Central Administrative Tribunal - Delhi
Jai Parkash vs Union Of India on 22 April, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A. 403/2013 M.A. 275/2013 New Delhi, this the 22nd day of April, 2014 HONBLE SHRI G. GEORGE PARACKEN, MEMBER (J) HONBLE SHRI P.K. BASU, MEMBER (A) 1. Jai Parkash S/o Shri Idan R/o Village Pohraka Tehsil Ellenabad, Distt. Sirsa (Haryana) 2. Raveesh Hooda R/o H.No.1408, Urban Estate-II Hissar 125 005 Haryana 3. Nitin Baghla C/o Ashok Baghla R/o State Bank of India Main Branch, Fatehabad, Haryana-125050 ....Applicants (Through Mrs. Priyanka Bhardwaj, Advocate) Versus 1. Union of India Through Secretary (Revenue) Ministry of Finance, North Block, New Delhi 2. Central Board of Direct Taxes Department of Revenue Ministry of Finance, Govt. of India, North Block, Through its Chairman 3. Secretary Department of Personnel and Training, Ministry of Personnel, Public Grievances And Pensions, Govt. of India, North Block, New Delhi 4. Secretary, Staff Selection Commission (SSC) CGO Complex, New Delhi .Respondents (Through Shri R.N. Singh, Advocate) ORDER Shri P.K. Basu, Member (A):
The applicants Shri Jai Prakash, Shri Raveesh Hooda and Shri Nitin Baghla qualified the Combined Graduate Level Examination 2010 conducted by the Staff Selection Commission (SSC) under `general category for the post of Inspector. Their rank in the merit list is as under:
S.No. Name Preference Detailed Merit Position Allotted Zones
1. Jai Prakash Chandigarh SLD/219 Ahmedabad
2. Raveesh Hooda Delhi SLD/212 Ahmedabad
3. Nitin Baghla Delhi SLD/228 Ahmedabad
2. On being qualified for the post of Inspector, the applicants were asked to submit their option for allocation of Zone. According to the applicants, the preference given by them were required to be considered by the respondents by applying principle of merit-cum-preference, meaning thereby that the candidates having better merit were to be allocated zones as per their preference before considering the preference of candidates having lesser merit. The applicant number 1 had given Chandigarh and applicants number 2 and 3 had given Delhi as their first preference but they were all allotted Ahmedbad Zone, which was not their first choice. After the allocation of zone, the applicants were issued offer of appointment and they joined their services without any delay in November 2011 itself. After joining service, the applicants came to know that their merit position was ignored while allocating zones and it resulted in allocation of choice zones to such candidates who were much lower in merit.
3. According to the applicants, the mistake committed by the respondents in allocation of zones was that those candidates who belonged to SC/ST/OBC category and who qualified in the `general category (i.e. without concession meant for SC/ST/OBC), should have been adjusted against unreserved vacancies and then merit-cum-preference followed. But what the department did was that such candidates were given their choice zones by treating them as reserved candidates and adjusted them against `general slots. As per the applicants, once the reserved category candidates were selected against `general category vacancies on their own merit, they could not have been treated as a different class ignoring their position vis a vis `general category candidates. It is pointed out that the last candidate of `general category having rank less than 100 has been allocated to Delhi whereas the reserved category candidates selected against unreserved vacancies without availing any relaxation having ranks no.330, 335, 345, 354, 355, 366 and 411 have been allocated Delhi, Chandigarh and Mumbai on the plea that they are treated as `reserved for the purpose of allocation.
4. The applicants referred to OM dated 9.10.2007 stating that in the said OM, it is provided that at the time of cadre/ service allocation, the candidates who availed any relaxation shall be considered as reserved category candidates and included in the reserved category list instead of `general category list but the said provision was completely ignored by the respondents in the instant case. It is stated that one similarly placed person who was selected as Excise Inspector approached this Tribunal by filing OA No.3494/2009 and the said OA was disposed of with direction to the respondents to consider the representation of the applicant therein. After the said order of this Tribunal, the entire issue was considered by respondent no.3 and OM dated 4.06.2010 was issued. In the said OM, it is stated that the candidates selected against unreserved vacancies are to be treated as `general category candidates for all purposes and their allocation of zones should be based on their merit vis a vis other `general category candidates. Based on OM dated 4.06.2010, the respondents allocated one Shri Surinder Singh, zone of his choice on the basis of merit and by following the procedure mentioned in the aforesaid OM. Relying on the aforesaid OM, the applicants represented to the respondents and received reply dated 2.08.2011 from the respondents. It is alleged that from communication dated 2.08.2011, the applicants learnt that the respondents had initially allocated reserved category candidates selected with general standard against the reserved point but thereafter by misreading the instructions adjusted more candidates of reserved category against the unreserved vacancies. The question raised is that when reserved category candidates selected on general standards were treated as reserved category candidates for the purpose of allocation of zone, how could another set of reserved category candidates be allocated zone of their choice against unreserved vacancies by ignoring the claim of `general candidates. In the meantime, another set of identically placed persons filed OA No.4415/2010 which was disposed of by the Tribunal vide order dated 3.01.2011 with direction to the respondents to consider the case of the applicants therein and take a final decision. After the aforesaid order of this Tribunal, the respondents initiated process for allocating the zones by correcting their mistake but in the case of the applicants, the CBDT, even on representation, has not corrected their mistake. As such, the applicants filed OA 751/2012 before this Tribunal which was disposed of directing the respondents to consider their representation and pass a reasoned and speaking order. In pursuance thereof, letter dated 4.12.2012 has been issued rejecting their claim.
5. The grievance of the applicants herein is that the respondents have given double benefit to reserved category candidates as is evident from their communication dated 2.08.2011, in which it has been clearly mentioned that apart from allocating zone of choice to reserved category qualifying on general standard, the reserved category candidates at the bottom of the list were also allocated zones against unreserved vacancies. It is argued that there were 29 vacancies of `general category and 28 vacancies of reserved category in Chandigarh zone. However, 33 candidates of reserved category have been adjusted against 28 vacancies whereas only 24 candidates of `general category have been allocated Chandigarh zone against 29 vacancies. Under these circumstances, the present OA has been filed.
6. In support of their claim, the applicants have also cited the judgment of the Honble Supreme Court in Asha Sharma Vs. Chandigarh Administration and others, (2011) 10 SCC 86 where the Honble Court has held that the State has to act fairly and order of this Tribunal in OA 3292/2012 where the Tribunal has directed the respondents to bring details of vacancies etc. They have also cited the judgment of the Honble Supreme Court in Union of India Vs. Ibrahimuddin, (2012) 8 SCC 148, stating that where the relevant record is not produced, the Court may draw adverse inference. We do not feel that any of these judgments are relevant in this particular case.
7. The respondents in their reply have stated that in allocation of zones, they have followed DoP&Ts advice and clarification provided vide OM dated 8.01.2008 which specifically provides that candidates belonging to a reserved category qualifying on general standards should not be placed at a disadvantageous position vis-`-vis less meritorious candidates belonging to that category. The aforesaid OM also provides that while deciding the allotment of zone, a reserved category candidate qualifying on general standards should be treated as belonging to the concerned reserved category, if it is beneficial to him. It is further argued that DoP&Ts OM dated 4.06.2010 relied upon by the applicants also provides that own-merit reserved category candidates recommended against unreserved vacancies are to be adjusted against reserved vacancies if by doing so, they get the zones of their higher preference. Thereafter, the candidates recommended against the reserved vacancies are to be allocated zones strictly by following the principle of merit-cum-preference. The respondents also clarified that the relief sought by the applicants is contrary to the instructions of the nodal department and further that the representations of the applicants were decided and rejected in compliance of the Tribunals directions in OA 751/2012.
8. The OM dated 4.06.2010 is regarding allocation of Zones to Inspectors (Central Excise). It was issued in implementation of the orders of the Tribunal in the matter of Shri Surinder Singh Vs. UOI & ors., OA 3494/2009. The principle explained in para 11 of that circular is as follows:
11. Keeping all aspects in view, it is suggested that after the selection process for the post is completed by the Staff Selection Commission, the Commission should arrange the candidates in the order of merit as disclosed by the aggregate marks finally awarded to each candidate. Thereafter, the Commission should prepare a list of candidates to be recommended against vacancies reserved for the Scheduled Castes, the Scheduled Tribes and the Other Backward Classes. The candidates belonging to the Scheduled Castes, the Scheduled Tribes and the Other Backward Classes who have not availed themselves of any of the concessions or relaxation in the eligibility or the selection criteria, at any stage of the examination and who after taking into account the general qualifying standards are found fit for recommendation by the Commission should be included in the list of candidates to be recommended against unreserved vacancies. The number of candidates recommended by the Commission, in the first instance, should be equal to the total number of vacancies reduced by the number of candidates belonging to the Scheduled Castes, the Scheduled Tribes and Other Backward Classes included in the list of candidates to be recommended against unreserved vacancies. Allocation of zones to candidates recommended against unreserved vacancies may then be made by the Department of Revenue strictly by following the principle of merit-cum-preference. However, candidates belonging to the Scheduled Castes, the Scheduled Tribes and the Other Backward Classes recommended against unreserved vacancies may be adjusted against reserved vacancies if by doing so, they get the zones of their higher preference. Thereafter, the candidates recommended against the vacancies reserved for the Scheduled Castes, Scheduled Tribes and Other Backward Classes may be allocated zones strictly by following the principle of merit-cum-preference. Similarly, OM dated 8.01.2008 in para 2 explains the situation as follows:
2. It appears that the issue involved in the case is allotment of zone to an SC candidate who has been selected on his own merit without getting the benefit of reservation. It may be pointed out in this regard that a candidate belonging to a reserved category qualifying on general standards should not be placed at a disadvantageous position vis-`-vis a less meritorious candidate belonging to that category. While deciding the allotment of zone, a reserved category candidate qualifying on general standards should be treated as belonging to the concerned reserved category, if it is beneficial to him.
9. From the above circulars, one thing is crystal clear that those reserved category candidates who have qualified in `general category on their own merit but normally will not get choice category because of their merit position, can be given the choice category by adjusting them against reserved vacancies in that category. Basically the respondents have relied on this to state that no mistake has been committed. However, the applicants have raised a very specific issue which is that once the above principle is followed and as a consequence some unreserved vacancies arise, the department cannot pick up reserved candidates from down below in the merit list (who have not qualified on their own merit as `general candidates) and fill up unreserved vacancies giving them choice. In fact, from the following portion of the letter dated 2.08.2011, it appears that the department has done exactly that:
Consequently some reserved candidates at the bottom of list in respective category have been allocated against unreserved vacancy so as to match the total number of candidates recommended with the total number of vacancies available.
10. We feel that the department has clearly misunderstood the intent of the abovesaid two OMs and made a mistake. However, this Tribunal cannot go into the exercise of actually allocating zones as per the stated principles. The respondents are, therefore, directed to reconsider the representations of the applicants and pass a reasoned and speaking order within a period of three months from the receipt of a copy of this order. While passing the order, one thing which the respondents have to clearly keep in mind is that their policy as stated in the above circulars of 2010 and 2008 does not envisage that candidates at the bottom of the list in the respective category will be adjusted against unreserved vacancies in that category and doing that has been a mistake on their part.
( P.K. Basu ) ( G. George Paracken ) Member (A) Member (J) /dkm/