Central Administrative Tribunal - Delhi
Shri Sauranshu Sinha vs Union Of India on 11 January, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
OA No.1083 OF 2007
WITH
OA No.1253 OF 2009
OA No.2136 OF 2010
OA No.2469 OF 2010
Orders reserved on : 27.11.2012
Orders pronounced on : 11.01.2013
Honble Dr. Veena Chhotray, Member (A)
Honble Dr. Dharam Paul Sharma, Member (J)
OA No.1083/2007
1. Shri Sauranshu Sinha,
S/o Shri Atindra Nath Sinha,
R/o G-202, Alaknanda Apartment,
Rampuri, Ghaziabad.
2. Shri Alok Jagbharia,
S/o Late Shri Suresh Kant Jagbharia,
R/o 19/101-Shivam Khand,
Vasundhara, Ghaziabad.
3. Shri Arunava Sengupta,
s/o Shri B.B. Sengupta,
R/o O-6, First Floor, C.R. Park, New Delhi.
4. Shri Devendra Prasad,
S/o Shri Ramchandra Prasad,
R/o F-69/UG-4, Dilshad Colony,
New Delhi.
5. Ms. Alka Shekhar,
D/o Shri K.L. Pahwa,
R/o 860, Sector-XII, R.K.Puram, New Delhi.
.... Applicants
( By Advocate Shri G.D. Gupta learned senior counsel
with Shri Piyush Sharma)
VERSUS
1. Union of India,
Through its Secretary,
Ministry of Personnel, Public Grievances & Pensions, Department of Personnel & Training,
North Block, New Delhi.
2. Union Public Service Commission,
Through its Secretary,
Dholpur House, Shahjahan Road, New Delhi.
3. Shri Radha Krishna,
s/o Shri Anoop Singh,
R/o House No.-3,
Village Pitampura,
New Delhi.
4. Central Sectt. Service Section Officers Association,
Through its Secretary,
Shri S.C. Khatri, Under Secretary,
D/o Animal Husbandry and Fisheries,
Room No.479-C, F Wing, Krishi Bhawan, New Delhi
5. Smt. Indira M.
M/o Food and Public Distribution,
6. Shri Raja Ram Bhaskar,
M/o Home Affairs,
7. Ms. Prem Mittal
D/o Secondary & Higher Education,
8. Shri S. Acharya
M/o Road Transport & Highways
9. Shri N.P. Shukla
M/o Health & Family Welfare
10. Shri V.P. Gulati
D/o Posts
11. Shri Kishore Bhandopadhyay
M/o Home Affairs
12. Shri Rajender Singh Yadav
D/o Expenditure
13. Shri Gulshan Kumar
M/o Home Affairs
14. Shri Sanjay Kumar Mishra
M/o Home Affairs
15. Shri Jaipal Singh
M/o Home Affairs
16. Shri A.S. Mehra
M/o Home Affairs
17. Shri Ashok K. Kaushik
D/o Expenditure
18. Shri A.K. Jain
**
19. Shri Sushil Kumar Sharma,
M/o Home Affairs
20. Shri Devki Nandan
M/o Information & Broadcasting
21. Shri S.S. Chamba
**
22. Shri Kshitish Kumar
M/o Home Affairs
23. Shri Kishan Lal
UPSC
24. Shri S.K. Brahmo
**
25. Shri M.P. Balooni
**
26. Shri S.K. Mishra
**
27. Shri Rajeev Kumar Jain
D/o Telecom
28. Smt. Manju Dhingra
D/o Secondary & Higher Education
29. Shri Rakesh Kumar
M/o Defence
30. Shri Uttam Thakur
M/o Urban Development,
31. Shri Vazir Singh
M/o Information & Broadcasting
32. Shri M.S. Rang
M/o Home Affairs
33. Shri Ram Kanwar
M/o Home Affairs
34. Shri Karan Singh-II
M/o Home Affairs
35. Shri Kumar Nityanand
M/o Rural Development
36. Shri Lalit Mahajan
UPSC
37. Shri Pawan Sharma
M/o Urban Development
38. Shri A.K. Malhotra
M/o Home Affairs
39. Shri Tej Pratap Narayan
D/o Secondary & Higher Education.
40. Shri Shamik Bhowmik
**
41. Shri Abhijit Roy
M/o Urban Development
42. Shri P.K. Sethi
**
43. Shri P.K. Srivastava
**
44. Smt. RadhNarayanan
M/o Urban Development
45. Shri Ashok Kumar
D/o Secondary & Higher Education
46. Shri Kamal Arora
D/o Commerce
47. Shri Balvir Singh
M/o Defence
48. Shri G. Sajith Kumar
D/o Expenditure
49. Shri Puneet Sharma
**
50. Shri S.L. Koli
M/o Rural Development
51. Shri N.K. Dudeja
M/o Rural Development
52. Shri Laxmi Chand
**
.. Respondents
( By Advocates Shri R.V. Sinha with Shri R.N. Singh for respondent No.1, Shri J.B.Mudgil for UPSC, Shri V.K. Rao, learned senior counsel, Shri Arun Bhardwaj, Shri A.K. Ojha and Shri L.R. Khatana for private respondents)
OA No.1253 of 2009
1. Shri Prakash A
Office of Member (RM),
Central Water Commission,
Sewa Bhawan, R.K. Puram,
New Delhi-110066.
2. Shri Rajeev Bahree
Establishment II,
Central Water Commission,
Sewa Bhawan, R.K. Puram,
New Delhi-110066.
3. Shri Devinder Kumar
Room No.191-A, Ministry of Rural Development,
Krishi Bhawan,
New Delhi-110001.
4. Shri Sunil Singh Rawat
Room No.532, Planning Commission,
Yojana Bhawan,
New Delhi-110001.
5. Shri Ashok Kumar Raichandani
Office of Director (Estt.)
3rd Floor, Central Water Commission,
Sewa Bhawan, R.K. Puram,
New Delhi-110066.
6. Ms. Shalini Juneja
Office of Director (NLM)
Room No.254, M/o Rural
Development, Krishi Bhawan,
New Delhi-110001.
7. Shri Vinod Kumar,
Room No.252, M/o Rural
Development, Krishi Bhawan,
New Delhi-110001. Applicants
(By Advocate: Shri Padma Kumar S.)
Versus
1. The Secretary
Union Public Service Commission
Dholpur House, Shahjahan Road,
New Delhi.
2. Union of India
Through, Secretary,
DOP&T,
North Block, New Delhi. Respondents.
(By Advocates: Shri J.B. Mudgil for R-1, Shri R.V. Sinha with Shri R.N. Singh for R-2)
OA No.2136 of 2010
1. A.K. Nandy,
S/o Shri L.K. Nandy,
R/o B-44/S-1, Dilshad Colony,
Delhi-110095.
2. Kaushik Choudhury,
S/o Shri G. N. Choudhury,
R/o Plot No.4, Flat No.S-4,
Shalimar Garden Extension-I,
Sahibabad, Uttar Pradesh-201005.
3. Dilip Kumar,
S/o Shri Rajendra Prasad,
R/o G-48/F-2, Dilshad Colony,
Delhi-110095. . Applicants
(By Advocate: Shri Rajender Nischal with Shri Ashish Nischal)
Versus
1. Union of India
Through its Secretary,
Department of Personnel And Training,
Ministry of Personnel, Public Grievances and Pensions,
North Block
New Delhi-110001.
2. Union Public Service Commission,
Through its Chairman,
Dholpur House, Shahjahan Road,
New Delhi-110069. Respondents
(By Advocate: Shri R.V. Sinha with Shri R.N. Singh for R-1 and Shri J.B. Mudgil for R-2)
OA No.2469 of 2010
1. Vikas Tripathi (Batch -1993)
S/o Shri Ramesh Chadra Tripathi
115, Nitikhand-III,
Indirapuram, Ghaziabad-201010.
2. Ajay Kumar Singh (Batch -1995)
S/o Shri H.N. Singh
Flat No.I-80, Ground Floor,
Parswanath Paradise, J.P. Garden Estate,
Mohan Nagar, Ghaziabad.
3. Manoj Kumar Bansal (Batch-1999)
S/o Shri Mohan Lal Bansal
Q.No. 1221, Type III
NH 4, Faridabad, Haryana.
4. Chandragupta Shaurya (Batch-1999)
S/o Shri Ram Naresh Singh
Q No. 1904/III, NH 4, Faridabad
5. Sanjay Kumar Tiwari
S/o Shri Shiv Das Tiwari
10-B, 170, Vasundhara,
Ghaziabad-201012. Applicants
(By Advocate: Shri V.S.R. Krishna)
Versus
1. Union of India
Through its Secretary,
Department of Personnel And Training,
Ministry of Personnel,
Public Grievances And Pensions,
North Block, New Delh-110001.
2. Union Public Service Commission,
Through its Chairman,
Dholpur House, Shahjahan Road,
New Delhi-110069.
3. Shri R.C. Attri,
(The Then Assistant and Now Section Officer included in the Select List of So Grade 2003)
Department of Supply Govt. of India.
4. Shri S.K. Gairola, (The Then Assistant and Now Section Officer included in the Select List of so Grade 2003)
Deptt of Science And Technology
Govt. of India.
5. Shri D.D. Ahuja, (The Then Assistant and Now Section Officer included in The Select List Of So Grade 2003)
Deptt. Of Agriculture,
Govt. of India.
6. Shri S.C. Shandalya, (The Then Assistant and Now
Section Officer included in the Select List of SO Grade 2003)
Ministry of Mines,
Govt. of India Respondents
(By Advocate: Shri Satish Kumar for R-1, Mrs. Bindra Rana for R-2)
O R D E R
Dr. Dharam Paul Sharma, Member (J):
All these four Applications, inter alia, involve a common question relating to the propriety and correctness of filling up the posts newly created as a result of restructuring of the cadre of Section Officer in the Central Secretariat Service (for short CSS) from among the persons whose names appeared in the select list of 2003 based on their seniority in the feeder cadre of Assistants. For this reason, these Applications have been heard together and are being disposed of by this common order. Besides, the aforesaid question, certain different issues too have been raised in individual Applications which are also suitably dealt with at appropriate places in this order. All the parties jointly agreed to take OA No.1083/2007 as the lead case in which the counsels made their principal submissions. In other three Applications, the concerned advocates made their respective submissions as well on the basis of the averments made therein. The applicants in all these Applications belong to the cadre of Assistants who qualified the Combined Limited Departmental Competitive Examination (for short CLDCE) held in different years for promotion to the posts of Section Officer.
2. In OA No.1083/2007, there are five applicants, who have been appointed as Section Officers in CSS vide Office Memorandum No.6/3/2006-CS.I dated 6.6.2006, as at Annexure A-2, on the basis of CLDCE conducted by the Union Public Service Commission (for short UPSC). They have filed this Application praying for quashing of the appointments made to the posts of Section Officer against the seniority quota for the year 2003 to the extent the said appointments exceeded the posts initially reported to the UPSC (respondent no.2). Vide OM No.5/25/2004-CS.I dated 5.6.2006, respondent no.1, the Department of Personnel and Training (for short DOP&T) in the Ministry of Personnel, Public Grievances & Pensions, allocated 464 vacancies of Section Officer to the select list for the year 2003 against seniority quota as against 255 notified earlier vide Office Memorandum No.5/25/2004-CS.I dated 5/6.5.2005, as at Annexure A4. The grievance of the applicants has been that this action of respondent no.1 has directly affected the prospects and service conditions of the applicants adversely, who qualified CLDCE in 2004 and accordingly appointed as Section Officers on 6.6.2006 as aforesaid. According to these applicants, the mode of appointment to the grade of Section Officer is as under:-
A. 20% of vacancies in the grade for the respective year by direct recruitment through Civil Services Examination conducted by the UPSC.
B. 40% of the total vacancies in the grade for the respective year through CLDCE conducted by the UPSC in which both Assistants of CSS and Stenographers Grade II of CSSS may compete subject to fulfillment of eligibility conditions prescribed.
C. 40% of the total vacancies in the grade for the respective year are filed up by promotion from amongst the eligible Assistants cadre of CSS.
Vide Office Memorandum No.5/25/2004-CS.I dated 6.5.2005, the respondent no.1 proposed to bring out select list (seniority quota) for the year 2003 and the number of vacancies earmarked for this purpose was fixed at 255 (General -198, SC-38 and ST-19) and the range of seniority (zone of consideration for promotion) for making additions to the said select list prescribed as under:-
General : The remaining Assistants of the previous zone, and all the the Assistant figuring upto S.No.150 in SCSL-1989, who have completed 8 years of approved service in the Assistants Grade as on 1.7.2003.
SC : The remaining Assistants of the previous zone, and all the Assistants figuring upto S.No.500 in SCSL-1989, who have completed 8 years of approved service in the Assistants Grade as on 1.7.2003.
ST : The remaining Assistants of the previous zone, and all the Assistants figuring upto SL/1993, who have completed 8 years of approved service in the Assistants Grade as on 1.7.2003.
An equal number of vacancies, i.e., 255 were notified for CLDCE 2003. Only 212 vacancies out of 255 could be filled up on the basis of the result of the CLDCE for the year 2003. Out of the five applicants herein, only two applicants at serial No.2 and 4 were eligible for appearing in CLDCE 2003. They appeared but failed in the said examination. All the five applicants later on appeared in the succeeding CLDCE 2004 in which they qualified based on which they were appointed as Section Officers as on 6.6.2006.
3. Having regard to the actual number of vacancies which were not available earlier, the respondent no.1 Vide Office Memorandum No.5/25/2004.CS-I dated 18.10.2005, as at Annexure 5, revised the range of seniority (zone of consideration for promotion) for making additions to the Select List (Seniority Quota) for the year 2003 as follows:-
General : The remaining Assistants upto SCSL 1998 and all the Assistant figuring upto S.No.380 in SCSL-1989, who have completed 8 years of approved service in the Assistants Grade as on 1.7.2003.
SC : The remaining Assistants upto SCSL, 1988 and all the Assistants figuring upto S.No.650 in SCSL-1989, who have completed 8 years of approved service in the Assistant Grade as on 1.7.2003.
ST : The remaining Assistants of the previous zone, and all the Assistants figuring upto SL/1993, who have completed 8 years of approved service in the Assistants Grade as on 1.7.2003.
Vide Office Memorandum No.5/25/2004-CS.I dated 5.6.2006, as at Annexure A-1, the respondent no.1 circulated addition to the Select List of 2003 against Seniority Quota prepared on the basis of information received from 33 cadre authorities. Accordingly, the size of the Select List (SQ) 2003 stood fixed as follows:-
General : 356 SC : 74 ST : 34
------------
Total : 464
------------
4. The grievance of the applicants herein is that addition of 209 posts of Section Officer to seniority quota in excess of originally notified vacancies of 255 is not correct as it adversely affect the service conditions, promotion avenues and future prospects of the applicants and, therefore, they challenge this Office Memorandum dated 5.6.2006 in this Application as originally filed.
5. During the pendency of this Original Application, the respondent no.1 issued Office Memorandum dated 12.8.2008, as at Annexure A-12, by which 551 additions were made to the Select List of 2003 and appointments were made accordingly. Vide Office Memorandum No.11/1/2011-CS.I dated 29.6.2011, as at Annexure A-17, by which the respondent no.1 brought out All Secretariat Select List of Section Officers Grade for the year 2003. Further vide Office Memorandum No.6/7/2011-CS.I dated 30.6.2011, as at Annexure A-18, by which the respondent no.1 brought out Common Seniority List (CSL) of Section Officers (SOs) 2003. These OMs were challenged by the applicants herein by filing Miscellaneous Applications, (in short MAs). The applicants challenged the OM of 2008, referred to above, by filing MA No.1445/2008, inter alia, praying for staying of the addition to the Select List dated 12.8.2008. The final select list for the year 2003 as brought on 2011 was challenged by the applicants by filing MA 1674/2011 which was heard on 20.7.2011 when the applicants were directed to move an Application for amendment of the Original Application (in short OA).
6. Further during the pendency of the OA, a number of persons moved this Tribunal for their impleadment as necessary party respondents for they were likely to be affected by the outcome of this Original Application. These applications have been allowed by this Tribunal from time to time. In view of these developments, the applicants re-examined this aspect also and upon legal advice received in the matter, decided to implead about 760 persons as private respondents who in their estimation were likely to be affected by the outcome of the Application. Accordingly, the applicants moved MA 1967/2011 for impleading the necessary parties numbering 758 in all as well as amended Original Application by enlarging their area of challenge to Office Memorandums issued during the pendency of the Original Application, as referred to above. The prayers made in para 8 of the amended Application reads as follows:-
8.1 Quashing of the appointments made to the post of Section Officers against the Seniority Quota for Year 2003 to the extent the said appointments exceed the posts actually reported to respondent No.2 on the basis of the O.M. No.5/25/2004-CS.I dated 5/6 May, 2005;
8.2 Quashing of the decision of the Respondent no.1 vide OM No.5/25/2004-CS-I dated 18/10/2005 enhancing the range of seniority for making additions to the select list (seniority quota) for the year 2003.
8.3 Quashing of OM No.5/25/2004-CS.I dated 13/08/2008, by virtue of which Respondent no.1 has appointed 551 more Section Officers against seniority quota. These 551 Section Officers, against seniority quota, select list 2003 has been elevated in addition to 209 Section Officers, including in the Select List (Seniority Quota) 2003 vide OM dated 05.06.2006.
8.4 Quashing of the OM No.11/1/2011-CS.I dated 29.06.2011 by virtue of which the Respondent No.1 has brought out All Secretariat Select List of Section Officers Grade for the year 2003. And the Respondent no.1 may be diected to revise the said List to the extent that it should comprise of 466 officers; taking 211 entries from Select List (LDCE) 2003 and 255 entries from Select List (Seniority Quota) 2003.
8.5 Quashing of the OM No.6/7/2011-CS.I dated 30.06.2011 by virtue of which the Respondent no.1 has brought out Common Seniority List (CSL) of Section Officers Grade for the year 2003. And the Respondent no.1 may be directed to revise the said Common Seniority List to the extent that it should comprise only 466 Section Officers; taking 211 entries from Select List (LDCE) 2003 and 255 entries from Select List (Seniority Quota) 2003.
8.6 Any other relief which this Honble Tribunal may deem fit and proper keeping in view of the facts and circumstances of the case. It may be pointed out that in the Original Application (pre amended); the relief sought was as per para 8.1 above only.
7. MA 1967/2011 seeking amendment in the Original Application was very vehemently opposed not only by the official respondents no.1 and 2 but also by Central Secretariat Service Section Officers Association (respondent no.4) and some of the private respondents both on preliminary grounds related to the procedures as well as on the merits of the case. It was, inter alia, contended that the proposed amendment had the effect of changing the very nature of the Original Application which is not warranted, more particularly in view of the fact that Office Memorandums dated 12.8.2008 and 29.6.2011 were ordered by this Tribunal to be subject to the outcome of the Original Application. After hearing at length, MA 1967/2011 seeking addition of impleadment of additional respondents as well as amending the Original Application was allowed vide order dated 30.3.2012.
8. The Review Application being RA No.170/2012 was filed by one Shri Radha Krishna, respondent no.3 herein, seeking review and recalling of the order dated 30.3.2012 passed in MA 1967/2011 in OA No.1083/2007 on the ground of certain factual and legal errors as mentioned in the said Review Application. The said Review Application was dismissed by this Tribunal vide its order dated 18.5.2012. When the case was taken up for final hearing on merits on 5.11.2012, the respondent no.3 filed MA 3151/2012 in OA No.1083/2007 stating that he has challenged in the High Court vide Writ Petition (C) No.4640/2012, the orders dated 30.3.2012 and 18.5.2012 passed by this Tribunal allowing the amendment and rejecting the Review Application in OA No.1083/2007 respectively and notices were stated to have been issued in the said Writ Petition. A request was, therefore, made not to proceed in the matter on the basis of the amended Original Application as the amendments are already under challenge in the High Court and the High Court was seized of the matter. Since the High Court has not passed any order staying the hearing in this matter, this Tribunal did not accede to the request of the respondent no.3 as made in his MA No.3151/2012 filed in OA No.1083/2007 and the same was accordingly dismissed vide order dated 5.11.2012.
9. OA No.1253/2009 has been filed by seven applicants jointly seeking the following reliefs:-
(a) A direction to the respondents to issue the supplementary list covering the 152 vacancies (52 vacancies out of the balance of 196 admitted to have been projected by DOP&T to UPSC) and 100 vacancies which are the remaining vacancies carried forward from the year 2004 pertaining to LDCE quota after declaring the arrogation of the Limited Departmental Competitive Examination vacancies/diversion of these to other mode of recruitment by DOP&T and also non-issue of the supplementary list by UPSC as illegal.
(b) A direction to the respondents to give the Applicants, if the Applicants names figure in the supplementary list with all consequential benefits.
(c) A direction allowing cost of litigation to the Applicants.
(d) Any other direction which this Honble Tribunal may be pleased to grant under the facts and circumstances of the case, at its discretion.
10. The grievance of the applicants has arisen on account of the inaction of the UPSC in issuing supplementary list of candidates to the list published vide notification dated 9.2.2009, as at Annexure A/1, even after the error in computing the vacancies has been pointed out to the UPSC by the applicants. All the applicants belong to the Central secretariat Stenographers Service Cadre (in short CSSS) under the overall cadre controlling authority of DOP&T. The applicants at the relevant time were entitled to appear in the CLDCE 2005 conducted by the UPSC for the appointment of either Section Officers or as Private Secretaries depending upon the option of the applicants. On 22.7.2006, notification for conducting the CLDCE -2005 was issued in various newspapers, as at Annexure A/3. The tentative number of vacancies initially reported by the UPSC for category I (Section Officers of the Central Secretariat Service) in the notification dated 22.7.2006 was 134. The applicants being eligible applied for the exam for Class I post, namely, Section Officer Grade of the Central Secretariat Service. As per the Scheme of the examination, there was a written examination of 500 marks of various papers. The result of the examination would be declared in respect of candidates who have obtained the minimum qualifying marks and thereafter ACRs were to be assessed in respect of only those candidates who qualify the written examination with minimum standard as fixed by the UPSC. Final result would be declared after combining marks obtained by the candidates in written part of examination and ACRs and merit list of candidates would be prepared accordingly. Written examination result was declared on 5.8.2008 based on the cut off marks prescribed by the UPSC in accordance with the vacancies to be filled up. All the applicants qualified as per the list which included total number of 348 candidates. On 9.2.2009, the UPSC declared the final list containing only 144 candidates, which did not contain the names of the applicants. The applicants moved under Right to Information Act as to the number of vacancies and found that total number of vacancies were 296. According to the applicants, number of vacancies projected to the UPSC subsequently as per the information given by the respondents under Right to Information Act was 62 (as admittedly 196 vacancies have been projected by the DOP&T for being filled through the CLDCE 2005. Reliance in this regard was placed on letter dated 9/13.3.2009, as at Annexure A/4, addressed to applicant no.1 herein under RTI. The applicants further submitted that 196 vacancies included 70 vacancies of the previous year carried forward. The applicants further submitted that during the vacancies which were carried forward from 2004 Exam and were to be included in the 2005 CLDCE exam was 100 (170-70). The applicants have relied in this regard on the Office Memorandum No.6/3/2006-CS.I dated 6.6.2006, as at Annexure A/5. The applicants thus claimed that there were 296 vacancies in all. The UPSC recommended only 144 names despite the fact that 348 candidates secured the marks above the cut off marks and thus there has been a serious error in computing the vacancies. The applicants further stated that the last person whose name was recommended for appointment by the UPSC has secured 315 marks out of 500 as per the information obtained by the applicants from the UPSC. The applicants stated that none of the applicants has received any communication regarding any adverse entry in their respective ACRs during the relevant period. The applicants have got the following final tally of marks out of 500:-
Total Cut off mark 315 Applicant No.1 314 Applicant No.2 314 Applicant No.3 (SC) 253 (The last SC candidate selected had a total mark of 255) Applicant No.4 311 Applicant No.5 280 Applicant No.6 310 Applicant No.7 302 On 23.2.2009, some of the applicants made representations to the UPSC for release of supplementary list as the Commission has done it in previous years due to erroneous computation of vacancies. The applicants contended that as per the Central Secretariat Service Rules, 1962 (hereinafter referred to as CSS Rules), recruitment to the posts of Section Officer grade was to be done as follows:-
A. : 20% by direct recruitment quota;
B. : 40% by seniority quota; & C. : 40% by LDCE quota The applicants case has been that there were 170 vacancies of 2004 CLDCE remaining unfilled which were required to be carried forward and to be filled by the CLCDE of 2005. The applicants further submitted that they have reliable knowledge that DOP&T diverted 100 vacancies contrary to the rules for promotion of Assistants on ad hoc basis or on regular basis. The applicants placed reliance in OA No.695/2009 in the case of A.K. Nandi and ors. vs. Union of India decided on 12.03.2009 wherein the applicants were similarly placed and notices had already been issued.
11. OA No.2136/2010 is a joint Application filed by three applicants. These applicants had earlier filed OA No.695/2009 wherein they sought directions to the respondent no.1, DOP&T, to correctly apportioned the vacancies for competitive departmental examination 2005 in accordance with the CSS Rules and filled them up accordingly and further directions to the respondent no.2, UPSC, to release supplementary list of 52 candidates as well as 170 unfilled vacancies of CLDCE 2004 and for the CLDCE 2005 for promotion as a Section Officer. Vide order dated 24.5.2010 in OA No.695/2009, the said O.A. was dismissed as withdrawn with liberty to the applicants to file a fresh OA for subsisting grievances, if any. Accordingly, three applicants filed OA No.2136/2010 seeking directions to the respondent no.1, DOP&T to divide the newly created vacancies of Section Officer through Cadre Restructuring in 2003 into seniority quota and LDCE quota and carry forward the unfilled 170 LDCE quota vacancies of the year 2004 to the year 2005 in accordance with the CSS Rules and report the same to the UPSC for release of supplementary list for appointment to the post of Section Officer in CLDCE quota for the year 2005. The applicants sought further directions to the UPSC (respondent no.2) to release the supplementary list of 170 vacancies for CLDCE 2005 for appointment to the post of Section Officer. The applicants are the members of the Assistant grade in the CSS. They qualified the written examination of CLDCE 2005 held in December 2006. The applicants case is that the posts of the Section Officer are filled up through three sources, i.e., 20% by direct recruitment; 40% by seniority; & 40% by CLDCE. In the recruitment year 2003, 255 vacancies were intimated to the UPSC for filling up through CLDCE. Out of 255 vacancies intimated to the UPSC only 212 were filled up. As against 255 vacancies which were required to be filled up on the seniority basis, the respondents filled 1015 vacancies, including 706 vacancies created as a result of cadre restructuring through seniority quota whereas 282 (40% of 706 posts) of the newly created vacancies should have been added to the CLDCE 2003, as the result was declared on 14.9.2005. Similarly for the recruitment year 2004, the result was declared on 6.6.2006. DOP&T intimated 400 vacancies to the UPSC for filling through CLDCE, 2004. Out of these only 230 vacancies were filled up through the CLDCE 2004. 170 vacancies of CLDCE 2004 were remained unfilled. Again in the recruitment year 2005, 196 vacancies were intimated to the UPSC through CLDCE 2005. The unfilled 170 vacancies of CLDCE 2004 were not carried forward to the CLDCE 2005. Instead in the year 2008, DOP&T diverted the vacancies into the seniority quota of the year 2003 by the name of recalculation and recasting which was illegal being contrary to the rules. Feeling aggrieved, they have filed the present Application seeking the directions as aforesaid.
12. OA No.2469/2010 is a joint Application filed by five applicants seeking the following reliefs:-
i) to call for the records of the case;
to quash and set aside the impugned orders to the extent that applicants who have qualified in the Departmental Competitive Examination have not been promoted as Section Officer and others like the private respondents have been promoted on seniority quota by diverting vacancies which action is not maintainable under law;
to direct the official respondents to bifurcate the newly created vacancies of Section Officer on account of Cadre Restructuring in 2003 into Seniority and LDCE Quota in accordance with the CSS Rules, and fill the remaining LDCE vacancies from the Combined Limited Departmental Competitive Examination, 2005;
to direct the official respondents to include the 170 unfilled vacancies of the Combined Limited Departmental Competitive Examination, 2005 in accordance with the CSS Rules, 1962, and fill them from the Combined Limited Departmental Competitive Examination, 2005;
to direct the Respondent No.2 i.e. the UPSC to release another supplementary list of 170 unfilled vacancies of CLDCE 2004 for CLDCE, 2005 for promotion as Section Officers;
to consider and promote the applicants to the post of Section Officer on the basis of their having successfully passed competitive examination conducted in Examination quota vacancies as on the back date with all consequential benefits like arrears of salary and allowances, seniority etc. the Honble Tribunal may grant any other relief as may be deemed fit and proper under the circumstances of the case along with heavy costs awarded to them.
13. The applicants are the members of the Assistant Grade in CSS rendering service in the posts of Assistant for 8 to 17 years and qualified in the written examination of CLDCE 2005 held by the UPSC in December 2006. The applicants are aggrieved of the allocation of newly created posts of Section Officer only to seniority quota by the respondent No.1, DOP&T. The newly created 706 posts through cadre restructuring should have been diverted into 1:1 ratio between seniority and LDCE quota. Since the applicants had passed the requisite departmental examination, they are entitled to be promoted to the posts of Section Officer on the vacancies pertaining to examination quota. The respondents instead have filled up the vacancies only through seniority quota de hors the statutory Recruitment Rules. Consequently, the applicants, who are eligible and had participated in the CLDCE 2005 in which they had qualified, have been deprived of their right to promotion to the posts of Section Officer through CLDCE 2005. Had 170 clear vacancies of 2004 LCDE carried forward to LDCE 2005, the applicants who are otherwise eligible would have got promoted under the examination quota vacancies. The applicants claimed that 50% vacancies of Section Officers are to be filled up through LDCE and 50% to be filled on the basis of seniority in terms of CSS Rules, 1962. If sufficient number of vacancies are not available for filling up the vacancies in a cadre in any recruitment year, either by direct recruitment or by appointment of persons included in the Select List for Section Officers Grade, the unfilled vacancies shall be carried forward and added to the number of vacancies of the same mode of recruitment to be filled in the next recruitment year provided that no such unfilled vacancies shall be carried forward for more than two recruitment years, beyond the year to which the recruitment relates, where after the vacancies, if any, still remaining unfilled belonging to one mode of recruitment shall be transferred as additional vacancies for the other mode of recruitment. In the recruitment year 2003, 255 vacancies were intimated to the UPSC for filling up through CLDCE. Out of 255 vacancies intimated to the UPSC, only 212 were filled up by the examination quota. In terms of the statutory Recruitment Rules, it was required that only 255 vacancies were available for being filled up on the basis of seniority quota but the respondents illegally and de hors the provisions of the statutory RRs, filled 1015 vacancies (which included 706 vacancies of SOs created through the process of Cadre Restructuring) through seniority quota. The applicants case is that the respondents were bound to fill up the newly created posts of SOs 50% by way of combined departmental examination and 50% by CLDCE in terms of the Recruitment Rules. However, the respondents filled up all the newly created vacancies only through the seniority quota, which is void ab initio being dehors the provisions of statutory RRs. The applicants have submitted that the newly created vacancies should have been bifurcated and 353 (50% of 706) vacancies should have been added to the CLDCE, 2003, the result of which was declared on 14.09.2005. Similarly, for the recruitment year 2004, the result of which was declared on 06.06.2006. DOP&T intimated 400 vacancies to the UPSC for filling through CLDCE 2004. Out of these only 230 vacancies were filled up from the CLDCE 2004. Again, in the recruitment year 2005, only 196 vacancies were intimated to the UPSC through CLDCE, 2005. The unfilled 170 vacancies of CLDCE 2004 were not carried forward to the CLDCE 2005. Instead these were diverted to seniority quota for the year 2003 later in the year 2008 by the name of recalculation and recasting. The applicants felt aggrieved by this diversion of vacancies meant for CLDCE quota to seniority quota and hence, filed this Application seeking the directions as aforesaid.
14. From the aforesaid, it may be seen that all the applicants in these four Applications have taken a common plea against filling up the posts of Section Officer as has been done by the respondents in these cases being contrary to the CSS Rules, 1962. The stand of the applicants has been that the said rules provide for filling up the posts of Section Officer in the ratio of 20% from direct recruitment quota; 40% from seniority quota; and 40% from LDCE quota. In other words, the rules provide for quota for each of these categories as aforesaid and it was incumbent upon the respondents to adhere to this quota norms scrupulously. Failure to do so would vitiate the action of the respondents rendering it liable to be quashed being contrary to the Recruitment Rules.
15. Shri G.D. Gupta, the learned senior counsel appearing along with Shri Piyush Sharma for the applicants in OA No.1083/2007 explained at length the rule position in the matter. The main thrust of the submissions put forth by Shri Gupta has been that of blatant violation of Recruitment Rules while diverting additional posts of Section Officer to the seniority category of the select list at the cost of the applicants who had qualified CLDCE in succeeding years and who would have been entitled to these additional posts under the Recruitment Rules had this not been filled up from among the Assistants based on their seniority. This point has been explained in detail in para 5 of the amended Application wherein various related aspects of their conditions as aforesaid have been explained in paras 5.1 to 5.13 under the heading grounds for relief with legal provisions. The same have been reiterated emphatically at the hearing of the Application by Shri Gupta. Accordingly, Shri Gupta submitted that consequent upon restructuring of the CSS, 638 additional posts of Section Officers were created in October, 2003. In the year 2005, the respondent no.1 proceeded to fill up these 638 additional posts as per the Recruitment Rules. Thus 255 vacancies (40% of 638) were reported to the UPSC for being filled up on the basis of CLDCE of 2003. Similarly the same numbers of vacancies, i.e., 255 were also allocated to be filled up through select list seniority quota 2003. Out of 255 vacancies allocated to CLDCE quota, only 212 candidates could be available for their inclusion in the select list. However, only 211 candidates were appointed against CLDCE 2003. Shri Gupta further submitted that process of finalization of the select list for Section Officer grade in the year 2003 came to an end on 14.9.2005 by which date the respondent no.1 issued the select list for both quotas, i.e., in respect of seniority quota on 5.5.2005 and in respect of CLDCE on 14.9.2005. Notwithstanding this, the respondent no.1 issued another OM dated 18.10.2005 enhancing the ratio of seniority for making additions to the select list (seniority quota) for the year 2003. This was followed by another OM dated 5.6.2006 by virtue of which 464 vacancies of Section Officer were allocated for the select list seniority quota for the year 2003. These 209 vacancies were so allocated over and above 255 vacancies allocated earlier to this category. Shri Gupta strongly assailed this to be illegal. Even after this, the respondents made further addition of 551 vacancies of Section Officer in the select list of 2003 vide OM dated 12.8.2008. Shri Gupta thus contended that 760 illegal additions of Section Officers posts to the select list 2003 were made by the respondents. Shri Gupta vehemently maintained that the size of select list should have been restricted to 466 (seniority quota 255 and CLDCE quota 211). Shri Gupta further submitted that additional 760 vacancies in the grade of Section Officer should have been carried forward to the subsequent years as per the provisions under Rule 13 (1) of CSS Rules, 1962.
16. Shri Gupta further submitted that though it is true that all the newly created posts in the grade of Section Officer were meant to be held by the stagnating officers by their inclusion in the select list of 2003 but that did not mean that all the posts created by the cadre restructuring meant for seniority quota only. Shri Gupta pointed out in this regard that the Cabinet Committee did not decide that all the newly created posts of Section Officer were to be filled up by seniority quota only. Shri Gupta emphatically urged that even CLDCE itself was a way to remove stagnation by rewarding meritorious Assistants, with the requisite experience, on their qualifying the LDCE. In any case, the matter has already been decided by this Tribunal as well as Honble High Court of Delhi in the matter of Kailash Chander and others vs. Union of India and others (OA No.1091/2005 decided on 26.7.2005 and Writ Petition No.13245-60/2005 in the matter of Kailash Chander and others vs. Union of India and others decided on 29.3.2011). Shri Gupta further referred to and relied upon a number of cases in support of the applicants claim. Reference has thus been made to the cases of Union of India vs. Pushpa Rani and others, (2008) 9 SCC 242, wherein it has been held by the Honble Supreme Court that reservation quota is applicable even in cadre restructuring vacancies and the policy decision is to be taken in accordance with the Recruitment Rules. Shri Gupta referred to the case of Dr. Rajinder Singh vs. State of Punjab and others, (2001) 5 SCC 482, wherein the Honble Supreme Court struck down the notification that was issued with the approval of the President of India on the ground that the said notification was contrary to the Recruitment Rules. Shri Gupta further submitted that rules which are validly framed under the provisions of Article 309 of the Constitution of India continue to operate until repealed or replaced by validly framed new rules. Even the draft rules framed during operation of validly framed rules cannot be effective. In support of this contention, Shri Gupta cited the case of Union of India vs. V. Ramakrishnan and other, 2005 (8) SCC 394. Referring to the case of State of A.P. and another vs. A.P. Pensioners Association and others, 2005 (13) SCC 161, Shri Gupta strongly urged that the provisions of the notification are to be read as a whole. The intention of the State in issuing a notification although might have to be gathered in the backdrop of the facts stated in the preamble portion thereof, yet, undisputedly the legal rights of the parties, if any, must be found out from the notification portion itself. Shri Gupta lastly referred to the case of Ashish Mohan vs. Union of India in CWA No.1839/2002 decided by the Delhi High Court on 6.8.2002, solely with a view to show that even the Court in this case took note of the mode of recruitment provided in CSS Rules, 1962. The two petitioners in this case were working as Assistants in the Ministry of Finance and Ministry of Commerce and Industry respectively and the next post in the line of promotion to which they were entitled to be considered as per the extant Recruitment Rules was that of Section Officer. In this regard in very first paragraph of its judgment, the Delhi High Court has stated as follows:-
Mode of Recruitment Quota Feeder Grade for promotion/source of recruitment.
Direct Recruitment 20% Civil Service Exam.
Seniority-cum-fitness 40% Assistants.
Limited Departmental Competitive Exam. (LDCE) 40% Assistants and Steno, Gr. C of Central Secretariat Stenographers Service. On the strength of the aforesaid, Shri Gupta vehemently claimed that 40% of the additional posts created upon restructuring of the cadre were required to be filled up from the candidates who have qualified CLDCE in 2003 and the remaining unfilled posts were required to be carried forward to the next year in accordance with the CSS Rules, 1962 and the impugned action of filling up of these posts by the respondents from among the Assistants based on their seniority is contrary to the provisions of the Recruitment Rules as embodied in the CSS Rules, 1962 and as such illegal and liable to be quashed.
17. Shri Ashish Nischal, learned counsel appearing for the applicants in OA No.2136/2010 stated that the applicants though qualified in CLDCE 2005 held in December, 2006 yet could not be appointed as Section Officers on account of the impugned action of the respondents in not carrying forward the unfilled vacancies of the previous years and also diverting the newly created posts as a result of cadre restructuring to seniority quota alone instead of allocating the same between seniority quota candidates and LDCE quota candidates as per the Rules. Shri Ashish Nischal strongly contended that the provisions of the statutory rules cannot be set aside by any administrative order. The UPSC did not agree with the proposal of the respondent no.1 for diverting unfilled vacancies of 2003 and 2004 to the seniority quota. Furthermore, the UPSC was not even consulted while allocating all the newly created posts of Section Officer to the seniority quota in accordance with the provisions of Rule 25 (a) of the CSS Rules, 1962. Thus, the impugned action of the respondents is in gross violation of the CSS Rules.
18. Shri Ashish Nischal further submitted that though the respondent No.1, DOP&T, obtained the approval of the Cabinet with regard to the creation of new posts as recommended by the Cadre Restructuring Committee, they did not obtain the approval of the Cabinet for filling up of all the newly created posts by Seniority Quota of 2003 only. Even the Cadre Restructuring Committee in its report did not recommend that the DOP&T should fill up all the newly created posts through the Seniority Quota only. Instead, it was suggested that these newly created posts would be filled up as per the prevalent Recruitment Rules. Shri Nischal further submitted that in June 2006, DOP&T intimated the UPSC that the unfilled vacancies of CLDCE 2004 would be carried forward and filled by CLDCE 2005 which was actually held in December 2006. The DOP&T, however, finally decided in August, 2008 to divert the said vacancies to Seniority Quota. Had the respondents carried forward all the unfilled vacancies of CLDCE 2004 to CLDCE 2005, the applicants could have been recommended by the UPSC in CLDCE 2005. Thus injustice has been done to the applicant, which may be redressed by directing the UPSC to issue supplementary list for such vacancies.
19. The submissions made by Shri Padma Kumar S., the learned counsel appearing for the applicants in OA no.1253/2009 and Shri V.S.R. Krishna, the learned counsel appearing for the applicants in OA No.2469/2010 have been on the lines on which submissions have been made by Shri Nischal appearing on behalf of the applicants in OA No.2136/2010, as the applicants in all these three Applications are similarly circumstanced. The applicants in these two Applications also were not appointed to the posts of Section Officer, in spite of, they having qualified the CLCDE 2005 for want of vacancy. According to these applicants, this has been on account of improper calculation of vacancies for Examination Quota. Had the unfilled vacancies of previous years duly carried forward and vacancies arising on account of creation of additional posts of Section Officer as a result of cadre restructuring been properly allocated between Seniority Quota and Examination Quota, the applicants would have been appointed to the post of Section Officers in their own turn. This need to be duly redressed by directing the UPSC to properly recalculate the actual vacancies falling in the quota of examination category and directing the UPSC to issue necessary supplementary list so as to accommodate the applicants in these Applications. As regards the correctness and propriety of diversion of these newly created posts to Seniority Quota candidates, they have adopted the arguments put forth by Shri G.D. Gupta, learned senior counsel appearing for the applicants in OA No.1083/2007 and Shri Ashish Nischal, the learned counsel for the applicants in OA No.2136/2010.
20. All these Applications have been vehemently opposed by Shri R.V. Sinha, learned counsel appearing on behalf of respondent no.1 as well as learned counsel appearing on behalf of some of the private respondents, namely, Shri L.R. Khatana for respondent no.69, Shri V.K. Rao, learned senior counsel with Ms. Ritika Chawla appearing for respondents no.64 and 573, Shri Arun Bhardwaj, learned counsel appearing for respondent no.3 and 4, namely Shri Radha Krishna, Central Secretariat Service Section Officers Association, three other private respondents, namely, Shri Manas Mandal, Avinash Chandra and Sube Singh, Shri A.K. Ojha, learned counsel for respondent no.48 and Shri Satish Kumar, learned counsel for the official respondent in OA No.2469/2010.
21. Shri R.V. Sinha, the learned counsel for the respondent no.1 in OA No.1083/2007 has taken a number of preliminary objections opposing the maintainability of the very OA No.1083/2007 itself. Briefly stated these preliminary objections are (1) lack of locus standi of the applicants in filing the Applications; (2) for being barred by limitation, especially the additional reliefs claimed in the amended Application being OA No.1083/2007; (3) for being bad for non-joinder of necessary parties; (4) for being bad for mis-joinder of cause of action as the applicants have not challenged the policy decision of the respondents but merely consequences thereof in respect of Select List of 2003 of Section Officers and (5) lastly for being without any cause of action or proof on behalf of the applicants that there is violation of any fundamental or statutory rights.
22. As regards absence of locus standi, Shri Sinha submitted that an Application under Section 19 of the Administrative Tribunals Act, 1985 can only be filed by a person aggrieved and not by any one who is stranger to the cause in question. In the instant case, the applicants do not have locus standi to maintain the Application under Section 19 of the Administrative Tribunals Act, 1985 for the reason that they were not in the zone of consideration for Seniority Quota of 2003. Besides the applicants are juniors to those persons included in the Select List of 2003 of Seniority Quota. 18 persons, who qualified CLDCE 2004 and were senior enough to find the place in Section Officers Select List (Seniority Quota) 2003, were included in the extended Select List of Section Officer (Seniority Quota) of 2003. Besides out of five applicants, only two, namely applicants no.2 and 4 were eligible for CLDCE 2003. They appeared in the examination but failed. They later on qualified the CLDCE in 2004. Since they did not qualify for Select List of 2003 either under seniority quota or under CLDCE quota, they would not have any cause of action to challenge the Select List of 2003 on any ground whatsoever. In support of this, the learned counsel placed reliance on a common order dated 2.5.2003 of the Tribunal passed in OAs No.2274/2001, 2467/2011 and 2315/2002 titled R.K. Ojha and others vs. Union of India, which was upheld by the High Court of Delhi vide its judgment dated 3.7.2009 passed in Writ Petition (Civil) No.3269/2003. It has further been submitted by Shri Sinha that this Tribunal does not have power to entertain any application on behalf of stranger or third party as a public interest litigation, as has been held by the Honble Supreme Court in the case of Dr. Duryadhan Sahoo vs. Jitender Kumar Mishra, 1998 (7) SCC 273 (paras 18 and 19 of the judgment). Since there has been no violation of constitutional rules or statutory rules of the applicants, they cannot be viewed as aggrieved persons. On this ground alone, the Application would not be maintainable since the applicants were not qualified for Select List of 2003 and, therefore, they cannot challenge the said list. In support of this, a reference has been made to the case of B. Sriniwasa Reddy vs. Karnataka Urban Water Supply and Drainage Board Employees Association and others, AIR (2006) SC 3106 (paras 49, 58 and 68 of the judgment). It is true that the applicants were not eligible for inclusion of their names in the Select List of 2003. Nor they are claiming their inclusion in the said list. Based on these facts, the respondents, therefore, vehemently contended that the applicants cannot be viewed as aggrieved persons entitled to file the present Application in respect of Select List for 2003.
23. As regards the Application being barred by limitation, it has been submitted by Shri Sinha that OA was filed initially in 2007. After four years, the OA was sought to be amended by bringing in new additional reliefs which were not even in existence at the time of filing the Original Application in 2007. Have the applicants filed the Application with reference to said additional reliefs, such as one claimed in Para 8.3 of the amended Application in 2011 with reference to OM No.5/25/2004-CS.I dated 12.8.2008 that would have been barred by limitation in 2011 at the time of filing the amended Application. It is not open to the applicant to avoid such bar of limitation by taking recourse to amending the Application that was filed in 2007. Besides, changing the nature and complexion of the subject matter of the Application by amending the Application, the limitation period once after having commenced cannot be extended by way of allowing amendment even by this Tribunal. Reference in this regard has been made by the learned counsel to the case of Union of India vs. D.C.S. Negi in Appeal No.3709/2011 decided on 7.3.2011 by the Honble Supreme Court.
24. As regards the non-joinder of necessary parties, Shri Sinha stated that subsequent to issue of Select List of 2003 in Section Officers grade, Select List of 2004 to 2008 (Seniority Quota) were also issued by the department numbering 659 persons. In addition, the resultant vacancies of 2004 to 2006 in the grade of Assistants were also marked which embraced within its ambit a large number of such candidates totaling to 2818. The rights of these persons are likely to be affected in case any adverse order is passed in this Application. It was incumbent upon the applicants to implead all these persons as necessary party respondents. Failure to do so renders the Application liable to be dismissed on this count. References are made in this regard to the cases of K.H. Siraj vs. High Court of Kerala & Ors., 2006 (6) SCC 395 (Para 75 of the judgment) and All India Employees SC/ST Association vs. A. Authur Jeen & Ors., (2001) 6 SCC 380 (paras 13 & 14 of the judgment).
25. It has further been submitted by Shri Sinha that the respondents, as a matter of policy decision, allocated newly created vacancies as a result of cadre restructuring in the grade of Section Officer to the Seniority Quota of Select List of 2003. Despite there being specific averments to this effect in the reply filed by the official respondent no.1, the same has not been challenged by the applicants. That being so, the consequences of implementing such a policy decision can also not be questioned. Nor can this be interfered with by this Tribunal in as much as it is trite law that while the Court can mould the relief but it cannot grant the substantive relief unless specifically asked for in the guise of moulding of the relief. The decision taken by the respondent no.1 has been in exercise of its executive powers which include the power to create and abolish posts, review of the cadre strength including allotment of such post to a particular category of employees. That being so there is no warrant for invoking extra ordinary power of judicial review of this Tribunal in the facts of the present case. Reference in this regard has been made to Ekta Shakti Foundation vs. Govt. of NCT of Delhi, AIR (2006) SC 2600 (paras 10 to 13 of the judgment). Shri Sinha further submitted that the court would not interfere in the decision of the executive unless there is violation of statutory right or fundamental rights or the decision suffers from the malafide. The power of State to take a policy decision as a result of which an employees chance of promotion diminished cannot be the subject matter of judicial review as no legal right is infringed in such a case. Reference has been made in this regard to Ekta Shakti Foundation vs. Govt. of NCT of Delhi, (supra) (para 10 of the judgment) and Indian Airlines Officers Association vs. Indian Airlines Ltd. & Ors., 2007 (10) SC 684. Furthermore, the applicants do not have any right under the Constitution or under the rules to ask for that a particular number of posts should be allotted to the CLDCE category. Reference in this regard has been made to the case of P.U. Joshi & others vs. Accountant General, Ahmedabad, 2003 (2) SCC 632 (Paras 10 to 12 of the judgment).
26. On merits, Shri Sinha vehemently contended that the rules do not provide for any quota for CLDCE category. The relevant rules in the present case are the Central Secretariat Service Rules, 1962. Rule 2 (i) defines the term direct recruit which means a person recruited on the basis of a competitive examination, other than a departmental competitive examination, held by the Commission. Thus, it is clear that appointment through CLDCE under the rules in the grade of Section Officer is not a direct recruitment but the CLDCE is part of a promotion quota. The term Select List is defined in Rule 2 (q). Composition of CSS is dealt under Rule 3 of CSS Rules, 1962. The authorized cadre strength is prescribed under Rule 6. The Rule 13 deals with recruitment of the Section Officers and Assistants Grades. A bare reading of the relevant rules reveals that no quota is prescribed for CLDCE examination. The rules expressly provide for 20% for direct recruitment and remaining vacancies to be filled up among candidates included in the Select List which might include both persons inducted in the list of seniority as well as on the basis of CLDCE examination. Nevertheless, the fact remains that no separate quota earmarked for CLDCE. The claim of the applicants that they are entitled to 50% of vacancies to be filed up from among the persons whose names are included in the select list or total number of vacancies based on the ratio of 20% of the posts for direct recruitment quota; 40% for seniority quota; 40% for CLDCE quota is misconceived. In order to substantiate his submission as above, Shri Sinha placed on record a table showing that at no point of time right from 1996 to 2008, this 50% of alleged quota was ever maintained or given under the Seniority Quota or CLDCE quota:-
Select List year 80% quota for Additions to Select List Total SQ 116 CLDCE 71 SQ 61 CLDCE 41 SQ 18 CLDCE 10 SQ 19 CLDCE 6 SQ 46 CLDCE 43 SQ 51 CLDCE 48 SQ 47 CLDCE 41 SQ 992 CLDCE 211 SQ 200 LDCE 208 SQ 118 CLDCE 182 SQ 112 CLDCE 106 SQ 86 CLDCE 95 SQ 115 CLDCE 125
27. The rules unambiguously provide for filling up of 80% of vacancies of Section Officer through addition to the Select List. All Secretariat Select List assigning CSL No. for 2003 of Section Officers was issued on 29.6.2011 from amongst available CLDCE Section Officers and DPC Section Officers and were rotated within them to the extent possible and thereafter bunching the remaining officers so as to arrive at the figure of 80% vacancies for that year. Thus, the whole action of the respondent no.1 with regard to Select List of 2003 as completed on 30.6.2011 has been as per the eligibility of service and subject to other conditions and relevant rules. If the arguments on behalf of the applicant that rules provide for 50% quota for them is accepted, it would not only render the provisions of the rules redundant and unworkable but also would amount to casus omissus which is not permissible, in as much as it is clear from the aforesaid fact that at no point of time right from 1996 to 2008 vacancies could be filled up in the ratio of 50:50 quota with reference to the Select List under Seniority category and CLDCE category. Shri Sinha further submits that even against notified vacancies of 255 under CLDCE quota for the Select List 2003 only 211 candidates were made available by UPSC. This does not mean thereby that there should be no addition to the Select List under Seniority Quota beyond 211, even if there have been eligible candidates with approved service under seniority quota as well as vacancies to accommodate them being available. Shri Singh strongly urged that rules have to be read as a whole and not in isolation. Shri Sinha also urged that the cascading effect of accepting the applicants claim of 50% quota for promotion on the basis of Select List of 2003 and thereafter every years should not be lost sight off. Shri Sinha contended that rules contain the provisions for relaxation under Rule 25 (a) the rules in appropriate cases. The courts may invoke the deemed relaxation in appropriate cases. Reference in this regard is made to the judgment of the Honble Supreme Court in the case of G.S. Lamba and others vs. Union of India and others, 1985 (2) SCC 604, followed by the case of Direct Recruit Class II Engineering Officers Assn. vs. State of Maharashtra, 1990 (2) SCC 715. Shri Sinha further submitted that select list has always been issued in different trenches as a consequence of collection of information from various Ministries/Departments at present 41 in number and then holding of DPCs which are held from time to time. Such vacancies are filled up from among the eligible candidates available in the feeder grade either based on seniority or through LCDE. Thus, select list of 2003 has been prepared through five trenches; select list of 2004 has been issued in four trenches and select list of 2005 has been issued in six trenches as follows:-
Select List 2003 (issued in 5 trenches) OM No.5/22/2005-CS.I dated 14th September, 2005 CLDCE Quota OM No.5/22/2005-CS.I dated 5th June, 2006 Seniority Quota OM No.5/22/2005-CS.I dated 10th July, 2006 Seniority Quota OM No.5/22/2005-CS.I dated 12th August, 2008 Seniority Quota OM No.5/22/2005-CS.I dated 12th Jan., 2009 CLDCE Quota Select List 2004 (issued in 4 trenches) OM No.6/3/2006-CS.I(S) dated 6th June, 2006 CLDCE Quota OM No.6/3/2006-CS.I(S) dated 7th Dec., 2006 CLDCE Quota OM No.6/3/2006-CS.I(S) dated 12th Aug., 2008 Seniority Quota OM No.6/3/2006-CS.I(S) dated 4th Feb., 2009 Seniority Quota Select List 2005 (issued in 4 trenches) OM No.5/1/2008-CS.I dated 12th Aug., 2008 Seniority Quota OM No.5/1/2008-CS.I dated 13th Feb., 2009 Seniority Quota OM No.5/1/2008-CS.I dated 4th June, 2009 CLDCE Quota OM No.5/1/2008-CS.I dated 9th July, 2009 CLDCE Quota OM No.5/1/2008-CS.I dated 4th June, 2010 CLDCE Quota OM No.5/1/2008-CS.I dated 13th October, 2010 CLDCE Quota
28. The applicants plea that the Select List and combined Seniority List has been retrospective effect is, thus misconceived. Furthermore, seniority in CSS is not linked with the date of joining but is based on the concept of approved service within the meaning of Rule 2 of CSS Rules, 1962. The applicants cannot blow hot and cold on the issue of retrospectivity. If the action of the respondent No.1 in issuing Select List of 2004 in four trenches upto 2009, including the names of the applicants is in order and not open to objection being retrospective, then the same will hold good in respect of Select List of 2003. In support of this, reference has been made to the case of Airlines Pilot Association of India & Ors. vs. the D.G. of Civil Aviation, JT 2011 (6) SC 23 (paras 13 and 14 of the judgment). Shri Sinha further submitted that the respondents have taken a decision in the matter with due approval of the competent authority. Thus, the issue of cadre restructuring and creation of posts had the approval of the Cabinet. With regard to the allocations of posts so created, the same was done with the approval of the Minister Incharge in accordance with the provisions of Government of India (Transaction of Business) Rules 1961. Reliance placed by the applicants counsel on the case of Kailash Chandra (supra) is misconceived, as the facts and issues involved in that case were different. On the strength of the aforesaid submissions, Shri Sinha strongly contended that the applicants have not been able to make out a case for grant of relief prayed for. Shri Sinha thus strongly concluded that the applicants claim is liable to be dismissed both on preliminary objections as well as on merits.
29. Shri L.R. Khatana, the learned counsel appearing on behalf of respondent no.69, namely, Shri Tapan K. Sathpathy, opened his arguments by referring to the Full Bench decision of this Tribunal in the case of Ms. Shukantala Sharma vs. Govt. of NCT through Lt. Governor of Delhi and Ors., 2006(1) ATJ 239, wherein it has been, inter alia, held that when objection regarding maintainability of OA is taken, it is the duty of the Court/Tribunal to decide the preliminary objection first and then proceed to decide the case on merit. Shri Khatana supported the preliminary objections taken by the respondent no.1 against maintainability of the OA. It has thus been submitted that the applicants belong to Select List of Section Officer of the year 2004 and, therefore, they do not have any locus standi to challenge the Select List of 2003 wherein they were not even the candidates. It has further been submitted by Shri Khatana that one has a vested right to consideration for promotion but the chances of promotion not being the conditions of service will not give a cause of action, if such chances are affected in any manner whatsoever by the action of the respondents, as has been the case in the instant Application. Shri Khatana emphatically submitted that the instant Application is basically in the nature of Public Interest Litigation as the applicants had no right whatsoever in 2003. The applicants have clearly admitted that they have no claim against the Select List of 2003. Neither they were eligible for being considered for inclusion in the said Select List. Nor they are making any such claim that their names ought to have been included in that list. Their case is that the said list adversely affected their chances of promotion. That by itself will not bring them into the category of aggrieved persons for the reason that chances of promotions are not conditions of service. Shri Khatana further submitted that although the applicants did not disclose their locus standi to file the present Application yet from the pleadings of the parties as well as the submissions made by the respective counsels of the applicants and the official respondent no.1 during the course of arguments, it was learnt that out of total five applicants, three were not even eligible to appear in the CLDCE 2003 and the remaining two applicants, viz. applicants no.2 and 4, had appeared in the CLDCE 2003 but failed to qualify. Even on the basis of their seniority in the feeder cadre, they were not due and eligible for inclusion in the Select List of 2003. That being so, they do not have any locus standi to challenge the said list as the applicants could not be viewed as persons aggrieved and, therefore, are not entitled to file the present Application in terms of Section 19 of the Administrative Tribunals Act, 1985 whereunder only a person aggrieved can file an Application to the Tribunal for redressal of his grievances. In support of his contention, the learned counsel Shri Khatana cited a number of judgments on the subject of person aggrieved or party aggrieved. To mention, these are Gopabandhu Biswal vs. Krishna Chandra Mohanty & Ors., (1998) 4 SCC 447, Trivedi Himanshu Ghanshyambhai vs. Ahmedabad Municipal Corpn. and Ors., (2007) 8 SCC 644, Ajij Ahmed Khan vs. Director General, ICAR and Ors., 2003 (1) AISLJ (CAT) 369 and common order dated 2.5.2003 passed in OA 2274/2001 and OA No.2467/2011 by this Tribunal. Reference has also been made to the case of State of Maharashtra vs. Chandrakant Anant Kulkarni, (1981) 4 SCC 130, wherein the Honble Apex Court inter alia held that Mere chance of promotion are not conditions of service and the fact that there was reduction in the chances of promotion did not tantamount to a change in condition of service. A right to be considered for promotion is a term of service, but mere chances of promotion are not. Accordingly, it has been submitted by Shri Khatana that the applicants having no locus standi are not entitled to maintain the present Application and the same deserves to be dismissed on this ground alone. Although Shri Khatana has at the very outset submitted that when maintainability of the Application is opposed on certain preliminary grounds such preliminary grounds are required to be decided first before the Application can be taken up for consideration on merits, nevertheless, since counsels for the applicants as well as for the official respondents no.1, namely, DOP&T have already made their submissions on the merits of the case, Shri Khatana proceeded to make his submissions on merits as well simultaneously referring to the relevant provisions of the CSS Rules, 1962, more particularly, the provisions of Rule 2 (q) defining the term Select List and Rule 13 providing for recruitment to the posts of Section Officer and Assistant grades. Shri Khatana submitted that insofar as the rules of recruitment to the post of Section Officer grade as contained in Rule 13 (1) are concerned, they expressly provide for only two modes of recruitment, namely (1) 20% by direct recruitment; & (2) remaining vacancies by appointment of persons included in the Select List for the Section Officer Grade. There is no third mode or any third division of the persons included in the Select List. The rules prescribed a quota of 20% only direct recruitment and remaining vacancies to be filled among the candidates from the Select List. There is no provision for further quota or sub-quota in respect of the persons to be appointed from the Select List insofar as Rule 13 (1) is concerned. Shri Khatana further submitted that first proviso of Rule 13 (1) provides that if sufficient number of candidates are not available for filling up the vacancies in a cadre in any recruitment year, either by direct recruitment or by appointment of persons included in the Select List for Section Officers Grade, the unfilled vacancies shall be carried forward and added to the number of vacancies of the same mode of recruitment to be filled in the next recruitment year. In view of this provision, Shri Khatana submitted that there are only two modes for recruitment and the vacancies which remain unfilled shall be carried forward and added to the vacancies of the same mode in the next recruitment year. Shri Khatana emphatically submitted that there is no provision for carrying forward of the vacancies by way of further sub-division within the Select List mode, such as Seniority Quota or CLDCE Quota. In other words, what is to be carried forward in terms of the proviso of Rule 13 (1) is the unfilled vacancies in the direct recruitment or in the Select List as such.
30. A joint reading of the provisions of sub-rules (1), (2) and (5) of Rule 13 makes it clear that a Select List for the post of Section Officer grade shall be prepared and got revised from time to time. Rule 13 further provides that procedure for preparing and revising the Select List shall be as set out in the Fourth Schedule. According to Shri Khatana, two things become self evident from the provisions of Rule 13 (5), namely, (1) that the select list shall be prepared and revised from time to time and thus the revision of the select list is not a one time exercise in any given year; and (2) procedural mechanism for preparing and revising the Select List is given in the Fourth Schedule. Shri Khatana thus submitted that if some additions are approved to be made in the select list at one point of time in a particular year, it cannot be anybodys case that the same cannot be revised again in the same year. Shri Khatana further submitted that the applicants are claiming a quota from the provisions of Fourth Schedule by inference. However the fact remains that the Fourth Schedule provides for rota only and not quota. Shri Khatana emphatically submitted that in service jurisprudence the distinction between quota and rota is well understood and the two are not interlocked and one cannot be inferred from the other, as sought to be done by the applicants.
31. Referring to the provisions of Fourth Schedule in the CSS Rules, 1962, Shri Khatana submitted that the Select List is constituted on the appointed day, i.e., 1st day of October, 1962 comprising of the officers borne on the respective grades immediately before the appointed day. The Select List is continued to be further maintained by making additions to the said Select List from time to time in such a number as the cadre authority may determine keeping in view the existing and anticipated regular vacancies so as to ensure that one person each by rotation is included from out of the categories of persons specified therein, i.e., persons eligible on the basis of seniority and CLDCE. By way of this provision, Shri Khatana submitted that the size of Select List is to be decided by the cadre authority from time to time by making addition to the said list. In the rules, Shri Khatana strongly contended, there is no embargo on the powers of the cadre authority to determine the number of persons to be included in the Select List more than once in a year. Furthermore, the provisions with regard to the rotation of each persons out from the two categories mentioned therein can only be made to the extent available and feasible, particularly in view of the fact that there is provision of carrying forward of unfilled vacancies of direct recruit on the one hand and persons appointed in the Select List on the other. There is no provision whatsoever for carrying forward of unfilled Select List vacancies on the basis of any further sub-division between Seniority and CLDCE categories. Shri Khatana supplemented his submissions by referring to Regulation 3 of the Fourth Schedule related to seniority which too does not make mention of any quota for CLDCE or even for that matter seniority category.
32. In view of the aforesaid, Shri Khatana strongly contended that the applicants contention that CSS Rules provides for 40% quota for seniority and CLDCE respectively for recruitment to the posts of Section Officer is totally misconceived and misleading. As has been submitted earlier, the rules provide for only 20% quota for direct recruitment and remaining vacancies, namely, 80% to be filled up among the candidates whose names are included in the Select List. The claim of the applicants is thus not supported by the rules. Even if the DOP&T has been erroneously allocating 40% of the vacancies to the CLDCE category by way of the executive action in the absence of any enabling provisions in the statutory rules, that does not confer any right on the applicants to demand that the Government must necessarily allocate 40% of the vacancies to the CLDCE, more particularly, in the absence of any provisions in the relevant rules. Shri Khatana further submitted that if the DOP&T was allocating 40% vacancies by way of executive action, the DOP&T could as well allocate the cadre restructuring vacancies to the stagnating Assistants alone as the purpose and objective of cadre restructuring exercise was to remove acute stagnation. Referring to the case of Surjit Singh & others vs. Union of India and others, (1997) 10 SCC 592, wherein the provisions of Rule 13 of the CSS Rules, 1962 were in issue, it became clear from the observations made by the Honble Supreme Court in para 5 and 6 of its judgment that Rule 13(1) of CSS Rules provides only for two modes of recruitment to the posts of Section Officer grade and quotas are provided between the said two modes only, i.e., direct recruitment and promotion. Therefore, Shri Khatana vehemently contended that applicant claim that rules provide for 40% quota for CLDCE is incorrect and not supported by rules. This finds further support from the case of H.V. Pardasani & Ors. vs. Union of India and ors., (1985) 2 SCC 468, wherein in para 6 of its judgment, the Honble Supreme Court observed that There is no dispute that under Rule 13(1) dealing with recruitment to the grade of Section Officers, a quota has been fixed and provision has been made for manning of the cadre both by direct recruitment as also by promotion. There is no reference to any separate quota for seniority or LDCE categories. Shri Khatana made a specific mention to para 7 of the judgment in this case, wherein referring to Regulation 2 of the Fourth Schedule, it has been observed that Fourth Schedule merely provides for procedure for making addition to the Select List. It is important to note in this regard that all the inclusion in the Select List do not necessarily culminate into actual appointments. Therefore rotation provided for making select list cannot be catapulted to the level of quota which has been specifically dealt with in Rule 13 (1) only where only two modes of recruitment are provided, namely, direct recruitment and selection from the Select List. Referring to the case of N.K. Chauhan and ors. vs. State of Gujarat and others, (1977) 1 SCC 308, on which much reliance has been placed by the applicants counsel in the course of his arguments, Shri Khatana specifically drawn our attention to para 30 of the judgment in this case wherein three judges Bench of the Honble Supreme Court has held as follows:-
30. Here again, we are not disposed to hold, having special regard to the recent decisions of this Court cited before us, that 'quota' is so interlocked with 'rota', that where the former is expressly prescribed, the latter is impliedly inscribed
33. Shri Khatana strongly contended that converse is equally true. In any case, it is well established cannon of interpretation that the applicants cannot be allowed to read something into the rules which is not provided therein. To supplement this submission further, Shri Khatana referred to the case of Suraj Parkash Gupta & Ors., vs. State of J&K & Ors., (2000) 7 SCC 561. Shri Khatana has thus submitted that if quota of CLDCE is not fixed in Rule 13 (1) of the CSS Rules, the same cannot be gathered from or through the Regulations in Fourth Schedule which are merely procedural in respect of making additions to the Select List. Shri Khatana strongly contended that the Rule 13 (1) is crystal clear and does not suffer from any ambiguity and, therefore, there is no room for any other interpretation than the literal meaning of the said rule because it is the settled law that if the provision of the rule is clear and unambiguous, the plain language has to be given effect to irrespective of the consequences that might follow therefrom. Shri Khatana referred to in this regard the case of Kanta Devi (Smt) vs. Union of India and others, (2003) 4 SCC 453, wherein the Honble Supreme Court observed in para 8 of its judgment as follows:-
.A construction which requires for its support, addition of words has to be avoided. The words of a statute never shared, in interpretation, be added or subtracted from without almost a necessity. It is contrary to all rules of construction to read words into a statute unless it is absolutely necessary to do so. Courts cannot reframe the words used by the legislature as it has no power to legislate. A matter which, for the sake of argument, should have been provided but has not been provided for in a statute cannot be supplied by the courts as to do so will be legislation and not construction. (See Johnson v. Moreton, (1978) 3 AIIER. 37 (H.L) Dr. Baliram Waman Hiray v. Mr. Justice B. Lentin and Ors., JT 1988 (9) SC 265 ; AIR 1988 SC 2267). There is no presumption that a causus omissus exists, and language permitting the courts should avoid creating a causus omissus where there is none.
34. Shri Khatana cited the case of Agricultureal Market Committee vs. Shalimar Chemical Works Ltd., (1997) 5 SCC 516, particularly paras 24 to 28 of the judgment, with a view to bring forth the point of limitations on the power of subordinate authority to make rules and regulations. Accordingly, it has been submitted by Shri Khatana that if the Regulations in the Fourth Schedule are construed and interpreted in the manner as canvassed by the applicants, the same would become ultra vires the CSS Rules because the Regulations are intended to give effect to the rules and not to add to or amend or alter the Rules.
35. Shri Khatana further submitted that it is the admitted case of the parties that the cadre restructuring in the CSS was undertaken on the recommendation of the Parliamentary Standing Committee attached to the Ministry of Home Affairs with a view to remove acute stagnation in the cadre of Assistants Grade of the CSS as they were not getting promotions for as long as upto 18 years. The CSS Rules do not expressly provide for any cadre restructuring. It has thus been submitted by Shri Khatana that cadre restructuring was an executive/administrative exercise for the specific purpose of removing acute stagnation in the Assistants Grade and the same was outside the purview of the CSS Rules, 1962 and, therefore, the Government was justified in taking an administrative policy decision to give separate treatment to all the cadre restructuring vacancies in contra-distinction to the normal cadre vacancies arising out of promotion, retirement, resignation, death etc., and allot the same to the stagnating Assistants so as to further the object of undertaking the cadre restructuring. This being a policy decision does not call for any judicial intervention, especially when the CSS Rules are silent on cadre restructuring and any gap therein can be supplied by the cadre controlling authority by executive instructions.
36. Shri Khatana also made an alternative argument to the extent that even if 40% quota as claimed by the applicants is admitted for the sake of argument, yet the Government action cannot be vitiated in the facts and circumstances of the case. Rule 25 of the CSS Rules, 1962 provides for relaxation of the Rules, which requires consultation with the UPSC. Such consultation would be necessary where 20% of Direct Recruitment quota is absolutely diverted to the Select List quota. However, it would not be so with regard to relaxation of allocation of vacancies between seniority and CLDCE categories in Fourth Schedule. Furthermore, the Honble Supreme Court in its order dated 20.9.1957 in State of UP vs. Manbodhan Lal Srivastav, AIR 1957 SC 912, has observed in the context of the provisions of Article 320 (3), that consultation with UPSC is not mandatory and that non-compliance with those provisions does not afford a cause of action in a Court of Law. Shri Khatana made a further reference to the case of G.S. Lamba and others vs. Union of India and others, (1985) 2 SCC 604, wherein the case involved pertained to a sister cadre concerned, namely, IFS (B) for which even a quota for CLDCE was provided in the rules itself yet the Honble Supreme Court held that there was a power to relax and the Government had made appointment in violation of the quota without issuing any formal order of relaxing the rules and without recording any reasons or consulting the Commission the action of the Government cannot be invalidated and it would be deemed to be in relaxation of the rules. Paragraphs 7, 23 to 29 of the said judgment are referred to in this regard. Shri Khatana made a further reference to the case of A. Janardhana vs. Union of India and others, (1983) 3 SCC 601, wherein the Honble Supreme Court, inter alia, made the following observations in para 22 of its judgment:-
22. In reaching this conclusion, the Court held that the absence of arbitrary power is the first essential of the rule of law upon which our whole constitutional system is based. The Court observed that in a system, governed by rule of law discretion, when conferred upon executive authorities, must be confined within clearly defined limits. This view was to some extent reaffirmed in Bishan Sarup Gupta v. Union of India, 1975 Supp SCR 491 : (AIR 1972 SC 2627) and B. S. Gupta v. Union of India, (1975) 1 SCR 104 : (AIR 1974 SC 1618). But this result will not follow where even though the rules prescribe sources of recruitment, methods of recruitment and quota, if the very rules simultaneously confer power on the Government to make recruitment in relaxation of the rules, unless mala fides are alleged and attributed. Where rules thus confer a discretion on the Government to relax the rules to meet with the exigencies of service, any recruitment made in relaxation of the rules would not be invalid. This is no more res integra in view of the decision of this Court in N. K Chauhan v. State of Gujarat..
In view of the law laid down by the Honble Supreme Court as aforesaid, Shri Khatana strongly urged that the impugned action of the respondents does not call for any interference at the hands of this Tribunal in the interest of justice and more so at the instance of the applicants who do not have any locus standi to challenge the same. Shri Khatana also distinguished the cases relied upon by the applicants counsel and claimed that these do not support the case of the applicants.
37. Shri V.K. Rao, the learned senior counsel with Ms. Ritika Chawla appearing for respondents no.64 and 573 also opposed the maintainability of the Application for absence of locus standi of the applicants and limitation-bar in respect of certain reliefs, non-joinder of necessary parties and mis-joinder of cause of action, and seeking conflicting reliefs on contradictory grounds. Shri Rao reiterated the submissions which have already been made by other counsels opposing the Applications maintainability. He has, inter alia, stated that the Original Application as well as the amended Application are essentially in the nature of public interest litigation as the applicants have no right whatsoever for promotion against the vacancies of the year 2003. By filing the amended Application in the year 2011, the applicants are challenging the orders of the respondents of 2005, 2006 & 2008 which are barred by limitation in 2011 as these could not have been challenged by way of fresh OA in 2011 and, therefore, the same cannot be done by means of an amended Application. Furthermore, the applicants have challenged the promotion orders passed by the respondent no.1 without challenging the vacancies of the year 2003 and the CSS Rules, 1962 on the basis of which such promotions have been made. Shri Rao further referred to conflicting reliefs claimed by the applicants whereas in the un-amended Original Application they sought quashing of addition to the Select List from seniority category for the vacancy year 2003 in excess of 255 vacancies. However, in the course of arguments as well as in the amended Original Application, they claimed that not more than 212 should have been appointed through seniority as only 212 candidates were available through CLDCE in the year 2003 so as to ensure parity between the two. The relief claimed by the applicants to restrict the seniority quota vacancies either to 255 or 212 could not be allowed if eligible persons to fill the existing vacancies are available in sufficient number. The reliance by the applicants counsel on DOP&T OM dated 3.7.1986 is misconceived as that deals with the cases of direct recruits vis-`-vis promotees. The applicants herein cannot be viewed as direct recruit as they essentially fall in the category of promotees. As such the said OM is not applicable to the applicants. It has further been submitted that rotation cannot be treated as a quota on the basis of applicants own interpretation. Furthermore, Shri Rao submitted that the question of carrying forward the vacancies would not arise as the notion of carrying forward necessarily relates to unfilled vacancies of direct recruit and unfilled vacancies of the select list. When eligible candidates in the Select List are available to fill up the vacancies under the category of Select List, there is no question of carrying forward of any vacancy as there would not be any unfilled vacancy since the number of eligible candidates are more than the number of available vacancies. The Application is also bad for non-jonider of necessary parties in the Original Application filed in 2007. The applicants have subsequently impleaded about 760 Section Officers as necessary parties only in December 2010. They, however, have not taken note of large number of Assistants and UDCs who already stood promoted on the basis of the newly created posts, who are going to be directly affected on the basis of the reliefs sought by the applicants. It would thus be incumbent upon the applicants to even include those Assistants/UDCs, numbering more than 2200, as necessary parties, who would be directly affected by the outcome of the case. Referring to the relevant provisions of the CSS Rules, 1962, Shri Rao contended that there is no time bar for making addition to the Select List and additions are made as per the second proviso to Rule 13 (1) till the eligible persons are available to fill up the remaining vacancies of the select list mode. Shri Rao further submitted that the CSS Rules provide for quota 20:80 between direct recruits and promotees. The same cannot be converted into 20% for direct recruit quota; 40% for seniority quota; & 40% for LDCE quota by relying upon the regulations in the Fourth Schedule as has been claimed by the applicants. He strongly contended that regulations in the Fourth Schedule too are subservient to the specific provisions in the said rules. Regulations cannot be operated in a manner when it results in breaking down the rule itself. The contention of the applicants that there are three modes of recruitments, i.e. Direct Recruitment, seniority and CLDCE is devoid of substance and de hors the rules. Rule 13 clearly provides for two modes of recruitment to the posts of Section Officer. Diversion of unfilled vacancies instead of carrying forward the same for two years to other mode envisages only two modes in the context of singular word mode which cannot be construed in a plural sense, namely, modes so as to extend the same to further sub-categorization of the Select List candidates into Seniority Quota and CLDCE Quota which is indeed not provided in the rules. The claim of the applicants is also not borne out by the facts of the case, especially those relating to the details of select List as furnished by the DOP&T from 1996 to 2008 vide Annexure R-II in their reply to MA 2814/2012 from which it is clearly seen that prior to 2008, the seniority category in the Select List has always been higher than CLDCE category and two categories had never been in equal numbers. There is no question of any carrying forward of vacancies in Select List so long eligible candidates have been available to fill up the available vacancies, especially when the rules do not expressly provide for any equality between seniority category and CLDCE category within the promotion quota. In view of the submissions made as aforesaid, Shri Rao strongly urged that Applications are liable to be dismissed with costs being devoid of substance.
38. Shri Arun Bhardwaj, the learned counsel appearing for four private respondents, namely, S/Shri Radha Krishan, Manas Mandal, Avinash Chandra and Sube Singh, besides the Central Secretariat Service Section Officers Association, has also raised certain preliminary objections. Besides preliminary objections relating to the locus standi of the applicants and limitation in filing the amended Application, Shri Bhardwaj has also raised certain procedural objections against allowing the additional pleadings by way of amending the Original Application. These objections have indeed been dealt with by the coordinate Bench while allowing the Misc. Application seeking the amendment of the OA. A review application thereagainst was also filed. This too was dismissed. Both these orders on MA seeking amendment in the OA as well as the order in the Review Application are under challenge in the High Court which is seized of the matter. The objections raised by Shri Arun Bhardwaj, as referred to, have been more appropriately dealt with in detail in a later part of this order, particularly in para 55 hereinafter.
39. Shri A.K. Ojha, learned counsel for some of the private respondent no.48 has adopted the submissions made by other respondents.
40. Ms. Bindra Rana, learned counsel appearing on behalf of the respondent no.2, i.e., UPSC in OA No.2469/2010 reiterated the decision taken by the UPSC in the facts of the case and maintained the same to be in order, particularly, its decision for not concurring in the proposal of respondent no.1 for diverting the unfilled vacancies of direct recruitment quota of unfilled vacancies of CLDCE to the Select List consisting of seniority quota candidates, as vested accrued right of the Government servant cannot be taken way by amendment to the rules with retrospective effect. As regard not issuing supplementary lists, she submitted that official respondents have intimated that all pending requests, if any, for release of supplementary list to be treated as withdrawn in view of the policy decision taken by the approval of the MOS(PP) for diverting the unfilled vacancies to the seniority quota. As such there was no occasion for the UPSC to issue any supplementary list in the facts and circumstances of the case.
41. Shri Satish Kumar too adopted the line of arguments put forth on behalf of other respondents. He has, inter alia, submitted that the power of relaxation is generally included in service rules either for mitigating hardships or to meet special situations. As such, any provision for relaxation should be construed liberally. In support of this, Shri Satish Kumar cited the case of Sandeep Kumar Sharma vs. State of Punjab and others, (1997) 10 SCC 298, wherein the Honble Supreme Court held that the rule of relaxation must get a pragmatic construction so as to achieve effective implementation of a good policy of the Government.
42. Shri J.B. Mudgil appearing for the UPSC in OA No.1253/2009 stated that lis is actually between the applicants and the DOP&T. In so far as UPSC is concerned, their stand in the facts and circumstances of the case is in order and not open to any challenge. He, however, submitted that UPSC would stand by any order which this Tribunal may please to make in the matter.
43. In response to the submissions specially those on preliminary objections made by the learned counsels for the parties, Shri G.D. Gupta, learned senior counsel appearing on behalf of the applicants in OA No.1083/2007 emphatically submitted that none of the preliminary objections has any substance on merits.
44. As regards the locus standi of the applicants, Shri Gupta submitted that the Select List of Section Officers is of continuous one and if any addition is made in respect of the year 2003, in violation of the Recruitment Rules, the Section Officers included in the said list with reference to the year 2004 are liable to be affected because their seniority would be adversely affected. It has been submitted by Shri Gupta that the applicants herein have been appointed on the basis of CLDCE 2004 within their own quota. Additional 760 vacancies of Section Officers having filled by the respondent No.1 against the Select List of 2003 (Seniority Quota) in violation of the said Recruitment Rules and principles of equity and thereby adversely affected the promotional avenues of the applicants as large number of Section Officers have been made senior to them because of the unlawful act of the respondent No.1. Shri Gupta claimed that these vacancies should have been carried forward to the subsequent years as per the then existing Recruitment Rules. Had it been done, 760 additional Section officers of seniority quota would have been interpolated with the applicants in the Select List of 2004 and the Select List of subsequent years. Shri Gupta further submitted that respondent no.1 has violated the specific Recruitment Rules while diverting all the vacancies which were created upon the cadre restructuring to seniority quota and thereby including all the vacancies in Select List of 2003 itself. Shri Gupta pointed out that this decision had been taken retrospectively in October, 2008, i.e., two years after the applicants appointment when the right of the applicants had already accrued. Shri Gupta emphatically claimed that the applicants herein are indeed aggrieved persons in terms of Administrative Tribunals Act, 1985 as about 760 persons have been added over and above the applicants in violation of the statutory Recruitment Rules. The applicants are eligible in law to challenge the decision of the Government to make additions to the Select List of Section Officer for the year 2003, for being aggrieved of the impugned action of the respondent No.1. It has been pointed out by Shri Gupta that as per Fourth Schedule, the seniority of the officers inter se would be fixed in terms of Regulation 3 (2) of the Fourth Schedule. Accordingly, officers included in the Select List were ranked inter se in the year in which they are included in the Select List. If the impugned action of the respondent No.1 taken subsequent to the inclusion of the applicants in a given year adversely affected the applicants seniority for the reason that such subsequent additions are given effect from antedate, namely 2003, they are directly affected by such inclusion and would certainly be viewed as aggrieved persons in respect thereto and as such entitled to challenge the correctness and legality of such inclusions.
45. As regards limitation, Shri Gupta submitted that it is the admitted position between the parties that the OA filed in 2007 seeking quashing of the appointments made to the post of Section Officers against the Seniority Quota for the year 2003 to the extent the said appointments exceeded the posts actually reported to the respondent no.2 (UPSC) on the basis of respondent No.1s OM No.5/25/2004.CS-I dated 5/6.5.2005 has been within the period of limitation and no objection to this on the ground of limitation has ever been taken by any of the respondents. The applicants had filed representations on 16.10.2006 against these additions of 209 vacancies to the Select List by the respondent No.1. As regards the vacancies subsequently added as referred to in paras 8.2 and 8.3 of the amended OA are concerned, the reliefs made in these clauses are essentially consequential in nature for the obvious reason that if the initial addition of 209 could not be sustained in law, the position would be in no way different for any additions made subsequently besides these 209 additions. Shri Gupta pointed out in this regard that the orders dated 12.8.2008, 29.6.2011 and 30.6.2011 issued by the respondent No.1 have clearly and expressly been subjected to the outcome of the present OA, namely, OA No.1083/2007. This clearly indicates that these orders are consequential to the order originally passed by the respondent no.1 and challenged by the applicants, i.e., order dated 5/6.5.2005. Subsequent orders were also challenged by the applicants by filing separate Misc. Applications and these orders were issued during the pendency of the Original Application. The applicants filed the amendment Application keeping in view the observations made by this Honble Tribunal vide its order dated 20.7.2011 on MA 1694/2011 challenging the Office Memorandum dated 29.6.2011. Shri Gupta vehemently contended that the cases cited by the respondents on this aspect of limitation have no application to the facts of the present case having particular regard of the fact that orders under challenge themselves stated that they were subject to the outcome of the OA as well as the fact that the applicants filed Misc. Applications/stay applications before this Tribunal challenging the legality of these orders and, therefore, were well within the period of limitation.
46. As regards the respondents contentions that the applicants have not challenged the policy decision taken in October 2008 vide note approved by the Honble Prime Minister, Shri Gupta stated that the said policy decision has never been notified by the respondents. As such the applicants had never any knowledge of it. It has come to notice only during the course of filing of the pleadings by the parties and hearing of the Application. In any case, by way of present Application filed in 6.6.2007, the applicants have already challenged the allocation of vacancies over and above the initial allocation made on 5/6.5.2005. It will embrace in its ambit the additions made after the initial allocation made in 2005. In any case, that was made during the pendency of this Application. The respondents contentions to the contrary are misconceived and devoid of substance. Shri Gupta further submitted that the respondents have not placed on record any decision for allocating all the cadre restructuring vacancies (706 vacancies to seniority quota). The note purported to have been approved by the Honble Prime Minister was for diverting direct recruitment quota vacancies and not CLDCE quota vacancies. It has further been noted in this regard that the respondents by their own admission admitted that they have not exercised the power of relaxation in this regard. It is further pertinent to note in this regard that neither the UPSC nor the Ministry of Law was consulted by the respondent no.1 before obtaining the approval of the Honble Prime Minister. Apart from the note of recalculation and re-casting of vacancies of Select List of 2003, 2004 and 2005 in Section Officers grade and finalization of the said Select List, the respondents have not brought in any policy decision for diverting all the vacancies created as a result of the cadre restructuring to seniority quota candidates. As such, their contention that the applicants have not challenged the policy decision itself is misconceived. Even with regard to this fact, the respondent no.1 failed to adhere to the decision thereon and distorted the facts for reasons best known to them. As regards preliminary objection for not impleading all the necessary parties, Shri Gupta referred to the case of V.P. Srivastava and others vs. State of MP & others, 1996 (2) SLJ 484 (SC) wherein the Honble Supreme Court has held that where the State action is challenged, the Government is only necessary party. The applicants have thus impleaded about 760 persons as private respondents who may be affected by the outcome of the case. Furthermore, only persons who are directly and immediately concerned are parties concerned as has been held by the Honble Supreme Court in the case of Gopabandhu Biswal vs. Krishna Chandra Mohanty & Ors., 1998 (4) SCC 447. The respondents efforts to extend this even to persons in the grade of Assistants and UDCs etc are too far stretch and indirectly related. Shri Gupta vehemently claimed that the Application is not bad for non-joinder of necessary parties.
47. On merits, as regards respondents contention that there is no quota for CLDCE provided in the Rules, Shri Gupta has drawn our attention to Rule 13 (5) of the CCS Rules, 1962, which provides that the Select List of Section Officer grade shall be prepared and revised from time to time and the procedure for preparing and revising the seniority as set out in the Fourth Schedule. Thus the regulations which are contained in Fourth Schedule are made in exercise of powers given under Rule 13 (5). This is to be distinguished from the regulation which may be made under Rule 23 of the Rules, to provide for all matters for which provision is necessary or expedient, for the purpose of giving effect to these rules. Providing such regulation is not inconsistent with these rules. As such the provision of Fourth Schedule stands on different footing than any other regulations made under Rule 23 of the CCS Rules. As a matter of fact, Fourth Schedule has to be read as an integral part of Rule 13. If that is done, only logical conclusion that flows therefrom would be that the Rules provide for quota of 20:40:40 among direct recruitment quota, seniority quota and CLDCE quota respectively. This has even been noted by the Delhi High Court in its judgment dated 6.8.2002 in the matter of Ashish Mohan vs. Union of India in CWA No.1839/2002 as a mode of recruitment. Shri Gupta further submitted that there cannot be a deemed relaxation in the present case as the quota and rota have never broken down in so far as the posts of Section Officer is concerned. Shri Gupta referred to in this regard to the case of Suraj Prakash Gupta vs. State of J&K, AIR 2000 SC 2386, wherein the Honble Supreme Court has held that there cannot be a deemed relaxation of the rules in terms of the latest trend of the cases and it has distinguished the case of G.S. Lamba and N.K. Chauhan on which much reliance has been placed by the respondents. As such the cases cited by the respondents are not relevant to the issue involved in the present case. Accordingly, Shri Gupta claimed that the Application has been validly filed. The applicants have a cause of action being aggrieved persons on account of the impugned action of the respondents. Shri Gupta emphatically urged that the applicant indeed have a good case on merit for grant of the reliefs prayed for. Shri Gupta very earnestly pleaded that this Tribunal may be pleased to grant the same to the applicants.
48. Before taking up the applications for consideration on their respective merits, we consider it proper and necessary to deal with the preliminary objections raised by the respondents counsels against the maintainability of these Applications.
49. The first preliminary objection which has been raised against the maintainability of the Applications is that the applicants are not persons aggrieved in terms of Section 19 of the Administrative Tribunals Act, 1985. This Section, inter alia, provides that a person aggrieved by any order pertaining to any matter within the jurisdiction of the Tribunal may make an application to the Tribunal for the redressal of his grievance. Accordingly, the Tribunal shall exercise all the jurisdiction powers and authority exercisable immediately before the appointed day by all Court except the Supreme Court in relation to recruitment and matters concerning recruitment to certain service or the post specified therein as well as in relation to all service matters concerning a member of such service or holder of such a post. A joint reading of the two Sections provide that (1) an Application filed under the Act should be one which raises a issue falling within the jurisdiction of the Tribunal that is to say in relation to the recruitment and matters concerning to the recruitment to a specific service or post or service matters concerning members of service or holder of post specified under Section 14 and (2) such an application is filed by a person who is aggrieved by any order involving issues referred to in the preceding clause (1). If any of these conditions is not specified then the Application would not be maintainable under the Act. Insofar as the subject matters of these applications are concerned, there is no dispute that no objection has been taken by the respondents that it does not fall within the jurisdiction of this Tribunal. What has, however, been objected to is the locus standi of the applicants for being not aggrieved person and as such are not entitled to file the present Application in terms of Section 19 of the Administrative Tribunals Act, 1985.
50. The term aggrieved person has not been defined in the Act. The term has therefore to be construed in its common parlance as it is understood in the context of service jurisprudence. Literally speaking, an aggrieved person is one who has a grievance. The dictionary meaning of the word grievance is a real or imagined cause for complaint. The dictionary meaning of the word aggrieved is resentful because of unfair treatment. The aggrieved person is thus one, who is resentful for having a cause of complaint on account of unfair treatment in connection with any of his service matters in the context of the service jurisprudence. The cause for complaint is in relation to any service matter. Furthermore, the grievance on account of which one feels aggrieved should be a legal grievance which entitles a person so aggrieved to seek redressal in respect thereof through legal process. In other words, the grievance should not merely be fanciful or sentimental or arising from disappointment simplicitor. Nor does the expression person aggrieved means a person who suffered from psychological or imaginary injury. Thus, an aggrieved person is one who has suffered a legal grievance, a man against whom decision has been pronounced, which has wrongfully deprived him of something or wrongfully refused him something or wrongfully affected his title to something (see Re Sidebotham (1880) 24 Ch. D. 458). In other words, there must be injury or damage, in a legal sense, that is to say legal grievance, which, as such, can be appreciated in law for the purpose of determining the relief, if any, in respect thereof. If a person satisfies a Court that by the order or action complained of by him, he has been injured or damaged in a legal sense so as to give rise to legal grievance which the law, in the circumstances of a given case, recognizes as sufficient for consideration as to whether the complainant deseres redressal of his grievance in law then his complaint cannot be turned down as incompetent.
51. In Jasbhai Motibhai Desai vs. Roshan Kumar, Haji Bashir Ahmed and others, (1976) 1 SCC 671, the Honble Supreme Court has an occasion to consider the question: who is an aggrieved person and what are the qualifications requisite for such a status? The Court observed in para 13 of its judgment as follows:-
The expression "aggrieved person" denotes an elastic, and, to an extent, an elusive concept. It cannot be confined within the bounds of a rigid, exact and comprehensive definition. At best, its features can be described in a broad tentative manner. Its scope and meaning depends on diverse, variable factors such as the content and intent of the statute of which contravention is alleged, the specific circumstances of the case, the nature and extent of the petitioner's interest, and the nature and extent of the prejudice or injury suffered by him. English Courts have sometimes put a restricted and sometimes a wide construction on the expression "aggrieved person". However, some general tests have been, devised to ascertain whether an applicant is eligible for this category so as to have the necessary locus standi or 'standing' to invoke certiorari jurisdiction. The Honble Court then proceeded to deal with the case law on the subject whereupon made following pertinent observations:-
37. It will be seen that in the context of locus standi to apply for a writ of certiorari, an applicant may ordinarily fall in any of these categories: (i) 'person aggrieved'; (ii) 'stranger'; (iii) busybody of meddlesome interloper. Persons in the last category are easily distinguishable from those coming under the first two categories. Such persons interfere in things which do not concern them. They masquerade as crusaders for justice. They pretend to act in the name of Pro Bono Publico, though they have no interest of the public or even of their own to protect. They indulge in the past-time of meddling with the judicial process either by force of habit or from improper motives. Often, they are actuated by a desire to win notoriety or cheap popularity; while the ulterior intent of some applicants in this category, may be no more than spoking the wheels of administration. The High Court should do well to reject the applications of such busybodies at the threshold.
38. The distinction between the first and second categories of applicants, though real, is not always well-demarcated. The first category has, as it were, two concentric zones: a solid central zone of certainty, and a grey outer circle of lessening certainty in a sliding centrifugal scale, with an outermost nebulous fringe of uncertainty. Applicants falling within the central zone are those whose legal rights have been infringed. Such applicants undoubtedly stand in the category of 'persons aggrieved". In the grey outer-circle the bounds which separate the first category from the second, intermix, interfuse and overlap increasingly in a centrifugal direction. All persons in this outerzone may not be "persons aggrieved".
39. To distinguish such applicants from 'strangers', among them, some broad tests may be deduced from the conspectus made above. These tests are not absolute and ultimate. Their efficacy varies according to the circumstances of the case, including the statutory context in which the matter falls to be considered. These are: Whether the applicant is a person whose legal right has been infringed? Has he suffered a legal wrong or injury, in the sense, that his interest, recognised by law, has been prejudicially and directly affected by the act or omission of the authority, complained of? Is he a person who has suffered as legal grievance, a person "against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully refused him something, or wrongfully affected his title to something? Has he a special and substantial grievance of his own beyond some grievance or inconvenience suffered by him in common with the rest of the public? Was he entitled to object and be heard by the authority before it took the impugned action? If so, was he prejudicially affected in the exercise of that right by the act of usurpation of jurisdiction on the part of the authority? Is the statute, in the context of which the scope of the words "person aggrieved" is being considered, a social welfare measure designed to lay down ethical or professional standards of conduct for the community? Or is it a statute, dealing with private rights of particular individuals?
52. We may now apply these tests to the cases in hand. The rules with which we are concerned have been made in exercise of the powers conferred by the proviso to Article 309 of the Constitution of India dealing with the recruitment and conditions of service of the persons serving the Union. These are designed to regulate the Central Secretariat Service. They, inter alia, provide for constitution of separate cadres for the Section Officers and Assistants and matters relating thereto, such as cadre strength, initial constitution and subsequent management of each cadres, recruitment, posting and seniority of cadre officers etc. The applicants are the members of this Central Secretariat Service. Their grievance is that impugned action of the respondents is in violation of provisions of Central Secretariat Service Rules, 1962, as a result of which they are deprived of the benefits accrued to them under these rules. The applicants having been appointed to the service in the cadre of Section Officers in a given year are aggrieved of the action of the respondents appointing the private respondents contrary to the rules from earlier years prior to their appointments in the cadre and thereby relegating the applicants down in the seniority list vis-`-vis such subsequent appointees, who have been impleaded as private respondents. The applicants are certainly not busybody of meddlesome interloper complaining of an action which does not concerned them. They cannot be said to be acting in the name of Pro Bono Publico so as to say that they are pursuing a public interest litigation. They are indeed the members of the service to which the respondents action pertains. They are also indeed not strangers to the cause complained of which indeed relates to their service matter. Their seniority in the cadre is directly affected to their prejudice. Even though a public servant in a context of service jurisprudence is only having right to be considered for promotion and as such mere chance of promotion is not being considered as a condition of service yet the impugned action of the respondents operated to the detriment by decelerating their right to be considered for promotion vis-`-vis private respondents, who have been granted appointments as a result of the impugned action accelerating their consideration for further promotion in preference to the applicants herein. Whether the grievances of the applicants is such, which would render them entitle to the reliefs claimed for, would be determined on consideration of their applications on merits. Certainly their applications could not be viewed as incompetent for want of locus standi taking them out of the preview of the expression aggrieved person depriving them of consideration of their applications for determining the lis that they have raised in the context of their service matters which are governed by the provisions of Central Secretariat Service Rules, 1962 of which they are members. However, the fact need not be lost sight of that grievance of the applicants does not flow from Select List of 2003 as originally prepared in respect of vacancies initially notified. There grievance relates to additions made to the Select List of 2003 subsequent to inclusion of their name in the Select List of 2004, which adversely affected their seniority qua such additions and likely to have effect of decelerating consideration of their names for further promotion too. That being so the applicants apparently have a cause of action. It cannot be said that their grievance is imaginary or fanciful. Whether the impugned action taken by the respondents in this regard is in confirmity with the applicable rules and whether they are entitled for grant of relief prayed for by them in the Application are matters which will be gone into when their Application is taken up for consideration on merits in accordance with law. In any case, in our considered opinion, their Applications is not liable to be dismissed at the very threshold on the technical preliminary objection of they being not aggrieved persons in terms of Section 19 of the Administrative Tribunals Act, 1985. We, therefore, do not find any substance in the preliminary objection raised by the respondents that these applications are not maintainable for the reason of having not been filed by the persons aggrieved in terms of Section 19 of the Administrative Tribunals Act, 1985. We are of the considered view that these Applications are not liable to be thrown out at the very threshold on this preliminary objections.
53. The second preliminary objection raised by the learned counsels appearing on behalf of the respondents against the maintainability of Application No.1083/2007 is on the ground of limitation, particularly with regard to the applicants challenge to OM of 2008. It has been contended by the respondents that limitation in respect of this OM should be reckoned from the date the amendment Application has been filed in 2011. Thus it has been contended that the relief claimed in para 8.3 of the amended Application is not maintainable being time barred. It is relevant to note in this regard that the applicants filed MA 1445/2008 challenging the OM of 2008 and praying for stay of its operation. After hearing the parties, this Tribunal declined to stay the operation as prayed for by the applicants. However, this Tribunal ordered that impugned Office Memorandum shall be subject to the outcome of the Original Application. It is further noted that para 7 of the said OM clearly stipulated that the appointments made therein would be inter alia subject to the outcome of the OA NO.1083/2007. Para 7 of the said OM reads as follows:-
7. It may be brought to the notice of all the officers who figure in the Annexure that their appointments shall be subject to outcome of Court case No.13245-60/2005 filed by Kailash Chander vs. UOI pending in High Court, Delhi and Case NO.OA 1083/2007 & MA No.1171/2007 filed by Shri Sauranshu Sinha vs. UOI pending in CAT, Delhi. Further, financial benefits if any, like NFS granted to officials covered by para 5 of this OM shall also be subjected to the outcome of the above mentioned 2 court cases. Thus cognizance of the said OM having been passed during the pendency of the OA has been duly taken note of by the Tribunal. As a matter of fact, the Original Application challenged the action of the respondent no.1 in making appointments in excess of the notified vacancies to the UPSC on the basis of OM of 5/6.5.2005. Having regard to the nature of challenge put forth by the applicants as aforesaid, it would certainly embrace in its ambit all the appointments made in excess of the notified vacancies even during the pendency of the OA, especially when the subsequent appointments through various OMs have been made subject to the final outcome of the OA. We find force in the submissions of the applicants counsel that prayer made by the applicants in this regard is essentially of consequential in nature and does not bring in a new and fresh cause of action. It may be further noted in this regard that this plea of limitation was also taken by the respondents while opposing MA 1967/2011 seeking amendment of the OA and in support of their contention, the case of Revajeetu Builders & Developers vs. Narayanaswamy & Sons and others, 2009 (10) SCC 84, was also cited. In this case, it has inter alia been held that As a general rule, the court should decline amendments if a fresh suit on the amended claims would be barred by limitation on the date of application. This plea, however, do not find favour with the Tribunal while passing its order dated 30.3.2012 in MA 1967/2011 allowing the amendment of the Original Application as sought by the applicants. This order is stated to be under challenge in the High Court by the respondents in which notices are stated to have been issued. Since this issue has already been decided by the Coordinate Bench of this Tribunal whose order is under challenge in the High Court, we do not consider it appropriate to pass any further order on this aspect of the matter except to the extent that we are not inclined to dismiss this Application on the ground of limitation in respect of OM of 2008.
54. The same is the position with regard to the preliminary objection raised by the respondents for the reason of not impleading all the necessary parties. While opposing the Misc. Application No.1967/2011 seeking amendment to the OA, DOP&T, being respondent no.1, contended that the order being passed in this OA would have cascading effect as UDCs LDCs working in the feeder cadre would also be affected and they also should have been made parties. This too did not find favour with this Tribunal while passing its order dated 30.3.2012 in MA 967/2011 which order too is under challenge in the High Court as referred to above. The fact remains that the applicants have indeed challenged the appointments made by the respondents vide their impugned action and such appointees have been impleaded as private respondents in the amendment Application. Thus all those who are directly concerned have been impleaded by the applicants in the case. The cases of LDCs and UDCs are not directly concerned with the subject matter of the Application. Only persons who are directly and immediately affected are considered as party aggrieved as has been held in the case of Gopabandhu Biswal vs. Krishna Chandra Mohanty & Ors., (1998) 4 SCC 447. In any case, Central Secretariat Service Section Officers Association along with one of its member have been impleaded as respondents no.4 and 3 respectively. That by itself meet the requirement of law as observed by the Honble Supreme Court in the case of Prabodh Verms vs. State of UP, AIR 1985 SC 167. Notwithstanding that the applicants have further impleaded all the appointees to the posts of Section Officer of whose appointments the applicants have been aggrieved.
55. The position with regard to the preliminary objections of Shri Arun Bhardwaj, learned counsel appearing for the private respondents, including Central Secretariat Service Section Officers Association is no different. The preliminary objection so raised includes procedural deficiencies in contravention of Rule 33 of CAT (Procedure) Rules, 1993 in respect of amendment sought to be made in the Original Application; the bar of limitation in respect of certain additional reliefs claimed by way of amending the OA; and not impleading all the necessary parties. As a matter of fact, all these points have been strenuously argued by Shri Arun Bhardwaj during the course of hearing of MA 1967/2011 seeking amendment to the Original Application NO.1083/2007 but were not upheld by this Tribunal while passing its order dated 30.3.2012 whereby MA 1967/2011 was allowed. A Review Petition was also filed against this order which too was dismissed. Both these orders on the aforesaid MA and Review Petition have been challenged in the High Court in which notices are stated to have been issued. In these circumstances, Shri Arun Bhardwaj strongly urged us not to proceed with the hearing of the present Application until the matter pending before the High Court as aforesaid is decided. MA 3151/2012 was filed by Shri Arun Bhardwaj for this purpose and he insisted that this Application be disposed of first before the Original Application is taken up for consideration on merits. This Tribunal, however, did not accede to the request of Shri Arun Bhardwaj, as referred to above, and dismissed MA 3151/2012 vide its order dated 5.11.2012 having regard to the fact that there has been no order of stay of proceedings before the Tribunal by the High Court and for a quite long period, the Original Application has been pending before the Tribunal. The Original Application filed in 2007 was notified under ready for hearing cases way back on 14.11.2007 but could not be proceeded with further on account of requests for impleadment made from time to time by the parties as well as passing of orders by respondent no.1 from time to time during the pendency of the OA though subject to final outcome of the case which necessitated filing of MA 1967/2011 by impleading all the necessary parties whose appointments through subsequent additions had been made and other related matters. Since these objections have already been adjudicated and decided by this Tribunal vide its order dated 30.3.2012 passed in MA 1967/2011 which are under challenge before the High Court, we do not consider it necessary to go into these questions afresh once again. Shri Arun Bhardwaj made further submissions that notices to some of the private respondents have not been duly served upon as they were not provided with copies of amended Application along with copies of notice and consequently they were deprived of their right to file their response to the amended Application. We do not find any force in this contention in view of the fact that records reveal that services of notice upon private respondents through official respondent no.1 have been duly made. As a matter of fact, Shri Bhardwaj is representing four private respondents, besides Central Secretariat Service Section Officers Association and they indeed not only filed detailed reply to the amended Application being MA No.1967/2011 but also challenged the orders passed thereon in the High Court. Certainly, he could not have done do without having a copy of the amended petition in his possession. To say that though service of notices is in order in respect of respondent no.3 and 4 but not so in respect of other private respondents being represented by him is too hyper technical. Even with regard to these three private respondents, records do not reveal that any Application filed by them airing their grievance which has now been raised by Shri Arun Bhardwaj on their behalf. Judicial records of the case are conclusive of the facts reflected therein and it is not open to any one to contradict the authenticity and veracity of such records by making oral submissions at the hearing. If any party thinks that the correct facts have not been duly recorded in the records, it would be incumbent upon that party to call the attention of the Court itself to this aspect at the earliest opportunity. No such thing has been done by the applicants as can be gathered from the records of the case. In the absence of any evidence to the contrary, we find this arguments a bit frivolous. It may be relevant to note in this regard that large number of persons who might be consequentially affected by the order which might be passed in the Application and on whose behalf the brief is being held up by the respondents for their impleadment are indeed not before us. They have not approached the Tribunal. Instead the respondents are saying that these persons in LDCs and UDCs cadre should also be impleaded as they are likely to be affected in case the adverse order is passed by this Tribunal in respect of the impugned action of the official respondent no.1 which might result in their reversion from the post to which they have been appointed on account of vacancies created by subsequent vacancies which are under challenge in these proceedings. Admittedly, these persons are neither in the feeder cadre at present nor they are eligible for inclusion of their names in the Select List under consideration. These submissions apparently proceeded on unverified assumptions and contingencies which have not yet been taken place so far. In any case, even if, there is any such person, he would have his remedy in law at an appropriate time either by way of filing a Review Petition in respect of the order by which he is indeed adversely affected or by filing an OA to vindicate his legal right in terms of the observations made on this aspect of the matter by the Honble Supreme Court in the case of K. Ajit Babu & Ors. v. Union of India & Ors,. JT 1997 (7) SC 24. In our considered opinion, there is no warrant for dismissing the present Applications at the very threshold on this count as is being sought by the respondents.
56. The Application has also been opposed by the respondents for merely challenging the consequences of the policy decision taken by the respondent NO.1 and not challenging the policy decision itself. We do not find any force in this contention for the applicants are only challenging that of which they are aggrieved. The applicants have already challenged the allocation of vacancies over and above the initial notified vacancies being contrary to the rules. That by itself is good enough for the applicants to maintain the present Application and for this purpose, it is not necessary to challenge the decision, if any, for diverting the vacancies on the basis of competency of the decision maker and manner of decision making or otherwise. This objection of the respondents is misconceived for the reason that there is no embargo on challenging the tenability of the impugned action of the respondents in appointing the persons in excess of notified vacancies in the absence of any challenge to a policy decision, if any, with regard to diverting of vacancies from one stream to another stream. We also do not find any merit in the objections of the respondents that the applicants have filed this Application without any cause of action in the absence of proof of any violation of fundamental or statutory right. The objection is ex facie misconceived, as the applicants are alleging the impugned action to be in violation of the statutory rules.
57. In view of the aforesaid, we do not find any substance in the preliminary objections raised against the maintainability of the Application as referred to above. We may now proceed to deal with the Applications on merits.
58. At the very outset, it is considered expedient to take note of the relevant provisions of the Central Secretariat Service Rules, 1962 having bearing on the issues involved in these cases:-
2 (c) "approved service" in relation to any Grade means
(i) in respect of an officer recruited directly to that grade, period or periods of regular service rendered in that grade, including period or periods of absence during which he would have held a post on regular basis in that grade but for his being on leave or otherwise not being available to hold such post, from the first day of July of the year, following the year in which the examination for direct recruitment was held;
(ii) in respect of an officer recruited to that grade through departmental examination, period or periods of regular service rendered in that grade, including period or periods of absence during which he would have held a post on regular basis in that grade but for his being on leave or otherwise not being available to hold such post, from the first day of July of the year for vacancies of which such examination was held;
(iii) in respect of an officer recruited to that grade on the basis of length of service in the lower grade, period or periods of regular service rendered in that grade, including period or periods of absence during which he would have held a post on regular basis in that grade but for his being on leave or otherwise not being available to hold such post, from the first day of July of the year for which the recruitment was made:
Provided that where there is delay of more than 90 days in joining on appointment, in any of the cases mentioned in the sub clauses (i), (ii) and (iii) above, such delay should not be due to any fault on the part of the officer: (e) "cadre" means the group of posts in the Grades of Section Officer and Assistant in any of the Ministries or Offices specified in column (2) of the First Schedule and in all the Offices specified against such Ministry or Office in column (3) of that Schedule; (f) "cadre authority" in relation to any cadre means the Ministry or Office specified in respect of that cadre in column (2) of the First Schedule;
Note:- For the purposes of disciplinary matter, cadre authority in relation to any cadre, however, means the Ministry or Office, specified in respect of that cadre in column (2) or the Office in column (3) of the First Schedule. (hh) "Common seniority list" in relation to any Grade means the seniority list of officers of that Grade serving in all the cadres specified in the First Schedule as on the appointed day and revised from time to time in accordance with the regulations to be framed in this behalf by the Central Government in the Department of Personnel and Training in the Ministry of Personnel, Public Grievances and Pensions; (q) "Select List" in relation to the Selection Grade and Grade I or the Section Officers Grade and the Assistants Grade means the Select List prepared in accordance with the regulations made under sub-rule (4) of the rule 12 or under the regulations contained in the Fourth Schedule, as the case may be; 5. Constitution of separate cadres for the Section Officers' and Assistants Grade.- A separate cadre in respect of the Section Officers Grade and the Assistants Grade shall be constituted for each Ministry or Office specified in column (2) of the First Schedule and all the Offices specified against such Ministry or Office in column (3) of that Schedule and officers of these Grades in each cadre shall be borne on a separate gradation list drawn up for that cadre.
6. The authorised cadre strength of the Service.- (1) The authorised cadre strength of various Grades shall be such as may be determined, from time to time, by the Central Government. 8. Initial Constitution of each Cadre.- The permanent and temporary officers of the Section Officers Grade and the Assistants Grade in each cadre on the appointed day shall be determined by the Central Government in the Department of Personnel and Training in the Ministry of Personnel, Public Grievances and Pensions. 12. Recruitment to Selection Grade and Grade I.- (1) Vacancies in the Selection Grade shall be filled by promotion of regular officers of Grade I who have rendered not less than five years approved service in that Grade and are included in the Select List for the Selection Grade prepared under sub-rule (4).
(2) Vacancies in Grade I shall be filled by promotion of regular officers of the Section Officers' Grade who have rendered not less than eight years approved service in that Grade and are included in the Select List for Grade I of the Service, prepared under sub-rule (3).
(3) For the purpose of sub-rules (1) and (2) a Select List for the Selection Grade and Grade I shall be prepared and may be revised from time to time. The procedure for preparing and revising the Select Lists shall be such as may be prescribed by regulations made by the Central Government in the Department of Personnel and Training in the Ministry of Personnel, Public Grievances and Pensions.
Provided that the regulations relating to the procedure for preparing and revising the Select List for Grade 1 shall be framed in consultation with the Commission and such Select List shall also be prepared in consultation with them.
(4) Notwithstanding anything contained in sub-rules (1) and (2), any person eligible to be considered for promotion to the Selection Grade under sub-rule (1) or to Grade-I under sub-rule (2) may be appointed to officiate in a temporary vacancy for a period not exceeding three months, in the Selection Grade or Grade I, as the case may be, if an officer included in the Select List for the relevant Grade is not available or cannot for any reason be appointed to such vacancy:
Provided that the aforesaid period of three months mentioned above, may in exceptional cases and with the approval of the Department of Personnel and Training in the Ministry of Personnel, Public Grievances and Pensions be extended to six months in public interest.
Note 1.- For the purpose of this rule, in the case of Section Officers appointed to that grade under sub-rule (3) of rule 13 and in the case of Officers of Grade A of the Central Secretariat Stenographers Service, approved service shall include the entire period of approved service in Grade I of the Central Secretariat Stenographers' Service rendered prior to the 1st August, 1969 and half of the approved service rendered in Grade B after the 1st August, 1969, as the case may be.
Note 2.- Omitted.
13. Recruitment to the Section Officers and the Assistants Grade. - (1) Section Officers Grade Twenty per cent. of the regular vacancies in the Section Officers' Grade in any cadre shall be filled by direct recruitment on the basis of the result of a competitive examination held by the Commission for this purpose, from time to time. The remaining vacancies shall be filled by appointment of persons included in the Select List for the Section Officers Grade. Such appointments shall be made in the order of seniority in the Select List except when for reasons to be recorded in writing, a person is not considered fit for such appointment on his turn:
Provided that if sufficient number of candidates are not available for filling up the vacancies in a cadre in any recruitment year, either by direct recruitment or by appointment of persons included in the Select List for Section Officers' Grade, the unfilled vacancies shall be carried forward and added to the number of vacancies of the same mode of recruitment to be filled in the next recruitment year:
Provided further that no such unfilled vacancies shall be carried forward for more than two recruitment years, beyond the year to which the recruitment relates, where after the vacancies if any, still remaining unfilled belonging to one mode of recruitment shall be transferred as additional vacancies for the other mode of recruitment.
(2) Temporary Vacancies in the Section Officers Grade in any cadre shall be filled by the appointment of persons, included or approved for inclusion in the Select List for the Section Officers Grade in that cadre and any vacancies remaining unfilled thereafter shall be filled from among the officers of the Assistant Grade who have rendered not less than 8 years approved service in the grade and are within the range of seniority, on the basis of seniority subject to the rejection of the unfit:
Provided that where an officer of the grade of Assistant is rejected as unfit, the reasons for such rejection shall be recorded in writing and communicated to the officer concerned.
Provided further that if officers within the range of seniority are not available in a cadre for promotion, the appointment shall be made from a panel, furnished by the Central Government in the Department of Personnel & Training in the Ministry of Personnel, Public Grievances and Pensions of such officers serving in the other cadres.
Note:- (i) While considering the cases of officers belonging to the Scheduled Castes and Scheduled Tribes, reservation shall be made in accordance with such instructions as may be issued by the Department of Personnel and Training in the Ministry of Personnel, Public Grievances and Pensions from time to time.
(ii) The promotions from among non-Select List officers shall be terminated when persons, included or approved for inclusion, in the Select List for the Section Officers Grade in that cadre become available to fill the vacancies.
(3) Omitted.
(4) Deleted (5) For the purpose of sub-rules (1) and (2) a Select List for the Section Officers Grade shall be prepared and may be revised from time to time. The procedure for preparing and revising the Select List shall be as set out in the Fourth Schedule.
(6) ASSISTANTS' GRADE Fifty per cent of the regular vacancies in the Assistants Grade in any cadre shall be filled by direct recruitment on the basis of results of a competitive examination held by the Staff Selection Commission for this purpose, from time to time and the remaining vacancies shall be filled by regular appointment of persons included in the Select List for the Assistants Grade in that cadre.
(6A) The appointments under sub-rule (6) of the persons whose names have been included in the Select List shall be made in the order of seniority in that Select List:
Provided that where a person is not considered fit for such appointment in his turn, the reasons therefore shall be recorded in writing:
Provided further that if sufficient number of candidates are not available for filling up the vacancies in a cadre in any recruitment year by direct recruitment, the unfilled vacancies in that cadre shall be filled by appointment of persons included in the Select List of Assistants' Grade in that cadre..
(7) Temporary vacancies in the Assistants Grade in any cadre shall be filled by the temporary promotion on the basis of seniority, subject to the rejection of unfit, of officers of the Upper Division Grade of the corresponding cadre of the Central Secretariat Clerical Service who have rendered not less than five years approved service in that Grade and are within the range of Seniority:
Provided that where an officer of the Upper Division Clerks Grade is rejected as unfit for the promotion to the Assistants' Grade in any cadre, the reasons for such rejection shall be recorded in writing and communicated to the officer concerned:
Provided further that, if any person appointed to the Upper Division Clerks Grade is considered for promotion to the Assistants Grade in any cadre under this sub-rule, all persons senior to him in the Upper Division Grade in that cadre shall also be so considered notwithstanding that they may not have rendered five years approved service in that Grade:
Provided further that if officers within the range of seniority are not available in a cadre for promotion, the appointments shall be made from a panel, furnished by the Central Government in the Department of Personnel and Training in the Ministry of Personnel, Public Grievances and Pensions, of officers serving in the other cadres:
Provided further that while considering the cases of officers belonging to the Scheduled Castes and Scheduled Tribes, reservations shall be made in accordance with such instructions as may be issued by the Department of Personnel and Training in the Ministry of Personnel, Public Grievances and Pensions from time to time.
(8) For the purpose of sub-rule (6) a Select List for the Assistants Grade shall be prepared and may be revised from time to time. The procedure for preparing and revising the Select List shall be as set out in the Fourth Schedule.
(9) The Rules for the competitive examinations referred to in sub-rules (1) and (6) shall be determined by regulations made by the Department of Personnel and Training in the Ministry of Personnel, Public Grievances and Pensions and the allotment of candidates from the results of such examinations shall be made by that department to the Section Officers Grade and to the Assistants Grade, in each cadre.
(10) The length of approved service for Promotion to the Section Officers Grade prescribed in sub-rule (2) and to the Assistants Grade prescribed in sub-rule (7) may be reviewed by the Central Government in the Department of Personnel and Training in the Ministry of Personnel, Public Grievances and Pensions every three years and revised, if found necessary. 23. Regulations.- The Department of Personnel and Training in the Ministry of Personnel, Public Grievances and Pensions may make regulations, not inconsistent with these rules, to provide for all matters for which provision is necessary or expedient, for the purpose of giving effect to these rules. 25. Power of Central Government in the Department of Personnel and Training in the Ministry of Personnel, Public Grievances and Pensions to act in special contingencies.- In the event of large number of officers of any Grade being rendered surplus on account of reduction of establishment in, or the abolition of a cadre, or on account of any schemes of administrative Reforms or recognition, the Department of Personnel and Training in the Ministry of Personnel, Public Grievances and Pensions may issue special directives to the cadre authorities regarding the absorption of such surplus officers and the cadre authorities shall comply with such special directives.
25.(a) Power to relax.- Where the Central Government in the Ministry of Personnel, Public Grievances and Pensions (Department of Personnel and Training) is of the opinion that it is necessary or expedient so to do, it may, by order, for reasons to be recorded in writing, and in consultation with the commission, relax any of the provisions of these rules with respect to any class or category of persons or posts. 26. Interpretation.- Where any doubt arises as to the interpretation of any of the provisions of these rules, or the regulations made there under, the matter shall be referred to the Central Government whose decision thereon shall be final. FOURTH SCHEDULE [See Rules 13(5) and 13(8)] Regulations for the constitution and maintenance of the Select Lists for the Section Officers' and Assistants' Grades of the Central Secretariat Service.
1. Constitution. Officers borne on the Regular Temporary Establishment of the respective Grades immediately before the appointed day and allotted to a cadre under rule 8 shall form the Select List for the concerned Grade for that cadre, on such date.
A. SECTION OFFICERS' GRADE
2. Maintenance. (1) Additions to the Select List for the Section Officers' Grade in any cadre shall be made in such numbers as the cadre authority may determine from time to time keeping in view the existing and anticipated ®ular vacancies so as to ensure that one person each by rotation is included from out of the categories of persons specified below, namely:-
(a) Officers of the Assistants Grade in that Grade who have rendered not less than eight years approved service in that Grade and are within the range of seniority, in the order of their seniority, subject to the rejection of the unfit:
Provided that where an officer of the Assistants' Grade is rejected as unfit, the reasons for such rejection shall be recorded in writing and communicated to the officer concerned.
Second Proviso omitted vide Notification No. 21/14/97-CS.I dated 8th March, 1999.
(b) Persons selected on the results of the limited departmental competitive examinations, held by the Commission, from time to time, in the order of their merit.
(2) The rules for the limited departmental competitive examinations referred to in clause (1) above shall be determined by regulations made by the Department of Personnel and Training in the Ministry of Personnel, Public Grievances and Pensions and the allotment of candidates from the results of these examinations to the various cadres shall also be made by that Department.
B. ASSISTANTS GRADE 2A. Maintenance. (1) Additions to the Select List for the Assistants Grade in any cadre shall be made in such number as the cadre authority may determine, from time to time, keeping in view the existing and anticipated ®ular vacancies, from officers of the Upper Division Grade in that cadre who have rendered not less than five years approved service in the grade and are within the range of seniority, in the order of their seniority in that grade subject to the rejection of the unfit.
Provided that where an officer of the Upper Division Grade is rejected as unfit, the reason for such rejection shall be recorded in writing and communicated to the officer concerned.
Note 1.- While considering cases of officers belonging to the Scheduled Castes and Scheduled Tribes, reservations shall be made in accordance with such instructions as may be issued by the Department of Personnel and Training in the Ministry of Personnel, Public Grievances and Pensions from time to time.
Note 2.- If officers within the range of seniority are not available in a cadre for making additions to the Select List, such additions shall be made from a panel, furnished by the Central Government in the Department of Personnel and Training in the Ministry of Personnel, Public Grievances and Pensions, of officers serving in other cadres.
(2) The rules for the limited departmental competitive examination referred to in category (b) shall be as determined by regulations made by the Department of Personnel and Training in the Ministry of Personnel, Public Grievances and Pensions and the allotment of candidates from the results of this examination to the various cadres shall be made by the said Department.
3. Seniority. (1) Officers included in the Select List for a Grade constituted under regulation (1) shall be senior to those included therein after such constitution.
(2) Officers included in the Select List under &'regulation 2 or regulation 2A' shall rank inter se in the order in which they are included in the Select List:
Provided that an officer included in the Select List who refuses at any time to be appointed to the Grade for reasons acceptable to the appointing authority, shall, on his appointment to the Grade at any time thereafter, be placed immediately after the officer who was last appointed to that Grade from the Select List.
Note:-Omitted.
(3) Direct recruits to a Grade and persons regularly appointed to the Grade from the Select List for the Grade shall be assigned seniority inter se according to the quotas of regular vacancies in the Grade reserved for direct recruitment and the appointment of persons included in the Select List, respectively:
Provided that persons appointed regularly in the Section Officers Grade in a particular year against the unfilled vacancies brought forward from previous years shall all be placed below the last slot, be it for a direct recruit or for a person included in the Select List, determined on the basis of the rotation of vacancies between direct recruits and persons included in the Select List, in that year, as illustrated in Illustration-II.
Provided that persons appointed regularly in accordance with the provisions of sub-rule (2) of rule 13 to the Grade from the Select List in any cadre in any year, against direct recruitment vacancies for which direct recruits are not available, shall be placed en bloc below the last direct recruit appointed in that year irrespective of the quotas reserved for direct recruits and persons included in the Select List.
(4) Persons appointed regularly in accordance with the first proviso to sub-rule (2) of 13 shall be assigned seniority inter se in the order in which they are included in the Select List for the Assistants Grade in the cadre and such persons shall be placed en bloc below all the Assistants already appointed regularly in the same cadre.
(5) Persons appointed regularly in accordance with the provisions of sub-rule (6-a) of rule 13 shall be assigned seniority inter se in the order in which they are included in the Select List for the Assistants Grade in the cadre and such persons shall, be placed en bloc above the direct recruits of the Assistants Grade Examination, 1978 appointed in the same cadre.
ILLUSTRATION - I Where 75 percent of the regular vacancies in a Grade are reserved for the appointment of persons included in the Select List for the Grade and 25 percent for direct recruitment, each direct recruit shall be ranked in seniority below three persons regularly appointed from the Select List. Where the quotas are 50 percent each, every direct recruit shall be alternatively ranked below one person appointed from the Select List. If, however, for any reasons, a direct recruit or a person regularly appointed to the Grade from the Select List ceases to hold the appointment in the Grade or quits the Service etc., the seniority list shall not be rearranged merely for the purpose of ensuring the proportions referred to.
ILLUSTRATION - II A. Let it be assumed that there are 10 regular vacancies to be filled in the Section Officers Grade in the year 1989. In terms of the laid down proportion of four promotees to one direct recruit, there would be two slots for direct recruits at position numbers 5 and 10 of the roster. Assuming that neither of those direct recruits slots is filled, the vacancies for the year 1990 would be calculated as follows:-
(i) Number of regular vacancies arising as a result of retirement, etc. - assumed - 10
(ii) Number of unfilled vacancies - both direct recruits.2
Total regular vacancy for 1990 12 B. The roster for the year 1990 would than be prepared in the following two stages:-
(i) in respect of the ten vacancies arising in the year 1990, the roster shall be based on the normal rotation of vacancies in the proportion of four promotees to one direct recruit:
(ii) the two direct recruit vacancies carried forward from the year 1989 would be added as direct recruits slots below the last slot determined vide (i) above.
C. Further assuming that the number of vacancies arising in 1991 and 1992 not taking into account the unfilled vacancies of the previous year is also ten, the roster for the years 1989, 1990, 1991 and 1992 would be as follows:-
1989 1990 1991 1992
1. P1 1. P1 1. P1 1. P1
2. P2 2. P2 2. P2 2. P2
3. P3 3. P3 3. P3 3. P3
4. P4 4. P4 4. P4 4. P4
5. D1 5. D1 5. D1 5. D1
6. P5 6. P5 6. P5 6. P5
7. P6 7. P6 7. P6 7. P6
8. P7 8. P7 8. P7 8. P7
9. P8 9. P8 9. P8 9. P8
10. D2 10. D2 10. D2 10. D2 Both D1 & D2 11. D1 11. D1 11. P9@ remain 12. D2 12. D2 12. P10@ unfilled Again Both 13. D1 13. D1 D1 & D2 14. D2 14. D2 (1990) as also Again all direct 15. D1 D1 & D2 (1989)recruit vacancies 16. D2 remained remained @Vacancies unfilled unfilled (1989) released after two years of carry forward.
4. Removal of names from the Select List.- (1) Subject to the exceptions made under clause (3), an officer included in the Select List for a Grade shall continue to be included in the Select List till he is ®ularly appointed to that Grade.
(2) Officers included in the Select List for a Grade who cannot be appointed to that Grade or who are reverted therefrom for want of vacancies will continue to be included in the Select List and retain the seniority assigned to them in the List.
(3) The names of persons of the following categories shall be removed from the Select List:-
(a) Persons ®ularly appointed to the concerned Grade;
(b) Persons transferred to another service or post;
(c) Persons who die or retire from service or whose services are otherwise terminated; and
(d) (i) persons officiating in the respective Grade beyond the period of trial specified in rule 15, who are reverted therefrom as a result of a departmental enquiry or proceedings under the Central Civil Services (Classification, Control and Appeal) Rules 1965; or
(ii) persons who, either during or at the end of the period of trial in the respective Grade prescribed in rule 15, are reverted therefrom under sub-rule (4) of rule 17, on the ground of unfitness to continue in that Grade; or
(iii) persons not yet promoted on trial to the respective Grade, who on an annual review of the Select List are found, because of deterioration in their record and/or conduct since inclusion in the List to have fallen below the required standard:
Provided that the removal of the name of a person in category (iii) who has been included in the Select List on the results of the Limited Departmental Competitive Examination for the Section Officers Grade or for the Assistants Grade, as the case may be, shall be made in consultation with the Commission in the case of Section Officers, and in consultation with the Department of Personnel and Training in the case of Assistants. The names of Ministries/offices to whom the Central Secretariat Service Rules, 1962 were applicable have been mentioned in First Schedule thereof. The number of Ministries/officers were 33.
59. These rules have been superseded vide Notification dated 27.2.2009, notifying the Central Secretariat Service Rules, 2009, except as respects things done or omitted to be done under the Central Secretariat Service Rules, 1962 before their supersession as above. Rule 12 is insofar it relates to Section Officer Grade is relevant for our purpose and the relevant part thereof reads as follows:-
12. Recruitment to the Section Officers and the Assistants Grade.-
(1) SECTION OFFICERS GRADE
(a) The regular vacancies in the Section Officers Grade shall be filled fifty percent through Limited Departmental Competitive Examination and fifty percent by appointment of persons included in the Select List for the Section Officers Grade.
(b) The rules for the Limited Departmental Competitive Examination referred to above shall be determined by regulations made by the Department of Personnel and Training and the allotment of candidates from the result of this examination to the various cadre units shall also be made by that Department.
Provided that if sufficient number of candidates are not available for filling up the vacancies in a cadre unit in any recruitment year, either by Limited Departmental Competitive Examination or by promotion on the basis of seniority, the unfilled vacancies shall be carried forward and added to the number of vacancies of the same mode of recruitment to be filled in the next recruitment year.
Provided further that no such unfilled vacancies shall be carried forward for more than two recruitment years, beyond the year to which the recruitment relates, where after the vacancies if any, still remaining unfilled belonging to one mode of recruitment shall be transferred as additional vacancies for the other mode of recruitment.
60. In pursuance of the recommendations made by the Parliamentary Standing Committee attached to the Ministry of Home Affairs, DOP&T, respondent no.1, vide their order No.21.6.1998-CS.I dated 28.2.2001 constituted a Committee of senior officers to assess the magnitude of stagnation in the Assistants Grade of CSS and suggest remedial measures. The Committee submitted its report on 28.2.2002 recommending, inter alia, (i) for discontinuation of direct recruitments in the grade of Section Officer; (ii) creation of 1405 posts in the grade of Section Officer by raising the strength of 1595 to 3000; & (iii) distribution of vacancies of Section Officer between the seniority and LDCE in the ratio of 75% and 25% for promotion of Assistants. Upon consideration of the report of the Committee, the Government, inter alia, decided to discontinue the direct recruitment to the grade of Section Officer from Civil Service Examination by UPSC and to change the mode of recruitment to the grade of Section Officer to 50% by LDCE and 50% by seniority. Consequently the proposal of cadre restructuring of Central Secretariat Service was placed before the Cabinet for its approval which, inter alia, included the revising the cadre strength of SO in CSS and creation of 1405 posts of Section Officer.
61. By way of OA No.1091/2005 in the matter of Kailash Chander and others vs. Union of India and others, the applicants sought declaration to the effect that the decision of the respondents to defer their decision on the stoppage of lateral entry of officers of Stenographers Service into CSS was illegal, arbitrary and mala fide. They further sought directions to be given to the respondents to accept the recommendations and to declare that additional 638 posts created in pursuance of the recommendations of the Expert Committee to reduce/remove stagnation in the Assistant Grade in CSS could not be taken into consideration for calculating the vacancies to be filled up on the basis of CLDCE-2003. They sought further directions to revise their intimation of the vacancies. The said OA was dismissed vide order dated 26.7.2005 holding that the matter was governed by statutory rules. The rules, as yet, had not been amended. To enforce, therefore, certain recommendations through this Tribunal was not permissible. It was within the domain of the State to take a policy decision and at best the applicants were armed with certain recommendations of the Parliamentary Committee or the Expert Committee, which would not confer any right till the decision was translated into a right by amending the Rules. To that extent, therefore, the Tribunal found no reason to interfere in the administrative matter. This order was challenged by the applicants in the High Court of Delhi vide Writ Petition (C) No.13245-60/2005. The said Writ Petition was, however, dismissed in default on 29.3.2011
62. As stated earlier, the new Central Secretariat Service Rules, consequent upon cadre restructuring, have been notified only on 27.2.2009 without affecting things done or omitted to be done under Central Secretariat Service Rules, 1962 before their supersession by Central Secretariat Service Rules, 2009. Thus new rules are applicable prospectively and prior to their coming to force, erstwhile rules of 1962 continued to govern the matter prescribed therein.
63. In view of a large number of cadre controlling Ministries/offices having their own respective cadre in respect of Section Officer Grade, determination of actual number of vacancies has always been problematic and has been subjected to periodical revision from time to time based on information relating to actual number of available vacancies in the grade.
64. The main plank of the applicants case has been that there was a quota of 40% of the total number of available vacancies in this Section Officer Grade for LDCE candidates. The vacancies were to be filled up in the ratio of 20% for direct recruit and the remaining on the basis of the Select List. The vacancies falling in the quota of the Select List are required to be filled up from the Assistants based on their seniority and from the Assistants who qualified CLDCE in the ratio of 1:1. The applicants case is thus that the total the number of available vacancies in the Section Officer Grade were required to be filled up from three streams in accordance with their respective quotas allocated under the Rules in the ratio of 20% for direct recruit; 40% on the basis of seniority; and 40% on the basis of CLDCE. The learned counsel for the applicants placed much reliance on the practice followed by the respondent no.1 in this regard from time to time. However, the question arises as to whether such practice would be good enough for conferring right on the applicants de hors the statutory rules. Obviously the rules do not expressly provide for any quota as is being claimed by the applicants herein. A plain reading of Rule 13 (1) does not support this contention of the applicants. What Rule 13 (1) expressly provides is that 20% of the regular vacancies in the Section Officer Grade in any cadre would be filled by direct recruitment on the basis of the result of the competitive examination held by the Commission for this purpose from time to time and the remaining vacancies shall be filled by appointments of persons included in the Select List for the Section Officer Grade. Thus, the Rule provides for quota only for two categories, i.e., 20% for direct recruit and 80% for persons whose names were included in the Select List. The Rule further provides for carrying forward of unfilled vacancies in either of these two categories, namely, direct recruit or as the case may be, the Select List persons for succeeding two years whereupon the vacancies, if any, still remaining unfilled falling under one mode of recruitment would be transferred as additional vacancies to other mode of recruitment. That means any vacancies in the direct recruit quota remaining unfilled would be carried forward to succeeding two years and if they still continue to remain unfilled, the number of vacancies remaining available and unfilled would be transferred as additional vacancies to other mode of recruitment, namely, Select List category and vice versa and there is no reference whatsoever in this regard with reference to CLDCE category or, for that matter, to any seniority quota. Rule 13 (1) provides for appointment to grade of Section Officers from two categories only, namely, direct recruit and Select List candidates. Select List is a composite category comprising of persons drawn from the Assistant Grade based on their seniority and on the result of CLDCE. Seniority in the grade of Assistant and the result of CLDCE are relevant only upto the stage of induction in the Select List which provides the further basis for appointment to the Section Officers Grade. Thus, appointment to the Section Officers Grade is in the order of seniority in the Select List in terms of Rule 13 (1). In the Scheme of the Rules, the provisions for carrying forward of unfilled vacancies to succeeding two years is made in respect of direct recruit and select list candidates. This provision is not applicable to any seniority category or CLDCE category whose vacancies remained unfilled. This becomes crystal clear from Illustration-II in the Fourth Schedule which is based on the said proportion of four promotees from the Select List to one direct recruit. Thus, if there are 10 regular vacancies in a year, say, 1989, there would be two slots for direct recruits at position numbers 5 and 10. The position numbers at 1 to 4 and 6 to 9 would be for promotees from the Select List. There is no reference to any seniority or CLDCE categories in this regard in the iillustration. This is precisely the reason as to why the applicants placed more reliance on departmental practice rather than on the provisions of the Rule in support of their claim and sought to supplement it by referring to the provisions of Fourth Schedule containing provisions with regard to preparation and maintenance of Select List. Sub rule (5) of Rule 13 provides for preparation of Select List for Section Officer grade, which might be revised from time to time and the procedure for preparing and revising the Select List would be as set out in Fourth Schedule. Fourth Schedule as envisaged in Rule 13 (5) contained regulations for constitution and maintenance of Select List for the Section Officers Grade, besides Assistants Grade for Central Secretariat Service. Regulation (1) provides for initial constitution of Select List. Accordingly, officers borne on the Regular Temporary Establishment of the respective Grades immediately before the appointed day and allotted to a cadre under Rule 8 shall form the Select List for the concerned Grade for that cadre on such date. Regulation 2 provides for maintenance of such Select List for Section Officers Grade. Accordingly, addition to the Select List for the Section Officer Grade in any category shall be established in such numbers as the cadre authority may determine from time to time keeping in view the existing and anticipated regular vacancies so as to ensure that one person each by rotation is included from out of the categories of persons specified therein, namely, (a) Officers of the Assistants Grade in that Grade who have rendered not less than eight years approved service in that Grade and are within the range of seniority, in the order of their seniority, subject to the rejection of the unfit; and (b) Persons selected on the results of the limited departmental competitive examinations, held by the Commission, from time to time, in the order of their merit. But both the categories belong to the category of promotee from the Select List. The applicants, however, claimed that by necessary implication of this provision as contained in Regulation 2 in the Fourth Schedule. There was a quota of 50% each for seniority category and examination quota. As a matter of fact, in spite of apportioning the available vacancies to be filled up from among the persons whose names are included in the Select List between seniority category and examination category, the fact remains that the additions to the Select List have never been in the ratio of 1:1 between Seniority Quota and Examination Quota as the number of persons available for appointment for inclusion in the Select List based on the result of CLDCE had quite often being less than the notified vacancies. On the other hand, a large number of Assistants having requisite qualified approved service were available to fill up the available vacancies. As a matter of fact, persons in the feeder cadre of Assistants were stagnating for long as they could not be further promoted to Section Officers Grade in spite of long service of 14 to 18 years of service in the feeder cadre of Assistants. Thus the principle of rotation as envisaged in the Regulation 2 of Fourth Schedule could be adhered to only to the extent it was feasible to do so having regard to the number of available candidates from the respective feeder categories. This has been impliedly conceded by the applicants themselves when they prayed for issuance of directions to respondent No.1 in para 8.4 and para 8.5 of the amended application to revise the Select List 2003 to the extent that it should comprise of 466 officers, taking 211 entries from Select List (CLDCE 2003) and 255 entries from Select List (seniority quota) 2003. As stated earlier, the Select List as envisaged in the rules is a composite one. In the Scheme of the rules, no separate Select Lists for LDCE and another for seniority quota have been provided for. The rules do not provide for any consequences where the principle of rotation could not be adhered to for any reason. This tends to show that the provision with regard to rotation is directory and not mandatory. Nevertheless, Regulation 2 cannot be construed as having provided a quota for CLDCE category as claimed by the applicants herein. Had it been so, it could have been appropriately provided for in Rule 13 itself wherein the subject of quota has been specifically dealt with. As a matter of fact, such a quota has indeed been provided in the case of Assistants Grade. This is even further supported from the present Rules as are brought into force in 2009 wherein quota for LDCE has been expressly provided. It is true that respondent no.1 seems to have been working under an erroneous understanding of the rules while allocating a quota to CLDCE as claimed by the applicants and carrying forward unfilled vacancies to succeeding years though there has been no provision for such carrying forward either in Rule 13 or in the Fourth Schedule. Since the parties have not joined issues on the propriety of such an action of the respondents in the past, we refrain ourselves from expressing our views except to the extent that this does not seem to have the sanction of the statutory rules. The issues between the parties herein relates to the Select List of 2003. As stated earlier, the available vacancies in the Section Officers Grade based on the information received at the time were apportioned between seniority category and LDCE category with reference to the additional posts created upon restructuring of the cadre. However, as a matter of fact, the number of vacancies so notified for filling up from among the candidates qualified the LDCE could not be filled up. The number of candidates qualified was less than the number of notified vacancies. Thereafter, additional information came to be received by the respondent no.1 with regard to increasing number of available vacancies. Since large number of persons having much more than the minimum qualifying service of 8 years were available to fill up these additional posts while it was not so with regard to CLDCE category where the persons qualified in the examination have already been fully consumed and exhausted by their appointment, the respondent No.1 periodically kept on revising zone of consideration to accommodate the requisite number of eligible Assistants to fill up the available vacancies. So long the Select List so prepared did not exhaust 80% of limit as envisaged in Rule 13, the action of the respondents could not be faulted with.
65. The question as to whether there is quota or rota or both in the present case essentially boils down to the provisions of the applicable rules. We have already examined the rules applicable in the present case and do not find any statutory prescription for any quota for CLDCE in the sense in which such term is understood in service jurisprudence. The cases cited by the applicants in this regard to the cases of Dr. Rajinder Singh vs. State of Punjab and others, (2001) 5 SCC 482; Union of India vs. Pushpa Rani and others, (2008) 9 SCC 242; State of A.P. and another vs. A.P. Pensioners Association and others, 2005 (13) SCC 161; and Suraj Prakash Gupta vs. State of J&K, AIR 2000 SC 2386, are not of any assistance or help to the applicants. The rules operate on their own force.
66. In other three Applications, the applicants, who have qualified CLDCE in subsequent years and are seeking recalculation of vacancies with reference to the information sought under RTI and by way of addition of unfilled LDCE vacancies in the preceding years required to be carried forward in the succeeding years and for the directions to the UPSC to issue supplementary list to accommodate them for inclusion in the Select List for the year to which they qualified the Limited Departmental Competitive Examination. Similar issue came up for consideration before a coordinate Bench of this Tribunal in OA No.3511/2010 in which case also the applicants appeared and qualified the LDCE of 2005 conducted by UPSC for the vacancies of Section Officers Grade. The said O.A. was dismissed vide this Tribunals order dated 29.3.2011 to which one of us was a party, namely, Honble Dr. Veena Chhotray, Member (A), who authored that order. The reliefs sought by the applicants in the OA 3511/2010 referred to above were as follows:-
(A) A direction to the respondent no.2 (UPSC) for sending the names of the applicants, who have the same marks as the three general candidates recommended by the impugned order as supplementary list.
(b) A direction to the respondents to give the applicants, if their names appear in the supplementary list, the appointment of Section Officers and all consequential benefits. While declining to grant the reliefs as aforesaid, this Tribunal has, inter alia, observed that:
6.2 It is settled in law that a selectee has no legally indefeasible right for appointment. Besides, a bonafide decision on the part of the State not to fill up vacancies is not to be interfered in judicial review. [Shankarsan Dash v. Union of India {(1991) 3 SCC 47} / State of UP & Ors vs Rajkumar Sharma & Ors {(2006) 3 SCC 33}/ Jitendera Kumar & Ors vs State of Haryana {2008 (1) SCC (L&S) 428} / Subha B. Nair & Ors vs State of Kerala and Ors {(2008) 2 SCC (L&S) 409} / State of M.P. & Ors vs. Sanjay Kumar Pathak & Ors {(2008) 1 SCC (L&S) 207}.
In the present case the applicants have not even been finally selected. They have only qualified the written test. The reliance placed in the OA on the information received under the RTI and the contention about the same indicating as final evaluation of the UPSC has been rebutted by the respondents. Even the use of the expression overall in these RTI communications is to be viewed in the context of the scheme of the Examination (Annex. A/7). Since the prescribed written test comprised of 5 papers, each carrying maximum 100 marks; the score 305 obtained by the applicants had a reference to the overall marks obtained in the written test. As such the applicants are not even selectees and thus have no locus standi to agitate any claims. Besides in the present case the respondents consistent stand is against maintenance of any supplementary lists. Hence the claims in the instant OA do not emanate from any candidates empanelled in a supplementary or a waiting list. In State of U.P. & Anr vs Uttar Pradesh Khanij Vikas Nigam Sangarsh Samiti & Ors {(2009) 1 SCC (L&S) 23}, the Honble Apex Court observed:
A writ of mandamus presupposes a legal right in applicants favour.
While dealing with the issue of discrimination, the Tribunal recorded the following observations made by the Honble Supreme Court in the case of State of U.P. vs. Rajkumar Sharma & Ors., (2006) 3 SCC 330:
14. Selectees cannot claim the appointment as a matter of right. Mere inclusion of candidates' name in the list does not confer any right to be selected, even if some of the vacancies remained unfilled and the concerned candidates cannot claim that they have been given a hostile discrimination. 15. Even if in some cases appointments have been made by mistake or wrongly that does not confer any right on another person. Article 14 of the Constitution does not envisage negative equality, and if the State committed the mistake it cannot be forced to perpetuate the same mistake. Accordingly, the said OA was dismissed being bereft of merits vide order dated 29.3.2011. This order was unsuccessfully challenged by the applicants therein in High Court in Writ Petition No.3297/2011
67. While dismissing the said Writ Petition, the Honble High Court, inter alia, observed that It is well settled that a selectee has only right to consideration but no legally indefeasible right to appointment. The High Court noted the position as emanating from the scheme of examination is that ACRs are seen for determining merit position inter se candidates, who have secured same qualifying written test marks. The High Court further noted that there is neither any mandate nor any direction to say that UPSC must issue a supplementary list if a department approaches the UPSC within a reasonable time for replacement from the reserves. Though provision is made in Clause 4(c) of the Office Memorandum dated 14.7.1967 enabling the Department to approach the UPSC within a reasonable time for replacement from the reserves but whether or not the UPSC should accept such request is not the subject matter of the said Office Memorandum. The stand of the UPSC has been throughout and, as a convention, in terms of the policy decision, that they do not issue supplementary list except in two categories of cases, namely, repeat or common candidates. Repeat candidates are those candidates, who have participated in the same category in two limited Departmental Competitive Examination and are successful in the first exam but their results had not been declared when the second Departmental Competitive Examination was held. Result in the second limited Departmental Competitive Examination is not counted and benefit is given to the next candidate on merits. Common candidates are those candidates, who get selected in more than one category in the limited Departmental Competitive Examination. Taking a different view would upset the policy or convention followed by UPSC for a long time and will create ambiguity and will lead to confusion. No instance was pointed out by the applicants when the said policy has not been acted upon and applied. The High Court also noted that logic and reason behind the said policy as Limited Departmental Competitive Examinations are held periodically and no waiting list as such is prepared. Limited Departmental Competitive Examination is held for clear and anticipated vacancies and not for future vacancies. In view of the aforesaid, the High Court dismissed the Writ Petition (C) No.3297/2011 vide its order dated 16.5.2011 in the matter of Manoj Manu & Anr. Vs. Union of India and others.
68. Even in the case of Ashish Mohan vs. Union of India in CWA No.1839/2002 decided by the Delhi High Court vide its order dated 6.8.2002, which was referred to by the applicants in OA No.1083/2007, the Honble Delhi High Court, inter alia, observed that for valid reasons, the Government can decide not to fill up the vacancies. No employee has vested right in promotion. Even if an employee finds his name in the select list he has no right to be promoted to the post if for administrative reasons decision is taken not to fill up the post in question. The High Court found support for this from the cases of Union of India vs. K.V. Vijeesh, 1996 (3) SC 139, and Shankarsan Dash versus Union of India, (1991) 3 SCC 47.
69. The applicants in OA No.1253/2009 appeared in LDCE of 2005 held on 26.12.2006. The UPSC declared the result of examination on 5.8.2008 and the cut off marks was 315. Those candidates, who have secured 315 and above marks in the examination, have been included in the list of successful candidates. None of the applicants in this Application met this requirement of cut off marks by their own admission. The applicants are seeking directions for issuance of supplementary list by recalculating the vacancies taking into consideration the unfilled vacancies required to be carried forward for the year 2004. We have seen that rules do not provide for carrying forward of such vacancies in any subsequent year. Furthermore, it is not incumbent upon the UPSC to issue any supplementary list in the facts and circumstances of the present case, as is seen earlier in the case of Manoj Manu & Anr. Vs. Union of India and others in OA No.3511/2010 decided by the coordinate Bench of this Tribunal on 29.3.2011 and upheld by the Honble Delhi High Court in Writ Petition No.3297/2011 in the matter of Manoj Manu and Anr. Vs. Union of India and others decided on 16.5.2011.
70. The applicants in OA No.2136/2010 also qualified the written examination of CLDCE in 2005 held in December 2006. However, their names could not be accommodated in the successful candidates against notified vacancies. Their case has been that the unfilled vacancies did not correctly include the vacancies that would have fallen in the quota of LDCE by taking into consideration the newly created vacancies as a result of cadre restructuring in 2003 and carrying forward unfilled vacancies of the year 2004. They accordingly sought directions to the UPSC to issue a supplementary list. We have already seen that there is no quota as is being claimed by the applicants. Nor there is any provision for carrying forward of unfilled vacancies of LDCE. What is provided for in the Rules is with regard to carrying forward of unfilled vacancies of direct recruit or as the case with select list. Furthermore, since the applicants do not have any indefeasible right for appointment, the directions could not have been given to the UPSC for issuance of supplementary list as has been sought by the applicants herein in view of the rule position as has been dealt with by this Tribunal as well as High Court in the cases referred to above.
71. The applicants in OA No.2469/2010 also qualified the written examination of CLDCE in 2005 held by UPSC in December, 2006. They too are seeking the recalculation of vacancies by taking into consideration the vacancies created as a result of cadre restructuring falling to LDCE quota as well as carrying forward of unfilled vacancies to preceding LDCE examination and further directions to UPSC to release supplementary list for such unfilled vacancies for promotion to the posts of Section Officer. The position is no different than what has been narrated in respect of OA No.2136/2010 and OA No.1253/2009 referred to above.
72. In the facts and circumstances and for the reasons stated above, we are of the considered view that the applicants have failed to make out a case for grant of the reliefs prayed for by them. All the four Applications are bereft of merits and the same are dismissed accordingly. No order as to costs.
(Dr. Dharam Paul Sharma) (Dr. Veena Chhotray) Member (J) Member (A) /ravi/