Central Administrative Tribunal - Delhi
Rajesh Kumar vs Union Of India Through on 6 September, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A. No. 1593/2004 M.A. No. 2860/2010 New Delhi this the 6th day of September, 2011 Honble Smt. Meera Chhibber, Memebr (J). Honble Dr. A.K. Mishra, Member (A). 1. Rajesh Kumar, S/o Shri Wazir Singh, R/o 103/22, Laxmi Nagar, Rohtak. 2. Yashpal Singh, S/o Late Shri Dalip Singh, R/o A-1-B-95, Janakpuri, New Delhi. .. Applicants. (By Advocate: Shri M.K. Bhardwaj) Versus Union of India through 1. Secretary, Department of Revenue, Ministry of Finance, North Block, New Delhi. 2. Secretary, Ministry of Personnel, Grievances and Pension, North Block, New Delhi-110 001. 3. Chairman, Staff Selection Commission, Block No. 12, CGO, Complex, Lodhi Road, New Delhi. 4. Chairman, Central Board of Excise and Customs, North Block, New Delhi. 5. Chairman, Central Board of Direct Taxes, North Block, New Delhi. . Respondents. (By Advocates : Shri V.P. Uppal for R-1 & 5, Shri R.N. Singh for R-2 & 4 and Shri M.R. Junadi for Shri S.M. Arif for R-3) O R D E R (ORAL)
Mrs. Meera Chhibber, Member (J) This matter has been remanded back by the Honble High Court vide its judgment dated 05.08.2011 by observing as follows:
1. Learned counsel for the parties jointly state that the undisputed position is as correctly recorded by the Tribunal in para 18 of the impugned decision, which reads as under:-
18. Since this mistake was already committed and number of persons were already promoted, it was decided to confirm only 83 left over vacancies to SSC and such promotees be adjusted against resultant vacancies of the Income Tax Inspectors arising due to promotion of ITOs to the grade of ACIT, etc. during the years 2000-2001 and 2001-2002. It is also clear from records that the vacancies which were to be filled by promotion would be the sum of backlog of all vacancies which were to be filled by promotion would be the sum of backlog of all vacancies which occurred between 1.4.2001 to 31.12.2002. This shall be in relaxation in the relevant clause of the RR which requires vacancies to be filled up by direct recruits and promotees in the ratio of 2:1. It was thus clear that one time relaxation for promotion on 100% was relevant only for vacancies of 2001-2002 and it could not have been applied on vacancies of earlier years.
2. Learned counsel for the parties further concede that the consequence of the said mistake noted by the Tribunal in para 18, is as recorded by the Tribunal in para 19 of the impugned decision which reads as under:-
In view of the above admitted position, applicant have been able to make out a case that the vacancies of 1996-99 meant for direct recruitment in CBDT were wrongly diverted to promote quota which could not have been done. However, the question arises whether in spite of this mistake, the relief as prayed by applicants can be given to them or not.
3. Thereafter, in para 20, the Tribunal has held that the mistake in question noted in para 18, when applied to the consequence as noted by the Tribunal in para 19 impacts only 20 posts.
4. From where is the Tribunal holding that only 20 posts get impacted has admittedly not been brought out by the Tribunal.
6. Under the circumstances counsel state that the writ petition may be disposed of setting aside the impugned order dated 2.9.2005 as also the order dated 12.10.2006 and reviving OA No.1593/2004 with a direction to the Tribunal to re-decide the matter by treating the admitted position as noted hereinabove and as per the findings of the Tribunal in para 18 and 19 of the order dated 12.10.2006 but requiring the Tribunal to bring out clearly as to what number of posts have got affected by the taint found by the Tribunal in para 18 of the said order, consequence of which is as noted in para 19 by the Tribunal in its order dated 12.10.2006.
7. Ordered accordingly. Writ Petition is disposed of in terms of para 6 above.
2. After the matter was remanded back, respondents have filed an additional affidavit giving the details of backlog vacancies of direct recruits for the year 1996-1999. It is stated by the respondents that CBDT had intimated 83 vacancies for direct recruits for the post of Inspector of Income Tax in the year 1996 but the examination held on 28.04.1996 was cancelled in 1998. Thereafter fresh requisition was sent to the SSC in the year 1999 for total 121 posts out of which 57 were earmarked for general candidates, as is evident from page 122. This requisition included the backlog vacancies of 1996 also. However, subsequently these posts were again reduced to 83 by the department, therefore, Staff Selection Commission (hereinafter referred to as SSC) declared the result of 108 candidates, i.e. 83 for CBDT and 25 for CBEC.
3. Respondents have thus explained that the direct recruit vacancies of Inspector of Income Tax which were wrongly diverted to promotees from 1996-1999 would be 38, if total number of vacancies is taken as 121 which were initially requisitioned, i.e., 121-83=38 or it would be at best 41, if the figure mentioned by SSC is taken into account, i.e., 124-83=41. This would however not mean that all the 41 posts would come to the share of general candidates. As is mentioned above when requisition was given for 121, the vacancies earmarked for general category were 57 whereas SSC had earmarked 41 by taking the vacancies as 83 for CBDT. The extra vacancies which would be available would thus be 57-41=16+3 vacancies if total number is taken as 124 so it would make it 19 more vacancies for the general category.
4. Similarly for CBE&C, total number of vacancies was 25 out of which 12 were meant for general candidates.
5. It was in view of above calculation that we had observed as follows in para 20:
Admittedly, CBDT had initially given requisition for 124 vacancies which were reduced to 83. Out of 83 only 41 vacancies were meant for general candidates, rest were for reserved categories. Applicants belong to general category so they cannot claim appointment against reserved category. Even if the number of rest of the vacancies are added, at best about 20 more posts of general category would be added and 12 from CBE&C out of 25 so the total would come to 73 posts for general category i.e. 41+20+12 + 73 but applicants have themselves stated that they were at Serial No. 164 and 185, therefore, even then they would not be appointed as there would be number of persons above them in merit position. Simply because applicants have approached the Court, they cannot get a march over persons who are higher in merit than them. They can have a valid grievance only if some one below them in the select list was given appointment ignoring their claim. In the instant case, since they do not fall within the number even after recalculation, the relief as prayed by applicants cannot be given to them.
6. It is clarified that if total 121 vacancies were taken into account as requisitioned, 57 vacancies were earmarked for general. 41 were already there so 57-41=16+3 if number of total vacancy is taken to be 124 as stated by the SSC so it would be in fact 19 more vacancies for general candidates whereas we had mentioned it would be 20 at best + 12 general category vacancies from CBE&C. It was, therefore, observed that the total number of vacancies falling in the share of general category would be 41+20+12=73 whereas applicants were at Sl.Nos. 164 and 185, therefore, they cannot be appointed because there were number of persons above them as per the merit position.
7. Let us examine the claim of applicants in above background.
8. This O.A. has been filed by two applicants, who have claimed the following relief:
To quash and set aside the impugned letters/orders dated 11.9.2003 passed by respondent No. 5 and letter/order dated 18.7.2003 passed by respondent No.3;
To direct the respondents to give appointment to the applicants for the post of Inspectors in Central Excise & Income Tax etc. in DR quota against 1996 and 1999 examination with all consequential benefits;
To quash and set aside the appointments of promotee made by the respondents, in excess of their due quota for the post of Inspector in Central Excise and Income Tax etc. against the examination of 1996 and 1999.
To pass any other relief as this Honble Tribunal may deem fit and proper in view of the facts and circumstances of the case.
9. It is submitted by the applicants that some posts were advertised by the SSC to be filled by the direct recruitment for the posts of Inspector in Central Excise and Income-Tax, etc. The examination was held on 28.4.1996. However, the same was cancelled in 1998 and was held in 1999 finally. In the year 2000, 1327 candidates including the applicants were called for interview as they had qualified in the written test. However, the final list of selected candidates was issued only for 108 persons. Applicants are aggrieved because they were at Serial Nos. 164 and 185, respectively in the merit and there were as many as 674 vacancies notified by the SSC yet all the vacancies were not filled by direct recruitment.
10. The grievance of applicants was not redressed, therefore, they filed O.A. 972/2003, which was disposed of on 17.04.2003 by directing the respondents to decide the applicants representations.
11. Pursuant to the directions given by this Tribunal, respondents issued speaking order dated 11.9.2003 (page 22) i.e. by the Ministry of Finance while order dated 18.7.2003 was passed by the SSC (page 24), which shows that Central Board of Direct Taxes (CBDT) had initially reported 124 posts of Income-tax Inspectors and Central Board of Excise and Customs had reported 401 vacancies of Inspectors of Central Excise, 131 vacancies of Preventive Officers and 18 vacancies of Examiners, making a total of 674 vacancies in all. Before declaration of the final results when reconfirmation of vacancies was sought from the departments, Central Board of Excise and Customs intimated only 25 vacancies (20 of Inspectors of Central Excise, 4 of Preventive Officer and 1 of examiner) as they submitted that in the cadre re-structuring, as per proposal approved by the Cabinet, 3169 posts of Inspectors/Preventive Officer/Examiner were abolished and after cadre restructuring all the vacancies in the above grades were required to be filed by promotion only. Central Board of Direct Taxes also reduced the vacancies to 83 after reviewing the position. Thus, SSC gave the select list of 108 candidates only. They have further stated that the select list is prepared as per the requisition given by the respective Departments.
12. Counsel for the applicants heavily relied on this letter to show that number of vacancies were reduced as the posts meant for direct recruitment have been diverted for being filled by way of promotion which could not have been done at all.
13. Counsel for the applicants submitted that even if restructuring was carried out, it could have been done only prospectively and the vacancies which were already in existence i.e. from 1996 to 2000 could not have been filed up by a different mode contrary to the recruitment rules. Moreover, once the quota is fixed in the ratio of 2 : 1, it could not have been deviated by the Department on their own as that would be contrary to the statutory rules. He further submitted that since applicants were challenging the basic actions of the respondents in misutilising the posts meant for direct recruitment by filling them by way of promotion, there was no need to implead all the persons who were benefited by such arbitrary actions of the respondents. Counsel for the applicants relied on the following judgments:
Miss Neelima Shangla Vs. State of Haryana and Ors. (1986 (4) SCC 268;
Nirmal Chandra Sinha Vs. Union of India & Ors. (2000 (3) ATJ 240;
Madan Gopal Garg Vs. State of Punjab and Ors. (1995 (2) SC SLJ 185;
M. Subba Reddy & Anr. Vs. A.P. State Road Transport Corporation & Ors. (JT 2004 (Suppl.1) SC 250);
Prem Singh and Ors. Vs. Haryana State Electricity Board & Ors. (1996 (4) SCC 319);
P. Mahendran & Ors. Vs. State of Karnataka & Ors. (1990 (1) SCC 411);
J.C. Bhutani Vs. Union of India & Ors. (1990 (1) ATJ 272);
The General Manager, South Central Railway, Secunderabad and Anr. Vs. A.V.R. Sidhantti and Ors. ( 1974 SCC (L&S) 290);
B. Gopalaiah and Ors. Vs. Govt. of Andhra Pradesh (AIR 1969 AP 204);
V.P. Shrivastava & Ors. Vs. State of M.P. & Ors. (1996 (7) SCC 759).
14. Shri Uppal appeared for Respondent No.5, Central Board of Direct Taxes. He submitted that applicants have no locus to file the present case because as far as CBDT is concerned, they had originally conveyed the vacancy position for 124 Inspectors but before the results were declared it was reduced to 83. Out of 83, only 41 vacancies were required to be filled from amongst the general candidates and even if the total number of 124 is taken, at best about 64 vacancies would have come to the general candidates whereas as per applicants own showing they were at Serial Nos. 164 and 185 in the merit. Therefore, in any case, they could not have been appointed against the posts requisitioned by the CBDT and Income Tax initially.
15. He further submitted that it is settled law that even selected candidates do not have an indefeasible right to ask for appointment whereas in the instant case no select list was issued at all and before the final select list was issued, the number of vacancies were reduced by the Department. Therefore, the applicants cannot seek a mandamus to give them appointment. Moreover, there are number of other persons above them in the merit who would have better claim than the applicants herein and ignoring their claim, applicants cannot get the relief, as prayed by them. He further submitted that it is very much within the domain of Government to reduce the vacancies as per their requirements and the Courts cannot force the Department to fill up all the vacancies when a conscious decision is taken not to fill the vacancies. To substantiate his contentions, he relied on the following judgments:
P.U. Joshi & Ors. Vs. A.G. Ahmedabad and Ors. (2003 (2) SCC 632);
Shankarsan Dash Vs. Union of India (1991 (3) SCC 47);
State of Orissa and Ors. Vs. Bhikari Charan Khuntia & Ors. (2004 (1) SC SLJ 53);
Bihar State Electricity Board Vs. Suresh Prasad & Ors. (2004 (3) ATJ 205);
Union of India Vs. N.R. Banerjee (1997 (9) SCC 287);
Food Corporation of India & Ors. Vs. Bhanu Lodh and Ors. (JT 2005 (2) SCC 562);
16. Shri R.N. Singh appeared on behalf of Ministry of Finance, DOP&T and Chairman CBE&C. He adopted the arguments of Shri Uppal but further submitted that the Department have already promoted number of persons but none of them have been impleaded as respondents in the present O.A. and in the event this OA was to be allowed it would naturally affect all those persons adversely and it would only add to further litigation. Therefore, if applicants want the promotion orders of the employees to be quashed or set aside, it could be done only after those persons are impleaded as respondents and after hearing them. He also submitted that applicants have no right as even the empanelled employees have no indefeasible right whereas applicants are not even the selected candidates as admittedly their names do not figure in the final select list.
17. He also produced the records to show that Cabinet decision was taken on 10.7.2001 to abolish as many as 3196 posts of Inspectors and once a policy decision was taken, the said decision cannot be interfered with by the Courts in judicial review nor a direction can be given to the authorities by the Courts to fill up the vacancies when Government has decided not to fill up those posts. He also distinguished the judgments relied upon by counsel for the applicants and relied upon the following judgments in addition to the judgments referred by Mr. Uppal:
S. Renuka and Ors. Vs. State of A.P. and Anr. (2002 (5) SCC 195);
N.M. Siddique Vs. UOI (AIR 1978 SC 386);
State of Bihar and Ors. Vs. Secretariat Assistant Successful Examinees Union 1986 and Ors. (1994 (1) SCC 126);
Government of Orissa, Commerce and Transport Department, Bhubaneswar Vs. Haraprasad Dass and Ors. (1998 (1) SCC 487);
Shankarsan Dash Vs. Union of India (1991 (3) SCC 47);
State of UP and Anr. Vs. Johri Mal (2004 (4) SCC 714);
State of Punjab and Ors. Vs. Ram Lubhaya Bagga and Ors. (1998 (4) SCC 117);
P.U. Joshi & Ors. Vs. A.G. Ahmedabad & Ors. (2003 (2) SCC 632);
Suvidya Yadav & Ors. Vs. State of Haryana & Ors. (2005 (4) SLR 3).
18. Shri S.M. Arif appeared on behalf of SSC. He submitted that written result was declared on 3.4.2001 whereafter the Department was asked to give their specific vacancy position so that the final results could be prepared accordingly. Since Departments reduced number of vacancies, accordingly the final select list was prepared as per the requirement of Departments. He also submitted that in the advertisement, there was a clause that number of vacancies are liable to be altered, therefore, the number of 674 vacancies was not a definite vacancy position. He also submitted that applicants are down below in the merit list and there are number of other persons who are above them, therefore, they cannot claim a better right than those who are above them.
19. We have heard counsel for all the parties and perused the original records produced by the respondents as also the various judgments relied on by all the counsel. The records show that initially 674 vacancies were advertised by the SSC for recruiting Inspectors for CBDT and CBE&C i.e. Central Board of Direct Taxes and Central Board of Excise and Customs. Though posts were advertised in 1995-96 but due to cancellation of earlier examination, the recommendations could not be made till about 2000. The CBDT had initially given requisition for 124 vacancies while CBEC had given requisition for 401 vacancies for Inspectors in Central Excise, 131 vacancies of Preventive Officers and 18 of Examiners but in 2001 a cabinet decision was taken to abolish as many as 3196 posts of Inspectors/Preventive Officers/Examiners in CBE&C as a result of cadre review, therefore, before the results were declared by SSC, CBE&C informed SSC that they do not require any Inspector, however, later on gave requisition for 25 posts only to be filled by way of direct recruitment. In these circumstances, the question arises whether Government could have reduced the number of vacancies or not?
20. From the various judgments referred to by both the counsel, It is clear that vacancies could be varied for a justifiable cause or due to a conscious decision taken by the administration in a bona fide manner. Since number of vacancies were reduced by CBE&C on account of abolition of posts itself, we have no doubt in our mind that this justifies the action of CBE&C and their bona fides cannot be doubted. After all when the posts itself are reduced by the Govt. by taking a conscious decision, Court cannot still insist that the said posts should be filled up nor can applicants claim appointment nor any direction be given to the respondents to appoint the applicant in CBE&C especially when applicants do not even figure in the select list. Honble Supreme Court has repeatedly held that even those whose names figure in the select list do not have indefeasible right to get appointment whereas here the applicants names do not even figure in the select list.
21. We are supported in our this view by the following judgments of Honble Supreme Court. In 1991 (3) SCC 47 in the case of Shankarsan Dash Vs. Union of India, Honble Supreme Court held that even if number of vacancies are notified for applicants and even if adequate number of candidates are found fit, the successful candidates do not acquire any indefeasible right to be appointed against existing vacancies.
22. In the case of P.U. Joshi & Ors. Vs. A.G. Ahmedabad and Ors., reported in 2003 (2) SCC 632, Honble Supreme Court held that it is within the domain of State to amalgamate departments or bifurcate departments into more and constitute different categories of posts or cadres by undertaking further classification, bifurcation or amalgamation as well as reconstitute and restructure the pattern and cadres/categories of service as may be required from time to time by abolishing the existing cadre/posts or creating new posts/cadres.
23. From the above judgments, it is clear that it is open to the State to create or abolish the posts. In the instant case, the posts were abolished due to cadre restructuring, which is carried out after examining the various factors for the betterment of cadre employees or in order to provide better promotional avenues to the cadre employees. In that process if some posts in the lower cadre are abolished, it is fully justified, therefore, as far as CBE&C is concerned, reducing the number of posts from 401 to 25 cannot be interfered with.
24. As far as CBDT is concerned, perusal of the records show that they wrongly filled up some of the vacancies of 1996-99 examination meant for direct recruitment by way of promotion. The decision was taken only in 2001 to fill up the posts of Inspectors by way of promotion prospectively by giving them one time relaxation. Naturally, the mode of recruitment of vacancies of earlier years could not have been changed and they had to be filled by way of direct recruitment only so long as the RRs so mandated. As per the RRs, 75% of the posts were to be filled by way of direct recruitment while only 25% were to be filled by way of promotion. The records show that it is an admitted position that Restructuring did not preclude the filling up of direct recruitment vacancies of Inspectors pertaining to the previous years. Cabinets approval for filling the posts 100% by way of promotion was restricted to the year 2001-2002 by giving one time relaxation which was further extended upto 31.12.2002. It is, therefore, recorded specifically that the direct recruitment quota vacancies of 1996-99 were wrongly filled up by way of promotion which was contrary to the Recruitment Rules as well as Cabinet decision on restructuring of the department.
25. Since this mistake was already committed and number of persons were already promoted, it was decided to confirm only 83 left over vacancies to SSC and such promotees be adjusted against resultant vacancies of the Income Tax Inspectors arising due to promotion of ITOs to the grade of ACIT, etc. during the years 2000-2001 and 2001-2002. It is also clear from records that the vacancies which were to be filled by promotion would be the sum of backlog of all vacancies which occurred between 1.4.2001 to 31.12.2002. This shall be in relaxation in the relevant clause of the RR which requires vacancies to be filled up by direct recruits and promotees in the ration of 2:1. It was thus clear that one time relaxation for promotion on 100% was relevant only for vacancies of 2001-2002 and it could not have been applied on vacancies of earlier years.
26. In view of the above admitted position, applicants have been able to make out a case that the vacancies of 1996-99 meant for direct recruitment in CBDT were wrongly diverted to promotee quota which could not have been done. However, the question arises whether in spite of this mistake, the relief as prayed by applicants can be given to them or not.
27. Admittedly as per CBDT, they had given requisition for 121 vacancies in the year 1999, which according to the SSC was 124, but subsequently it was reduced to 83 vacancies only. Perusal of annexures filed by the respondents with their additional affidavit show that out of 121 vacancies requisitioned by the CBDT, the total number of vacancies earmarked for general category were 57 whereas for total vacancies of 83, it was earmarked as 41. Since respondents had reduced the vacancies from 124 to 83, SSC had issued the result for only 108 persons, i.e. 83 for CBDT and 25 for CBE&C. Out of 25 meant for CBE&C, 12 vacancies earmarked for general candidates, therefore, as per the result declared the number of vacancies which were given to the general candidates was 41+12=53 whereas if the total diverted posts were to be taken into consideration from 1996 to 1999, it would be 57 vacancies out of 121 + 3, if the total number was taken as 124 as stated by SSC. If 41 is subtracted from 57, it comes to 16+3 so only 19 more posts would, in fact, have come to the share of general candidates whereas in earlier judgment it was rounded to around 20. 41 were already earmarked. If 19 are added, it would make it 41+19=60+12 posts of CBE&C are added, the total would be 72 posts. If seen otherwise, the total vacancies which would have come to the share of general category would be 72. SSC had already earmarked 41 vacancies for general category on the basis of 83 total vacancies which were reduced ultimately, the difference would be 57+3=60-41=19. It was in this context that we had earlier observed that at best 20 more vacancies would have come to the share of general candidates and the total would be 41+20+12=73. It was in this backdrop that the claim of applicants is to be seen. Applicants have themselves stated that they were at Sl.No.164 and 185 in the merit list, therefore, even if those backlog vacancies which were wrongly diverted from the year 1996-1999 were to be taken into consideration, applicants could not have been appointed because there were number of persons above them available in the merit position. Simply because applicants have approached the Court, they cannot get a march over persons who are higher in merit than them. They can have a valid grievance only if some one below them in the select list was given appointment ignoring their claim. In the instant case, since they do not fall within the number even after recalculation, the relief as prayed by applicants cannot be given to them.
28. Counsel for applicants had strenuously argued that quota of direct recruitment could not have upset but those questions are purely of academic interest in view of the factual position as explained above. Moreover the judgments relied upon by counsel for applicants deal with the question of inter-se seniority of direct recruitee and promotee. That would be relevant only for those who are in service and a person who has not even entered service cannot have any grievance as to how the seniority is to be fixed. Therefore, those judgments do not advance the case of applicants. Counsel for applicants had relied heavily on Neelima Shanglas case reported in 1986 (4) SCC 268 but the facts of said case are different inasmuch as in the said case though requisition was given by the indenting department and rules also required the PSC to communicate the result to the Govt. but PSC did not publish the result of successful candidates even though many more had qualified. It was in those circumstances that Honble Supreme Court held that PSC could not have withheld the result of successful candidates. Whereas in the present case the indenting department had reduced the number of vacancies as communicated to the SSC and SSC was working only as an agent for the department to hold independent selections, therefore, they issued select list only as per the requirement indicated to them by the indenting department. Moreover, in the advertisement a general statement is given that number of vacancies may be varied, therefore, in this case, SSC cannot be said to have committed any illegality. The above judgment, therefore, does not advance the case of applicants. It is clearly distinguishable. As far as judgment of P. Mahendran, reported in 1990 (1) SCC 411 is concerned, respondents have admitted that direct recruitment quota was wrongly diverted to promotee quota but they decided to rectify the mistake by advertising equal number of posts of Inspectors by way of direct recruitment in subsequent years to balance the quota, therefore, this judgment would also not be relevant in the peculiar facts of this case. In the instant case, admittedly wrong has been committed by the CBDT but then the point is whether any relief can be given to the applicants. We have already held above that since applicants were down below in the merit and were not even within the number of vacancies meant for general candidates as requisitioned by CBDT earlier, they cannot get the relief as claimed for. The O.A. is accordingly dismissed. No order as to costs.
(DR. A.K. MISHRA) (MRS. MEERA CHHIBBER)
MEMBER (A) MEMBER (J)
/jyoti/