Central Administrative Tribunal - Delhi
Mr. Anjani Kumar Singh vs Commissioner Of Police on 17 September, 2014
Central Administrative Tribunal Principal Bench, New Delhi O.A.No.1812/2013 With O.A.No.1261/2014 Order reserved on 8th September 2014 Order pronounced on 17th September 2014 Honble Mr. A.K. Bhardwaj, Member (J) Honble Mr. V.N. Gaur, Member (A) O.A.No.1812/2013 1. Mr. Anjani Kumar Singh s/o Mr. Daya Shankar Singh r/o 13-A, Krishan Kunj Colony Near Lovely Public School East District, Delhi-92 2. Mr. Pankaj Prashar s/o Mr. Maher S. Sharma r/o F-619 Madipur, New Delhi-63 3. Mr. Kamal Kumar Sharma s/o Mr. Bajrang Lal Sharma r/o J-39 Adhyapak Nagar Nanagloi, Delhi-41 4. Pankaj Kumar s/o Mr. Rajpal Singh r/o N-2/3 Police Station QTRs, Model Town-I, Delhi 5. Mr. Jitender s/o Mr. Rajender Singh r/o H.No.299, Awas Vikas Colony- 1st DMC Road Bulandshahar (UP) 203001 6. Mr. Vinod Kumar s/o Mr. Ajit Singh r/o H.No.484/3 Ambedkar Nagar Extn. Haider Pur, Delhi-88 ..Applicants (By Advocate: Mr. Ajesh Luthra) Versus 1. Commissioner of Police PH, MSO Building IP Estate, New Delhi 2. Staff Selection Commission Through its Chairman Northern Region Block No.12, CGO Complex Lodhi Road, New Delhi-3 ..Respondents (By Advocates: Mr. Amit Anand for Delhi Police & Mr. S M Arif for SSC) O.A.No.1261/2014 Mr. Vikas Kumar, age 35 years Post : Head Constable s/o Harpal Singh 43-A Police Colony Model Town-II Delhi-9 ..Applicant (By Advocate: Mr. Ajesh Luthra) Versus 1. Commissioner of Police PH, MSO Building IP Estate, New Delhi 2. Staff Selection Commission Through its Chairman Northern Region Block No.12, CGO Complex Lodhi Road, New Delhi-3 ..Respondents (By Advocates: Mr. Vijay Pandita for Delhi Police & Mr. S M Arif for SSC) O R D E R
Mr. A.K. Bhardwaj:
The aforementioned Original Applications (O.A.No.1812/2013 and O.A. No.1261/2014) are abreast in facts and law, thus are taken up for disposal together in terms of a common order.
2. In terms of two separate notices, the Staff Selection Commission (SSC) invited applications to fill up 400 and 380 vacancies of Sub-Inspector (Executive) Male in Delhi Police. 10% of the vacancies were kept in departmental quota and were sought to be filled up by considering the departmental candidates fulfilling the eligibility condition mentioned in the notice. The maximum age limit prescribed for the post was 25 years relaxable for departmental candidates upto 40 years (43 years for OBC, 45 years for SC/ST). The departmental candidates meant a Constable, Head Constable or an Assistant Sub-Inspector enlisted in Delhi Police with a minimum of 5 years service, who otherwise fulfilled all other qualifications. Applicant No.1 in O.A. No.1812/2013 participated in the selection as departmental candidate and could not find place in the select panel of departmental candidates being low in merit and could not get appointment to the post in question. However, since with reference to the merit position in the open category he could find that the marks obtained by him were more than the marks obtained by the last selected candidate in the said category, he along with other similarly situated departmental candidates staked a claim for appointment to the post in open category. Being unsuccessful, the said applicant as well as other departmental candidates, who could score more marks than the outsiders, approached this Tribunal by filing Original Applications espousing their claim for their appointment against the vacancies in 40% quota for outsiders/open categories. When the said Original Applications were dismissed, they preferred Writ Petition (C) Nos.2788/2012, 5033/2012, 5084/2012, 5220/2012 and 5226/2012 before Honble High Court of Delhi. The arguments raised by them before the Honble High Court were:
i) All of them participated in the common examination for open/departmental categories and since both the channels were open to them and the merit of participants in the selection against the vacancies in departmental as well as open categories was assessed on the basis of the same examination, their candidature should have been considered with reference to the merit of outsiders also against the vacancies in open category,
ii) Even to participate in the selection for appointment against the vacancies in the open category, they were entitled to age relaxation.
3. Having considered the arguments of the parties and taken into account Rules 7 and 27-A of Delhi Police (Appointment & Recruitment) Rules, 1980, the Honble High Court ruled that when appointment in Delhi Police is by direct recruitment, eligible candidates who were not working in Delhi Police had to be within the age limit prescribed in Rule 7 of the aforesaid Rules but those who were already working in Delhi Police, could be considered eligible for the post in general / open categories upto the age of 35 years (40 years for SC/ST candidates).
4. In sum and substance, their Lordships ruled that the common examination conducted by the respondents had to be conceptually two, i.e., one relating to direct recruitment and the other through Limited Departmental Competitive Examination (LDCE) but when it was not so and the candidates eligible against open and departmental categories were subjected to the same examination, being eligible against the vacancies in open category also, the merit of the departmental candidates ought to have been adjudged against the vacancies in both the quotas.
5. The plea raised by the respondents before the Honble High Court that the departmental candidates who were subjected to relaxed physical and medical standards could not have been treated as selected against the vacancies in open category for which such standard was quite stringent and higher, was not accepted with a view that the relaxed standard was not for departmental candidates but was for those who were in high age bracket. Nevertheless, the aforesaid Writ Petitions were finally dismissed on the ground that all the vacancies notified in the open category had been exhausted. Subsequently, in R. P. No.379/2013 in W.P.(C) No. 5220/2012, R.P. No.353/2013 in W.P. (C) No.5033/2012, R.P. No.354/2013 in W.P. (C) No.5084/2012, and R.P. No.351/2013 in W.P. (C) No. 5226/2012 filed before the Honble High Court, taking the view that till the Original Applications were filed in the year 2010 the next recruitment, process for which commenced on 6.1.2012, was not complete and all the vacancies notified in terms of two separate notices issued in the year 2009 had not been filled up, as 5 vacancies pertaining to first phase and 25 vacancies pertaining to second phase remained unfilled, the Honble High Court reviewed and recalled the order passed in the said Writ Petitions.
6. Briefly stating, the view taken by the Honble High Court was that 30 vacancies, for which the selection process was set in motion in the year 2009, in which the petitioners before it also participated, had not been filled up at the time of filing of Original Applications (supra). With such view, Honble High Court directed the respondents to consider the candidature of the petitioners before it as per the directions contained in paragraph 19 of the order. For easy reference, paragraphs 19 to 22 of the said judgment are reproduced hereinbelow:-
19. There is no concept under the Rules of open category and departmental category. Delhi Police has given a laymans colour to the legal colour of the method of recruitment. Direct recruitment has been given the laymans colour open recruitment and appointment by promotion through a Limited Departmental Competitive Examination has been given the laymans colour departmental category. We re-emphasize. Rule 7 prescribes 3 methods of appointment to the post of Sub-Inspector: (i) by promotion; (ii) by direct recruitment; and (iii) appointment through Limited Departmental Competitive Examination. When appointment is by promotion, it is apparent that the same shall be from amongst the eligible Assistant Sub-Inspectors who form the feeder cadre. When appointment is by direct recruitment, all eligible candidates can appear which would include those who are serving in Delhi Police. When appointment is by Limited Departmental Competitive Examination, only Constables, Head Constables and Assistant Sub-Inspectors working in Delhi Police would be eligible. On the subject of age limit, when appointment is by direct recruitment, eligible candidates who are not working in Delhi Police have to be within the age as per Rule 7, which is up to the age of 25 years relaxable for 5 years for SC/ST candidates and 3 years for OBC candidates. But for those who are already working in Delhi Police, the benefit of Rule 27-A would be available, meaning thereby General category candidates would be 35 years and for SC/ST and OBC candidates the same would be 40 years.
20. It may be possible for Delhi Police to have a common test while making appointment by direct recruitment and through the Limited Departmental Competitive Examination, but this one factual examination has to be conceptually two i.e. one relating to direct recruitment and the other relating to appointment through Limited Departmental Competitive Examination; of necessity, if Delhi Police were to hold a common test, those who would be entitled to compete in both categories would have to be given a right to compete in both categories. Their option cannot be curtailed.
21. For the petitioners, it would be a case of operation successful, patient dead. The reason is that when they were given the application forms which compelled them to mark an option whether they would compete for the direct recruitment posts or for the posts available to be filled through the Limited Departmental Competitive Examination (loosely called Departmental Posts), they ought to have approached the Court seeking a direction against Delhi Police not to compel them to opt to compete in only one category. For if a person has a right to compete in two categories as conferred by law, no executive decision can curtail the same. Had they done so, a remedial direction would have been issued. But what has happened is that an examination conducted in the year 2009 and another examination conducted in year 2010 has resulted in candidates being appointed in the direct recruitment appointment category;
exhausting all notified vacancies, none of whom has been impleaded before the Tribunal or in the instant writ petitions. These candidates have joined, the first batch in the year 2009 and the second batch in the year 2010. No directions can be issued in their absence which would adversely affect them. The writ petitioners ought to have been vigilant when they were confronted with a situation to make an option thereby curtailing their right.
22. While dismissing the writ petitions we would only observe that for the future, Delhi Police should be careful while making appointments and lest there be any confusion it would be advisable to make appointments by selection in the direct recruitment quota by a separate examination and selection by Limited Departmental Competitive Examination through a separate examination. Further, Delhi Police should not confuse age relaxation stipulated under Rule 7, which pertains to Limited Departmental Competitive Examination with age relaxation stipulated in Rule 27-A pertaining to appointment by direct recruitment.
7. Relying upon the view taken by the Honble High Court in the aforementioned judgment passed in the Writ Petitions (supra) and the Review Petitions preferred therein, the applicants herein, who participated in the Delhi Police Examination held on 19.8.2012, filed the present Original Applications seeking issuance of directions to the respondents to redraw the final result of the examination by assessing the candidature of the departmental candidates against the vacancies in open category also.
8. Besides, the judgment passed by the Honble High Court in Writ Petition (C) Nos.2788/2012, 5033/2012, 5084/2012, 5220/2012 and 5226/2012 and thereafter the judgment in R. P. No.379/2013 in W.P.(C) No. 5220/2012, R.P. No.353/2013 in W.P. (C) No.5033/2012, R.P. No.354/2013 in W.P. (C) No.5084/2012, and R.P. No.351/2013 in W.P. (C) No. 5226/2012, Mr. Ajesh Luthra, learned counsel for applicants also relied upon the letter dated 9.12.2013 (page 191 of the paper book) whereby the office of the Commissioner of Police, Delhi had requested the Under Secretary (P&P-I), SSC, New Delhi to consider the departmental candidates first in open category vacancies and subsequently against the vacancies in departmental quota, i.e., 10% of vacancies. The said letter reads thus:
To Sh. S.C. Kashyap, Under Secretary (P&P-I), Staff Selection Commission, Block No.12, CGO Complex Lodhi Road, New Delhi Subject: Direct recruitment for the post of Sub-Inspector (Exe.) in Delhi Police Examination, 2013-regarding order dated 22.05.2013 passed by the Honble High Court of Delhi in CWP No.2788/2012 & Others.
Sir, With reference to Commissions letter No.3/4/2012-P&P-II dated 31.10.2013 on the above subject, I am directed to state that the CWP No.2788/2013 & others were dismissed vide judgment dated 22.05.2013. However, Review Petitions filed in the CWPs have been allowed by the Honble High Court vide its common order/judgment dated 22.08.2013 with the direction to consider the candidature of the petitioners as per para 19 of the judgment (copy enclosed).
The Honble High Court of Delhi in para 19 of the judgment dated 22.08.2013 has directed to consider the candidatures of the petitioners as per their merit position pertaining to both sources of recruitment i.e. appointment by direct recruitment as also appointment by promotion through the Limited Departmental Competitive Examination. Further, in both categories of appointment they would be entitled to compete firstly on their own merit and secondly within the respective reserved category.
The matter has been examined in this Hdqrs. and it has been decided to go by the decision of the Honble High Court in the recruitment of S.I. (Exe.) in Delhi Police Exam., 2013 also.
It is, therefore, requested that the departmental candidates may be considered first in open category vacancies and subsequently in the departmental quota of 10% vacancies.
9. On the other hand, learned counsels for respondents submitted that the departmental candidates, who participated in the selection against 10% vacancies meant for them, get the benefit of age relaxation as well as relaxed physical and medical standard, thus they cannot stake any claim against the vacancies in the open category.
10. We heard the learned counsels for the parties and perused the record.
11. We find that both the arguments raised by the respondents could be dealt with by Honble High Court in the judgment dated 22.5.2013, relevant excerpt of which reads thus:-
19. When appointment is by direct recruitment, all eligible candidates can appear which would include those who are serving in Delhi Police. When appointment is by Limited Departmental Competitive Examination, only Constables, Head Constables and Assistant Sub-Inspectors working in Delhi Police would be eligible. On the subject of age limit, when appointment is by direct recruitment, eligible candidates who are not working in Delhi Police have to be within the age as per Rule 7, which is up to the age of 25 years relaxable for 5 years for SC/ST candidates and 3 years for OBC candidates. But for those who are already working in Delhi Police, the benefit of Rule 27-A would be available, meaning thereby General category candidates would be 35 years and for SC/ST and OBC candidates the same would be 40 years.
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23. We would also be failing not to note a vague attempt made by learned counsel for the respondents to urge that lower/different physical endurance standards were prescribed for departmental candidates and that the petitioners competed with reference to said lower/different physical endurance standards. But the argument holds no water because we find that the lower/different endurance standards were not prescribed for departmental candidates. They were provided for candidates in the higher age bracket. The misconceived argument was the extension of the misconceived idea that those who were given benefit of age relaxation could not compete in the so-called open category, which in fact is the category of appointment by direct recruitment.
12. Though while considering the Review Petitions (supra) the Honble High Court recalled the aforementioned judgment passed in the Writ Petitions (supra), but the findings recorded regarding the age limit for open category candidates and higher medical standard for them cannot be treated as reversed for the simple reason that had the aforementioned plea of Government of NCT of Delhi been accepted, the departmental candidates could not have been considered eligible against the vacancies in the open category on the ground of being age barred and not fulfilling the required physical / medical standard and no direction could have been issued to the respondents to consider their candidature as per paragraph 19 of the Order. In fact despite the fact that the petitioners before the Honble High Court had crossed the upper age limit for open category candidates and had not qualified the physical / medical test as per the standard laid down for the candidates in such category and such factual position was on record before the Hon'ble High Court in the aforementioned Writ Petitions, a view could be taken that the departmental candidates were eligible in both the open as well as departmental categories. The only distinction between the facts of the case before the Honble High Court and before us in these Original Applications is that when in the said Writ Petitions the petitioners had got higher merit position than the open category candidates, in the present Original Applications, no such case has been set up. Paragraph 7 of the judgment of Honble High Court is reproduced hereinbelow:-
7. Subjecting all candidates i.e. those who competed in the open category and departmental category, the five writ petitioners found that their merit position was lower in the merit panel of the departmental candidates and thus they could not earn an appointment to the post of Sub-Inspector, but with reference to the merit position in the open category, they found that marks obtained by them were more than the last selected candidate in the open category. They started raising an issue.
13. The case of the applicants in these Original Applications is that all departmental candidates, who got higher merit than open category candidates, should be shifted to open category and then the applicants should be considered against the vacancies in departmental categories. In such situation, we are of the view that there are certain invisible corpus, who are likely to be affected in the process of re-drawl of result/merit list on the basis of re-drawl of select list after assessing the departmental candidates against the vacancies in the open category and they are not parties before us. There is another category of persons likely to be affected by the re-drawl of the panel in terms of the judgment of the Honble High Court, i.e., the open category candidates, who would lose their place in the select panel for such category on induction of departmental category candidates with higher merits in the panel. They are also not parties before us.
14. In such situation, while being bound by the view taken by the Honble High Court of Delhi, we cannot avoid issuance of directions to the respondents to redraw the panel as per the view taken by their Lordships in Order dated 22.8.2013 passed in Review Petitions (supra) and Order dated 22.5.2013 passed in the Writ Petitions (supra), we are of the strong view that before re-drawl of panel the respondents will to have give an opportunity of hearing to those open / departmental categories candidates, who are likely to be affected either by losing their place in the select panel or being shifted from the select panel of departmental category to the panel of open category.
15. In view of the aforementioned, the Original Applications are disposed with direction to the respondents to redraw the final result of the selection of Sub Inspector (Executive) Male in Delhi Police Examination, 2012 as per the view taken by the Honble High Court in the aforementioned judgments after giving opportunity of hearing to the candidates likely to either lose their position in the select list for open category or to be shifted from the select list in the departmental category to the same in open category. This shall be done as expeditiously as possible preferably within a period of eight weeks from the date of receipt of a copy of this Order. No costs.
Let a copy of this Order placed in both the files.
( V.N. Gaur ) ( A.K. Bhardwaj ) Member (A) Member (J) /sunil/