stated that:
Para 4 (xii) to (xvi) It is submitted that according to principles of service allocation merit/rank obtained by the candidates, their preferences for various services, availability of vacancies in services and their medical fitness are taken into consideration for allocation of various services in the civil services examination. Anil Kumar, the applicant had been allocated to CISF in accordance with the said principles of service allocation. Simultaneously notional allocation was made of all the unallocated reserved category candidates against the remaining un-reserved vacancies so that if any one of them come up with a judicial order he may be given actual allocation against thus notionally [allocated] service to him. As a laid down procedure and principles allocation have been followed the case of the applicant he could be allocated to any other service on which there may be claim of some other candidate. It was urged that the Applicant has been fighting for his rights since 1994 and instead of giving him justice, the Respondents were waiting for someone to claim the unallocated vacancies on the basis of some judicial order in future.
9. The learned counsel for the Respondents, on the other hand, would contend that the Applicant could be allocated to any service from among the vacancies of CSE 1994 only. Advertence has been made to the judgement of the Honourable Supreme Court in Union of India V. Ramesh Ram and others, (2010) INSC 379, placed at pages 194 to 217 of the paper book. We are, however, unable to see any relevance of this judgement in the instant case because it is regarding CSE 2005 and CSE 2007. The Honourable Supreme Court itself has observed that:
18. The decision in Satya Prakash was rendered prior to the amendment of Rule 16(2) and the learned Judge had not contemplated the present version of the rule. Hence, this decision is clearly distinguishable from the present case. In the instant case we had to go by the decision of the Honourable Supreme Court in Satya Prakash (supra) and not by any other subsequent judgement.
10. We find that there is sufficient force in the arguments of the Applicant that he should be given full benefit of seniority and pay, as if he had been allocated to service in the year 1995, following CSE 1994. We are of the considered opinion that giving him seniority of the year 2007, when after a protracted legal battle, he was allocated the post, would be defeating the spirit of the judgement of the Honourable Supreme Court. Even in CISF, the candidates of CSE 1994 had been placed above the Applicant, as averred by him in paragraph 4.XXVI of the OA. If because of procedural formalities and the requirements of service, it is not possible to give the Applicant the seniority of 1995 in CISF, then the Applicant has to be allocated to any other service in which vacancies remained un-allocated, even though of General category candidates. The law favours those who actively fight for their rights and had been vigilant and not those who had been lethargic and fence sitters. As Walpole, the British Prime Minister, famously said "let the sleeping dogs lie."
11. The Applicant has diligently demonstrated that posts are available in other services than CISF. The Respondents are directed to re-consider the whole issue and re-allocate any of the available service of CSE 1994, reserved or unreserved, to the Applicant, within three months of the receipt of a certified copy of this order. No costs.
( L.K.Joshi ) ( V.K.Bali ) Vice Chairman (A) Chairman sk