Central Administrative Tribunal - Delhi
Anand Shekar vs Department Of Posts on 7 January, 2025
1
Item No. 21 (C-3)
O.A. No. 192/2024
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No. 192/2024
M.A. No. 3883/2024
This the 07th day of January, 2025
Hon'ble Mrs. Pratima K. Gupta, Member (J)
Hon'ble Dr. Chhabilendra Roul, Member (A)
1. Sh Anand Shekar S/0 Sh S.G. Shekar
Aged about 44 years
R/o 76/3A, DIZ Area, Sector-2, Kali Bari Marg,
New Delhi- 110001
Working as Sr Accountant (Group B (Non Gazetted)
Employee)
O/o Pr CCA Delhi Region,
Sanchar Lekha Bhawan, Prasad Nagar, New Delhi·- 110 005
2. Sh Bijendra Singh S/0 Sh. Jai Singh
Aged about 49 years,
R/o Village- Banjarpur, Post- Bilaspur, Distt- G.B. Nagar
(UP) PIN 203202
Working as ASO (On Deputation from O/0 Pr CCA Delhi-
05)) (Group B (Non Gazetted) Employee)
o/o Controller of Certifying Authority,
Electronic Niketan, 6 CGO Complex,
Lodhi Road, New Delhi- 110 003
3. Smt Mansa Bhatt W /0 Sh. Puran Chand Bhatt
Aged about 50 years,
R/o House No 247, Type-III, Sect 3
RK Puram, New Delhi -110 022
Working as ASO (on deputation from 0/0 Pr CCA New Delhi-
05) Sr Accountant (Group B (Non Gazetted) Employee)
o/o Room No 431, DMEO Niti Aayog, New Delhi - 11.
0001.
4. Smt Ranju Grover W/0 Sh Rajiv Kumar
Aged about 53 years
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Item No. 21 (C-3)
O.A. No. 192/2024
R/o B-703, Atulya Heights, Sector 3
Vaishali, Ghaziabad (UP) - 201010
Working as Sr Accountant (Group B (Non Gazetted)
Employee)
o/o Pr CCA Delhi Region
Sanchar Lekha Bhawan, Prasad Nagar, New Delhi- 110005.
5. Sh Vikas Jain S/0 Late Sh Jinendra Kumar Jain
Aged about 51 years
R/o 30/9-A-2 Block Nehru Gali,
Gali No 3, West Sant Nagar, Burari Delhi -110 084
Working as Sr Accountant (Group B (Non Gazetted)
Employee)
o/o Pr CCA Delhi Region
Sanchar Lekha Bhawan, Prasad Nagar, New Delhi - 110005.
6. Sh Sanjay Kumar Thakur S/0 Late Sh Chet Ram
Aged about 49 years
R/o House No 1574, Sector 5 RK Puram
New Delhi -110022
Working as Sr Accountant (Group B (Non Gazetted)
Employee)
o/o Pr CCA Delhi Region
Sanchar LekhaBhawan, Prasad Nagar, New Delhi -110005.
7. Sh Sunil Rustagi S/0 Sh Rattan Lal Rustagi
Aged about 50 years
R/o C-1102, Apex Green Valley, Sector 9
Vaishali, Ghaziabad (UP)- 201010
Working as Sr Accountant (Group B (Non Gazetted)
Employee)
O/o Pr CCA Delhi Region,
Sanchar Lekha Bhawan, Prasad Nagar, New Delhi -110 005
8. Sh Avinash Agrawal S/0 Late Shri R.C. Agrawal
Aged about 51 years,
R/o 81/1, Sector -B, Sainath Colony
Behind Mahabali Nagar, Kolar, Bhopal (MP)- 462042
Working as Sr Accountant (Group B (Non Gazetted)
Employee)
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Item No. 21 (C-3)
O.A. No. 192/2024
O/o CCA MP Telecom Circle
1st Floor, Doorsanchar Bhawan, Hoshangabad Road, Arera
Hills, Bhopal (MP)- 462 015
... Applicants
(By Advocate: Mr. Navjeet Singh)
Versus
Union of India & Others Through
1. The Secretary,
Government of India,
Ministry of Communication & IT,
Department of Post,
Dak Bhawan, New Delhi 110001.
2. The Secretary (DOP&T)
Department of Personnel, Public Grievance and Pensions,
Government of India,
North Block, New Delhi-110003
3. The Member (Finance)
Department of Telecom
DoT HQ, Sanchar Bhawan
20 Ashoka Road, New Delhi - 110001.
4. The Senior Dy. Director General (PAF)
Department of Post
Dak Bhawan, New Delhi-110001
5. Suresh Kumar Garhwal, Staff No 10813
Now Accounts Officer, the then Assistant. Accounts Officer
O/o GM (Finance)/Postal Accounts Office
Civil Lines, Delhi- 110 054
6. Rasheena K.H. Gulshan, Staff No I 0821
Now Accounts Officer, the then Assistant. Accounts Officer
0/o the Director of Accounts( Postal), Kerala, 695001
7. Ms Swatilina Jal, Staff No 10834
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Item No. 21 (C-3)
O.A. No. 192/2024
Now Accounts Officer, the then Assistant. Accounts Officer
O/o the Director of Postal Accounts office Cuttack
Cuttack Orissa- 753004
8. Dheeraj Kumar Srivastava, StaffNo 10925
Now Accounts Officer, the then Assistant. Accounts Officer
O/o Director Postal Accounts Office, GPO Patna
Patna (Bihar)- 800 001
9. Surendra Paidi, Staff No 10926
Now Accounts Officer, the then Assistant. Accounts Officer
Office of Controller of Communication Accounts M.P.
Sanchar Bhawan, Hoshangabad Road, Bhopal- 462 027
10. Deepti Sharma, Staff No 10961
Now Accounts Officer, the then Assistant. Accounts Officer
O/o GM (Finance)/Postal Accounts Office
Civil Lines, Delhi - II 0 054
11. Satyam Raju Pakalapati, Staff No 11013
Now Accounts Officer, the then Assistant. Accounts Officer
0/0 The Postmaster General ,
MVP Colony, Sector 8, Visakhapatnam
PIN- 530017
12. Satish Kumar Talachutla, Staff No 11116
Now Accounts Officer, the then Assistant. Accounts Officer
O/0 Director Postal Accounts Office, Telangana
Vijayawada- 520 001
13. Md. Wahidur Rahman, Staff No 11134
Now Accounts Officer, the then Assistant. Accounts Officer
O/0 Director Postal Accounts Office
GPO Compound, Patna (Bihar)- 800 001
14. Sumen Das, Staff No 11151,
Now Accounts Officer, the then Assistant. Accounts Officer
Office of Pr. Controller of Communication Accounts,
Delhi Circle, Prasad Nagar, Karol Bagh New Delhi - 110005
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Item No. 21 (C-3)
O.A. No. 192/2024
15. Rakesh Kumar Korivi; Staff No 11180
Now Accounts Officer, the then Assistant. Accounts Officer,
0/o PMG Jabalpur Region, Jabalpur- 482001
16. Vinaya Babu Pedapudi, StaffNo 11215
Now Accounts Officer, the then Assistant. Accounts Officer,
Pr CCA Telangana Telecom Region
Sanchar Lekha Bhawan, Chikkadpally, Hyderabad- 500 020
17. Aradhana Kumari, StaffNo 11383
Asst. Accounts Officer
Postal Accounts Office
0/0 The Director GPO Compound, Patna (Bihar)- 800001
18. Deepika Mishra, Staff No 11391
Asst. Accounts Officer,
0/0 GM(Fin) Postal Accounts Office
Sector D, Aliganj Lucknow (UP) - 226024
19. Mahaveer Singh Rajawat, Staff No 11425
Asst. Accounts Officer,
O/0 GM (Finance)
Jhalana Doongri, Jaipur- 302004
20. Mohammad Gulrez Khan, Staff No 11504
Assistant. Accounts Officer
O/o Pr CCA Delhi Region
Sanchar Lekha Bhawan, Prasad Nagar, New Delhi- 110 005
21. Veer Raju Sade, StaffNo 11717,
Asst. Accounts Officer,
Office ofPr Controller of Communication Accounts, Delhi
Circle
Prasad Nagar, Karol Bagh New Delhi -110 005
22. Deepak Kumar Jha, Staff No 11784,
Asst. Accounts Officer,
Office of CCA UP (West), Meerut- 250002
23. Heena Soni,
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Item No. 21 (C-3)
O.A. No. 192/2024
Roll No 2208037(Sl No 5 for the year 2022 against 2018)
Assistant. Accounts Officer,
0/o Director Postal Accounts Office Jaipur
Jaipur (Rajasthan) Pin- 302004
24. Yogita Sagar,
Roll No 2207717 (Sl No 222 for the year 2022)
Assistant. Accounts Officer,
0/o Controller of Communication Accounts
H.P Telecom Circle, Block No.18-A, SDA Complex,
Kasumpti, Shimla-171 009
... Respondents
(By Advocate: Mr. ND Kaushik and Mr. Sumit Kumar for R8 &
13)
7
Item No. 21 (C-3)
O.A. No. 192/2024
O R D E R (ORAL)
Hon'ble Mrs. Pratima K. Gupta, Member (J):-
1. Today, M.A. No. 3883/2024 has been preferred seeking interim relief. However, with the consent of the learned counsel for the parties, the O.A. is being heard finally.
2. The applicants, who belong to the Unreserved (UR) category, while working at various Group B (Non Gazetted/C Posts/ Grades were eligible for promotion to the post of Assistant Accounts Officer upon qualifying the Subordinate Accounts Service (SAS) Examination or equivalent examination. The Recruitment Rules (RRs) for promotion to the post of Accounts Officer/Assistant Accounts Officer were revised on 02.04.2018. Pursuant to the revised RRs, the respondents notified the SAS examination on 19.04.2018. The SAS examination was conducted between 05.07.218-08.07.2018. All the applicants participated in the said examination and obtained the qualifying marks of 40% in each paper.
Thereafter, the respondents issued a merit list and promotion cum posting orders were issued on 01.10.2018 for 949 candidates; however, the list did not contain the 8 Item No. 21 (C-3) O.A. No. 192/2024 names of the present applicants. The marks obtained by each of the applicants were informed to them through SMS in the last week of November, 2018. Aggrieved by their non-selection, the applicants approached the concerned officials on various dates agitating their grievances. However, on 20.01.2020 since all the selected candidates did not join within the stipulated time frame an extension of one month was extended to them. Thereafter, from 15.03.2020 to 28.02.2022 the entire country was in the grip of Covid 19 pandemic. In view of the non-joining of the selected candidates, the merit list was brought down to 777 candidates in the UR category, yet the names of the present applicants have been ignored. Aggrieved by the same, the applicants have preferred the present O.A. seeking the following relief(s):-
"i) Quash the impugned order dated 28.03.2023 (Annexure A-1).
ii) Call for all records, Quash and set aside the impugned promotion orders dated 01.10.2018 (Annexure A-2) and subsequent promotion orders dated 20.1.2020, 20.1.2020, 30.3.2020, 10.6.2020, 4.9.2020 17.9.2020 for AAO and promotion order after fresh exam dated 02.12.2022 for AAO (Annexure A-3 (Colly)), the Gradation list dated 13.10.2020 (Annexure A-4), promotion order both 9 Item No. 21 (C-3) O.A. No. 192/2024 dated 17.05.2022, 29.06.2022 and 4-
14/2022/PACE/Vol IV 3465 to 3593 dated 01.12.2022 for AO O(Annexure A-5 (Colly)) and/or any left out unknown promotion order, if any of AAO resultant to LDCE 2018 and LDCE 2022 to the extent being illegal and against the statutory rules.
iii) Call for the records/ DPC Proceedings held as per Annexure A-13 / or records leading to the issue of Annexures A-2 to A-5 (Colly) and quash and set aside the same DPC to the extent they proceeded as against provisions ofDOP&T OM Nos 22011/5/86- Estt(D) dated 10.04.1989, 22011/9/98-Estt (D) dated 08.09.1998 and 2201114/20 13-Estt (D) dated 08.05.2017 (Annexure A- 8 (Colly)) and 35034/7/97-Estt (D) dated 08.02.2002, (Annexure A-10 (Colly));
iv) Pass an order directing respondents to consider the applicants for promotion to the post of AAO in the order of their seniority as per year wise vacancies taking crucial date of eligibility at least as on 01.04.2017 and 01.01.2018 respectively in terms of Annexures A-6, A- S(Colly) and A- lO(Colly) from the date of 01.10.2018 and further promotion to the grade/post of Accounts Officer as per seniority from the date of juniors have been promoted by holding validly constituted Review DPC with all consequential benefits including arrears of pay and allowances arising there from with interest @ 18%;
v) Award compensation for mental agony, costs of the OA and incidental thereto; and
vi) Pass such other and further order or directions as this Hon'ble Tribunal may deem just and fit in the facts and circumstances of the case in favor of the applicants."
3. Learned counsel for the applicants draws attention to para 4.2 and 4.3 of the O.A. which details the marks 10 Item No. 21 (C-3) O.A. No. 192/2024 obtained by each applicant in the present O.A. The marks obtained by the present applicants are reproduced hereinbelow:-
Sl Name Date of Entry Designation Roll No. Marks No. in Service with date
1. Sh. 26.08.1998 Joined as RA 1111867 392 Bijendra on Singh 26.08.1998.
Jr. Acct
17.09.2010 Sr.
Acct
09.01.2014
Working as
Officiating
AAO wef
01.02.2017.
2. Sh. 05.05.2000 Joined as 1111356 341
Anand LDC on
Shekhar 05.05.2000.
Jr. Acct
Sr. Acct
Working as
Officiating
AAO wef
3. Smt 24.05.1994 Joined as 1113322 396.5
Mansa LDC on
Bhatt 24.05.1994.
Jr. Acct
01.11.2010
Sr. Acct
09.0.2014.
Working as
Officiating
AAO wef
24.08.2017.
4. Smt. 22.01.1990 Joined as 1114449 401.5
Ranju LDC on
Grover 22.01.1990.
Jr. Acct
09.11.2010.
Sr. Acct
11
Item No. 21 (C-3)
O.A. No. 192/2024
09.01.2014
Working as
Officiating
AAO wef
01.02.2017.
5. Sh Vikas 07.05.1993 Joined as 1115960 357.5
Jain LDC on
07.05.1993.
Jr. Acct
09.11.2010
Sr. Acct
09.01.2014.
Working as
Officiating
AAO wef
01.02.2017.
6. Sh Sanjay 11.08.1998 Joined as 1114785 399
Kumar LDC on
Thakur 11.08.1998.
Jr. Acct
01.12.2010
Sr. Acct
09.01.2014
Working as
Officiating
AAO wef
01.02.2017
7. Sh. Sunil 07.01.1997 Joined as 1115544 398
Rustagi Postal
Assistant on
07.01.1997.
Jr. Acct
22.10.2011
Sr. Acct
09.01.2014
Working as
Officiating
AAO wef
01.02.2017.
8. Sh. 19.05.1994 Joined as 1111705 354
Avinash LDC on
Agrawal 19.05.1994.
Jr. Acct
30.09.2010
12
Item No. 21 (C-3)
O.A. No. 192/2024
Sr. Acct
30.01.2014
Working as
Officiating
AAO wef
13.10.2017
4. While arguing on behalf of the applicants, learned counsel for the applicants draws attention to the Recruitment Rules (RRs) placed at page 185 of the O.A. with the relevant portion at page 193 of the O.A. which is quoted below:-
(10) (11)
By promotion failing Promotion:
which by deputation
failing both by direct Departmental candidates who
recruitment have passed the Subordinate
Accounts Service
Examination or equivalent
examination conducted by
Department of Posts and
Telecommunications or
Competent Authority
specified by the Department.
1.Senior Accountant or Junior Accountant of Department of Posts and Department of Telecommunications with three years or Six years regular service in level 6 in the pay matrix (Rs.35,400-
1,12,400) and in level 5 in the pay matrix (Rs.29,200- 92,300) respectively.
2. All other officials of the Department of Posts or Department of Telecommunications in Group „C‟ cadre possessing a 13 Item No. 21 (C-3) O.A. No. 192/2024 bachelor‟s degree from a recognised University or Institute with the following regular qualifying service:
(i) in level-1 with fourteen years regular service, or
(ii) in level-2 with thirteen years regular service, or
(iii) in level-3 with eleven years regular service, or
(iv) in level-4 with nine years regular service, or
(v) in level-5 with seven years regular service, or
(vi) in level-6 with four years regular service.
Note: Where juniors who have completed their qualifying or eligibility service are being considered for promotion, their seniors would also be considered provided they are not short of the requisite qualifying or eligibility service by more than half of such qualifying or eligibility service, or two years, whichever is less, and have successfully completed their probation period for promotion to the next higher grade alongwith their juniors who have already completed such qualifying or eligibility service.
Deputation:
Officers under various organised Accounts and Audit Services under the Government of India:
(a)(i) holding analogous post on regular basis in the parent 14 Item No. 21 (C-3) O.A. No. 192/2024 Cadre or Department; or
(ii)who has passed the Subordinate Accounts Service or Subordinate Audit Service Examination or equivalent examination in any organised Accounts Cadre under the Government of India.
Note 1: The Departmental officers in the feeder category who are in direct line of promotion will not be eligible for consideration for appointment on deputation.
Similarly, deputationist shall not be eligible for consideration for appointment by promotion.
Note 2 : Period of deputation including period of deputation in another ex-
cadre post held immediately preceding this appointment in the same or some other Organisation or Department of the Central Government shall ordinarily not to exceed three years.
Note 3 : The maximum age limit for appointment by deputation shall be not exceeding fifty six years as on the closing date of receipt of applications.
5. Learned counsel for the applicants submits that the RRs itself indicate that the post was to be filled through promotion failing which by deputation and that the departmental candidates who have qualified the SAS examination or the equivalent examination would be 15 Item No. 21 (C-3) O.A. No. 192/2024 eligible to be considered for promotion. He submits that since each of the present applicants has qualified the examination they are entitled to be promoted. Drawing attention to the LDCE notification (page 195), he submits that total 1010 vacancies were notified and 777 posts were assigned to the UR category (Para 6). He submits, para 4 of the examination notification indicates that 40% marks were to be obtained by each candidate in each subject, which the present applicants have obtained. He reiterates that para 14 of the LDCE notification indicates that the candidates who would secure the qualifying marks would be considered while preparing the merit list and, therefore, according to him, the present applicants are entitled for promotion. He draws strength from the DOPT OM dated 08.02.2002 (Page 271) bearing the subject "Procedure to be observed by Departmental Promotion Committees (DPCs)- No supersession in „selection‟ promotion - Revised Guidelines regarding." The relevant portion of the said OM reads as under:-
"Mode of Promotion In the case of 'selection' (merit) promotion, the hitherto existing distinction in the nomenclature ('selection by merit' and 'selection-cum-seniority') 16 Item No. 21 (C-3) O.A. No. 192/2024 is dispensed with and the mode of promotion in all such cases is rechristened as 'selection' only. The element of selectivity (higher or lower)shall be determined with reference to the relevant bench- mark ("Very Good" or "Good") prescribed for promotion."
Learned counsel for the applicants goes on to argue that the respondents have incorrectly construed the merit of the applicants as in the present facts the respondents have deviated from the provisions of the OM quoted above. He submits that the RRs do not indicate that the examination was a competitive examination and rather explain that it was only a qualifying examination.
6. Learned counsel for the applicants relies upon the following judgments in support of the contentions of the applicants:-
a. Judgment of the Hon‟ble Apex Court in Tej Prakash Pathak and Ors. Versus Rajasthan High Court and Ors. (CA No. 2634/2013, CA No. 2635/2013 & CA No. 2636/2013) dated 07.11.2024.
"42. We, therefore, answer the reference in the following terms:
(1) Recruitment process commences from the issuance of the advertisement calling for applications and ends with filling up of vacancies;17
Item No. 21 (C-3) O.A. No. 192/2024 (2) Eligibility criteria for being placed in the Select List, notified at the commencement of the recruitment process, cannot be changed midway through the recruitment process unless the extant Rules so permit, or the advertisement, which is not contrary to the extant Rules, so permit. Even if such change is permissible under the extant Rules or the advertisement, the change would have to meet the requirement of Article 14 of the Constitution and satisfy the test of non- arbitrariness;
(3) The decision in K. Manjusree (supra) lays down good law and is not in conflict with the decision in Subash Chander Marwaha (supra). Subash Chander Marwaha (supra) deals with the right to be appointed from the Select List whereas K. Manjusree (supra) deals with the right to be placed in the Select List. The two cases therefore deal with altogether different issues; (4) Recruiting bodies, subject to the extant Rules, may devise appropriate procedure for bringing the recruitment process to its logical end provided the procedure so adopted is transparent, non- discriminatory/ non- arbitrary and has a rational nexus to the object sought to be achieved. (5) Extant Rules having statutory force are binding on the recruiting body both in terms of procedure and eligibility. However, where the Rules are non-existent, or silent, administrative instructions may fill in the gaps; (6) Placement in the select list gives no indefeasible right to appointment. The State or its instrumentality for bona fide reasons may choose not to fill up the vacancies. However, if vacancies exist, the State or its instrumentality cannot arbitrarily deny appointment to a person within the zone of consideration in the select list." b. Judgment of the Hon‟ble Apex Court in The Employees‟ State Insurance Corporation Versus 18 Item No. 21 (C-3) O.A. No. 192/2024 Union of India and Ors. (CA No. 152/2022) dated 20.01.2022. The relevant portion of the said order reads as under:-
"22 The contesting respondents urged that the advertisements indicated the applicability of the DACP Scheme before the ESIC Recruitment Regulations 2015 were issued. However, a subsequent amendment to recruitment regulations would override the conditions prescribed in the advertisement. In Rajasthan Public Service Commission v. Chanan Ram a two-judge Bench of this Court held that an earlier advertisement becomes infructuous after a subsequent amendment to the service rules:
"13. Under these circumstances, therefore, it is difficult to appreciate how the Division Bench of the High Court could persuade itself in agreeing with the submission of the learned counsel for the respondent-writ petitioner that despite this change of cadres and the provision for recruitment on new posts the old advertisement of 5-11-1993 Annexure P-1 seeking to consider the candidature of applicants for erstwhile 23 advertised vacancies in the posts of Assistant Directors (Junior) in the Agricultural Marketing Service of the State of Rajasthan would still be pursued further and recruitment should be effected for these 23 erstwhile vacancies as per the old advertisement. It is easy to visualise that even if such an earlier advertisement of 5- 11-1993 was proceeded with further it would have resulted into a stalemate and an exercise in futility. No appointment could have been given to the selected candidates to the posts of Assistant Directors (Junior) after 1995 amendment of Rules as there were no such posts in the hierarchy of State Service. Consequently it must be held that on account of the amendments to the Rajasthan Agricultural Marketing Service Rules the earlier 19 Item No. 21 (C-3) O.A. No. 192/2024 advertisement dated 5-11-1993 had become infructuous and otiose. Only on this short ground the writ petition of the respondent-writ petitioner should have been dismissed by confirming the order of dismissal of the writ petition earlier passed by the learned Single Judge......." (emphasis supplied) 25 Recently, a two-judge Bench of this Court in Director of Elementary Education, Odisha v. Pramod Kumar Sahoo28 observed that a concession on a question of law concerning service rules would not bind the State:
"11. The concession given by the learned State Counsel before the Tribunal was a concession in law and contrary to the statutory rules. Such concession is not binding on the State for the reason that there cannot be any estoppel against law. The rules provide for a specific grade of pay, therefore, the concession given by the learned State Counsel before the Tribunal is not binding on the appellant." The concession of the Counsel for the appellant before the CAT does not preclude the finding on the law that is arrived at by this Court. 27 The contesting respondents did not challenge the ESIC Recruitment Regulations 2008 or the ESIC Recruitment Regulations 2015 before the CAT or the High Court. The argument on lack of prior approval as per Section 17(2) of the ESI Act is obviated by the preamble to the ESIC Recruitment Regulations 2015. The contesting respondents have only supported the applicability of the DACP Scheme to claim promotion as Associate Professor after two years of service. The advertisements for recruitment mentioning the DACP Scheme would have no effect since they were in contravention of the applicable recruitment regulations. Therefore, for the above reasons, we are of the view that the appeal should be allowed."20
Item No. 21 (C-3) O.A. No. 192/2024
7. Learned counsel for the applicants draws attention to par 4.16 of the O.A. and submits that in the said para he has detailed names of certain person, who have been considered by the respondents for promotion in spite of their not being eligible in terms of their length of service.
8. Mr. ND Kaushik, learned counsel for the respondents vehemently opposes the O.A. He draws strength from the counter reply and submits that the Recruitment Rules (RRs) were amended on 02.04.2018 and pursuant to the amendment in the RR, the respondents issued a notification for LDCE on 19.04.2018. He submits that as per the advertisement notification 40% marks in each paper are qualifying marks for the UR category candidates. He explains that the post of AAO is a selection post, therefore, after obtaining the qualifying marks the candidates were arranged in terms of their merit. He submits that the last selected candidate had secured 403 marks in the UR category while the marks of each of the applicants as detailed hereinabove are less than 403 marks. He submits that the applicants were not entitled for promotion being low in merit. He submits that the counter reply would detail that as many as 637 21 Item No. 21 (C-3) O.A. No. 192/2024 candidates have obtained marks beyond the cut off marks, however, they could not be extended promotion in light of the fact that they could not obtain marks more than the last selected UR category candidate. The relevant portion of the counter reply reads as under:-
"That it is pertinent to submit that the LDCE AAO 2018 notification was issued for 1010 vacancies in the AAO grade. Vide Order No. 301(08)/PA Admn.III/2012 to 2114 dated 01/10/2018, the merit list was published for949 candidates. The remaining seats were left unfilled due to non- availability of the eligible qualified candidates in the array of the seats reserved for the SC /ST candidates. As per recommendation of NCSC and NCST and with the approval of Hon'ble MoC (Annexure R5), the vacancies in the SC/ST category were filled up by awarding grace marks (up to 10) to the SC/ST candidates in Paper-IV, who had qualified in all other papers of LDCE AAO 2018. The orders were issued vide 301 (35)/2019/PA-Admn. IIII 3127 to 3285 dated 20/01/2020 to fill up 54 vacancies reserved for SC/ST candidates. It is also pertinent to submit here that there were some notified vacancies that remained unfilled in the UR category due to reasons like non joining of some candidates from the merit list in UR category. These vacancies were subsequently filled from remaining qualified candidates according to their merit vide Order No. 301 (89) / 2019 /PA-Admn.III/2592 to 2709 dated 20/01/2020 and Order No. 301 (35) /2019/ PA-
Admn.III/18 to 121 dated 10/06/2020. Further, all the O. M. s as mentioned by the applicants in O.A. indicate the "Relevant year up to which APARs are to be considered and Model Calendar for conducting DPCs" but in case of promotions through the LDCE, the RRs have an 22 Item No. 21 (C-3) O.A. No. 192/2024 edge over these. Further, the Department has followed due procedure before issue of the Notification for LDCE 2018; the Recruitment Rules (Annexure R1) of AAO/AO-2018 was finalized and notified only after due consultation and approval of DOLA, UPSC and DoPT."
9. With respect to the submission of the learned counsel for the applicants that certain ineligible people have been extended promotion, learned counsel for the respondents draws attention to para 4.16 of the counter reply, which controverts the submission of the learned counsel for the applicants and clarifies that eligibility criteria of each of the candidates has been verified by the State Nodal Offices concerned before the declaration of result and the successful candidates were re-verified by the concerned units.
10. Heard the learned counsel for the parties as also gone through the pleadings on record.
11. The issue in the instant O.A. is whether the applicants who have qualified the LDCE, that is to say, obtained 40% marks as defined in the advertisement notification for the UR category in each of the papers would be entitled for promotion irrespective of their merit and non-availability of vacancies. In order to 23 Item No. 21 (C-3) O.A. No. 192/2024 address the issue it would be worthwhile to examine the Recruitment Rules (RRs) (Page 193), wherein with respect to the post of Assistant Accounts Officer (AAO) column 7 clearly mentions that it was a selection post, subject to qualifying the SAS Examination or an equivalent examination which according to us is one of the eligibility conditions and the same has been confirmed by the examination notification para 4 bearing the heading "Qualifying Marks" appends a note that reads „candidates securing qualifying marks in each of the papers will be considered for preparation of the merit list‟. Moreover, para 14 of the notification reiterates the same statement.
12. According to us, a conjoint reading of the RRs as well as the examination notification would take us to only one conclusion that the examination was only a qualifying examination, the post was a selection post and the result of each of the candidates ought to have been arranged in terms of their merit. The respondents have done precisely the same in the present case and promotion has been extended to the candidates in terms of the merit obtained by them. The marks of the applicants and the cutoff 24 Item No. 21 (C-3) O.A. No. 192/2024 marks obtained by the last selected/promoted candidate are not in dispute. Evidently, the applicants did qualify the examination, however, they did not obtain the merit as against the 777 UR vacancies. Since, the present applicants did not obtain better marks as compared to the last selected UR candidate they have correctly been ignored promotion. With respect to the DOPT OM dated 08.02.2002, it is noted that the OMs are executive instructions which are in line with the RRs as well as the examination notification. Therefore, the OM would not come to the rescue of the applicants.
13. The judgments being relied upon by the learned counsel for the applicants do not come to the rescue of the applicants. The following has been seen:-
a. In the judgment of the Hon‟ble Apex Court in Tej Prakash Pathak and Ors. Versus Rajasthan High Court and Ors. (CA No. 2634/2013, CA No. 2635/2013 & CA No. 2636/2013) dated 07.11.2024, the issue before the Hon‟ble Court was that the eligibility criteria was changed midway through the recruitment process. While in the present facts the 25 Item No. 21 (C-3) O.A. No. 192/2024 facts are different and the respondents have in fact adhered to the RRs as well as the selection notification.
b. In case of The Employees‟ State Insurance Corporation Versus Union of India and Ors. (CA No. 152/2022) dated 20.01.2022 before the Hon‟ble Apex Court, the Hon‟ble Apex Court had dealt with a situation where the advertisement notification had made a departure from the RRs, which is not the case in the present matter.
14. For the reasons explained hereinabove, the present O.A. as well as M.A. No. 3883/2024 is dismissed.
15. There shall be no order as to cost.
(Dr. Chhabilendra Roul) (Pratima K. Gupta)
Member (A) Member (J)
/dd/