Shri S.K. Atrey vs The Secretary on 29 September, 2011

[Cites 14, Cited by 0]

Central Administrative Tribunal - Delhi

Shri S.K. Atrey vs The Secretary on 29 September, 2011

      

  

  

 CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH

O.A. No.1258/2008
With
O.A. No.1641/2008 
New Delhi this the 29th day of September, 2011
Honble Smt. Meera Chhibber, Memebr (J).
Honble Dr. A.K. Mishra, Member (A).

OA No.1258/2008

Shri S.K. Atrey,
S/o Shri O.P. Atrey,
R/o T-10/2, Sadar Bazaar,
Delhi Cant.								.. Applicant

(By Advocate : None)

Versus
	
1.	The Secretary,
	Ministry of Defence, 
South Block,
	New Delhi.

2.	The Engineer-in-Chief,
	Military Engineering Services,
Army Headquarter, 
New Delhi.

3.	Shri Hanumanta Rao (MES No.194364),
	S/o Sh. Veeraiah,
	JE (Civil),
	Garrison Engineer, AFA,
	Dindigal, Hyderabad.

4.	Shri M. Rajindra Kumar (MES No.194363),
	R/o Qr. No.PF 49/2,
	MES Qtrs. AFS, Bidar.

5.	N. Rajendran (MES No.187621),
	JE, Officer of GE, Avadi, Chennai.

6.	Shri Sukhbir Singh (MES No.442068),
	JE (Civil),  C/o Engineer-in-Chief,
	Military Engineering Services,
	Army Heqdquarter,
	New Delhi.

7.	Shri S.K.M. Tripati (MES No.120736),
	R/o T-6/2, PAC Line, 
	Near NCC Naval Unit,
	Teliyarganj, Old Cantt.,
	Allahabad.

8.	Shri C. Sundanamoorthy (MES No.127669),
	Office of the GE (P) MH,
	Rudra Road, St. Thomas Mount, Chennai.

9.	Shri Ashok Kumar,
	S/o Late Shri Lakhi Ram,
	JE (Civil),
	Garrison Engineer (P),
	Meerut Cantt.						.. Respondents

(By Advocate : Shri R.K. Sharma for official respondents and
		    Shri V.K. Garg for R-7 and 9)

OA No. 1641/2008



1.	Shri S.K.M. Tripathi,
	S/o Shri H.D. Tripathi,
	Presently posted as JE Civil,
	C/o Garrison Engineer (W),
	Allahabad Cantt.

2.	Shri Ashok Kumar,
	S/o Late Shri Lakhi Ram,
	Presently posted as JE Civil,
	C/o Garrison Engineer (P),
	Meerut Cantt.

3.	Shri P.K. Goel,
	S/o Shri Balvir Singh,
	Presently posted as JE Civil,
	C/o G.E.(U), Water Supply,
	Delhi Cantt.

4.	Shri Surender Kumar,
	S/o Shri Raj Singh Mann,
	Presently posted as JE QS&C,
	C/o CEDZ Delhi.

5.	Shri Hariom,
	S/o Late Shri Daya Ram,
	Presently posted as JE QS&C,
	C/o CEDZ Delhi.						..  Applicants

(By Advocate : Shri V.K. Garg)

Versus

1.	Union of India,
	Through Secretary,
	Ministry of Defence, 
South Block,
	New Delhi.

2.	The Engineer-in-Chief,
	Kashmir House, 
Army Headquarters, 
New Delhi.

3.	Sh. Sudhr Kumar Attrey,
S/o Shri O.P. Attrey,
MES No.344542.

4.	Shri Bharat Bhushan,
	MES No.314685.

5.	Shri Kuldip Singh,
	MES No.314436.

6.	Shri Suresh Kumar Yadav
	MES No.314503.

7.	Shri Anil Kumar,
	MES No.314738.

8.	Shri Om Prakash,
	MES No.314555.

9.	Shri Brij Prakash,
	MES No. 314694.

10.	Shri Ranbir Singh Verma,
	MES No.314644.

11.	Shri Parash Ram,
	MES No.314495.

12.	Shri Satish Kumar Sharma,
	MES No.314811.

13.	Shri Narender Singh,
	MES No.314503.

14.	Shri Subhash Chand Bajaj,
	MES No.314786.

15.	Shri Arun Kumar
	MES No. 314972.

16.	Shri Bharat Bhushan,
	MES No.314978.

17.	Shri Suresh Chander,
	MES No.314875.

18.	Shri Bhagirath Swamy,
	MES No.314837.

19.	Shri Hardev Singh,
	MES No.314876.

20.	Shri Jatinder Pal,
	MES No.314840.

21.	Shri Ajay Kumar,
	MES No.314920.

22.	Shri Ram Niwas,
	MES No.314926.

23.	Shri Surender Singh,
	MES No.314976.

24.	Shri Shishupal Singh,
	MES No.314917.

25.	Shri Ajit Singh,
	MES No.314899.

26.	Shri Suresh Chand Sharma,
	MES No.314565.

27.	Shri Sunil Kumar Goyal,
	MES No.314816.

28.	Shri Dharamvir Singh,
	MES No.314921.

29.	Shri Rakesh Kumar,
	MES No.314953.

30.	Shri Ram Mehar Singh,
	MES No.314884.

All respondents No.3 to 30 to be served
Through respondent No.2.					.. Respondents.

(By Advocate : Shri R.N.Singh for official respondents and
		    Shri A.K. Behera for private respondents)


ORDER

By Honble Mrs. Meera Chhibber, Member (J) OAs No. 1258/2008 and 1641/2008 are cross cases filed by one party against the other challenging the appointments made in 1984 or 1987-1988. Since both these cases are interconnected, they are being disposed of by a common judgment.

OA No. 1258/2008

2. In OA No. 1258/2008 Shri S.K. Atrey, who was appointed as Superintendent Grade-II B/R on 27.4.1987 pursuant to the selections made in 1983 has challenged the appointments of respondent No.3 to 9 on the ground that their appointments are illegal and unconstitutional because they were given appointment when there was a ban on filling up the posts.

3. The brief facts, as stated by the applicant, are that he was selected as Superintendent B/R Grade-II later redesignated as Junior Engineer (Civil) in the select list of year 1983 but he was not issued offer of appointment as Superintendent Grade-II re-designated as Junior Engineer (Civil) on account of ban imposed by the Government of India vide OM dated 3.1.1984. However, respondents No.3 to 9 got appointment during the period of ban in collusion with concerned officials serving under respondents No.1 and 2 which is absolutely illegal as respondents No.3 to 9 could not have been given the appointment during the ban period. Applicant has thus prayed that respondent No.3 to 9s appointment may be quashed and set aside.

4. OA is opposed by the official as well as private respondents.

5. Counsel for the official respondents has taken preliminary objection to the maintainability of the OA on the ground that it is barred by limitation, delay and latches. Moreover, applicant has not filed any application seeking condonation of delay. The applicant has not even exhausted the remedy as no representation was given to the authority before approaching this Tribunal, therefore, OA is barred by Section 20 and 21 both. Moreover, applicant has not even challenged any order, therefore, this OA has to be dismissed on this ground alone.

6. On merits, they have stated Ministry of Defence had clarified vide letter dated 4.11.1986 that the ban on recruitment was partially lifted and vacancies of Superintendent B/R Grade-II/SA Grade-II were released with instructions that old panel should be considered for appointment before going in for fresh recruitment. This was a policy decision which is neither under challenge nor can be challenged at this belated stage. They have thus prayed that the OA may be dismissed.

7. Counsel for the private respondents has also opposed this OA on the ground that it is barred by limitation, delay and latches and no application for condonation of delay has been filed. He has submitted that the private respondents No.3 to 9 were appointed in the year 1984-85 whereas their appointments have been challenged by the applicant in the year 2008 without explaining the delay. The applicant was fully aware about the appointment of respondents No.3 to 9 as successive seniority lists were issued from time to time, therefore, applicants challenge to appointment of Respondents No.3 to 9 at this belated stage is not maintainable in law. The OA is liable to be dismissed on this ground alone.

8. On merits, learned counsel for the private respondents referred to page 99 of the Swamys Complete Manual on Establishment and Administration to show that the ban was imposed vide OM dated 3.1.1984 for filling up the vacancies but it was made clear that it would not apply to cases where recruitment action had been taken prior to issue of ban orders. It is specially mentioned in the reply that in the instant case recruitment action had commenced prior to 3.1.1984 (page 112) as written test was held on 6.1.1983. He was called for interview on 7.11.1983 and even the panel was issued in the year 1983, therefore, recruitment process had already initiated with regard to the appointment of private respondents before the OM dated 3.1.1984 was issued, therefore, it is wrong to suggest that the appointment of private respondents is bad on the ground that it was given during the period of ban.

9. None was present for the applicant on 16.9.2011 though both these OAs were clubbed and were Part Heard. Even otherwise since these matters were pending since 2008 and we had already heard all the counsel in OA No. 1641/2008 on the previous day and it was continuing as a Part Heard matter, we have proceeded to hear the matter by attracting Rule 15 (1) of Central Administrative Tribunal (Procedure) Rules, 1987.

10. Admittedly, applicant was also a selectee of 1983 panel. He was appointed in the year 1987-88 in Western Command while respondents No.3 to 5, 7 and 8 were appointed in the Southern Command and respondent No.6 & 9 were appointed in the Central Command. The respondent No.7 in this OA, i.e., OA 1258/2008 is applicant No.1 in the other OA bearing No.1641/2008 while respondent No.9 herein is applicant No.2 in the other OA, i.e., 1641/2008. Similarly the applicant herein Shri Atrey is respondent No.3 in OA No. 1641/2008 meaning thereby that the applicant has challenged appointment of those who were appointed in 1984 while the other group who were appointed in 1984 have challenged appointment of those persons who were appointed in the year 1987-88 from the panel of 1983. It is in this context that we have observed that these are cross cases.

11. Since preliminary objection to the maintainability of the OA has been raised, we would first have to deal with the objection. Admittedly, respondents No.3 to 9 were appointed in the year 1984 which was to the full knowledge of the applicant because combined seniority lists of all Commands were issued from time to time, therefore, it cannot be stated, nor has it been stated that the applicant was not aware about the appointment of respondents No.3 to 9. On the contrary it is established that their appointments were very much in the knowledge of the applicant. Applicant has not explained as to why he has challenged the appointment of respondents No.3 to 9 in the year 2008, i.e., after more than 24 years. As per Section 21 of the Administrative Tribunals Act, 1985 the period of limitation prescribed is one year from the date of cause of action, therefore, if applicant was aggrieved by the appointments of private respondents, he ought to have challenged it within one year. Since this OA has been filed after 20 years it is definitely barred by limitation. It has repeatedly been held by the Honble Supreme Court that duty is cast on the Tribunal to ensure that the mandate of Section 21 it complied with and stale matters should not be entertained. In the latest judgment given by the Honble Supreme Court in the case of D.C.S. Negi Vs. U.O.I. & Others ( SLP (Civil) No.7956/2011 CC No.3709/2011) decided on 11.3.2011 it has been held as follows:-

Before parting with the case, we consider it necessary to note that for quite some time, the Administrative Tribunals established under the Act have been entertaining and deciding the applications filed under Section 19 of the Act in complete disregard of the mandate of Section 21, which reads as under:-

21. Limitation -

(1) A Tribunal shall not admit an application, -

(a) in a case where a final order such as is mentioned in clause (a) of sub-section (2) of section 20 has been made in connection with the grievance unless the application is made, within one year from the date on which such final order has been made;

(b) in a case where an appeal or representation such as is mentioned in clause (b) of sub-section (2) of section 20 has been made and a period of six months had expired thereafter without such final order having been made, within one year from the date of expiry of the said period of six months.

(2) Notwithstanding anything contained in sub-section (1), where

(a) the grievance in respect of which an application is made had arisen by reason of any order made at any time during the period of three years immediately preceding the date on which the jurisdiction, powers and authority of the Tribunal becomes exercisable under this Act in respect of the matter to which such order relates ; and

(b) no proceedings for the redressal of such grievance had been commenced before the said date before any High Court, the application shall be entertained by the Tribunal if it is made within the period referred to in clause (a), or, as the case may be, clause (b), of sub-section (1) or within a period of six months from the said date, whichever period expires later.

(3) Notwithstanding anything contained in sub-section (1) or sub-section (2), an application may be admitted after the period of one year specified in clause (a) or clause (b) of sub-section (1) or, as the case may be, the period of six months specified in sub-section(2), if the applicant satisfies the Tribunal that he had sufficient cause for not making the application within such period.

A reading of the plain language of the above reproduced section makes it clear that the Tribunal cannot admit an application unless the same is made within the time specified in clauses (a) and (b) of Section 21 (1) or Section 21 (2) or an order is passed in terms of sub-section (3) for entertaining the application after the prescribed period. Since Section 21 (1) is couched in negative form, it is the duty of the Tribunal to first consider whether the application is within limitation. An application can be admitted only if the same is found to have been made within the prescribed period or sufficient cause is shown for not doing so within the prescribed period and an order is passed under Section 21 (3).

In the present case, the Tribunal entertained and decided the application without even adverting to the issue of limitation. Learned counsel for the petitioner tried to explain this omission by pointing out that in the reply filed on behalf of the respondents, no such objection was raised but we have not felt impressed. In our view, the Tribunal cannot abdicates its duty to act in accordance with the statute under which it is established and the fact that an objection of limitation is not raised by the respondent/non-applicant is not at all relevant .

12. In view of above, it is clear that the question of limitation has to be first looked into. Since OA is filed after 20 years, it is definitely barred by limitation.

13. It is also relevant to note that applicant has not even filed any application seeking condonation of delay. It has been held by the Honble Supreme Court in the case of Ramesh Chand Sharma etc. vs. Udham Singh Kamal & Ors, reported in 2000 (2) AISLJ S.C. 89 that Tribunal does not even have the power to condone the delay unless application seeking condonation of delay is filed by the applicant. In the instant case, as we have already noted, no application for condonation of delay has been filed by the applicant, therefore, this delay cannot even be condoned. The OA is liable to be dismissed on this ground alone. However, since we have heard counsel for the respondents on merits and have seen the pleadings, we are satisfied even on merits, no case is made out for interference.

14. The only ground for challenging the appointment of respondents No.3 to 9 is that they were appointed during the period of ban whereas perusal of letter dated 3.1.1984 shows that though restriction on creation of posts/filling up of vacancies was imposed by Ministry of Finance but it was clearly mentioned in the same letter that the ban orders on filling up of vacancies would not apply to cases where recruitment process had taken place prior to issue of the orders.

15. In the instant case, not only the recruitment process had been initiated earlier, but admittedly the panel was also declared in the year 1983 itself, whereas the ban was imposed vide order dated 3.1.1984. It is thus clear that the ban was not applicable in the instant case, therefore, the basic argument advanced by the applicant is misconceived. The OA is accordingly dismissed being bereft of any merit. No costs.

OA No. 1641/2008

16. OA No. 1641/2008 has been field by 5 applicants, namely, S/Shri S.K.M. Tripathi, Ashok Kumar, P.K. Goel, Surender Kumar and Hariom challenging the appointment of respondents No.3 to 30 on the ground that they were given appointment from the panel of 1983 in the year 1987-88 after the panel had outlived its life, therefore, their appointments as Superintendent B/R Grade-II redesignated as Junior Engineer (Civil) was void ab initio. Applicants No.1 & 2 of this OA were respondents in the earlier OA bearing No.1258/2008

17. The brief fact as stated by the applicants are that applicant No.1 was appointed in the Southern Command, applicant No.2 in Central Command while applicants No.3 to 5 were appointed in the Western Command. They were all appointed on 29.4.1985, 20.3.1984, 19.4.1988, 14.5.1984 and 15.4.1988 in their respective commands.

18. It is submitted by the counsel for the applicants that respondents No.3 to 30 were all selectees of a selection panel issued on 29.6.1983 in the Western Command. However, out of panel of 233 candidates issued on 29.6.1983 initially 53 persons were appointed, out of which 24 were appointed to the post of Superintendent B/R Grade-II while 29 to the post of Surveyor Assistant Grade-II for the vacancies of 1983-84. Thereafter the respondents illegally and unauthorisedly exercised the panel of 1983 in the year 1987-88 by giving appointment to private respondents whimsically by adopting the method of pick and choose because even though there were number of other persons in the panel, appointments were given to the private respondents by picking them up wrongly at random. Learned counsel for the applicants strenuously argued that life of a panel could not be beyond a period of one year and if Regulation 88 is seen, it could be at best for 2 years, therefore, giving effect to the panel of 1983 in 1987-88 is void ab initio and it amounts to backdoor entry.

19. He further submitted that in the instant case there is no rule or regulation which provide for the life of a panel, therefore, as per normal rules, life of panel could only be for one year. Reliance has been placed on the judgment of Honble Supreme Court in the case of State of Rajasthan & Others Vs. Jagdish Chopra reported in 2007 (8) SC 161, Girdhar Kumar Dadhich and Another Vs. State of Rajasthan and Others reported in 2009 (2) SCC 706 and State of Orissa and Another Vs. Rajkishore Nanda and Others reported in 2010 (6) SCC 777 wherein it was held that select list cannot be treated as a perpetual reservoir.

20. Learned counsel for the applicants also placed reliance on the judgment in OA No. 164/2007 wherein provisional seniority list of Superintendent Grade-II/JE issued in 2004 was challenged by the persons who were appointed in 1984 because for the Ist time persons appointed in 1987-88 were placed above them. While deciding the above OA, this Tribunal in its judgment dated 26.5.2008 in para 22 had held panel seniority cannot be granted to respondents as panel had outlived its life, therefore, appointees of 1987-88 cannot gain seniority over the applicants and seniority should be with regard to the date of appointment.

21. He further submitted that the vacancies of 1983 were not available in 1987-88, therefore, respondents could not have been appointed against future vacancies.

22. On the question of delay and limitation, counsel for the applicants submitted that delay cannot come in their way because appointments were void ab initio. To buttress this argument, he relied on State of M.P. & Others Vs. L.K. Verma reported in 2007 (1) SCC 575. He also relied on the judgments in Secretary, State of Karnataka and Others Vs. Uma Devi and Ors. reported in 2006 (4) SCC, M.S. Patil (Dr.) Vs. Gulbarga University and others reported in 2010 (1) SCC 63, State of Orissa and Another Vs. Mamata Mohanty reported in 2011 (3) SCC 436.

23. Official respondents as well as private respondents both have opposed the OA on the ground of limitation, delay and latches. It is stated that respondents were appointed in 1987-88 to the full knowledge of applicants because successive seniority lists were issued and they had even challenged the seniority given to private respondents in the year 2004. No cause of action has arisen for the applicants in 2008, therefore, OA is liable to be dismissed on this ground alone. They have relied on D.C.S. Negi Vs. U.O.I. ( SLP ( Civil) No. 7956/2011 CC No. 3709/2011).

24. Even otherwise, an OA can be filed only by an aggrieved person as per Section 19 of the Administrative Tribunals Act, 1985 whereas applicants have not shown how they are aggrieved by their appointment, therefore, the OA is liable to be dismissed.

25. They have further stated judgment dated 26.5.2008 given by this Tribunal has already been stayed by the Honble High Court, therefore, reliance cannot be placed on the said judgment.

26. On merits, they have stated there was, in fact, no ban as far as selection of 1983 was concerned because while imposing the ban, it was made clear it would not apply in those cases where recruitment process had already been initiated.

27. The Western Command under a misconception did not implement full panel of 1983. Subsequently, Ministry of Defence had clarified vide letter dated 4.12.1986 that the ban on recruitment has been partially lifted and vacancies of Superintendent B/R Grade-II/SA Grade-II were released when instructions that old panel should be considered for appointment first before going in for fresh recruitment.

28. They have further stated that the allegation of pick and choose is also wrong. They have explained that the board was finalized in June, 1983 and more than 3 years had lapsed, it was, therefore, felt necessary to obtain willingness certificate from the candidates who were on the select panel before issuing appointment letter. Candidates who were within age limit at the time of selection and were over-aged, were also required age relaxation from Government of India before issue of appointment letters. Relaxation of upper age limit in respect of over-aged individuals were considered and forwarded by the respondent No.2 and the same was accorded by respondent No.1 in February, 1988. Thus they were rightly appointed in 1987-88 as per the policy decision. Counsel for the respondents also submitted that Regulation 88 has nothing to do with the life of panel. On the contrary they were governed by OM dated 8.2.1982 (page 59) which has already been upheld in Ishwar Singh Khatris judgment. They have thus prayed that the OA may be dismissed.

29. We have heard all the counsel and perused the pleadings as well. Admittedly, private respondents were appointed in 1987-88 whereas their appointment have been challenged by the applicants in the year 2008 by filing the present OA. It is not even stated by the applicants that they were not aware about the appointment of private respondents or came to know about it only in 2008. Admittedly seniority lists were issued from time to time, therefore, applicants were aware about the appointment of private respondents. In view of above, the factual position is that the appointment of private respondents given in 1987-88 is being challenged in 2008, i.e., after over 20 years without explaining the delay.

30. As per Section 21 of the Administrative Tribunals Act, 1985 the period of limitation prescribed is one year from the date of cause of action, therefore, if applicants were aggrieved by the appointment of private respondents, they ought to have challenged it within one year. Since this OA has been filed after 20 years it is definitely barred by limitation. It has repeatedly been held by the Honble Supreme Court that a duty is cast on the Tribunal to ensure that the mandate of Section 21 it complied with and stale matters should not be entertained. In the latest judgment given by the Honble Supreme Court in the case of D.C.S. Negi Vs. U.O.I. & Others ( SLP (Civil) No.7956/2011 CC No.3709/2011) decided on 11.3.2011 it has been held as follows:-

Before parting with the case, we consider it necessary to note that for quite some time, the Administrative Tribunals established under the Act have been entertaining and deciding the applications filed under Section 19 of the Act in complete disregard of the mandate of Section 21, which reads as under:-

21. Limitation -

(1) A Tribunal shall not admit an application, -

(a) in a case where a final order such as is mentioned in clause (a) of sub-section (2) of section 20 has been made in connection with the grievance unless the application is made, within one year from the date on which such final order has been made;

(b) in a case where an appeal or representation such as is mentioned in clause (b) of sub-section (2) of section 20 has been made and a period of six months had expired thereafter without such final order having been made, within one year from the date of expiry of the said period of six months.

(2) Notwithstanding anything contained in sub-section (1), where

(a) the grievance in respect of which an application is made had arisen by reason of any order made at any time during the period of three years immediately preceding the date on which the jurisdiction, powers and authority of the Tribunal becomes exercisable under this Act in respect of the matter to which such order relates ; and

(b) no proceedings for the redressal of such grievance had been commenced before the said date before any High Court, the application shall be entertained by the Tribunal if it is made within the period referred to in clause (a), or, as the case may be, clause (b), of sub-section (1) or within a period of six months from the said date, whichever period expires later.

(3) Notwithstanding anything contained in sub-section (1) or sub-section (2), an application may be admitted after the period of one year specified in clause (a) or clause (b) of sub-section (1) or, as the case may be, the period of six months specified in sub-section(2), if the applicant satisfies the Tribunal that he had sufficient cause for not making the application within such period.

31. In view of above, it is clear that the question of limitation has to be first looked into. Since OA is filed after 20 years, it is definitely barred by limitation.

32. It is relevant to note that applicants have not even filed any application seeking condonation of delay. It has been held by the Honble Supreme Court in the case of Ramesh Chand Sharma etc. vs. Udham Singh Kamal & Ors, reported in 2000 (2) AISLJ S.C. 89 that Tribunal does not even have the power to condone the delay unless application seeking condonation of delay is filed by the applicants. In the instant case, as we have already noted, no application for condonation of delay has been filed by the applicants, therefore, this delay cannot even be condoned. The OA is liable to be dismissed on this ground alone. However, since we have heard all the counsel, we are satisfied that even on merits, no case is made out for interference.

33. Counsel for the applicants strenuously argued if appointments are per se illegal, limitation would not come in their way but this defence would be available to the applicants only if we hold the appointments were per se illegal, therefore, we would have to examine whether the appointment of private respondents were valid or illegal as alleged by the counsel for the applicants.

34. It is an admitted position that the private respondents were selected and figured in the panel of 1983 for the post of Superintendent B/R Grade-II. Letter dated 9.12.1982 (page 91) shows there were approximately 280 posts of Superintendent B/R Grade-II and 20 for Superintendent E/M Grade-II in Western Command. The letter sent to the Employment Exchange was also for 280 + 20 vacancies in Western Command (page 92). The same number of vacancies was mentioned in the requisition sent for notifying the vacancies (page 95).

35. From above, it is clear that in Western Command, there were 280+20 vacancies notified for Superintendent B/R Grade-II and E/M Grade-II, respectively, when selections were held in 1982-83. The panel of selected candidates was admittedly issued on 29.6.1983 which consisted of 233 candidates (page 15 at 29F). However, only 53 posts were filled, 24 Superintendent B/R Grade-II and 29 Surveyor Assistant Grade-II, which means rest of the vacancies remained unfilled. It is not stated by the applicants that any other selection had taken place in Western Command after 1983 till 1987-88, therefore, contention of the counsel for the applicants that vacancies of 1983-84 would not be available in 1987-88 is rejected.

36. In fact, the whole problem arose in view of letter dated 3.1.1984 issued by the Government, imposing ban on filling up of posts. The Western Command thought total ban was imposed even though in letter dated 3.1.1984 itself, it was clearly mentioned that it would not apply to cases where recruitment action had started prior to issue of ban orders, meaning thereby ban could not have applied against those vacancies, where select panel was already issued. However, Western Command had stopped giving appointment to the selected candidates from 1983 panel, under a misconception. After 1984 Army Headquarters issued letter on 4.12.1986 informing the Commands that ban has been lifted with further direction that where selection of categories have been made already in 1983, they may be issued appointment letters. This direction was in conformity with OM dated 8.2.1982 issued by Ministry of Home Affairs which was in existence in 1983 when selections for Superintendent B/R Grade-II were conducted. This OM reads as under:-

Subject: Validity period of list of selected candidates prepared on the basis of direct recruitment/departmental competitive examination. The undersigned is directed to say that references are being received from time to time from Ministries/Departments enquiring as to what should be the validity period of a list of selected candidates prepared on the basis of direct recruit of departmental competitive examination.

The undersigned is directed to say that reference are being received from time to time from Ministries/Departments enquiring as to what should be the validity period of a list of selected candidates prepared ion the basis of direct recruitment of Departmental Competitive Examination.

2. Normally, in the case of direct recruitment a list of selected candidates is prepared to the extent of the number of vacancies(other person found suitable being out on a reserved list, in case some of the persons on the list of selected candidates do not become available for appointment). Similarly in the case of departmental competitive examination, the list of selected candidates has to be based on the number of vacancy on the date of declaration of results as the examination is competitive and selection is based on merit. A problem may when there is fluctuation in the vacancies after the list of selected candidates is announced.

3. The matter has been carefully considered. Normally, recruitment whether from the open market or through a Departmental Competitive Examination should take place only when there are no candidates available from an earlier list of selected candidates. However, there is likelihood of vacancies arising in future, in case, names of selected candidates are already available, there should either be no further recruitment till available selected candidates are absorbed or the next examination should take into account the number of persons already on the list of selected candidates awaiting appointment. Thus, there would be a limit on the period of validity of list of selected candidates regard to the extent of declared vacancies either by the method of direct recruitment or through a Departmental Competitive Examination.

4. Once a person is declared successful according to the merit list of selected candidates; which is based on the declared number of vaancies, the appointing authority has the reason to appoint him even if the number of vacancies undergoes a change after his name has been included in the list of selected candidates. Thus, where the selected candidates are awaiting appointment, recruitment should either be postponed till all the selected candidates are accommodated, or alternatively intake for the next recruitment reduced by the number of candidates already awaiting appointment and the candidates awaiting appointment should be given appointments first, before starting appointment from a fresh list from subsequent recruitment or examination.

5. Ministry of Finance etc. are requested to bring the above instructions to the notice of all the appointing authorities under them for information and guidance.

Sd/-

(J K Sharma) Director.

37. As per this O.M., it is clear that if candidates were selected as per the number of vacancies and even if there was change in the number of vacancies after the declaration of result, they should be given appointment before holding the next selection. In the instant case, admittedly panel of 1983 was prepared as per the number of vacancies but subsequently the panel was not operated due to some misconception. Ultimately when ban was lifted, it was decided to first appoint the selectees of 1983 panel before holding the next examination. We find no illegality in actions of the respondents in given circumstances.

38. Counsel for the applicant could not show us any rule/instruction laying down the life of panel to the contrary, so naturally respondents were bound by the O.M. dated 8.2.1982. Even otherwise it is relevant to note that this O.M. came to be considered by the Tribunal in the case of Ishwar Singh Khatri and was upheld. The matter was carried to the Honble Supreme Court and even Honble Supreme Court held as follows:

6. In fact we wanted to ascertain the actual number of vacancies that existed as on the preparation of panels of the selected candidates. We requested Mr Subba Rao, counsel for Delhi Administration to find out and inform us about the actual fact. Counsel although took time to verify, finally pleaded his inability to furnish the required particulars.

7. Therefore, in the premises we have to conclude that the Selection Board prepared the panels containing 1492 candidates as against the then available vacancies. In view of this conclusion, it goes without saying that the selected candidates have a right to get appointment. We, there- fore, see no reason to disturb the judgment of the Tribunal.

It is thus clear that OM dated 8.2.1982 has been upheld, therefore, if respondents followed it, it cannot be termed as illegal.

39. Counsel for the applicant referred to Regulation 88 which for ready reference reads as under:

88 Temporary Group C and D appointments of categories approved by the Government may be sanctioned by the E in C or by other officers, up to the financial limits of powers for appointment delegated to them by E in C, for periods not exceeding two years at a time. These powers of sanction are subject to the condition that funds are available, that the initial pay of the incumbent is limited to the minimum of the prescribed scales of pay as laid down by the Government and that appointments required by officers for their own offices are sanctioned by the next higher CFA.

This regulation deals with the powers of E-in-C to sanction the posts which could be for 2 years. It does not deal with the life of the panel, therefore, reliance on this regulation is misplaced. We will be failing in our duty if we do not deal with the judgments relied by the counsel for the applicant.

40. Perusal of judgment in the case of State of U.P. Vs. Rafiquddin & Ors. reported in 1987 (Suppl.) SCC 401 (1988 AIR SC 162) shows the case was decided in absolutely different set of facts which would be evident from para 16 thereof which reads as under:

16. In this context, it is necessary to consider as to how long the list of candidates for a particular examination can be utilised for appointment. There is no express provision in the Rules as, to for what period the list prepared under R. 19 can be utilised for making appointment to the service. In the absence of any provision in the Rules a reasonable period must be followed during which the appointment on the basis of the result of a particular examination should be made. The State Government and the Commission had announced 85 vacancies for being filled up through the competitive examination of 1970. In normal course, 85 vacancies could be filled on the basis of the result of the competitive examination of 1970 but if all the vacancies could not be filled up on account of non- availability of suitable candidates, the appointment to the remaining vacancies could be made on the basis of the result of the subsequent competitive examination. The unfilled vacancies of 1970 examination could not be filled after 5 years as subsequent competitive examinations of the year 1972 and of the year 1973 had taken place and the results had been declared. The list prepared by the Commission on the basis of the competitive examination of a particular year could be utilised by the Government for making appointment to the service before the declaration of the result of the subsequent examination. If selected candidates are available for appointment on the basis of the competitive examinations of subsequent years, it would be unreasonable and unjust to revise the list of earlier examination by changing norms to fill up the vacancies as that would adversely affect the right of those selected at the subsequent examination in matters relating to their seniority under Rule 22. The 1970 examination could not be utilised as a perennial source or inexhaustible reservoir for making appointments indefinitely. The result of a particular examination must come to an end at some point of time, like a "dead ball" in cricket. It could not be kept alive for years to come for making appointments. The practice of revising the list prepared by the Commission under R. 19 at the behest of the Government by lowering down the standards and norms fixed by the Commission to enable appointment of unsuccessful candidates is subversive of rule of law. This practice is fraught with dangers of favouritism and nepotism and it would open back door entry to the service. We are, therefore, of the opinion that once the result of the subsequent examination of 1972 was declared, the Commission could not revise the list of approved candidates of 1970 examination prepared by it under R. 19 at the behest of the Government by lowering down the standard fixed by it.

41. Perusal of above would show the glaring distinguishing features are as follows:

Sl.No. In Rafiquddin In present case

1. There were no rules specifying the life of panel OM dated 8.2.1982 issued by MHA was in existence which made it clear that if a penal is issued as per the declared number of vacancy, the same should be exhausted even if subsequently vacancies are reduced before carrying out next selections.

2. State Government and the Commission had announced 85 vacancies Department had announced 280+20 vacancies of Superintendent B/R Grade-II and Superintendent E/M Grade-II.

3. Result declared in 1970 Result declared in 1983

4. All the vacancies could not be filled due to non-availability of suitable candidates. Successful candidates as per the notified vacancies were available as per the panel of 1983 but it was not fully operated due to a misconception that there is a ban imposed vide letter dated 3.1.1984 whereas it was a misconception because in letter dated 3.1.1984 it was made clear it would not apply to case where recruitment process had already been initiated.

5. Subsequent competitive examinations were held in 1972 and 1973. Yet the list of 1970 was revised in 1975 by changing the norms to fill up the vacancies. No subsequent examinations were held till the selectees of 1983 were appointed in 1987-88

42. It was in these circumstances held that the 1970 examination could not be utilized as a perennial source of inexhaustible reservoir for making appointment indefinitely as it would adversely affect the right of those selected at the subsequent selections. Moreover, it was held the practice of revising the list prepared by the Commission under R. 19 at the behest of the Government by lowering down the standards and norms fixed by the Commission to enable appointment of unsuccessful candidates is subversive of rule of law. This practice is fraught with dangers of favouritism and nepotism and it would open back door entry to the service whereas in the instant case no subsequent examination was held after 1983 till 1987-88. Moreover, successful candidates as per notified vacancies were available and no norms were changed for them.

43. From above, it is clear that the above judgment would not apply in the present facts of the case as it was given in different set of facts.

44. Similarly in Girdhar Kumar Dadhichi Vs. State of Rajasthan reported in 2009 (2) SCC 706. The facts were, advertisement was issued in 1998 for filling up 10 posts of Physical Education Teacher Grade-III. 10 Bonus marks were to be granted for candidates who were resident of a particular district, while 5 bonus marks to the candidates belonging to rural areas. Validity and/or legality of the said provision for grant of bonus marks was questioned before the said High Court by filing writ petition in the year 1999. The question was referred to a Full Bench. Full Bench by a judgment and order dated 18th November, 1999 held the said provision to be unconstitutional. Upon declaration of the said law by the Full Bench of the High Court, appellants herein filed two writ petitions being No. 1818/2001 and 1802/2001 before the said High Court inter alia contending that in view of the said Full Bench decision, their position would be at serial Nos. 6 and 9 in the merit list, therefore, they be appointed. The said writ petitions remained pending.

45. It was in this backdrop that the case was decided and it was observed as follows:-

5. This Court in Kailash Chand Sharma (supra) while upholding the decision of the Full Bench to the effect that grant of such bonus marks was unconstitutional, in exercise of its jurisdiction under Article 142 of the Constitution of India, thought it fit and proper to invoke the doctrine of prospective over-ruling, stating :

The appointments made up to 17.11.1999 need not be reopened and reconsidered in the light of the law laid down in this judgment.

Even otherwise the purported chart prepared by the appellants and the records placed before us show some discrepancy. At this stage, thus, it is not possible for us to go into the details thereof particularly when the candidates already appointed are not parties before us. The select list was prepared in the year 1998. In our opinion it would be difficult to issue any direction for appointment of the appellants herein at this stage. Select list was prepared keeping in view the rules as they existed. The said Rules might have been declared ultra vires but as indicated hereinbefore this Court in exercise of its jurisdiction under Article 142 of the Constitution of India though it fit to give a prospective effect thereto. It did so inter alia for the purpose of protecting the services of those teachers who had already been appointed and had been in service for a few years. Out of ten posts, eights teachers were appointed on or before 18th November, 1999 which was the cut-off date. Indisputably the merit list was modified in terms of the dicta laid down by this Court in Kailash Chand Sharma (supra). The question as to whether the fresh appointees who are, having regard to the said modification, required to be appointed on the premise that they are placed higher in the select list than the appellants or not, in our opinion, cannot be gone into by us for the first time since such a contention had never been raised before the High Court. The entire record of the matter, furthermore, are not before us. Furthermore the select list would ordinarily remain valid for one year. We fail to understand on what basis appointments were made in 2003 or subsequently. Whether the validity of the said select list was extended or not is not known. Extension of select list must be done in accordance with law. Apart from a bald statement made in the list of dates that the validity of the said select list had been extended, no document in support thereof has been placed before us.

46. From above it is clear that the observation with regard to the life of panel were made in above circumstances. The OM dated 8.2.2002 was neither on record nor discussed whereas in the instant case it is on record and the circumstances under which panel of 1983 was given effect to in 1987-88 has been explained to our satisfaction, therefore, this judgment would also not advance the case of the applicants.

47. Counsel for applicants had next relied on State of Orissa and Another Vs. Rajkishore Nanda and Others reported in 2010 (6) SCC 777.

The facts of this case were 15 posts of Junior Clerk were advertised on 25.6.1995 with the stipulation that vacancies could be increased. Before process was complete vacancies were increased from 15 to 33. Merit list was prepared of 66 candidates ion 6.11.1995 The respondents, whose names appeared in the merit list and could not be offered appointment, being much below in the merit list, filed applications before the Tribunal praying for a direction to the State to offer them appointments. The Tribunal, vide its Judgment and Order dated 7.4.2000, came to the conclusion that appointments were to be offered to all the candidates till the entire select list stood exhausted. On appeal High Court modified the order of the Tribunal in the High Court of Orissa and the High Court, vide Judgment and order dated 26.10.2005, modified the order of the Tribunal issuing direction to the appellants to offer appointment to those persons who had approached the Tribunal.

48. It was in these circumstances held by Honble Supreme Court as follows:-

It is a settled legal proposition that vacancies cannot be filled up over and above the number of vacancies advertised.

Reference was made to Mukul Saikass judgment reported in 2009 (1) SCC 386 wherein it was held if the requisition and advertisement was only for 27 posts, the State cannot appoint more than the number of posts advertised. The Select List "got exhausted when all the 27 posts were filled". Thereafter, the candidates below the 27 appointed candidates have no right to claim appointment to any vacancy in regard to which selection was not held. The "currency of Select List had expired as soon as the number of posts advertised are filled up, therefore, the appointments beyond the number of posts advertised would amount to filling up future vacancies"

49. From above it is clear that the preposition laid in this judgment is once the panel is exhausted by utilizing the number of notified vacancies, other candidates have no right to claim appointment against future vacancies, therefore, this judgment will also not be applicable because in the instant case select panel of 1983 was not exhausted to the number of notified vacancies.

50. Counsel for the applicants next placed reliance on the judgment dated 26.5.2008 passed by this Tribunal in the case of Ashok Kumar and Another Vs. U.O.I. & Others (OA No. 164/2007) wherein applicant had challenged the seniority of those persons who were appointed in 1987-88. It was held by the Tribunal as follows:-

As a matter of fact, the belated appointment from a panel which had lost its relevance itself was an unmerited advantage as far as respondents 3 to 9 were concerned and persons similarly situated like them. The panel had outlived its life and need not have been operated at all. On no principles of law or equity, they are entitled to gain seniority over persons who had entered service and had actually drawn salary.

We direct that in the matter of adjudging seniority, the principle of initial date of appointment/continuous officiation should be borne in mind and the principle of panel seniority was inapplicable and not possible to be followed as far as claims of applicants and similarly situated are concerned vis-a-vis respondents 4 to 9.

Though counsel for the applicants relied on above observations but we are informed by the counsel for the respondents that this judgment has been challenged in the Honble High Court of Delhi by private respondents by filing Writ Petition No.4394/2008 and the judgment dated 26.5.2008 has been stayed by the Honble High Court vide order dated 27.8.2008. Since the operation of judgment itself has been stayed, reliance on it is misplaced.

51. In view of above, we find no merit in the OA. The same is accordingly dismissed on merits as well. No costs.

Let a copy of this order be placed in both the files.

(Dr. A.K. Mishra)                                         (Mrs. Meera Chhibber)
    Member (A)                                                   Member (J)

Rakesh

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Shri S.K. Atrey vs The Secretary on 29 September, 2011