Central Administrative Tribunal - Delhi
Sh. Radhey Shyam, J.E. (Elect.) And Sh. ... vs Union Of India (Uoi) Through Secretary, ... on 8 August, 2007
ORDER V.K. Agnihotri, Member (A)
1. In this OA the applicants, who are Junior Engineers (Electrical) [JE (E), for short], belonging Scheduled Caste category, have sought promotion as Assistant Engineer (Electrical) [AE (E), for short] by virtue of their having appeared in Limited Departmental Competitive Examination (LDCE, for short), 2002, in place of private respondent Nos. 4 and 5, belonging to general/other category, against the vacancies for the year 2001-02, and quashing of the orders of respondents dated 17.03.2003, 16.03.2005 and 17.03.2005 [Annexure P-1 (Colly.)], with consequential benefits.
2. Brief facts of the case are that LDCE, 2002 for promotion from Junior Engineer (Civil & Electrical) [JE (C/E), for short) to Assistant Engineer (Civil & Electrical) [AE (C/E), for short] held on 25.08.2002 was conducted by Central Public Works Department (CPWD, for short) for the vacancies for the year 2000-01 and 2001-02. On the basis of examination and merit, the result was declared on 17.03.2003 (Annexure-1), listing candidates who were found eligible for consideration for promotion against the year-wise vacancies for AE(C/E) for the years 2000-01 and 2001-02. According to the result declared on 17.03.2003, 24 candidates were found eligible for promotion as AE (E) for the year 2001-02 as notified on 03.05.2002 (Annexure-2). Out of 24 candidates, recommended for promotion as AE (E) for the vacancies of 2001-02, 18 candidates were general, 3 candidates were SC and 3 candidates were ST. One SC candidate at Serial No. 19 of the order dated 17.03.2003 had qualified on his own merit, as general candidate. Hence, the result was declared according to category-wise vacancies i.e. 19 General, 2 SC and 3 ST. To implement the judgment of this Tribunal in the case of Sh. Chander Singh Rawat and Ors. etc. v. Union of India and Ors. etc. OA Nos. 449/2004 and 450/2004, decided on 11.10.2004, twelve candidates were found eligible for consideration for promotion against the year-wise vacancies AE (E) for the year 2000-01 and 2001-02. Accordingly, order was issued on 16.03.2005 (Annexure-3) for consideration for promotion of 12 eligible candidates (1 for the year 2000-01 and 11 for the year 2001-02) as AE (E) to implement the order of this Tribunal aforementioned. Out of 11 vacancies of AE (E) for the year 2001-02, 10 vacancies were treated as unreserved, meant for general category, and 1 vacancy was reserved for SC candidates.
3. Aggrieved by the impugned orders of the official respondents, applicant No. 2 submitted a representation dated 24.02.2006 which was followed up with another letter dated 17.03.2006. Applicant No. 1 also submitted a representation dated 25.02.2006. As there was no response from the respondents, the applicants submitted a representation of the Chairman of National Commission for Scheduled Castes (NCSC, for short) dated 06.03.2006, which was forwarded by NCSC to respondent No. 2, vide letter dated 22/23.03.2006. This was followed by a letter dated 12.07.2006 from the Liaison Officer (SC/ST) of the official respondents to NCSC in support of the claim of the applicants. While the matter stood thus, the applicants filed the present OA.
4. The applicants have filed MA No. 1378/2006 under Rule 4 (5)(a) of the Central Administrative Tribunals (Procedure) Rules, 1987 for joining together.
5. The applicants have contended that two orders of promotion dated 17.03.2003 and 16.03.2005 should be read conjointly. In order to illustrate this averment the applicants have prepared and filed a combined merit list of LDCE, 2002 at Annexure P-11. According to the applicants, if a combined merit list is prepared, the Electrical Engineering candidates at serial Nos. 20 and 21 pertaining to the year 2001-02 in the first promotion list dated 17.0.2003, by virtue of having secured 448 and 443 marks respectively, would qualify to be counted against general or other category candidates on their own merit. In this view of the matter, there would be only one candidate (Jagdish Prasad) at serial No. 11 in the second promotion list dated 16.03.2005, who could be shown as selected against the three admitted vacancies reserved for SC. The official respondents then have to go down in the merit list of candidates, who had appeared in LDCE, 2002, in order to identify 2 more candidates to be promoted under the quota reserved for SC. If that is done, the applicants, who secured 421 and 417 marks respectively, would stand to qualify for being selected against the said reserved vacancies. In order to give effect to this arrangement, private respondent Nos. 4 and 5 would need to be taken off the second list dated 16.03.2005, being the persons with the least marks and also being the juniormost among the general category candidates.
6. In support of their claim, the applicants have cited the judgments of the Hon'ble Supreme Court in the case of Union of India and Anr. v. Satya Prakash and Ors. 2006 (128) DLT 722 and of Hon'ble High Court of Delhi in the case of Govt. of NCT of Delhi and Ors. v. All India Confederation of the Blind 2006 (128) DLR 695, wherein it has been held that reserve category candidates, who get selected on the basis of their merit, should not be counted against reserved vacancies. They have also enclosed a copy of DoPT O.M. dated 11.07.2002 (Annexure P-12) which too states that SC/ST candidates appointed on their own merit will be adjusted against unreserved points.
7. The official respondents have taken a preliminary objection that the OA is barred by limitation since the applicants have challenged the orders of the respondents dated 17.03.2003, 16.03.2005 and 17.03.2005 without making an application for condonation of delay.
8. The official respondents have contended that the order dated 17.03.3003 was issued for consideration of promotion of 24 eligible candidates as AE (E) for the vacancies of the year 2001-02 as per Notification dated 03.05.2002, i.e. 19 for General, 2 for SC and 3 for ST. Further, the order dated 16.03.2005 was issued for consideration of promotion of 12 more eligible candidates as AE (E), i.e. 1 for the year 2000-01 and 11 for the year 2001-2002, to implement the order of this Tribunal. Hence, 11 vacancies created for the year 2001-2002 for AE (E) to implement the order of this Tribunal should not be confused with the vacancies which were originally notified and for which result was declared on 17.03.2003.
9. Private respondent Nos. 4 & 5 have contended that the Hon'ble Supreme Court, while dealing with reservation in promotion matters in case of R.K. Sabharwal and Ors. v. State of Punjab and Ors. , has held that the right to be considered for appointment can only be claimed in respect of a post in a cadre. As a consequence, the percentage of reservation has to be worked out in relation to the number of posts which form the cadre-strength. The concept of "vacancy" has no relevance in operating the percentage of reservation. The Division Bench of the Hon'ble High Court of Delhi in the case of Shri D.S. Meena v. Union of India 2007 (1) AD (Delhi), in the identical circumstances, while dismissing the petition and relying upon the judgment of the Hon'ble Supreme Court in the case of R.K. Sabharwal (supra), held that the petitioner is not right in claiming that if the respondents had taken in two ST candidates, he would have been selected.
10. The private respondents have further argued that the law laid down by the Hon'ble Supreme Court in the case of Union of India v. Satya Prakash (supra) has no relevance in the facts and circumstances of the present case, since it relates to initial appointment of candidates through UPSC, while the present case is about promotion of employees through LDCE. It has been further submitted that the decision of the Hon'ble High Court of Delhi in the case of Govt. of NCT of Delhi and Ors. v. All India Confederation of the Blind (supra) has also no relevance to the present case.
11. In their rejoinder, the applicants have reiterated and elaborated on various averments made by them in the main application.
12. During the oral arguments, Shri Sohan Lal, learned Counsel for the applicants, contended that the marks obtained by general category candidates in the second list were lower or equal to the marks obtained by the SC candidates in the first list. Therefore, SC candidates in the first list should be treated as having qualified on their own merit and not against the reservation quota. Thus, the candidates at serial No. 20 (Darshan Lal) and 21 (Shibendu Biswas) in the first list of Electrical Engineering candidates should have been placed at the appropriate ranks in the second list and general category candidates at serial No. 9 (Sharad Gupta) and serial No. 10 (Pankaj Krishak) in the second list should be eliminated. He invited attention to the order of this Tribunal in the case of Chander Singh Rawat and Ors. etc. v. Union of India and Ors. (supra) wherein this Tribunal had made the following observations/orders:
5. Earlier in OA-1357/2003 Junior Engineers (Civil) have assailed LDCE 2002. On a short fall and miscalculation of vacancies, directions were issued on 29.4.2004 to recalculate the vacancies and consider the case of applicants therein who participated in LDCE 2002. This order of the Tribunal was complied with vide Office Memo dated 10.9.2004.
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8. We have carefully considered the rival contentions of the parties. As the issue raised of non-reporting and miscalculation of vacancies is not denied specifically, we are in all agreement with the decision in OA-1357/2003, which has attained finality on its execution by the respondents. We, therefore, dispose of the present OAs with directions to the respondents to recalculate the vacancies for Assistant Engineer (Electrical) for those who appeared in LDCE 2002 along with other similarly circumstance persons and if the applicants make the grade on the basis of the increased vacancies, they shall be considered for promotion as regular Assistant Engineer (Electrical) and in that event shall be entitled to all consequential benefits. These directions shall be complied with within a period of three months from the date of receipt of a copy of this order. No costs.
13. Apart from inviting attention to the judgments, cited in the pleadings aforementioned, he also invited attention to the order of Hon'ble Delhi High Court in the case of Raghubir Singh (Retd.) v. Union of India and Ors. (DB) wherein, apart from granting the relief, respondents were also directed to pay the arrears of salary and pension with interest.
14. Shri Rao Vijay Pal, learned Counsel for official respondents, contended that second list of promotion was a separate list prepared in compliance of the order of this Tribunal in the case of Chander Singh Rawat and Ors. etc. v. Union of India and Ors. etc. (supra). Hence the names in the second list have been placed below the names in the first list. He further stated that the same practice was adopted in the case of additional promotions given to JE (Civil) as AE (Civil) in terms of the order of this Tribunal in the case of Vinod Garg v. Union of India OA No. 1357/2003, decided on 29.04.2004. The promotions in the present case were the result of this Tribunal following the order in the case of Vinod Garg (supra) while deciding the case of Chander Singh Rawat and Ors. etc. v. Union of India and Ors. etc. (supra). Hence, a different practice of merging the names of two lists cannot be adopted in the present case.
15. Shri Naresh Kaushik, learned Counsel for private respondents, assisted by Shri G.S. Pandey, contended that pursuant to the order of this Tribunal in the case of Vinod Garg (supra), the respondents created supernumerary posts in order not to unsettle the promotions already made. The promotions given through the second list are not normal promotions or promotions against vacancies for a particular year but were created under the orders of this Tribunal. Hence, the two lists cannot be merged in the present case too. He further stated that the relevant reservation roster is not vacancy-based but post-based.
16. Learned Counsel further argued that applicants have not come with clean hands insofar as they have not enclosed a copy of the earlier order of this Tribunal in the case of Vinod Garg (supra). As a matter of fact, the applicants have no locus since their claim is based on a hypothetical situation. Moreover, the persons, who were given promotion under the reserved category in the first list, have not challenged the order and have also not been impleaded in the present OA. In para 4.4 of the OA, the applicants have stated : The candidates at S.No. 20 and 21 vide order dt. 17.3.2003 are to be treated against reserved SC candidates for the year of 2001-2002. There is no discrepancy in filling the vacancies of 2 Nos. of SC for the year 2001-2002 vide order dt. 17.3.2003. That being the contention, it is not very clear as to what is the grievance of the applicants.
17. Learned Counsel further contended that independent rights have been created in the two lists and hence these two lists cannot be merged. Reliance was placed on the judgment of the Hon'ble Supreme Court in the case of Director Recruit Class-II Engineering Officers Association v. State of Maharashtra and Ors. to argue that things, which have been settled once, cannot be unsettled after a long gap of time. Thus, applicants were not entitled to any relief either in terms of law or equity.
18. Learned Counsel for the applicants, in his rejoinder arguments, stated that the applicants had not concealed anything and had produced the order of this Tribunal relating to them, which alone was available to them. In terms of para 8 of the judgment of this Tribunal in the case of Chander Singh Rawat and Ors. etc. v. Union of India and Ors. etc. (supra) all the vacancies were related to the same examination i.e. LDCE, 2002; hence, it was incumbent upon the respondents to prepare a single list. He further argued that since the applicants were not claiming anything against the SC candidates in the first list, they were not proper parties and hence have not been impleaded.
19. We have heard the learned Counsel for the parties and perused the material on record.
MA No. 1378/200620. This MA has been filed by the applicants under Rule 4(5)(a) of the Central Administrative Tribunals (Procedure) Rules, 1987 seeking permission to join together.
21. Since the applicants have a common grievance, a common cause of action and are also praying for common relief, in the absence of any objection from the respondents, MA is allowed.
OA No. 1782/200622. In the case of Vinod Garg (supra) JE (Civil), working with the respondents, had sought a direction to the respondents to work out the number of LDCE quota regular vacancies of AE (Civil) for the years 1999 to 2003 and fill them up through LDCE, 2002. In the said case this Tribunal, vide order dated 29.04.2004, had ordered as follows:
8. In the result, for the foregoing reasons, OA is disposed of with the direction to the respondents to recalculate the vacancies as observed above and consider the case of the applicant alongwith other similarly circumstance, who had participated in the LDCE-2002. If the applicant makes the grade on the basis of the increased vacancies, he shall be considered for promotion as regular AE (Civil). In that event, he shall be entitled to all consequential benefits. The aforesaid direction shall be complied with by the respondents within three months from the date of receipt of a copy of this order. No costs.
23. Since the respondents failed to comply with this order of the Tribunal, the applicant filed CP No. 277/2004, which was disposed of, vide order dated 28.09.2004, as follows:
Learned Counsel for respondents has submitted that she has already filed compliance affidavit. It is submitted that the directions of this Tribunal made in order dated 29-4-2004 in OA 1357/2003 have been implemented. After the applicant qualified in the written test held in terms of the order of this Tribunal, the applicant along with some other persons has been promoted by the orders dated 9/10-9-2004. She has prayed that the application for initiating proceeding against the respondents for contempt of court be dismissed.
Nobody is appearing on behalf of applicant. We have perused the affidavit and the order dated 9/10-9-2004. The applicant has been promoted as per the instructions given in order dated 29-4-2004.
In view of this, we do not find that it a fit case to proceed with contempt of court proceedings against the respondents. Show cause notice is discharged. The application is dismissed.
24. In the case of Vinod Garg (supra), the respondents had passed a separate order dated 09/10.09.2004 based on the direction of this Tribunal and the said order, in the contempt proceedings, was accepted by a coordinate Bench of this Tribunal as satisfactory implementation of the order of this Tribunal.
25. Following the order of this Tribunal in the case of Vinod Garg (supra), JE (E), who had appeared along with JE (Civil) in the LDCE, 2002, filed the OA Chander Singh Rawat and Ors. etc.(supra), in which this Tribunal, vide order dated 11.10.2004, provided relief to the applicants therein in terms of the relief already granted to the JE(Civil) in the case of Vinod Garg (supra). Under the circumstances, there is no reason why the separate order dated 16.03.2005, issued by the respondents in the case of Chander Singh Rawat and Ors. etc. (supra), exactly on the same lines on which they had issued orders in respect of JE (Civil) in the case of Vinod Garg (supra), should not be accepted as compliance of the order of this Tribunal in the case of Chander Singh Rawat and Ors. etc. (supra).
26. Neither in the case of Vinod Garg (supra) nor in the case of Chander Singh Rawat and Ors. etc. (supra), there was any direction to the respondents on the lines of the relief sought by the applicants in the present OA, namely preparation of a single/merged/integrated list of successful candidates either for the year 2000-01 or 2001-02, based on LDCE, 2002. We, therefore, find merit in the averment of the respondents that the two lists have created independent rights and hence cannot be merged. Moreover, as argued by the learned Counsel for the respondents, a position already settled earlier cannot be unsettled now on the basis of hypothetical claims of the applicants in the present OA.
27. There is considerable weight in the contention of the respondents that the reservation roster being post-based and the candidates selected on the basis of the reservation quota in the first list having not been aggrieved by their promotion as such, this Tribunal cannot order re-opening of the issue, which may result in the opening of Pandora's Box.
28. Taking the totality of facts and circumstance of the present case into consideration, we do not find any reason to differ with the decision of the coordinate Bench of this Tribunal in the case of Vinod Garg (supra), with regard to compliance of the order of this Tribunal, in the case of Chander Singh Rawat and Ors. etc. (supra). The applicants too have not been able to establish a sustainable claim for the relief prayed for. The judgments cited are also not applicable to the facts and circumstances of the case and, therefore, do not support the arguments of the applicants. We, therefore, do not consider it necessary to interfere with the two separate orders dated 17.03.2003 (supra) and 16.03.2005 (supra) issued by the respondents.
29. In the result, the OA is devoid of merit and is, therefore, dismissed. There shall be no order as to costs.