Central Administrative Tribunal - Delhi
Krishan Kumar vs Comm. Of Police on 7 June, 2024
(OA No.1809-2017, OA 773-2018 & OA 793-2018)
(1)
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No.1809/2017
With
O.A. No.773/2018
O.A. No.793/2018
Reserved on :27.05.2024
Pronounced on :07.06.2024
Hon'ble Mr. Manish Garg, Member (J)
Hon'ble Mr. Sanjeeva Kumar, Member (A)
O.A. No.1809/2017
Dinesh (OBC)
Recruit HC (AWO/TPO) in Delhi Police-2013
Roll No.408360, Aged about 25 years,
S/o Sh. Satbir Singh
R/o Vill : Khera Jhanjrola,
PO : Sultanpur, Dist. Gurgaon,
Tehsil : Farrukh Nagar, Haryana. ...Applicant.
(By Advocate: Shri Anil Singal)
1. Govt. of NCT of Delhi
Through Commissioner of Police,
PHQ, IP Estate, New Delhi.
2. DCP (Recruitment Cell),
NPL, Kingsway Camp, Delhi. ...Respondents.
(By Advocates: Shri Amit Anand, Ms.Monika Bhargava for
Shri Amit Yadav)
O.A. No.773 /2018
Krishan Kumar (OBC)
Recruit HC (AWO/TPO) in Delhi Police-2013
Roll No.418078, Aged about 25 years,
S/o Sh. Ajab Singh
R/o Vill :Lahchaura, PO: Rataul,
Tehsil: Khekra, PS Chandinagar,
Dist. Baghpat, UP. ...Applicant.
(By Advocate: Shri Anil Singal)
1. Govt. of NCT of Delhi
(OA No.1809-2017, OA 773-2018 & OA 793-2018)
(2)
Through Commissioner of Police,
PHQ, IP Estate, New Delhi.
2. DCP (Recruitment Cell),
NPL, Kingsway Camp, Delhi. ...Respondents.
(By Advocates: Shri Amit Anand, Ms.Monika Bhargava for
Shri Amit Yadav)
O.A. No.793 /2018
Gaurav (OBC)
Recruit HC (AWO/TPO) in Delhi Police-2013
Roll No.408413, Aged about 26 years,
S/o Sh. Hari Prakash
R/o House No.30,
VPO : Ghoga, Narela, Delhi-39. ...Applicant.
(By Advocate: Shri Anil Singal)
1. Govt. of NCT of Delhi
Through Commissioner of Police,
PHQ, IP Estate, New Delhi.
2. DCP (Recruitment Cell),
NPL, Kingsway Camp, Delhi. ...Respondents.
(By Advocates: Shri Amit Anand, Ms.Monika Bhargava for
Shri Amit Yadav)
ORDER
Hon'ble Mr. Sanjeeva Kumar, Member (A):
At the outset, as common questions of law and facts are raised in OA No.1809/2017, OA No.773/2018 & OA No.793/2018, with the consent of the learned counsel for the parties, these OAs were heard together and are being decided through this common order. However, for the sake of convenience, the facts of OA No.1809/2017, being the lead case, are discussed herein.
(OA No.1809-2017, OA 773-2018 & OA 793-2018) (3)
2. By way of present OA, the applicants seek the following relief(s) :-
"1. To Quash and set aside the decision of the respondents not to fill up all the 184 OBC vacancies of HC (AWO/TPO) in Delhi Police notified to be filled up vide Recruitment Advertisement-2013.
2. To Quash and set aside the decision of the respondents rejecting the claim of the applicant to consider and appoint him against the unfilled 42 vacancies will be carried forward to the next recruitment.
3. To direct the respondents to fill up the unfilled 42 OBC vacant post of HC (AWO/TPO) in Delhi Police in the Recruitment -2013 particularly from those 53 candidates like the applicant who were earlier declared selected.
4. To direct the respondents to issue letter of appointment to the applicant and appoint him to the post of HC (AWO/TPO) and grant all consequential benefits.
5. To award costs in favor of the applicant and pass any order or orders which this Hon'ble Tribunal may deem just & equitable in the facts and circumstances of the case."
3. It will be recalled that with the consent of the learned counsels for the parties the aforesaid OAs were heard together at length on 27.05.2024; the factual matrix of the cases, and arguments advanced by the respective counsels were also recorded. However, the final order could not be passed and accordingly, the OAs were reserved for orders. As (OA No.1809-2017, OA 773-2018 & OA 793-2018) (4) the factual matrix and arguments advanced by the learned counsels for the parties were recorded at length at paras 3 to 10 thereof, the same are reproduced as hereunder
4. This is the second round of litigation. In the earlier round of litigation, the applicants herein were also party in the OA No. 1899/2016 at Sl. No. 10, 13 and 15 wherein this Tribunal disposed of the matter with the following directions:-
"15. At the same time, we cannot over look the fact that the applicants had been subjected to a long and drawn out process of selection lasting 2.1/2 years and were on the verge of being appointed when the respondents decided to prepare a revised merit list. As per respondents' own submission 53 persons, who figured in the earlier merit list, have been ousted in the revised list. Learned counsel for the applicants stated that many of the applicants have suffered as they had resigned from their previous jobs in preparation to join their new assignments. Many others have become over age to be appointed elsewhere.
16. We also notice that earlier respondents had advertised 142 vacancies of the post of Head Constable (AWO/TPO). Subsequently, this number was increased to 475 with further stipulation that number of vacancies may undergo a change. Under these circumstances, we dispose of this O.A. with a direction to the respondents to consider whether additional vacancies are available to appoint the applicants as well in addition to those figuring in the revised merit list. We are conscious of the fact that there may be some other candidates in between those figuring in the revised merit list and the applicants herein. That number is not known to us. Such candidates would also have to be appointed. Let the respondents examine and see whether without violating the merit of the selection process the applicants can be accommodated. This will, of course, be subject to availability of vacancies. The respondents (OA No.1809-2017, OA 773-2018 & OA 793-2018) (5) may do so within next 08 weeks from the date of receipt of a certified copy of this order. No costs."
5. He further submits that the subject matter of this OA has also been adjudicated in Writ Petition (C) No. 10748/2016 decided on 27.01.2017 titled Raj Kumar Vaswan & Ors. Vs. Commissioner of Police & Ors. Operation of the same reads as under:-
"6. Now, we come back to paragraph 16 of the impugned order, which records that in case there are vacancies and the selected candidates as per the merit list do not join, those lower in the merit rank should be appointed. The respondents have not challenged the said directions given by the Tribunal and have to abide by the same.
*** *** ***
8. The respondents have filed affidavit
nd
dated 2 December, 2016 wherein they have stated that 137 open unreserved category and 204 open OBC category vacancies for the posts were advertised. The number of vacancies for the open unreserved category and open OBC category was, as per paragraph 8 of the affidavit, subsequently revised to 123 and 184, respectively. However, the total number of posts advertised remained the same. Accordingly, on the basis of the second merit or final list, 123 open unreserved category and 184 open OBC category candidates were selected. In addition, six candidates belonging to the open OBC category were kept in the additional or waiting list. Candidates in the additional list are to be accommodated in case the open unreserved category or open OBC category candidates do not join or for some other reason not appointed.
*** *** *** (OA No.1809-2017, OA 773-2018 & OA 793-2018) (6)
11. Learned counsel for the respondents, on instructions, accepts that they have not challenged the directions given in paragraph 16 of the order dated 16th July, 2016 and would abide and comply with the same. We take the said statement on record and would dispose of the present writ petition on the basis of the said statement and reiterating the directions given in paragraph 16 of the Tribunal's order dated 16th July, 2016.
12. We do acknowledge and would accept that the completion of the exercise in terms of paragraph 16 can challenge their rejection and may also obtain stay orders. This would require a policy decision, by the respondents in accordance with the guidelines issued by Department of Personnel and Training. However, an expeditious and early decision in such matters and in terms of the directions given in paragraph 16 is desirable and always appreciated. It would curtail and prevent another round of litigation."
6. Learned counsel for the applicants has placed on record an MA bearing No. 1067/2021 wherein the following has been stated:-
"1. That the applicant filed OA No. 1809/17 for Quashing and setting aside the decision of the respondents not to fill up all the 184 OBC vacancies of HC (AWO/TPO) in Delhi Police notified to be filled up vide Recruitment Advertisement-2013. Further, a direction to the respondents to fill up the unfilled 42 (Now 19) OBC vacancy post of HC (AWO/TPO) in Delhi Police in the Recruitment-2013 particularly from those 53 candidates like the applicant who were earlier declared selected and direction to the respondents to appoint the applicant for the post of HC (AWO/TPO) with all consequential benefits.
2. That the applicant is waiting for decision in his case for last 4 years and due to corona pandemic, it is not likely to be heard in near future.
(OA No.1809-2017, OA 773-2018 & OA 793-2018) (7)
3. That the respondents were directed vide Para 16 of the Judgment dt. 16.7.2017 upheld vide Para 6 of the Judgment dt. 27.1.2017 that in case there are vacancies and the selected candidates as per the merit list do not join, those lower in the merit rank should be appointed.
4. That the ground for the rejection of the claim of the applicant is that he secured 70 marks in the written test whereas after revised result of the written test, the same has become 71 marks. Thus, he did not qualify for the Typing Test. However, now all those OBC candidates who secured 71 marks in written test have been offered appointment. But 19 OBC vacancies are still lying vacancy that were advertised vide Recruitment-2013.
5. That as per RTI Reply dt. 15.3.2017 in response to Application dt. 4.3.2017, total 5 OBC candidates secured 70 marks in the written test and 7 marks in the Typing Test when they were declared qualified and called for Typing Test as per Original Written Test Result and finally selected also. A copy of RTI Application dt. 4.3.2017 and RTI Reply dt. 15.3.2017 are annexed as Annexure M-1 & M-2.
6. That as per RTI Reply dt. 11.5.2018, total 165 OBC candidates have joined so far against 184 OBC vacancies. Thus, 19 vacancies are still lying vacant, which the respondents say that they will be carried forward in the next recruitment. This is contrary to the direction contained in Para 16 of the Judgment dt. 16.7.2017 upheld vide Para 6 of the Judgment dt. 27.1.2017. A copy of RTI Reply dt. 11.5.2018 is annexed as Annexure M-3."
7. Learned counsel for the applicants places reliance on the order/judgment of Hon'ble Supreme Court of India in the case of Dinesh Kumar Kashyap & Ors. Vs. South East Central Railway & Ors. in Civil Appeal Nos. 11360-11363 of (OA No.1809-2017, OA 773-2018 & OA 793-2018) (8) 2018 decided on 27.11.2018, wherein the following has been stated:-
"11. It has been urged before us that the validity of the panel was only for two years and since the last merit list was published for March 2014, validity of the list has expired in March 2016. This submission is only to be rejected. The appellants herein who approached the CAT and the High Court with promptitude cannot suffer only because the matter was pending in Court."
8. Learned counsel for the applicants also places reliance on the order/judgment of Hon'ble High Court in the case of Govt of NCT of Delhi & Ors. Vs. Naresh Kumar in WP (C) No. 323/2012 decided on 14.08.2013. Para 10 of the said order reads as under:-
"10. The Tribunal accordingly opined that all vacancies had to be filed up from those who had qualified and as per their merit position. The contention that of the 234 candidates who had obtained same i.e. 66 marks, 71 candidates were yet to be issued letters offering appointment and most of them were elder to the respondent and hence if at all any direction could be issued the same had to be to fill up the vacancies by offering appointment to 25 candidates in order of their age i.e. those who were older to be issued the letters offering appointment has been dealt with by the Tribunal observing that those who had not approached the Tribunal had to be ignored. Accordingly, direction has been issued to offer appointment to the respondent subject to his clearing the medical examination and police verification."
(OA No.1809-2017, OA 773-2018 & OA 793-2018) (9)
9. Per contra, learned counsel for the respondents would rely on the averments made in the counter affidavit and would contend that what the applicants are seeking is only a hypothetical assumption and therefore, no relief can be granted in the present matter. He further contends that pursuant to the aforesaid selection process, a fresh advertisement was notified even though the same has been cancelled and the vacancies were carried forward that does not by itself give them a right, in so far as, for the unfiled vacancies as on date. He further contends that the respondents have taken a holistic approach and in accordance with law followed the norms of recruitment in filling up the vacancies. Unfilled vacancy by itself does not give any right to the applicants. He would argue that the applicants could have been in the zone of consideration having 71 marks and the last cut off marks would have been treated as 71. He would contend that even otherwise the cut off was 71 marks and hypothetically if the applicants' submission was to be allowed there would be quite variation in the number of candidates which ought to have been called at relevant point of time and hypothetical assumption is not taken to service jurisprudence. He further submits that the applicants were neither in reserve list nor in the wait list. He (OA No.1809-2017, OA 773-2018 & OA 793-2018) (10) submits that all the applicants had applied for direct recruitment to the said post under Open OBC category and scored marks in earlier result & revised result declared on 31.12.2014 and 14.10.2015 respectively as under:-
Name of Marks Revised Typing
the scored in Marks per Marks
applicant earlier result result dt.
dt. 16.05.2016
31.12.2014
Dinesh 67 70 7
Krishan 68 70 9
Kumar
Gaurav 68 70 7
10. He further submits that the applicants were shortlisted for trade test and further for typing test as per earlier result dated 31.12.2014, hence, their typing test were got conducted. In the revised result, they could not score much marks for qualifying the written test as the cut off marks of written exam was 71, hence, they were declared disqualified in the written examination.
11. He places reliance on the order/judgment of Hon'ble High Court in the case of Dr. Pragya Shukla Vs. Union of India & Anr. in W.P. (C) No. 9454/2017 decided on 19.10.2022.
(OA No.1809-2017, OA 773-2018 & OA 793-2018) (11)
12. We have heard both the counsels and perused the pleadings on record.
13. The undisputed facts are that a Notification to fill up 158 vacancies for the post of Head Constable (Assistant Wireless/Tele-Printer Operator) in Delhi Police Examination- 2013 was published in the leading Newspapers and in the Employment News. Later on, another Notification with increased vacancies was published. Earlier published break- up of the vacancies for the said post in Delhi Police is given below:
Category UR OBC SC ST TOTAL Open 71 50 17 43 142 Departmental 08 06 02 - 16 Total 79 56 19 04 158 Later revised vacancies were again published in the leading Newspapers and Employment News with the following break-up:-
Category UR OBC SC ST TOTAL Open 137 204 79 55 475 Departmental 15 23 08 06 52 (OA No.1809-2017, OA 773-2018 & OA 793-2018) (12) Total 152 227 87 61 527
14. The applicants appeared in the examination and were declared qualified in written test and they were called for Typing Test having 10 marks, out of which minimum 5 marks were required to qualify the same. The applicants got selected. However, some candidates submitted representations challenging the correctness of Answer Key, which was accepted and result was revised. In this process, originally selected 53 candidates, including the applicants were ousted. The reason for the applicants' ouster was that they do not secure minimum 71 marks which were cut off marks in the written examination. The applicants' original revised and total marks are as under:
OA Original Revised Typing Total
Marks Marks Marks
1809 67 70 7 77
773 68 70 9 79
793 68 70 7 77
2. Written Original and Revised Cut of Marks and Total Cut of Marks are as under:
Original Cut Revised Cut Original Cut Revised Cut of Marks of Marks of Total of Total (OA No.1809-2017, OA 773-2018 & OA 793-2018) (13) (Written) (Written) 67 71 74 76
15. It is pertinent to mention here that the matter was agitated by filing OA No.1899/2016 which was disposed of by the Tribunal on 16.07.2016. In compliance of the said directions of the Tribunal, the respondents took necessary action vide order dated 01.09.2016 and informed the applicants that the revised final result was prepared as per the merit achieved by the candidates in each category and no candidates over and above the vacancies advertised for each category can be selected and all vacancies under the relevant category have been filled up. Aggrieved by the action of the respondents, the candidates along with others filed WP(C) No.10748/2016 which was disposed of vide judgment dated 27.01.2017 with certain directions.
Operative portion of the said order reads as follows:
"12. We do acknowledge and would accept that the completion of the exercise in terms of paragraph 16 quoted above may take a little time as some of the rejected candidates can challenge their rejection and may also obtain stay orders. This would require a policy decision, by the respondents in accordance with the guidelines issued by Department of Personnel and Training. However, an expeditious and early decision in such matters and in terms of the directions given in paragraph 16 is desirable and always appreciated. It would curtail and prevent another round of litigation."
(OA No.1809-2017, OA 773-2018 & OA 793-2018) (14)
16. Para 16 of the order dated 16.07.2016 passed by this Tribunal referred to above reads as follows:
16. We also notice that earlier respondents had advertised 142 vacancies of the post of Head Constable (AWO/TPO). Subsequently, this number was increased to 475 with further stipulation that number of vacancies may undergo a change. Under these circumstances, we dispose of this O.A. with a direction to the respondents to consider whether additional vacancies are available to appoint the applicants as well in addition to those figuring in the revised merit list. We are conscious of the fact that there may be some other candidates in between those figuring in the revised merit list and the applicants herein. That number is not known to us.
Such candidates would also have to be appointed. Let the respondents examine and see whether without violating the merit of the selection process the applicants can be accommodated. This will, of course, be subject to availability of vacancies. The respondents may do so within next 08 weeks from the date of receipt of a certified copy of this order. No costs."
17. We find that the respondents have already taken action in compliance of the said order. The contention of the applicants is that there are 19 vacancies in OBC category and there are only 5 OBC candidates who scored 70 marks in written test and 7 marks in typing test were called for typing test as per RTI reply dated 15.03.2017. Thus, vacancies are available in the relevant OBC category. It is also averred that the next recruitment notice which was issued on 22.12.2019 was cancelled in March 2021. Therefore, these unfilled 19 vacancies still remain unfilled.
(OA No.1809-2017, OA 773-2018 & OA 793-2018) (15)
18. However, it is apparent from the submission made by the learned counsel for the respondents and the averments made in the counter reply that in the revised result the cut off marks of written examination was 71 whereas the applicants got only 70 marks and they were declared disqualified. It is also not in dispute that against 184 vacancies notified under OBC category, 184 candidates were selected as per revised result dated 16.05.2016 and no remained unfilled. It is also observed that the revised advertisement for the post of HC (AWO/TPO) in Delhi Police Examination, 2019 was cancelled due to administrative reason and fresh Notification for direct recruitment to the post in question was notified in the year 2022 by the Recruiting Agency-SSC which is still under process. Thus, the applicants failed to obtain cut off marks set forth for OBC category and it is not the case that they obtained requisite cut off marks and yet they have not been appointed. We also find that the ratio of the judgment cited by the applicants does not apply in the instant case in view of the fact that they did not meet the cut off marks criteria specified in the revised result. Also we find that ratio of judgment dated 03.02.2023 in OA No.3813/2018 relied upon by the by the applicant in Rahul Singh Rathore vs. DSSSB (OA No.1809-2017, OA 773-2018 & OA 793-2018) (16) & Others relates to preparing of reserve panel and declaring the waiting list for recruitment to the post of PGT (English) in Delhi Exam-2012 which does not relate to the present case, as the applicants were disqualified in written test as per the revised result declared by the Delhi Police. As such they cannot be placed in reserve list, if any.
19. In the light of above, we do not see any merit in these OAs and the same are accordingly dismissed. No order as to costs.
20. Registry is directed to place a copy of this order in OA No.773/2018 and OA No.793/2018.
(Sanjeeva Kumar) (Manish Garg) Member (A) Member (J) /kdr/