Central Administrative Tribunal - Delhi
Manju Yadav vs Union Of India on 25 November, 2013
Central Administrative Tribunal Principal Bench, New Delhi O.A. No.3172/2012 Order reserved on 11.11.2013 Order pronounced on 25.11.2013 Honble Shri G.George Paracken, Member (J) Honble Shri Shekhar Agarwal, Member (A) Manju Yadav D/o Shri B.L. Yadav R/o V.P.O. Nand Gaon, District Bhiwani, Haryana. ..Applicant (By Advocate : Shri M.K. Bhardwaj) Versus 1. Union of India Through Secretary (Revenue) Ministry of Finance, North Block, New Delhi. 2. Central Board of Excise and Customs (CBEC) Department of Revenue, Ministry of Finance, Government of India, 9th Floor, HUDCO Vishala Building, Bhikaji Cama Place, New Delhi-110066. 3. Department of Personnel and Training Ministry of Personnel, Public Grievances and Pensions, Government of India, North Block, New Delhi. 4. Staff Selection Commissioner (SSC) Deleted vide order CGO Complex, dated 18.1.2013 New Delhi. ... Respondents (By Advocate: Shri D.S. Mahendru) ORDER
Honble G. George Paracken,M(J) In this Original Application, grievance of the Applicant is that the Respondent No.2, namely, the Central Board of Excise and Customs (CBEC for short) has wrongly denied her rightful claim for allocation to Delhi Zone which was her first preference based on her merit.
2. The brief facts of the case are that in the year 2011, Respondent No.4, i.e., the Staff Selection Commission (SSC for short) conducted the Combined Graduate Level Examination (CGLE for short)-2010 for appointment to various posts. In the aforesaid examination, the Applicant was declared successful for appointment to the post of Central Excise Inspector (CEI for short) in OBC category. The successful candidates had the options for allotment of zone on the principle of merit-cum-preference. She had exercised her first option for Delhi Zone and second for Lucknow Zone but according to her, despite she could be given her first choice in terms of her merit position and availability of vacancies in OBC category in Delhi Zone, she was not allocated the said Zone. Since necessary data regarding the availability of vacancies in Delhi Zone was not available with her, she sought the requisite information under Right to Information Act, 2005. In the reply dated 07.012.2011 the Respondents gave the following information with regard to the vacancy position of Central Excise Inspectors for the years 2006-07 to 2010-11:-
No. of vacancies intimated to SSC in the grade of Inspector Year Horizontal Reservation Vertical Reservation GEN SC ST OBC PH Ex-Ser 2006-07 13 3 - 7 1 -
2007-08 31 9 5 17 2 -
2008-09 15 6 - 8 1 - -
2009-10 18 6 3 10 1 - -
2010-11 47 16 6 35 1 - -
They have also intimated the details of the dossiers received by them from the SSC and returned to them which are as under:-
Combined Graduate Level Exam 2005 Total Dossier Category Received GEN OBC SC ST PH 40 18 12 6 3 1 Total Dossier Returned Category 12 6 4 - 1 1 Combined Graduate Level Exam 2006 Total Dossier Category Received GEN OBC SC ST PH 352 105 151 73 23 -
Total Dossier Returned Category 74 31 29 11 3 -
Combined Graduate Level Exam 2008 Total Dossier Category Received GEN OBC SC ST PH 94 39 35 15 05 -
Total Dossier Returned Category 18 08 06 03 01 -
Combined Graduate Level Exam 2010 Total Dossier Category Received GEN OBC SC ST PH 40 17 11 05 07 -
Total Dossier Returned Category Under process - - - - -
3. As regards the details of the vacancies that remained unfilled/backlog vacancies due to return of dossiers or otherwise is concerned, they have informed the Applicant that the said year-wise data was not available with them but the number of dossiers returned to SSC can be treated as vacancies remained unfilled/backlog vacancies for the relevant years which is as under:-
Vacancies remained unfilled/Back log vacancies due to returning of dossiers or otherwise Year (due return of dossier) Category GEN OBC SC ST PH 2006-07 2007-08 2009-10 2010-11 25 23 10 3 -
\ They have also given the following information with regard to the candidates selected through SSC under the Combined Graduate Level (Main) Examination and those who have been appointed during the different years. The said information is as under:-
Candidates Selected through SSC Combined Graduate Level (Main) Examination actually appointed during the period mentioned against each year Year Period 2006-07 24 2007-08 03 2008-09 38 2009-10 276 2010-11 99
4. On the basis of the aforesaid information provided to the Applicant, she made a representation on 03.10.2011 requesting the Respondents to allocate Delhi CX Zone to her against available vacancies as accepted by the aforesaid letter. In the said representation, she stated that she was not aware about the availability of vacancies in OBC category in Delhi CX Zone earlier and as per the information made available to her in the aforesaid letter dated 07.12.2011, it is evident that 23 OBC backlog vacancies of CEI in Delhi Zone for the years 2006-07, 2007-08, 2008-09, 2009-10 and 2010-11 were to be filled up as per rules. Since she was selected as CEI against the examination conducted in the year 2010 finalized in 2011, she had the right to claim appointment against those backlog vacancies also. She has also stated that while making allocation, if those backlog vacancies were brought to the notice of the competent authority, they would have been utilized by making allocation of the selected candidates of the CGLE, 2010. However, since the correct position has now emerged, she requested the Respondents to review the earlier allocation and reallocate her to Delhi CX Zone on the basis of her merit in the aforesaid examination. Accordingly, those 23 backlog vacancies in OBC category are to be utilized for filling up the vacancies in the year 2011 based on the examination conducted in the year 2010. She has also pointed out that while the Delhi Zone reported only 10 OBC vacancies, the CBEC has actually allocated 11 vacancies in the said category giving rise to a conclusion that the excess vacancy was filled up from backlog vacancies only. She has, therefore, submitted that on the same criteria, she also should have been allocated to Delhi Zone taking into consideration of the entire 23 backlog vacancies which have not been reported for the 2010 examination in which she was declared successful.
5. Further, she has stated that 5 candidates who belong to OBC category but qualified on general standards have been adjusted against OBC slot while making allocation for Delhi CX Zone. Once the said 5 vacancies appearing at Sl.No.25, 58, 64, 77 and 85 of the allocation list have been treated as general, they cannot be adjusted against the OBC slot in the zone of consideration. Once the OBC candidates have been treated as general, they have to be meted out the same treatment as meted out to the general candidates.
6. The Applicant has also relied upon the order of this Tribunal passed in OA No.2219/2011 with OA No.2220/2011 Anshita Agnihotri and Others Vs. U.O.I. & Others decided on 05.07.2011 wherein similar issue was considered. The relevant part of the said order reads as under:-
2. In OA 2219/2011, there are three applicants and in OA 2220/2011 there are six applicants. All of them had been appointed to the Post of Central Excise Inspectors on the basis of the 2006-Examination fructifying in their appointments in the year 2009-10. Through these OAs, the applicants are agitating claims for allocation of zones as per their choice on the basis of their merits in the Select List. In support, the decision of a Coordinate Bench of this Tribunal in OA 4415/2010 disposed by the order dated 3.1.2011 has been cited (Annexure A-7). The learned counsel would also submit that in pursuance of these directions, all the four applicants in that OA had been re-allocated the zones of their preference vide the respondents letter dated 27.5.2011 (Annexure A/1). In addition another decision of a Coordinate Bench in OA 2161/2011 dated 3.6.2011 on similar lines has also been adverted to by the learned counsel.
3. It is submitted by the learned counsel that representations had also been submitted by all the applicants to the Chairman, CBEC. The same had still not been considered by the respondents. It would further be submitted that the applicants would be satisfied if appropriate directions are given to the respondents to consider their representations, treating the present OAs as supplementary representations and pass speaking orders within a stipulated time frame.
4. We find merit in the submissions of the learned counsel. Accordingly these OAs are disposed with direction to the respondents no.1 and 2 to consider the representations of the applicants and also treat these OAs as supplementary representations and decide the same by passing reasoned and speaking orders within a period of one month from the date of issue of this order. While passing the order the respondents would also take into account their communication dated 27.5.2011 issued in the context of the OA 4415/2010.
5. With the above, the Misc. Applications filed in the OA also stand disposed.
Issue Dasti.
Applicant has also submitted that in view of the aforesaid order passed, the Respondents have reallocated the zones of 9 candidates who qualified the 2006 examination including those four Applicants in the aforesaid OAs vide letter dated 28.07.2010. Shri Amit Kumar and Shri Adish Jain who were originally allocated to Ramagiri Division to Delhi Zone and Ranchit Saxena and Vijay Kumar Sharma who were in Dapoli Division were reallocated to Delhi Zone and Jaipur Zone respectively. The said letter is reproduced as under:-
F.No.C-18013/01/2010-Ed.III-B Government of India Ministry of Finance Department of Revenue Central Board of Excise and Customs Hudco Vishala Building, Bhikaji Cama Place, New Delhi, the 28th July, 2010 To The Chief Commissioner of Central Excise (By name) Chandigarh,/Mumbai/Bhopal/Vadodara Zone Sub: CAT order dated 05.07.2011 passed by CAT Principal Bench, New Delhi in OA No.2119/2011 & 2220/2011 by Anshita Agnihotri and 2 other Vs. UOI and Others and Shri Amit Kumar and 5 Others Vs. UOI and Others respectively for their reallocation as Inspector, Central Excise - regarding.
Sir/Madam, I am directed to refer to Boards letter F.No.A-12034/SSC/1/2009-Ad.III B dated 16.6.2009 wherein the following candidates selected through Combined Graduate Level Examination, 2006 were allocated to the zones mentioned against each as Inspector, Central Excise:-
Anshita Kale (Agnihotri) (Rank SLD/00200) - Chandigarh Deepak Sharma (Rank SLD/00223) Chandigarh Mukesh (Rank SLD/00213) Chandigarh Amit Kumar (Rank SLD/00244) Mumbai-I Vijay Kumar Sharma (Rank SLD/00506) Mumbai-I Adish Jain (Rank SLD/00341) Mumbai-I Shashnak Saraswat (Rank SLD/00350) Bhopal Ranchit Saxena (Rank SLD/00342) Mumbai-I Kishan Murari Bhardwaj (Rank SLD/00294) Vadodara
2. However, as per the direction of Honble CAT, PB, New Delhi vide Order dated 5.7.2011 in OA No.2119/2011 & 2220/2011, their cases for reallocation of zone have been examined in the Board in consultation with DOP&T and in accordance with the DOP&T instructions vide their OM dated 4.6.2010, it has been decided to reallocate them to the following zones:-
Anshita Kale (Agnihotri) Rank SLD/00200) - Delhi Deepak Sharma (Rank SLD/00223) Delhi Mukesh (Rank SLD/00213) Delhi Amit Kumar (Rank SLD/00244) Delhi Vijay Kumar Sharma (Rank SLD/00506) Jaipur Adish Jain (Rank SLD/00341) Delhi Shashnak Saraswat (Rank SLD/00342) Lucknow Ranchit Saxena (Rank SLD/00342) Delhi Kishan Murari Bhardwaj (Rank SLD/00294) Delhi
3. You are, therefore, requested to forward the dossiers etc. of the above said candidates working in your zone to the respective Chief Commissioners of Central Excise (Cadre Controlling Authority) as indicated in para 2 above forthwith.
7. The learned counsel for the Applicant has also relied upon an order of the co-ordinate bench of this Tribunal in OA No.4415/2010 Anirudh Chauhan and Others Vs. U.O.I. & Others. In the said OA the Applicants prayer was to allocate them to the zone of their choice as per their merit and by following the principles of merit-cum-preference. The said OA was disposed of vide order dated 3.1.2011 with a direction to the Respondents to consider their representations and to pass appropriate orders. Again, the very same issue was considered by this Tribunal in OA No.3767/2011 Sumit Gill and Others Vs. U.O.I. and Others. The Applicants therein stated that their case was fully covered by the decision given in OA Nos.2219/2011 and 2220/2011 (supra). Accordingly, the said OA was also disposed of with a direction to the respondents to decide the pending representations of the Applicants by treating the said OA as a supplementary representation on behalf of the Applicants and to pass an appropriate speaking and reasoned order, within a period of one month from the date of receipt of a copy of this order.
8. Applicant has, therefore, approached this Tribunal earlier vide OA No. 2310/2012 and the same was decided on 16.07.2012 with the following direction:-
We have given due consideration to the submissions made by the learned counsel for applicant and without going into the merits of the matter, we dispose of the present OA with a direction to the respondents to decide the pending representation of the Applicant by treating the present OA as a supplementary representation on behalf of the Applicant and pass an appropriate speaking and reasoned order, within a period of one month from the date of receipt of a copy of this order. In case the Applicant is still aggrieved by the order to be passed by the respondents, it will be open for her to file substantive OA for the same cause of action.
9. It is in purported compliance of the aforesaid order, the Respondents have now passed the impugned order dated 08.08.2012. According to them, the Applicant, an OBC candidate, having her Rank NO.SLA/00094 in merit list had given her preference for allocation of zone in the order (1) Delhi CX Zone (2) Lucknow CX Zone (3) Jaipur CS Zone (4) Chandigarh CX Zone (5) Mumbai CX Zone and as per her merit-cum-preference, she was allocated to Lucknow CX Zone (2nd preference) in terms of the DOP&T OM No.36012/72/2009-Estt. (Res.) dated 4.6.2010. The allocation of reserved category candidates, who qualified with general standard marked asketrisk (*) mark and recommended by the SSC against unreserved vacancies, have been allocated against reserved vacancies, following the advice of DOP&T that a candidate belonging to a reserved category qualifying on general standard would not be placed at disadvantageous position vis-`-vis a less meritorious candidate belonging to that category. Accordingly, the reserved candidates qualified on general standards at Rank No.58, 64, 77 and 85 have been allocated Delhi CX Zone against reserved vacancy because General Category vacancies in Delhi CX Zone were exhausted up to Rank SLA 00032 and one reserved candidates qualified on general standards at Rank No.25 has been allocated Delhi CX Zone against unreserved vacancy. They have also stated that as per the merit-cum-preference system, the option/preference was called for from all the candidates and thereafter, allotment was made strictly as per merit and taking into consideration their preference and the availability of vacancies in the relevant cadre/category. Thus a candidate with higher rank gets his/her first preference, a person with lower rank gets his/her second preference and so on. Accordingly, Applicant was allocated to Lucknow CX Zone as per her rank number.
10. We have heard the learned counsel for the Applicant Shri M.K. Bhardwaj and the learned counsel for the Respondents Shri D.S. Mahendru. Two issues raised by the Applicant in this OA are that (i) 5 candidates, who belong to OBC category but qualified on general standards, have been wrongly adjusted against OBC slots while making allocation for Delhi CX Zone but, according to her, once the said five candidates appearing at Serial No.25, 58, 64, 77 & 85 in the allocation list have been treated as general, they cannot be adjusted against OBC slot in the zone allocation and (2) the 23 backlog vacancies in the OBC category have not been fully utilized to her disadvantage. As far as the first issue is concerned, we do not find any merit. In this regard the Respondents have rightly followed the DOP&T OM that a candidate belonging to a reserved category qualifying on general standard would not be placed at disadvantageous position via-a-vis a less meritorious candidate belonging to that category. However, the reply of the Respondents with regard to the utilization of the 23 backlog vacancies is quite evasive and contradictory to what they have stated in their reply to the Application of the Applicant under RTI. According to their aforesaid reply, the number of backlog vacancies for the years 2006-07 to 2009-10 was equal to the number of dossiers of OBC candidates returned to the SSC. The number of dossiers returned for the 2006 examination was 29 and that of the 2008 examination was 6. Thus the total number of dossiers of OBC candidate returned before the 2010 examination was 35 and those were the backlog vacancies for the year 2010. However, the number of vacancies reported in the OBC category for the year 2010 was 10 but the Respondents have filled up 11 vacancies in that year. In the additional affidavit filed by them in October 2013, they admitted that there were 91 vacancies available in OBC category in the Delhi Zone for the CGLE, 2006 and they received total 151 dossiers of OBC candidates from CBEC. Out of them 59 candidates were declared qualified under the General Category and the balance 92 candidates including 1 OBC PH candidates were declared qualified under the OBC category itself. Thereafter, appointment process was initiated in February, 2010 but 21 dossiers were returned for non-compliance. As a result, 21 vacancies of OBC category remained unfilled in the year 2006. Two more vacancies arose in OBC category in the months of June and September 2010 due to Inter Commissionerate Transfer and Technical Resignation. Thus, total 23 vacancies of OBC category were found to be available with the Delhi Zone after the entire exercise of appointment of Inspectors was over. However, Delhi Zone intimated only 10 OBC vacancies for the 2010 examination held in 2011. In said additional affidavit, the Respondents have also admitted that the Delhi Zone intimated those 23 backlog vacancies only on 04.02.2011 for the CGLE, 2011 and all of them were utilized.
11. From the aforesaid affidavit, it is quite clear that the Respondents have not treated the backlog vacancies in terms of the DOP&T OM No.36033/1/2008-Estt. (Res.) dated 15.07.2008. Admittedly, the 21 backlog vacancies of CGLE, 2006 and the 2 vacancies which have occurred in the year 2010 should have been reported at least for the CGLE, 2010 and not in CGLE, 2011 as done by the Respondents. In terms of DOP&T aforesaid OM dated 15.07.2008 regarding treatment of backlog vacancies, if sufficient number of SC/ST/OBC candidates do not become available to fill up the vacancies reserved for them in the first attempt of recruitment, a second attempt should be made for recruiting suitable candidates belonging to the concerned category in the same recruitment year or as early as possible before the next recruitment year so that the backlog reserved vacancies are not created. If, even after making such efforts, the reserved vacancies are not filled and backlog reserved vacancies are carried forward to the next subsequent recruitment year, concerted efforts should be made to fill up the backlog reserved vacancies as soon as possible. The Respondents have neither made any second attempt to fill up the backlog vacancies before the next recruitment year nor they have been carried forward to the next recruitment year. They have not made any attempt to fill up those backlog vacancies as soon as possible as required in the aforesaid Office Memorandum.
12. In the above facts and circumstances of the case, we allow the OA and hold that the action of the Respondents in not utilizing the 23 backlog vacancies in CGLE, 2010 was illegal and arbitrary. Consequently, we quash and set aside the impugned order dated 08.08.2012 and direct the respondents to allocate Delhi Zone to the Applicant according to her merit and preference for Delhi Zone given by her with all consequential benefits. However, it is up to the Respondents not to disturb the allocations so far made and adjust the Applicant against the OBC vacancies which are available for CGLE, 2012 for which the appointments are in process. In any case, the Respondents shall reallocate the Applicant to Delhi Zone within a period of 2 months from the date of receipt of a copy of this order.
13. There shall be no order as to costs.
(SHEKHAR AGARWAL) (G. GEROGE PARACKEN) MEMBER (A) MEMBER (J) Rakesh