Central Administrative Tribunal - Delhi
Parveen Kumar (Roll No.400001) (Sc) vs Govt. Of Nct Of Delhi Through on 20 September, 2011
Central Administrative Tribunal Principal Bench, New Delhi R.A.No.319/2011 in O.A.No.1990/2010 & R.A.No.320/2011 in O.A.No.1288/2010 New Delhi, this the 20th day of September 2011 Honble Shri M.L. Chauhan, Member (J) Honble Shri Shailendra Pandey, Member (A) R.A.No.319/2011 1. Anoop Singh Gurjar (Roll No.402068) (OBC) Date of birth 1.1.1990 s/o Shri Gyan Singh r/o Vill Naurangabad PO Shri Mahaveer Ji Tehsil: Hindun City Distt Karauli, Rajasthan 2. Gaurav Kumar (Roll No.437953) (UR) Date of birth 6.4.1990 s/o Shri Inder Pal Singh r/o Vill : Fatehpur Putthi Distt. Baghpat UP 3. Vijay Pal Yadav (Roll No.435104) (OBC) Date of birth 5.7.1985 s/o Shri Lak Ram Yadav r/o Vill Mudijakhera PO Rajwara, Tehsil : Mundawar Distt. Alwar Rajasthan R.A.No.320/2011 1. Parveen Kumar (Roll No.400001) (SC) Aged about 25 years s/o Shri Attar Singh r/o H.No.B-70 Mahendera Colony Behind MTNL Exchange Qutab Garh, Delhi-39 2. Pardeep Kumar (Roll No.406284) (OBC) Aged about 25 years s/o Shri Dharmpal r/o VPO Issapur, New Delhi-73 3. Vikram (Roll No.403101) (SC) Aged about 22 years s/o Shri Rajesh r/o H.No.223/8, Lalheri Road Near Govt. Girls School Ganaur Distt. Sonepat Haryana 4. Sanjeev Kumar (Roll No.412794) (OBC) Aged about 25 years s/o Shri Jayram r/o VPO Kamala, Distt. Baghpat Pin Code 250345 5. Surender (Roll No.400766) (UR) Aged about 22 years s/o Shri Param Singh r/o VPO Badanpur Tehsil Narwana Distt. Jind State Haryana Pin Code 136116 ..Review applicants Versus 1. Govt. of NCT of Delhi through Commissioner of Police Police Head Quarters IP Estate, New Delhi 2. Deputy Commissioner of Police Recruitment, New Police Lines Kingsway Camp, Delhi ..Respondents O R D E R (By circulation)
Shri M.L. Chauhan:
The aforementioned RAs have arisen from the common order passed by this Tribunal on 4.5.2011 in Gaurav Kumar v. Govt. of NCT of Delhi & another (OA-2007/2010 with connected OAs).
2. As can be seen from the judgment rendered by this Tribunal, the issue, which fell for consideration before this Tribunal was whether direction can be issued to the respondents to fill up unfilled vacancies of recruitment cycle 2009 (Phase I). In other words, whether the select list of recruitment cycle 2009 (Phase I) still survives and can be made operative, especially when the subsequent select list of recruitment cycle 2009 (Phase II) is over. The issues so framed for consideration have been mentioned in paragraph 9 of the order of this Tribunal dated 4.5.2011. The said issues were decided on the premise that out of 6031 vacancies of Constable (Executive) Male in Delhi Police, for which select list was prepared on merit basis ultimately 5811 candidates joined the aforesaid post of Constable as per merit and 220 vacancies remained unfilled. Admittedly, the names of the applicants were not there in the list of 6031 successful candidates. However, they were included in the list of 6331 candidates, which was prepared by the respondents over and above the total vacancies advertised for various categories. Further, as can be seen from paragraph 6 of the order dated 4.5.2011, the aforesaid issue was to be decided not on the basis of merit, as some of the applicants, who were claiming appointment against unfilled vacancies of OBC category have not obtained even the cut-off mark and also there were number of persons, who were above merit than the applicants. The applicants restricted their arguments that general direction may be given to the respondents to fill up unfilled vacancies in respective category. In other words, the argument was confined only to the extent that general direction may be given to fill up the unfilled posts from eligible persons as per merit. Since the argument was confined only to this limited extent, judgment was reserved and respondents were directed to file status report regarding unfilled vacancies. In the status report, which was filed on 29.4.2011, the respondents had stated that:
out of 220 candidates, candidatures of 160 candidates have been cancelled, out of 220 candidates, cases of 60 candidates are still pending/under process for various reasons; and After declaration of final result, 35 candidates did not join the department, as such in place of these candidates a second merit list of 35 candidates out of 50% extra pass candidates was declared for the replacement of candidates who were selected but not joined the Department due to various reasons.
3. The respondents in the status report have also stated that this Tribunal vide the order dated 28.4.2010 dismissed TA-1131/2009 and other connected matters filed on similar grounds. Further, as can be seen from paragraph 10 of the judgment of this Tribunal dated 4.5.2011, this Tribunal accepted the contentions of the respondents that no direction can be given for filling up the vacancies from the wait list when the subsequent select list is also over and the wait list comes to an end and is operative till such date the subsequent selection has not been carried out. For that purpose, this Tribunal has relied upon two judgments of the Apex Court, which have been noticed in paragraph 10 of the order dated 4.5.2011.
4. Thus, in paragraph 11 of the order, this Tribunal has passed the following observations:-
11. In view of the law laid down by the Apex Court in the aforesaid case and the fact that selection process in respect of subsequent recruitment cycle is already over, we are of the view that the select list/waiting list of the previous recruitment cycle cannot be made operative even in respect of unfilled vacancies.
5. It may be stated that reliance placed by the applicants regarding another selection in respect of Sub Inspector (Executive) Male in Delhi Police was distinguished on the ground that in that case no recruitment process has commenced as such direction was given to consider the cases of the applicants against existing unfilled vacancies. Accordingly, the OAs were dismissed.
6. Now the applicants have filed these RAs in which they have taken following grounds:-
That copy of the status report dated 29.4.2011 was not made available to them thereby depriving an opportunity to them to rebut the same, That the Tribunal has taken into consideration certain judgments of the Apex Court, which were never cited before the Bench and thus no opportunity was accorded to distinguish the same, That the question formulated for the decision in these cases, as noticed in paragraph 9 of the order, was not the issue, which was argued before the Tribunal, That the additional result was declared on 2.2.2010 giving appointment to only 35 out of 300 similarly placed candidates, like the applicants and the time limit to file the OAs is one year, That the cause of action is still subsisting since the recruitment process of 2009 (Phase-I) is still not over, That the Advertisement for Recruitment 2009 (Phase-II) was issued on 7.11.2009 on the same day when the result of Recruitment 2009 (Phase-I) was issued, That the final result of Recruitment 2009 (Phase-I) was issued on 25.12.2009. Therefore, if after the initiation of Recruitment 2009 (Phase-II), no appointment from Recruitment 2009 (Phase-I) can take place, it is not clear as to how any appointment from the result issued on 25.12.2009 and 2.2.2010 took place, That 37 vacancies of Recruitment 2009 (Phase-I) that had arisen due to resignation/death of those candidates who joined after 1.1.2010 but resigned/died prior to completion of their 6 months after joining could not have been added in the Recruitment 2009 (Phase-II) issued on 7.11.2009, That in similar facts and circumstances, 5 candidates were directed to be appointed as SI (Executive) if found to be next 5 candidates in merit list of certain OAs but these OAs have not been taken into consideration by the Tribunal; and That in information obtained under Right to Information Act, 2005 dated 16.11.2010 against Point No.7 it has been mentioned that candidatures of certain candidates are under consideration.
It is on the basis of these grounds, referred to above, the applicants are seeking review of the order of this Tribunal dated 4.5.2011.
7. We have given due consideration to the contentions made by the applicants in the RAs and we are of the view that the applicants have not made out any claim for reviewing our judgment dated 4.5.2011.
8. Admittedly, the RAs are not being sought on the ground of discovery of new material or evidence. Further, the term mistake or error apparent by its very connotation signifies an error which is evident per se from the record of the cases and does not require detailed examination, scrutiny and elucidation either of the facts or the legal position. If an error is not self-evident and detection thereof requires long debate and process of reasoning, it cannot be treated as an error apparent on the face of the record for the purpose of Order 47 Rule 1 CPC or Section 22 (3)(f) of the Act. To put it differently, an order or decision or judgment cannot be corrected merely because it is erroneous in law or on the ground a different view could have been taken by the court/tribunal on a point of fact or law. While exercising the power of review, the court/tribunal concerned cannot sit in appeal over its judgment/decision. If the matter is considered in the aforesaid legal proposition, we are of the view that the applicants have not made out any case for reviewing the judgment dated 4.5.2011.
9. As already stated above, the issue raised before the Bench in the OAs was whether mandamus can be issued to the respondents to fill up the unfilled vacancies from the applicants in respect of post of Constable (Executive) Male in Delhi Police. Admittedly, the names of the applicants did not figure in the list of 6031 successful candidates on merits. It was these candidates, who have a preferential right to be selected against the aforesaid posts. The names of the applicants were included in the list of 6331 candidates, which list was prepared over and above the total vacancies advertised for various categories.
10. From the material placed on record, it is also evident that 220 candidates whose names find mentioned in the select list on merit could not be given appointment, as candidatures of 160 candidates were cancelled, whereas cases of 60 candidates were still pending/under process for various reasons and 35 candidates, who could not join, were replaced by candidates from the select list on the basis of merit. This Tribunal vide the order dated 4.5.2011, which is under review, has categorically held that it is not permissible to operate select list of 2009 (Phase I), especially when the recruitment cycle of 2009 (Phase II) is already over. The grounds raised by the applicants in the RAs that the respondents have filed a status report regarding position of vacancies and this Tribunal has taken into consideration the judgment of the Apex Court and other grounds raised by the applicants in the RAs, which have been noticed, are of no consequence inasmuch as the OAs were decided principally on the ground that it is not legally permissible to issue mandamus to the respondents to fill up the unfilled vacancies of the year 2009 (Phase I) after a lapse of about two years, especially when the select list for subsequent cycle is over. In case the applicants are aggrieved that the matter has not been decided correctly and this Tribunal has wrongly distinguished the judgments cited by the applicants in respect of Sub Inspector, which has nothing to do with the selection in respect of Constable, the remedy lies elsewhere and it is permissible for the applicants to challenge the judgment of this Tribunal before higher forum and certainly in the garb of review applications, the applicants cannot ask for re-hearing of the matter on the aforesaid grounds, especially when the grounds raised by the applicants in the RAs, as noticed above, have no bearing on the points of issue, as raised, argued and decided by this Tribunal.
11. For the foregoing reasons, these RAs are dismissed in circulation.
Let a copy of this order be placed in each file.
( Shailendra Pandey ) ( M.L. Chauhan ) Member (A) Member (J) /sunil/