Central Administrative Tribunal - Delhi
Shri Ritesh Kumar vs Union Of India on 28 January, 2013
Central Administrative Tribunal
Principal Bench
OA No.2615/2010
MA No.2060/2010
New Delhi, this the 28th day of January, 2013
Honble Mr. Jog Singh, Member (J)
Honble Mrs. Rajwant Sandhu, Member (A)
1. Shri Ritesh Kumar, SSA,
Bhavishya Nidhi Bhawan,
28, Community Centre,
Wazirpur Industrial Area,
Delhi-52.
2. Shri Nikhil Jain, SSA,
Bhavishya Nidhi Bhawan,
28, Community Centre,
Wazirpur Industrial Area,
Delhi-52.
Applicants
(By Advocate : Shri Padma Kumar S. with Shri K.K. Mishra)
Versus
1. Union of India, through
Secretary,
Ministry of Labour,
Shram Shakti Bhawan,
New Delhi.
2. The Chairman,
Central Board of Trustees,
EPFO,
Shram Shakti Bhawan,
New Delhi.
3. The Central Provident Fund Commissioner,
Employees Provident Fund Organization,
Bhavishya Nidhi Bhawan, Head Office,
14, Bhikaji Cama Place,
New Delhi-66.
4. Regional Provident Fund Commissioner,
Employees Provident Fund Organization,
Regional Office, Delhi (North),
28, Community Centre,
Wazirpur Industrial Area,
Delhi-110 052.
5. Smt. Rachna Mathur,
Through Respondent No.4.
6. Smt. Sridya Prabhakar,
Through Respondent No.4.
7. Shri Mahesh Kumar,
Through Respondent No.4.
8. Shri Ram Kishan Saroha,
Through Respondent No.4.
9. Shri Gulshan Bhatia,
Through Respondent No.4.
10. Shri Bahadur Singh,
Through Respondent No.4.
11. Shri Parveen Kalra,
Sr. SSA.
12. Shri Dinesh Kumar Jha,
Sr. SSA.
13. Ms. Seema Vasudeva,
Sr. SSA.
14. Shri Saroj Kumar Jha,
Sr. SSA.
15. Shri Devinder Kumar,
Sr. SSA.
(Respondent 11 to 15 through Shri M.K. Bhardwaj, Advocate, 584, Vikas Kunj, Vikaspuri, New Delhi).
Respondents.
(By Advocates : Shri Satpal Singh for respondent Nos.1to4.
Shri V.S.R. Krishna for respondent Nos.5,6,9
& 10
Shri M.K. Bhardwaj for respondent Nos.11 to
15).
O R D E R (ORAL)
Mr. Jog Singh, Member (J):
MA-2060/2010 filed by the two applicants under Rule 4 (5) (a) of Central Administrative Tribunal (Procedure) Rules, 1987 is allowed in the interest of justice and to avoid multiplicity of litigation.
2. There are two applicants in the present OA, who are working on the posts of Social Security Assistant (pre-revised pay scale of Rs.1200-2090) with the respondent-organization, i.e. Office of the Regional Provident Fund Commissioner, New Delhi. Their case is that after working for three years in the cadre of Social Security Assistant they became eligible to be considered and promoted to the posts of Section Supervisor/Head Clerk. It is an admitted position that the said post of Section Supervisor in the pre-revised scale of pay of Rs.1400-2300 was earlier called as UDC. The nomenclature was, however, changed on 05.09.2006. The two applicants submitted that they became eligible to be considered and promoted to the posts of Section Supervisor on 1.1.2009 and 1.1.2010 respectively.
3. The main grievance raised by the applicants in the present OA is relating to the respondents Notification dated 30.09.2006 vide which a limited departmental competitive examination (LDCE) was held on 18-19/12/2007 and the result was declared on 12.05.2008. 66 candidates from general category qualified in the said examination and 09 candidates were declared qualified in the reservation quota meant for SCs/STs. The case of the applicants is that the respondents could not have promoted more than 16 candidates as that was the number of vacant posts of Section Supervisor available as on the date the result was declared or the examination was held. For the sake of convenience the applicants have stated March, 2008 as the relevant cut off date in this regard. Applicants further submit that the respondents have in a discriminatory manner went ahead with the promotions from the said list of 66+9 candidates on 20.08.2009, 06.11.2009 and 15.05.2010, thereby depriving the candidates, who had become eligible in the year 2009 and 2010, an equal opportunity to be considered for promotion against the 1/3rd quota meant for LDCE. This is stated to be against the provisions of Articles 14 and 16 of the Constitution of India as well as opposed to the law laid down by the Honble Apex Court in the case of Rakhi Ray & Ors. v. High Court of Delhi & Ors., reported in 2010 (2) AISLJ SC 189 . The applicants also relied upon the law laid down by the Honble Apex Court in the case of Union of India & Ors. v. B. Valluvan and others, reported in (2007) 1 SCC (L&S) 28.
4. On the other hand, the official respondents have filed their reply through Shri Satpal Singh, learned counsel and have contended that the examination for the purpose of promotion of Section Supervisor is a qualifying examination only. The successful candidates in the said LDCE are appointed in the order of merit with reference to the marks obtained by them in the LDCE. Therefore, the respondents can prepare a larger panel/select list of candidates qualifying the said departmental examination and can fill up subsequent vacancies occurring after the notification and examination etc. as well. Learned counsel for the private respondents Shri V.S.R. Krishna and Shri M.K. Bhardwaj have also appeared and made similar submissions. Shri V.S.R. Krishna submits that the respondents have been following this practice of preparing larger panel, i.e. larger than available vacant posts at a given point of time, meant for 1/3rd quota since 1996 and they have been doing it as such. The submission is that as long as the panel or select list is not exhausted, respondents can go ahead with filling up of vacancies from such panel/select list. It is also submitted by the learned counsel for the official respondents that they have never exceeded the 1/3rd quota but have only evolved a method by which the panel/select list prepared pursuant to a LDCE is kept operative for future years indefinitely till the selected candidates are adjusted against the vacancies becoming available in future too.
5. All the learned counsel for the parties have been heard at length and the pleadings and documents have been perused minutely. At the outset, it is noted that the post of Section Supervisor is to be filled up as per the Employees Provident Fund Organization Section Supervisor (Head Clerk) (Regional Office) Recruitment Rules, 1992. Para-1 of the said Recruitment Rules mentions the name of the post as Section Supervisor/Head Clerk (Regional Office). It is a Group C ministerial post in the erstwhile pay scale of Rs.1400-2300. 2/3rd quota is to be filled up by promotion on the basis of seniority, subject to fitness and remaining 1/3rd quota is also to be filled up by promotion albeit based on departmental examination, failing which by direct recruitment. It is also evident that the post of Section Supervisor/Head Clerk is to be filled up 100% by promotion in the prescribed quota as mentioned hereinabove. In the present case we are concerned only with 1/3rd quota meant for LDCE. In this regard it is pertinent to note that the candidates having 03 years service in the feeder category of Social Security Assistant are eligible to appear in the qualifying examination to be conducted by the respondents from time to time on the basis of marks/merit in the said examination. This is made clear in para-12 of the said Recruitment Rules of 1992.
6. In this context it is further noted that the respondents have prescribed a Scheme of Examination, known as Employees Provident Fund Departmental Promotion Examination Scheme 2002. As per para-1 (ii) it is provided in the said Scheme that the examination, i.e., Limited Departmental Competitive Examination shall be held for filling up the vacant posts of Section Supervisor/Assistant (Head Office), Upper Division Clerk and LDCs in the Regions as well as in the Head Offices falling under the examination quota as prescribed in the relevant Rules. Para-3 of the said Scheme deals with determination of vacancies and provides that vacancies in the cadre of Section Supervisor etc. should be determined by the respective RPFCs. Para-4 deals with the eligibility and states that eligibility for appearing in the examination shall be determined with reference to the relevant recruitment rules. The cut off date for determination of such eligibility for the candidates who aspire to appear in the said examination shall be 1st January of the preceding year. The method for preparation of merit list etc. has also been enshrined in the said Scheme of examination.
7. A con-joint reading of the said Scheme of examination read with relevant recruitment rules would make it abundantly clear that the examination has to be conducted with reference to the vacancies which arise and are available on the 1st January of the preceding year when the examination is to be held. Undoubtedly, such vacancies should be within 1/3rd quota meant for LDCE. Thus, on a harmonious construction of the recruitment rules and the said Scheme and also keeping in view the law laid down by the Honble Supreme Court in the abovesaid two mentioned cases of Rakhi Ray and B. Valluvan, we note that the respondents are precluded from filling up the unlimited/excessive number of vacancies pursuant to one examination alone. In the present case notice was issued on 30.09.2006 and the respondents after conducting the examination on 18/19-12-2007 declared the result on 12.05.2008, declaring in all 75 candidates as qualified, including general and reserved categories candidates. Respondents have themselves annexed a statement showing vacancy position in the cadre of Section Supervisor under the Examination quota as on 31.03.2008. This document is dated 27.02.2007 and is issued by the office of the EPF, Ministry of Labour, Government of India and has been annexed by the official respondents. It clearly discloses that there were only 16 anticipated vacancies as on 31.03.2008 to be filled under the examination quota of 1/3rd as per the recruitment rules in question. Out of such 16 vacancies two were reserved for SC and one for ST. In view of this factual position we have no hesitation in holding that the respondents could have only filled up 16 posts pursuant to notification dated 30.09.2006 and subsequent vacancies were to be filled up on yearly basis, giving an equal opportunity to all the candidates becoming eligible in the subsequent years. If the contention of the respondents in the present case is upheld, a select list or panel prepared for the LDCE quota would go on indefinitely till all the candidates qualifying are exhausted. This is neither the spirit of the recruitment rules for the post in question nor the underline objective/idea of the Examination Scheme, 2002, as promulgated by the respondents themselves. Here, we note it with concern that certainty in the services is of utmost importance and if it is divorced or replaced by arbitrariness or vagueness, the same may lend to create insecurity in the mind of officials apart from violating their fundamental rights and legitimate expectation.
8. Further, as to the contention of the respondents that as a policy decision the respondents have been filling up 1/3rd quota from the list of all qualified candidates in perpetuity, which means that till that panel is exhausted, we have not been shown any rule/regulation or statutory provision, empowering the respondents to do so. In fact, Shri M.K. Bhardwaj has pointed out a judgment of this Tribunal dated 04.03.2011 in TA No.679/2011 etc. We have perused a copy of that judgment delivered by a Bench of this Tribunal. That judgment pertains to the post of Junior Accountant in Delhi Jal Board, now Delhi Water Supply and Sewage Disposal Undertaking. Dealing with the limited competitive examination held in that case, the Tribunal found that there could be no limit to the validity of list of selected candidates and it would continue to remain in operation till the last person selected was appointed. In fact, this finding was given by the Tribunal in the peculiar facts and circumstances of that case. In that case, it is evident from the reading of the judgment that a clarification was given by the Government of NCT of Delhi that there would be no limit to the validity and list of selected candidates. In the present case no such clarification/notification was issued by the competent authority to declare that the select panel would be operated in perpetuity. Hence, that case is distinguishable and does not help the case of the private respondents.
9. Shri M.K. Buardwaj has also pointed out a judgment of the Honble High Court of Gujarat in Special Civil Application No.13224 of 2012 in the case of Anish Kumar v. Union of India. We note that in that case the Tribunal as well as the Honble High Court was basically dealing with an issue of impleadment and that is not the case in the present matter before us. In the present case we have noted that almost all the candidates who have been appointed after the 16 available vacancies and against the subsequent vacancies have been duly inducted as respondents as they are being represented by the learned Advocates. In fact, applicants moved MA-2254/2010 for impleadment of all the affected parties and that MA was allowed on 06.09.2010 and the promotion of all the candidates beyond 16, during the pendency of the OA, were made subject to the outcome of the present OA.
10. Next, it is held by the Honble Apex Court based on various Office Memoranda issued by the Department of Personnel and Training that normal life of a panel or selection should be one year only, unless extendable under the statutory rules. In the present case nothing is shown by the respondents to prove that they have actually extended the life of a panel beyond one year. Respondents have also not shown us any difficulty in holding the examination from time to time by giving equal opportunity to all eligible candidates, who may be becoming eligible in future years. In this connection we refer to the observations of the Honble Apex Court, as reflected in paras 9 & 10 of the Rakhi Rays case (supra) mentioned hereinabove:
9. It is a settled legal proposition that vacancies cannot be filled up over and above the number of vacancies advertised as "the recruitment of the candidates in excess of the notified vacancies is a denial and deprivation of the constitutional right under Article 14 read with Article 16(1) of the Constitution", of those persons who acquired eligibility for the post in question in accordance with the statutory rules subsequent to the date of notification of vacancies. Filling up the vacancies over the notified vacancies is neither permissible nor desirable, for the reason, that it amounts to "improper exercise of power and only in a rare and exceptional circumstance and in emergent situation, such a rule can be deviated and such a deviation is permissible only after adopting policy decision based on some rational", otherwise the exercise would be arbitrary. Filling up of vacancies over the notified vacancies amounts to filling up of future vacancies and thus, not permissible in law. (Vide Union of India & Ors. v. Ishwar Singh Khatri & Ors. (1992) Supp 3 SCC 84; Gujarat State Deputy Executive Engineers' Association v. State of Gujarat & Ors. (1994) Supp 2 SCC 591; State of Bihar & Ors. v. The Secretariat Assistant S.E. Union 1986 & Ors AIR 1994 SC 736; Prem Singh & Ors. v. Haryana State Electricity Board & Ors. (1996) 4 SCC 319; and Ashok Kumar & Ors. v. Chairman, Banking Service Recruitment Board & Ors. AIR 1996 SC 976).
10. In Surinder Singh & Ors. v. State of Punjab & Ors. AIR 1998 SC 18, this Court held as under:
"A waiting list prepared in an examination conducted by the Commission does not furnish a source of recruitment. It is operative only for the contingency that if any of the selected candidates does not join then the person from the waiting list may be pushed up and be appointed in the vacancy so caused or if there is some extreme exigency the Government may as a matter of policy decision pick up persons in order of merit from the waiting list. But the view taken by the High Court that since the vacancies have not been worked out properly, therefore, the candidates from the waiting list were liable to be appointed does not appear to be sound. This practice, may result in depriving those candidates who become eligible for competing for the vacancies available in future. If the waiting list in one examination was to operate as an infinite stock for appointment, there is a danger that the State Government may resort to the device of not holding an examination for years together and pick up candidates from the waiting list as and when required. The constitutional discipline requires that this Court should not permit such improper exercise of power which may result in creating a vested interest and perpetrate waiting list for the candidates of one examination at the cost of entire set of fresh candidates either from the open or even from service.....Exercise of such power has to be tested on the touch- stone of reasonableness....It is not a matter of course that the authority can fill up more posts than advertised."
(Emphasis added)
11. Similarly, the Honble Apex Court in the case of B. Valluvan (supra) has clearly held that recruitment process must be commensurate with the statutory rules operating in a field and that the life of a panel, as is well known, must be for a limited period and it is further specifically held by the Honble Apex Court that ordinarily the life of the panel should be for one year and not unduly inflated, of course unless the statutory rules prescribe and empower the respondents to extend the same. Paras 10, 12 and 17 of the said judgment are relevant for the present purpose and are hereby reproduced for the sake of convenience:
10. Recruitment process, as is well known, must be commensurate with the statute or the statutory rule operating in the field. We have noticed hereinbefore, advertisement was made for three posts. It was not indicated therein that another panel for filling up of the future vacancies was to be prepared by the Selection Committee. In the select list prepared by the Selection Committee, the name of 1st Respondent was at Serial No.4. Recommendations were made containing the names of 19 persons for future vacancies. Only because a panel has been prepared by the Selection Committee, the same by itself, in our opinion, would not mean that the same should be given effect to irrespective of the fact that there was no such rule operating in the field. The Selection Committee was bound to comply with the selection process only in terms of the extant rules. It was bound to follow the stipulations made in the advertisement itself. Even in the advertisement it was not indicated that a select list would be prepared for filling up future vacancies. The Selection Committee, having been appointed only for recommending the names of suitable candidates, who were fit to be appointed, could not have embarked upon the question as regards likelihood of future vacancy.
xxx xxx xxx xxx
12. Life of a panel, as is well known, must be for a limited period. It is governed by the statutory rules. From the circular letter dated 26.6.1992 it is evident that ordinarily the life of the panel should be for one year. What had been indicated therein was that the panel prepared for recruitment should not be unduly inflated. Vacancies should ordinarily be notified keeping in view the immediate future need. It has categorically been stated that only upto a maximum of 10 additional persons were kept in a panel against the existing vacancies which were likely to occur in future. The said circular letter was meant to be applied in a case where, thus, more than 10 vacancies were notified. It did not have any universal application. By reason of the said circular letter, the ordinary life of the panel was not to be extended. Thereby no new practice or rule was brought into force.
xxx xxx xxx xxx 17. The life of a panel ordinarily is one year. The same can be extended only by the State and that too if the statutory rule permits it to do it. The High Court ordinarily would not extend the life of a panel. Once a panel stands exhausted upon filling up of all the posts, the question of enforcing a future panel would not arise. It was for the State to accept the said recommendations of the Selection Committee or reject the same. As has been noticed hereinbefore, all notified vacancies as also the vacancy which arose in 2000 had also been filled up. As the future vacancy had already been filled up in the year 2000, the question of referring back to the panel prepared in the year 1999 did not arise. The impugned judgment, therefore, cannot be sustained.
12. In view of the above discussion of law and fact, the OA stands allowed with a direction to the respondents to again hold the examination for subsequent vacancies, which have arisen from 1.4.2008 onwards and give an equal opportunity to all eligible candidates to appear in the same by declaring specific number of vacancies, which have become available till today, within a period of 4 months from the date of receipt of a copy of this order. Respondents would also keep in view the principle of holding year-wise examination in this case while determining the eligibility of various candidates. Lastly, we may also pertinently note that we are not unsettling any selection/promotion made by the respondents under the 1/3rd quota in question for the post of Section Supervisor (Head Office) prior to the examination held on 30.09.2006. That settled position is not intended to be unsettled at this stage. Similarly, without making it as a precedent for future purposes, we note that only about 10 to 12 candidates have been appointed subsequently during the pendency of the OA, over and above the number of 16 vacancies. Keeping in view the totality of facts and circumstances of the cases, ends of justice would be duly met with if we direct respondents not to disturb these 10 or 12 candidates also, who have been appointed over and above 16. Ordered accordingly. No costs.
( Mrs. Rajwant Sandhu) (Jog Singh) Member (A) Member (J) San.