Central Administrative Tribunal - Delhi
Rajender Singh vs Comm. Of Police on 19 May, 2023
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Item No. 28 C-6 O.A. No. 4431/2014
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
O.A. No. 4431/2014
This the 19th Day of May, 2023
Hon'ble Mr. Tarun Shridhar, Member (A)
Hon'ble Mr. Manish Garg, Member (J)
Rajender Singh
Roll No.726222
Date of birth 28.04.1969
UR Category
Marks Obtained 148
Recruit SI (Ex.) in Delhi Police-2009 (Ph-1)
HC (Ex.) in Delhi Police
PIS No.28900097
s/o Sh. Jai Narain
r/o 1404, Sector 7
Housing Board Colony, Bahadurgarh
Distt. Jhajjar, Haryana
...Applicant
(By Advocate:- Mr. Yogesh Sharma)
Versus
1. Govt. of NCT of Delhi
Through Commissioner of Police
PHQ, IP Estate, New Delhi
2. Deputy Commissioner of Police
Recruitment, New Police Lines
Kingsway Camp, Delhi
Roll No. Name date of birth
Marks
3. 704092 Krishan Gopal 17.12.1976 148
4. 724179 Rohit Sharwat 23.12.1983 148
5. 701551 Vinay Kumar 12.8.1984 148
6. 713570 Ravi Kumar 8.11.1984 148
7. 710815 Dheeraj 11.4.1985 148
8. 729950 Ravinder Singh 16.4.1985 148
9. 719591 Suresh Kumar 6.6.1985 148
10. 711841 Parteek Saxena 26.1.1986 148
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Item No. 28 C-6 O.A. No. 4431/2014
11. 732255 Rahul Sharma 8.10.1986 148
12. 702667 Manish Kumar 8.5.1987 148
13. 728923 Dinesh Kumar 6.6.1988 148
14. 733859 Aditiya Singh 4.11.1988 148
15. 715901 Ajit 4.10.1978 147
16. 712528 Arvind Kumar 1.1.1979 147
17. 709968 Vikas Yadav 4.12.1984 147
18. 723382 Sachin Kumar 14.1.1985 147
19. 706914 Rajeev 5.5.1985 147
20. 713598 Manish Kumar 8.11.1985 147
21. 715676 Mohit Malik 1.4.1986 147
22. 722664 Pardeep Kumar 6.6.1986 147
23. 716422 Amit Choudhary 5.9.1986 147
24. 726996 Vishal 18.10.1986 147
25. 716422 Mohit Kumar 7.1.1987 147
26. 715106 Suneel Kumar 30.5.1987 147
27. 708416 Sandeep Kumar 20.11.1987 147
(All the above respondents from 3 to 27 are candidates
who
were selected under UR category and are junior to the
applicant but selected and appointed to the post of SI
(Ex.)
in Delhi Police in Recruitment-2009 (Ph-I), they are to
be served through Respondent No.2)
...Respondents
(By Advocates:- Mr. Puneet Rathi for Ms. Rashmi Chopra)
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Item No. 28 C-6 O.A. No. 4431/2014
ORDER (ORAL)
Hon'ble Mr. Tarun Shridhar, Member (A) The applicant is aggrieved by denial of appointment to him as Sub Inspector (Executive) in Delhi Police pursuant to the recruitment carried out in the year 2009. He seeks the following relief by virtue of the present OA :
"1. To quash and set aside the Order dt.27.12.2013 and/or the selection and appointment of the respondent No.3 to 27 to the post of SI (Ex.) in Delhi Police in Recruitment-2009 (Phase-l)
2. To direct the respondents to consider the applicant against "UR Category" 172 vacancies for the post of SI (Ex.) in the Recruitment- 2009 (Phase-I) in which he has qualified and appoint him to the post of SI (Ex.) with all the consequential benefits since he secured 148 marks more than the last "UR Category" candidate who were selected and appointed.
3. To award costs in favor of the applicant and pass any order or orders which this Hon'ble Tribunal may deem just & equitable in the facts & circumstances of the case."
2. The instant OA was decided on 26.02.2020 and the operative paragraphs of the same read as under :-
"11. The applicants raised their claim only on the basis of the directions issued by the Hon'ble High Court in its order passed in the review petitions, and there is no other legal basis. The only authority and forum that can interpret and enforce such direction effectively, is the Hon'ble High Court itself. Once the Hon'ble High Court dismissed the contempt case, that too without giving liberty to challenge the consequential orders, there does not arise or exist any cause of action for the applicants to file their OAs.4
Item No. 28 C-6 O.A. No. 4431/2014
12. We do not find any merit in the OAs. These are, therefore, dismissed. There shall be no order as to costs."
3. The said order was sought to be reviewed by way of review application No. 17/2021 which was decided on 29.12.2022 .The singular ground on which the review was allowed, was an erroneous recording of an order of the Hon'ble High Court of Delhi which had, according to the order passed in the OA, dismissed the contempt case without giving liberty to challenge this consequential order. While deciding the review, the Tribunal observed that in fact the order of the Hon'ble High Court read that the application was dismissed as withdrawn with the liberty as prayed for. It was considered to be an apparent error of fact as the Hon'ble High Court had dismissed the contempt as withdrawn with liberty, whereas the OA was dismissed by recording that the contempt case was dismissed without giving liberty. Accordingly, as per the decision made in the review application, the OA has been restored to its original number.
4. At the outset, learned counsel for the respondents submits that the OA is not amenable to reconsideration in the totality of facts and merits as the review has been allowed only on a very limited ground.
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Item No. 28 C-6 O.A. No. 4431/2014
5. The applicant was a candidate for the post of Sub- Inspector, selection of which was held in the year 2009. The case of the applicant, as explained by the learned counsel for the applicant, is that the applicant had applied both as a departmental candidate and also in the open unreserved category. The applicant secured 148 marks whereas the last candidate selected in the open category had secured 147 marks. However, the appointment was denied to the applicant by the respondents on the ground that the applicant had applied only as a departmental candidate and the last person selected as a departmental candidate had secured 154 marks. Since the applicant as a departmental candidate did not fall within the merit, accordingly, appointment was denied to him. The applicant agitated this issue before this Tribunal, which was dismissed. The said dismissal was challenged in the Hon'ble High Court of Delhi by way of Writ Petition, which got dismissed as well. However, the applicant sought review of the order passed by the Hon'ble High Court vide judgment dated 22.08.2013. The Hon'ble High Court while allowing the Review Application and recalling the order of dismissal passed in the WP gave a categorical direction to the respondents to consider the candidature of the present applicant along with three other petitioners before the Hon'ble High Court and appoint them as 6 Item No. 28 C-6 O.A. No. 4431/2014 Sub-Inspector (Executive) if they were found to be entitled/eligible.
6. For the sake of clarity, the relevant extract of the judgment of the Hon'ble High Court is reproduced below :-
"22. The review applications are accordingly allowed, order dated May, 22, 2013 dismissing the writ petitioners is obviously recalled and the writ petitions filed are disposed of with a direction to the respondent to consider the candidature of the petitioners as per para 19 above. Such petition who would be found entitled to be appointed as Sub-Inspector either in the category of recruitment for all candidates by way of direct recruitment or under the category of Limited Departmental Competitive Examination would be assigned a seniority as per the merit position in the respective select list. They would be entitled to all consequential benefits but only notionally i.e. no arrears would be paid."
7. Learned counsel also draws attention to certain other observations made by the Hon'ble High Court in the aforesaid order particularly para 8,9 & 10 which read as under :-
"8. In other words the departmental candidates were entitled to age relaxation, both when appointment was by direct recruitment and when it was by way of Limited Departmental Competitive Examination in Group 'C' and Group 'D' posts.
9. The writ petitioners were working in Delhi Police and had responded to the advertisement inviting applications to fill up the posts of Sub-Inspectors by way of direct recruitment as also by way of Limited Departmental Competitive Examination and indicated that within the respective category of direct recruitment as also Limited Departmental Competitive Examination and indicated that within the respective category of direct recruitment as also Limited Departmental Competitive Examination they would avail the 7 Item No. 28 C-6 O.A. No. 4431/2014 entitlement for appointment in SC or OBC category (depending upon the caste of the respective five petitioners).
10. On account of the fact that the application form did not have a column, in the alternative, to be filled up by the candidates, and those who were entitled to compete for the posts by way of direct recruitment as also through the Limited Departmental Competitive Examination could not thus indicate both options due to a lapse by the department."
8. He submits that while deciding the claim/entitlement of the applicant, the respondents ought to have taken into consideration the observations and findings of the Hon'ble High Court while passing the directions in the aforesaid judgment.
9. Learned counsel for the respondents, on the other hand, submits that the directions of the Hon'ble High Court were with respect to consideration of the candidature of the petitioner in terms of observations in para 19. We have already noted the extract of para 19 in the preceding paragraphs. He further argues that as per the directions of the Hon'ble High Court the consideration and entitlement of the applicants was fairly to be governed by the availability of vacancies. She informs that as per available vacancies two of the petitioners before the Hon'ble High Court have already been given appointment. She further submits that it is undisputed the that two who have been appointed as SubInspector are higher in the merit position compared to the applicant. Accordingly, the judgment passed 8 Item No. 28 C-6 O.A. No. 4431/2014 by the Hon'ble High Court has been followed in letter and spirit. She submits that since consideration of the candidature of the applicant was incumbent upon availability of vacancies, as un-ambiguously brought out in the order of the Hon'ble High Court, the respondents have correctly held that the post of Sub-Inspector cannot be offered to the applicant as neither is any vacancy available for departmental candidates nor for open category candidates. She goes on to argue that in any case the applicant is not entitled for consideration as an open OBC candidate as he does not meet the age criterion, as has been stated in counter reply.
10. However, learned counsel for the applicant contests the averments of the learned counsel for the respondents and submits that the other two petitioners have not been appointed against the available vacancies but against future vacancies. To substantiate his statement, he submits before us a communication he has obtained under Right To Information Act . Learned counsel for the respondents, on her request, was afforded adequate time to make an appropriate response to this communication as this new fact had emerged during the course of hearing.
11. We observe that in the aforequoted judgment, inter-alia, the Hon'ble High Court in para 17 has also recorded that the 9 Item No. 28 C-6 O.A. No. 4431/2014 respondents would concede the vacant post of Sub-Inspector even today. Therefore, it has also been observed that when the OA was filed before the Tribunal, sufficient number of vacancies were available at the relevant time. Moreover, a very limited ground on which the claim/entitlement of the applicant has been rejected is nonavailability of vacancies.
12. We have stated in the open Court that if any vacancy was available, then probably the applicant's claim would have been taken up for consideration.
13. In view of the emergence of the new facts and information which the applicant had obtained under the RTI Act, the respondents were given an opportunity to clarify the factual matrix by way of filing an additional affidavit.
14. Instead of confining to the clarification of the issue raised, the respondents have filed a very comprehensive affidavit on 27.02.2023.
15. Learned counsel for the applicant specifically draws attention to para 15 of the said affidavit which reads as under :
"15. It is pertinent to note that candidate Anjani Kumar Singh and Satish Kumar were said to be appointed against future vacancies' as the unfilled vacancies of recruitment Exam. 2009 (phase- 1) and Exam. 2009 (Phase-2) Were already carried forward to the consecutive/next recruitment process of SI(Exe.) Exam. year 2012 where the result process of recruitment year 2012 which was 10 Item No. 28 C-6 O.A. No. 4431/2014 initiated but stayed due to some other reasons by the Hon'ble Tribunal. However, Hon'ble Delhi High Court gave relief to consider all the 4 Petitioners against the unfilled vacancies as the unfilled vacancies of the Exam. 2009 (Phase-1) and Exam. 2009 (Phase-2), carried forward to consecutive/next recruitment of year 2012 (future vacancies) were very much in existence at the time the applicants Anjani Kumar Singh and Satish Kumar approached this Hon'ble Tribunal. Hence, the Respondents also considered candidates Anjani Kumar Singh and Satish Kumar against the 16 unfilled vacancies under the Open UR/ General category out of 20 unfilled vacancies under Open categories relating to the recruitment process of 2009 (Phase-2) in view of the judgment of the Hon'ble High Court dated 22.08.2013."
16. He submits that what is being understood as the future vacancies were infact the vacancies of the year 2009 which have been carried forward due to their having remain unfilled. So, in fact, these are the unfilled vacancies of the year 2009 and not future vacancies as is being interpreted by the applicants and the learned counsel. He draws attention to para 19 of the order of the Hon'ble High Court of Delhi upon which the applicant rests his case.
17. For a better appreciation of the facts and circumstances, the contents of para 19 are reproduced below :
"19. The position therefore would be that admittedly all vacancies notified pertaining to the two recruitments effective in the year 2009 have not been filled up and had not been carry forward to the next stage recruitment process when the petitioner approached the Tribunal and this would mean that the petitioners would be entitled 11 Item No. 28 C-6 O.A. No. 4431/2014 to have their names considered 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 i.e. SC and OBC."
18. Learned counsel for the respondents further relies upon the observations of the Hon'ble High Court in para 21 which reads as under :
"21. One more fact needs to be noted. Undisputedly five vacancies remained unfilled pertaining to the phase 1 examination and twenty five vacancies remained unfilled pertaining to the phase 2 examination. It may be true that all these vacancies were carry forwarded to the recruitment process initiated in the year 2012, but much before that the petitioner had filed Original Application before the Tribunal in the year 2010. It is also an admitted position that on account of stay granted by the Central Administrative Tribunal the recruitment process commenced in the year 2012 is on hold and appointments have not been effected for the said examination."
How this paragraph can be relied upon to contest the claim of the applicant remains unexplained.
19. We have heard the learned counsel for the parties at great length. We have also meticulously gone through the documents on record.
20. The basic facts are not disputed. Therefore, we would not like to further dwell upon the same. The communication by the respondents dated 22.05.2020 bearing No. XXIV/29/Spl/ID- 12
Item No. 28 C-6 O.A. No. 4431/2014 397/2020/1900 RTI/Estt./PHQ clearly mentions that one Mr. Anjani Kumar and Mr. Satish Kumar were adjusted against the future vacancies. So that no ambiguity remains, the said communication is being reproduced below verbatim :
No. XXIV/29/Spl/ID-397/2020/1900 RTI/Estt./PHQ dated New Delhi, the 22/5/20 To, Sh. Rajbir Yadav S/o Late Sh. Gugan Ram, B-45, Suraj Vihar, Opp. NSIT, Near Kakrola More, Dwarka, Delhi-110078 Subject :- Seeking information under the Right to Information Act- 2005.
With reference to your RTI application dated 27.04.2020 received in this office on 27.04.2020, on the subject cited above. On scrutiny of RTI application and on the basis of the report received from concerned branch, the information pertaining to this office is under :
Point No. Reply
1. It relates to PIO/Rectt. Cell/NPL where your RTI application has already been transferred online through RTI Web Portal.
2, 3 Anjani Kumar, Roll No. 602932 and Satish Kumar, Roll No. 615345 both were selected in view of Hon'ble High Court of Delhi's common judgment dated 22.08.2013 in R.P. No. 354/2013 in CWP No. 5084/2012 and R.P. No. 353/2013 in WPC No. 5033/2012. Since in actual, there were no vacancy available. They were adjusted against future vacancies.
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Item No. 28 C-6 O.A. No. 4431/2014
M.I. HAIDER
Public Information Officer cum
Dy. Commissioner of Police
Establishment PHQ: Delhi
Ph # 23490010 Extn. 30088
21. We appreciate the explanation given by the learned counsel for the respondents to explain what "future vacancies"
refers to here, but we have to also understand it in the context of what is stated in para 19 of the judgment of the Hon'ble High Court to which both learned counsels have referred to. In the said paragraph, the Hon'ble High Court had clearly mentioned two circumstances/contentions viz. (a) vacancies have not been filled up and (b) had not been carried forward to the next stage of recruitment process.
22. In the instant matter, if we accept the explanation of learned counsel for the respondents, it is apparent that by stating that Mr. Anjani Kumar and Mr. Satish Kumar were carried forward vacancies, it is apparent that they themselves have deviated from the conditions set forth by the Hon'ble High Court. So, if they have deviated in the case of two of the candidates by adjusting them, what prevents them from extending the same principle to the applicant has not been explained.
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Item No. 28 C-6 O.A. No. 4431/2014 23. Therefore, after careful consideration, we have no hesitation in allowing the present OA. 24. While allowing the same, the impugned
order/communication dated 27.12.2013 is quashed and set aside. The respondents are directed to forthwith offer appointment to the applicant in his respective category to the post of Sub Inspector (Executive) in the recruitment year 2009 for which he has duly qualified. The applicant too shall be adjusted against either an unfilled vacancy or a future vacancy or in the alternative by way of creation of a supernumerary post.
25. The said appointment shall be effective w.e.f. the date on Mr. Satish Kumar and Mr. Anjani Kumar, whose analogy has been drawn, have been given such an appointment. This appointment shall carry all the consequential benefits in terms of seniority, promotion, fixation of salary etc., however, on notional basis.
26. The directions contained herein shall be complied with within a period of eight weeks from the date of receipt of a certified copy of this order.
27. The OA stands allowed against the background of these directions.
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Item No. 28 C-6 O.A. No. 4431/2014
There shall be no orders as to costs.
(Manish Garg) (Tarun Shridhar)
Member (J) Member (A)
/NISHA/