Central Administrative Tribunal - Delhi
Shri Rajesh Kumar vs Union Of India on 15 January, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL, PRINCIPAL BENCH O.A.NO.2243 OF 2012 New Delhi, this the 15th day of January, 2014 CORAM: HONBLE SHRI ASHOK KUMAR, ADMINISTRATIVE MEMBER AND HONBLE SHRI RAJ VIR SHARMA, JUDICIAL MEMBER .. Shri Rajesh Kumar, s/o Shri Gopal Krishan, R/o House No.C-57/B, Near Radha Krishan Mandir, Pandav Nagar, Delhi 110092 Applicant Applicant in person Vrs. 1. Union of India, through Secretary, Ministry of External Affairs, South Block, New Delhi 2. Staff Selection Commission (SSC), C.G.O.Complex, New Delhi, through its Chairman 3. Department of Personnel & Training, Ministry of Personnel, Public Grievances & Pensions, Government of India, North Block, New Delhi . Respondents By Advocate Shri R.N.Singh for R-1 By Advocate Shri S.M.Arif for R 2& 3 . O R D E R HONBLE SHRI RAJ VIR SHARMA, JUDICIAL MEMBER:
1. In this Original Application, the applicant has prayed for the following relief:
In view of the above facts and submissions, the applicant above named most respectfully prays that the communication dated 20.06.2012 may kindly be quashed/declared null and void qua the applicant at Sl.No.42 (in List No.I) and the respondents be directed to allocate the applicants candidature for the preferred post of Assistant in MEA in accordance with the Rules and Law.
Such other or further orders may also be passed as this Honble Tribunal deems fit in the interest of justice.
2. Brief facts of the applicants case are that he was a candidate of Combined Graduate Level Examination 2011 (in short, CGLE 2011) conducted by the Staff Selection Commission (respondent no.2). He appeared and was declared qualified in Tiers I and II examinations of CGLE 2011. Thereafter, he exercised option for different posts as detailed in the prescribed format (Annexure A-2). As the post of Assistant in Ministry of External Affairs was not mentioned in the said option format, he was not in a position to exercise option for the said post. Ultimately, he was declared qualified for the post of Assistant in Ministry of Railways (Post Code D). On 30.3.2012, he noticed for the first time that in the write-up of the final result for interview posts (Annexure A-3) published by respondent no.2 on its website, it was mentioned that the vacancies of Assistant and Assistant (Cypher) in the Ministry of External Affairs were combined and taken under option E and further that the allocations would be made by the said Ministry after obtaining options from the selected candidates for the said two posts. Thereafter, he made a representation dated 9.4.2012 (Annexure A-4) to respondent no.2 for considering his candidature for the post of Assistant in the Ministry of External Affairs on the basis of his merit in the said CGLE 2011. As per the information provided by respondent no.1, vide Annexure 5 (colly.), there were 124 (UR-77, SC-23, ST-07, OBC 17) vacancies in the post of Assistant and 22 (UR-11, SC-02, ST-03, OBC-06) vacancies in the post of Assistant (Cypher) in the Ministry of External Affairs. By the communication dated 20.6.2012 (Annexure A-1) published on its website, vide List I, sl.no.42, respondent no.2 conveyed the decision on the applicants representation dated 9.4.2012 (Annexure A-4) as follows:
Rejected. Request for change of Option not allowed. The said decision of respondent no.2 is under challenge by the applicant in the Original Application on the following main grounds:
(1) Departure in the option format of CGLE 2011 from the established practice and procedure, being followed by the respondent no.2 in the CGLEs 2008 and 2010, of separately mentioning in option format the posts of Assistant and Assistant (Cypher) in the Ministry of External Affairs, was a lapse on the part of respondent no.2, which resulted in denial of opportunity to the applicant of exercising his option for the post of Assistant in the Ministry of External Affairs.
(2) Non-mentioning of the post of Assistant in the Ministry of External Affairs in the option format created an impression that there was no vacancy in the said post, for which the applicant, though meritorious and eligible to be considered for the said post, could not exercise option for the same, although there were 124 vacancies in the said post.
(3) Respondent no.2, in order to cover up its aforesaid lapse, declared in the write-up of the final result for interview posts that the posts of Assistant and Assistant (Cypher) in the Ministry of External Affairs were combined and that further allocation would be made by the Ministry of External Affairs.
(4) Respondent no.2 did not consider the representation of the applicant in its proper perspective and summarily rejected the same.
(5) Respondent no.2 arbitrarily exercised its power in order to pass on the desired benefits to the candidates of their choice.
3. The Ministry of External Affairs (respondent No.1), by filing a counter reply, has stated that vide its letters dated 31.1.2011, 10.10.2011, 16.01.2012 and 02.02.2012 [Annexure R-1 (colly)] respondent no.2 was informed of the number of vacancies separately in the posts of Assistant and Assistant(Cypher) to be filled from CGLE 2011, and that respondent no.2 forwarded combined nominations of 146 candidates for the above two posts and requested respondent no.1 to make cadre-wise allocations, a task which is used to be carried out by respondent no.2. In the counter, it is contended that respondent no.1 cannot appoint the applicant to the post of Assistant without his candidature being recommended by respondent no.2. In view of this, respondent no.1 has prayed for dismissal of the OA.
4 The Staff Selection Commission (respondent no.2) has filed a separate counter reply resisting the claims made by the applicant. It is stated by respondent no.2 that the result of Tier II examination was declared on 29.09.2011. Thereafter, a write-up of declaration of final results for interview posts under CGLE 2011 (Annexure R-III) was published by respondent no.2 on its website on 3.10.2011. In paragraph 8 of the write-up placed on the website of respondent no.2 on 3.10.2011 (Annexure R-III), it was clearly mentioned that the vacancies of Assistant in MEA and Cipher Assistant in MEA were combined and taken under option E and that further allocation would be made by the said MEA after obtaining options from the selected candidates for the two posts. As the applicant was declared qualified in Tiers I and II examinations of CGLE 2011 and was thus successful for interview, he was required to submit his detailed options for the posts in order of his preference in the prescribed format. The applicant submitted online detailed options for post Codes DAHEIKJLGBF and appeared in the interview along with the signed copy of the prescribed format for detailed options for posts and States. According to his option, he was nominated for the post of Assistant in the Ministry of Railways (Code D), which was his first preference. The applicant had in fact opted for Code E as fourth preference, which relates to the posts in the Ministry of External Affairs. In paragraph 5 of the letter No.3/1/2011-P&P(Part) dated 03.10.2011 (Annexure R-II), whereby the candidates were requested to submit the detailed option for posts and States, it was brought to the notice of the candidates that detailed options once exercised were final and could not be changed thereafter. In the light of the said paragraph 5, the applicants representation was rejected. The recruitment process of CGLE 2011 was completed on 30.3.2012 and the selected candidates were nominated to the user Departments against the vacancies intimated by them. In view of the above, respondent no.1 has prayed for dismissal of the O.A.
5. In the rejoinders, the applicant has more or less reiterated the same averments and grounds as in the O.A.
6. We have heard the applicant in person and M/s R.N.Singh and S.M.Arif, the learned counsel for the respondents and have perused the records.
7. From the pleadings of the parties, the following issues arise for consideration:
(i) Whether the applicant was denied opportunity of exercising option for the post of Assistant in the Ministry of External Affairs?
(ii) Whether respondent no.2 was justified in rejecting the applicants representation to consider his candidature for selection to the post of Assistant in the Ministry of External Affairs? And Whether the applicant is entitled to any relief?
8 Issue No.1: The Staff Selection Commission (respondent no.2) got the notice for CGLE 2011 published in the Employment News dated 19.3.2011. The said notice contained important instructions to the candidates. The said instructions were apparently based on the scheme of the CGLE 2011. One of the important instructions, which is relevant for the purpose of deciding the issues raised in the present Original Application, was that respondent no.2 would be holding CGLE 2011 for recruitment to different posts for which a Graduation from a recognized University is the minimum requirement. The Examination would comprise of two Tiers written Objective Type examination followed by Computer Proficiency Test/Interview/Skill test, whichever is applicable, as per the Scheme of Examination notified. The posts were placed in two groups, inter alia, based on their Grade Pay and Paper in Tier II Examination/Interview. The preference of posts, group-wise was to be indicated in the application. Further detailed option for posts within the Groups would be taken after declaration of result of Tier II or at the time of Interview/Skill test. The candidates were requested to note that preference for Groups/Posts once exercised would be final and request for change of preference would not be considered under any circumstances.
8.1 The applicant qualified in Tier I examination. Based on his performance in Tier I examination, the applicant was called for Tier II examination. The result of Tier II examination was declared on 29.09.2011. The applicant also qualified in the said Tier II examination. Respondent no.2 called for detailed options for various posts and preferences for place of posting in a prescribed format (Annexure A-2 to the OA and Annexure R-III to the counter reply of respondent no.2). In the said option format, different posts were assigned different Codes. The post of Assistant (Cypher) in Ministry of External Affairs was given Code E, and there was no mention of the post of Assistant in Ministry of External Affairs in the said option format. It is the case of the applicant that as there was no mention of the post of Assistant in Ministry of External Affairs and its Code, as assigned to different posts, he was not in a position to exercise his option for the said post, and that he for the first time came to know from the write-up of the declaration of final result for interview posts published on the website of respondent no.2 on 30.3.2012 that both the posts of Assistant and Assistant (Cypher) in the Ministry of External Affairs were combined and further allocation would be made by the said Ministry after obtaining options from the qualified candidates for the two posts.
8.2 It is the stand of respondent no.2 that both the posts of Assistant and Assistant (Cypher) in the Ministry of External Affairs were combined and given Code E in the option format and that as the applicant exercised his option for post of Assistant in Ministry of Railway under Code D as his first preference and posts in the Ministry of External Affairs under Code E as fourth preference, he was selected for the post of Assistant in the Ministry of Railway under Code D and therefore, there was no illegality in not selecting him for the posts in the Ministry of External Affairs under Code E. In support of its case, respondent no.2 referred to paragraph 8 of the declaration of final result for interview posts (Annexure IV) which reads thus:
8. The vacancies of Assistant in MEA and Cipher Assistant in MEA have been combined and taken under option E. Further allocation will be made by MEA after obtaining options from the selected candidates for the two posts. The vacancies communicated by regional offices for the post of Auditor not falling under the option P(CAG)/Q(CGDA) have been clubbed under option R (CGA). Similarly, the vacancies for the post of Junior Accountant/Accountant not falling under option S(CAG) have been clubbed under option T(CGA). Further allocation under R and T in each State to various departments will be made by concerned RD/DD following round-robin method, with candidates arranged in merit order, departments arranged in alphabetical order, with the first candidate allotted to the first department starting with alphabet E, second candidate to the second department and so on. 8.3 Thus, it has to be examined as to whether the above paragraph 8 contained in the write-up of declaration of final result for interview posts would amount to compliance with the scheme of the CGLE 2011 to provide opportunity to the candidates to exercise detailed options for different posts, after they were declared qualified in Tier II examination. Respondent no.2, instead of filing the full text of the said write-up of declaration of final result for interview posts, has filed copy of pages 1 to 5 thereof at Annexure R-IV to the counter reply. But the applicant has filed the full text of the said write-up of declaration of final result for interview posts (Annexure A-3 to the O.A) which contains 20 pages. The contents of paragraph 8 of the said document filed by both the applicant and respondent are same. The said write-up of declaration of final result for interview posts was signed by Mr.Satya Prakash, Under Secretary (C-1/1) on 30.3.2012. At page 13 of its counter reply, respondent no.2 stated that a copy of the write-up of the final result for interview posts was placed on its website on 3.10.2011. By making such statement, respondent no.2 has attempted to make out a case that at the time of calling upon the candidates, who qualified Tier II examination, including the applicant, to exercise detailed options, it was intimated by respondent no.2 that both the posts of Assistant and Assistant (Cypher) in the Ministry of External Affairs were combined and only one Code E was given to both the posts in the Ministry of External Affairs. This statement of respondent no.2 is incorrect. After carefully perusing the write-up of declaration of final result for interview posts under CGLE 2011 (Annexure A-3), we find that the said write-up was prepared and placed on website by respondent no.2 on 30.3.2012. If the final result for interview posts was declared on 30.3.2012, as noted above, how could it be placed by respondent no.2 on its website on 3.10.2011? Further, we find from page 7 of the write-up that under heading E: Assistant/Assistant(Cypher) in Min. of External Affairs, a table has been indicated showing the break-up of vacancies, the number of candidates recommended, and the lowest marks and highest marks scored by candidates belonging to different categories who were recommended for appointment to the said posts. It has also been indicated therein that the last UR candidate who scored the lowest marks of 441.5 was recommended for appointment to the post of Assistant/Assistant(Cypher) in the Ministry of External Affairs. In respect of other interview posts, the similar details have also been indicated in tabular form. The stand taken by respondent no.2 is also falsified by the fact that when admittedly respondent no.1, i.e., Ministry of External Affairs, vide its letter dated 2.2.2012 (Annexure R-1(Colly.), intimated respondent no.2 the total number of vacancies in Assistant Grade as 124 and total number of vacancies in Cypher Assistant grade as 22, how was it possible for respondent no.2 to mention in the aforesaid write-up on 3.10.2011 that in total 146 candidates were recommended for appointment to posts in the Ministry of External Affairs? From the above analysis of the materials placed on record, conclusions are irresistible that respondent no.2 had failed to give intimation in distinct and definite terms to the candidates that both the posts of Assistant and Assistant (Cypher) in the Ministry of External Affairs were combined and taken under Code E in the option format before they were asked to exercise detailed options for posts and that it was due to the said failure on the part of respondent no.2 to indicate the post of Assistant in the Ministry of External Affairs in the option format, not only the applicant but also other similarly placed candidates were undoubtedly deprived of an opportunity of exercising their option for the said post and therefore, the action of the Respondent No.2 on this score cannot be said to be above board. In view of this, issue no.1 is decided against respondent no.2 and in favour of the applicant.
9. Issue no.2: As found in the preceding paragraphs, the final result for interview posts, which included post of Assistant in Ministry of External Affairs, was declared on 30.3.2012. Soon thereafter the applicant made a representation dated 9.4.2012 (Annexure A-4) to respondent no.2. In the said representation, the applicant, inter alia, pointed out the practice and procedure of separately mentioning the posts of Assistant and Assistant (Cypher) in the Ministry of External Affairs in the option format as was done by respondent no.2 in respect of CGLE 2008, 2010 and 2012. The applicant also stated that he scored 471 marks whereas the last UR candidate who scored the lowest marks of 441.5 was recommended for appointment to the post of Assistant/Assistant (Cypher) in Ministry of External Affairs. It was submitted by the applicant therein that had the post of Assistant in Ministry of External Affairs been mentioned and assigned a separate Code and/or had the post of Assistant in the Ministry of External Affairs been combined with the post of Assistant (Cypher) in the Ministry of External Affairs under Code E in the option format, he would have exercised his option for the said post as first preference. He, therefore, requested respondent no.2 to consider his case and recommend him for appointment to the post of Assistant in Ministry of External Affairs on the basis of marks scored by him. Respondent no.2, vide impugned order dated 20.6.2012 (Annexure A-1) rejected his representation. In the counter reply, respondent no.2 has stated that the applicants representation was rejected in the light of paragraph 5 of the notice (Annexure R-II to the counter reply) calling upon the candidates to exercise detailed options for posts, which laid down that detailed options once exercised are final and cannot be changed thereafter. It is, thus, the stand of respondent no.2 that in the representation the applicant requested to change his option and that in terms of the aforesaid paragraph 5 of the notice, the request being not allowable was rejected. As discussed above, the applicant did not request for change of option. What he requested in the representation was to consider his case for recommendation for the post of Assistant in Ministry of External Affairs on the basis of his merit in the CGLE 2011 since he was denied opportunity of exercising option for the said post and he scored higher marks than the last candidate recommended for the post of Assistant/Assistant (Cypher) in the Ministry of External Affairs. It is, thus, clear that respondent no.2 failed to consider the grievance of the applicant in its proper perspective and rejected the applicants representation by the impugned order in a very casual manner. Therefore, the impugned order is unsustainable and liable to be quashed. Accordingly, issue no.2 is decided in favour of the applicant and against respondent no.2.
10. Issue No.3: The CGLE 2011 was an all-India examination and the selection process was completed on 30.3.2012. Thereafter the candidates were recommended to the user Departments for appointment. It is also found that in total 146 candidates were recommended by respondent no.2 for appointment to the post Assistant/Assistant (Cypher) in the Ministry of External Affairs. Immediately thereafter the applicant made representation on 9.4.2012 to respondent no.2 to consider his case and recommend him for the post of Assistant in Ministry of External Affairs. In the meantime, CGLE 2012 has been conducted and selection process completed. Pursuant thereto, several candidates have also been recommended by respondent no.2 for appointment to the post of Assistant in the Ministry of External Affairs. From the records, we also find that notice of CGLE 2013 has been published and the selection process is going on and is yet to be completed. The applicant has placed on record a letter dated 23.8.2013 from the Under Secretary, Ministry of External Affairs (respondent No.1) that the number of vacancies in the posts of Assistant and Assistant(Cypher) was not intimated by that date to respondent no.2 for recruitment under CGLE 2013. In view of our findings on issue nos.1 and 2 that the qualified candidates, including the applicant, were denied opportunity of exercising their option for the post of Assistant in the Ministry of External Affairs and that respondent no.2 was not justified in rejecting the applicants representation, the entire selection and appointment made to the post of Assistant in the Ministry of External Affairs become vulnerable as being violative of Article 16 of the Constitution of India. It is also clear that the persons who have been appointed to the post of Assistant in the Ministry of External Affairs pursuant to CGLE 2011 also did not exercise option for the said post. In this O.A. the applicant has not impleaded as parties the persons who have been appointed to the post of Assistant in the Ministry of External Affairs pursuant to CGLE 2011. The settled position of law is that no order should be passed by Court or Tribunal which prejudicially affects the right of any person who is not a party before it. Therefore, we are not inclined to interfere with the said selection and appointment except to the limited extent indicated below. On the facts and in the circumstances of the case and in the interest of justice, equity and fair-play, we quash the impugned order dated 20.6.2012 (Annexure A-1) qua the applicant and direct respondent nos.1 and 2 to consider the applicants case for recommendation and appointment to the post of Assistant in the Ministry of External Affairs on the basis of the total marks scored by him in CGLE 2011.
11. Before parting with the case, we would like to observe that the relief under this order is given only to the applicant who was vigilant about his right and had taken timely action in moving respondent no.2 to remedy the wrong caused to him and also in challenging respondent no.2s decision before this Tribunal. Hence, the benefit of this order cannot be extended to any other person. In making this observation, we are supported by the decisions of the Honble Supreme Court in (1989) 2 SCC 356, M/s Rup Diamonds & ors v. Union of India & ors; (1996) 6 SCC 267, State of Karnataka & ors v. S.M.Kotrayya & ors; (1997) 6 SCC 538, Jagdish Lal & ors v. State of Haryana & ors; (1997) 3 SCC 395, Union of India & ors v. C.K.Dharagupta & ors; and AIR 2006 SC 924 Chairman,U.P.Jal Nigam & anr v. Jaswant Singh & anr.
12. In the result, the Original Application is allowed to the extent indicated above. No costs.
(RAJ VIR SHARMA) (ASHOK KUMAR) JUDICIAL MEMBER ADMINISTRATIVE MEMBER AN