Central Administrative Tribunal - Delhi
Hc (Ex.) Irshad vs Union Of India on 16 March, 2011
Central Administrative Tribunal Principal Bench OA No. 471/2009 New Delhi, this the 16th day of March, 2011 Honble Dr. Ramesh Chandra Panda, Member (A) Honble Dr. Dharam Paul Sharma, Member (J) HC (Ex.) Irshad PIS No.28931126 R/o 1261, Street No.39/8, Matke Wali Gali, Jafrabad, Seelampur, Delhi. . Applicant. (BY Advocate : Sh. Anil Singal) Versus 1. Union of India Through its Secretary, Ministry of Home Affairs, North Block, New Delhi. 2. Lt. Governor of Delhi Raj Niwas, Delhi. 3. Commissioner of Police PHQ, IP Estate, New Delhi. 4. Staff Selection Commission (SSC) Through its Chairman CGO Complex, Lodhi Road, New Dlehi 110 003. Respondents. (By Advocate : Mrs. Renu George for Respondents No.1 to 3. Sh. S. M. Arif for Respondent No.4. Sh. Krishna Kumar for Intervenors ) : O R D E R : Dr. Ramesh Chandra Panda, Member (A) :
H.C. Irshad, Applicant herein, is working in Delhi Police. In response to an advertisement (Annexure-A1) for Combined Graduate Level (Preliminary) Examination-2004 he applied as unreserved (UR) departmental candidate for which 10% out of 50% of the total vacancies in the rank of Sub Inspector of Police (SI) (Executive) are reserved. He appeared in the examination, qualified, and was interviewed. The final result of only 59 candidates was declared in which the Applicants name did not find place. It is the Applicants case that the direct recruitment (50% of the total vacancies) was not fixed by the Respondents, as per the extant Rules. Feeling aggrieved by the action of the Respondents by not following the relevant Rules of Delhi Police, the Applicant has approached this Tribunal under Section 19 of the Administrative Tribunals Act, 1985 with following prayers:-
(A) To call for the records relating the case direct the respondents to fill up 50% i.e. 149 vacancies out of the 298 vacancies available and meant to be filled up in the rank of SI (Exe.) in Delhi Police in the recruitment year 2004 or at least 94 as originally notified vide Combined Graduate Level Examination-2004 but illegally and wrongly reduced, quashing the decision of the respondents to fill up only 59 vacancies for the post of SI (Exe.) (B) To award costs in favour of the applicant and (C) To pass any order or orders which this Honble Tribunal may deem just & equitable in the facts and circumstances of the case.
2. The Respondents were issued notice on 24.02.2009. This OA was partly heard on 14.12.2009 in the Division Bench of Honble Mr. Justice M. Ramachandran and Honble Mrs. (Dr.) Veena Chhotray. In the meantime, 4 more OAs were tagged on to the present OA on 12.02.2010 and the present OA was released from part heard on 12.03.2010. During the hearing on 12.05.2010, the learned Counsel for the Applicant submitted that the matter was covered by the orders of this Tribunal in OA No.2446/2009 and OA No.3463/2009 decided on 7.5.2010 and as the copy of the said order was not made available to the Court, the present OA was adjourned. When 6 OAs including the present OA came up for hearing, we partly heard the case and delinked the current OA for final hearing and finally the case was fully heard by us on 17.02.2011 and the relevant records were furnished by the Respondents for our perusal on 22.02.2011.
3. We heard Shri Anil Singal, the learned Counsel for the Applicant and Mrs. Renu George, the learned Counsel for the Respondent Nos.1 to 3 and Shri S.M. Arif, learned counsel for the Respondent No.4, and with their assistance perused the pleadings. Mrs. Renu George placed before us a note along with the connected file relating to the abolition of posts of SIs in Delhi Police. Shri Krishna Kumar, learned counsel for the intervenors in MA No.98/2011 and MA No.99/2011 withdrew the MAs to file separate OAs and the same was granted on the final hearing date.
4. Shri Anil Singal, the learned counsel for the Applicant contended that the Respondents indicated 98 posts for direct recruitment in the advertisement but while filling up only 59 postings were issued in the direct recruitment quota. His submission was that in the promotee quota there was no proportionate reduction. This lopsided reduction in the direct recruitment quota, Shri Singal submits, has prejudiced the Applicant. Going into the details, Shri Singal submits that for the year 2004, 239 Police personnel were promoted to the post of SI (Exe) and on addition of 59 direct recruits the total vacancies would be 298. As per Rule 7 of Delhi Police (Appointment and Recruitment) Rules, 1980, the vacancies in the year to be filled up on 50:50 basis between direct recruits and promotees. His calculation for the direct recruits works out to 149 and 10% of the same meant for departmental candidates will be 15 (14.9 to be rounded up to 15). Shri Singal submitted that had the Respondents filled up 15 vacancies, the Applicant on his own merits in the UR category would have been selected, but as the numbers for the direct recruits was limited to 59, only 6 were selected from the departmental candidates. He also argued from a different angle that if 98 vacancies would have been filled up as advertised, 10 vacancies would have been for the departmental candidates and the Applicant would have made the grade as departmental candidate. Thus, he terms the selection process for direct recruitment to the post of SI(Exe) is violative of the said Rule 7. To strengthen his argument, he relied on the judgment of this Tribunal in the case of Gianender Kumar and Another Versus Union of India and Others [OA No.2446/2009 decided on 7.5.2010] along with another case [OA No.3463/2009] decided on the same day. He submits that as the present case is fully covered by the relied on judgment of the Tribunal, and the present OA should be allowed on the same terms. He also placed his reliance on the judgment of Honble Supreme Court in the case of State of Punjab Versus R.N.Bhatnagar [1999-SCC(L&S) 513]; G.S. Lamba Versus Union of India [1985-SCC(L&S)-491]; and A.P. Public Versus P. Chandra [2006-8-SCC-330]. He also submitted that the promotees of the year 2004 should be continued as the Applicant had no grievances against any of them.
5. On the other hand, Mrs. Renu George, learned counsel for the Respondents opposed the contentions raised by Shri Singal. She submits that in the year 2003, the Respondent No.4 was requested to recruit 94 SI (Exe) Male vacancies in Delhi Police and when the selection process of the examination 2004 was going on the Respondent No.1 abolished 1456 posts in various ranks including SI (Exe) on account of CISF deployment at the IGI Airport. The Respondent No.1 informed Delhi Police that 370 posts of SI (Executive) became surplus and those posts were to be adjusted when the new posts became available. As a result, the number of SI (Exe) Male vacancies were reduced from 94 to 59 which was intimated to Respondent No.4 by Respondent No.3. She also submits that Respondent No.4 recommended 51 candidates including 6 departmental candidates. It is informed that one departmental OBC candidate (Ajay Kumar) filed OA No.1059/2008 where the Tribunal allowed the OA in the orders dated 6.1.2010, as a result, Respondent No.4 recommended his name for appointment under 2004 examination. Thus, the total candidates recommended for the said post come to 52. It is contended that recruitment to the post of SI (Exe) Male was made as per Rule 7 of Delhi Police (Appointment and Recruitment) Rules, 1980. She further submits that 5 Applicants who filed OAs in the Tribunal have withdrawn and the Tribunal dismissed those OAs as withdrawn vide its order dated 27.10.2009 and 18.11.2010. She states that pursuant to the Tribunals direction in Moosam Ghanis case (supra) two OBC departmental candidates were selected on the basis of the examination 2007. The counsel for Delhi Police would state that Giandender Kumars case (supra) and Moosam Ghanis case (supra) would not be applicable. It is further contended that the persons who have been promoted/directly recruited have not been impleaded as parties and as such any adverse decision affecting them would be against law and principles of natural justice.
6. Shri S.M. Arif, learned counsel for the Respondent No.4 submits that the role of the SSC is to select number of candidates as per the requirement of Delhi Police and has no role in fixation of the number of vacancies to be filled up. On a query from the Bench, it was informed that the SSC had been maintaining the records to meet the future contingencies including the outcome of the litigations undertaken by the competing candidates.
7. In the matter of selection and appointment, one has right to be considered but has no indefeasible right to be selected. Exercising the powers of judicial review, jurisdiction of the Tribunal is rather limited and this Tribunal can intervene, if it is found that competing candidates have been denied appointment in violation of the recruitment rules or discriminated in contravention of Articles 14 and 16 of the Constitution of India. In order to prevent miscarriage of justice, the Tribunal can intervene. The Applicant has challenged wrong calculations of vacancies by the Respondents in 10% quota meant under direct recruitment for departmental candidates. The cause of action had accrued on the basis of consistent information substantiating the claim of the Applicant delivered to the Applicant under the Right to Information Act, 2005.
8. The Applicant admittedly appeared under 10% quota meant for the departmental candidates out of 50% quota of direct recruitment for the posts of Sub Inspector (SI) (Executive) in Delhi Police and had scored well but for the fact that the Respondents did not calculate the vacancies properly under the said 10% quota meant for the departmental candidates. The issue for our adjudication revolves round the Rule 7 of the Delhi Police (Appointment and Recruitment) Rules, 1980, a subordinate legislation under Section 147 of the Delhi Police Act, 1978. As the Applicant has challenged his non selection on the ground of violation of Recruitment Rules, it would be apt to refer to the Rule 7 of the said Rules. The Rule 7 reads as follows:-
"7. Recruitment of Sub-Inspectors (Executive). Fifty per cent of vacancies in the rank of Sub-Inspector (Executive) shall be filled by direct recruitment and 50% by promotion out of 50% direct quota, 10% of the post shall be filled by limited departmental competitive tests from amongst constables, Head Constables, and Asstt. Sub Inspectors with minimum 5 years of service who shall not be more than 35 years (40 years for Scheduled Castes/Scheduled Tribes candidates) of age on the first day of January of the year if the examination is held in the first half of the year and on the first day of July of the year if the examination is held in the later half of the year. The educational qualifications and other physical standards for the test shall be the same as prescribed in the Rules for direct recruitments to such posts. The unfilled vacancies reserved for the departmental candidates will be carried forward for 3 recruitment years as in the case of vacancies for the scheduled tribe candidate whereafter the unfilled vacancies will be filled by direct recruitment."
9. Another issue which has posed before us is that when the recruitment has been envisaged through two different routes (on 50:50 basis), the bifurcations should be on the basis of total vacancies to be filled up. As per the Rules, the vacancies of previous years under 10% quota for the departmental candidates if not filled up, must be carried forward year after year for 3 years. The Respondents are to demonstrate that they have followed Rule 7 in both letter and spirit. This issue was adjudicated by the Tribunal in a batch of 2 OAs in the matters of Moosam Ghani case (supra) the last paragraph relevant for the present OA reads as follows :-
21. Resultantly, we are of the considered view that the respondents having not calculated the vacancies as per Rule 7 though having regard to the fact that selection was held right from its initiation and on calculation of vacancies against the rules, yet when it became final and the persons have been appointed, we do not want to disturb the selection already held. However, the right of the applicants cannot also be extinguished on this issue. As such, we dispose of the OA with a direction to the respondents to recalculate the vacancies in departmental quota in each category, including OBC and thereafter consider the case of the applicants for appointment keeping in light the merit of 2007 and the marks obtained by the applicants, subject to the eligibility and suitability as SI (Executive) from a prospective date within a period of two months from the date of receipt of a copy of this order. No costs.
10. It was contended that the Applicant's case is fully covered in all fours by the above judgment in OA No. 2446/2009 with OA 3463/2009 decided on 7th May, 2010. We find logic in the said argument as the Respondents have not disputed about the number of persons promoted and directly recruited as SI (Executive) Male. 239 vacancies were filled up by promotion and 59 vacancies (Respondent say the number is 52) by direct recruitment. In any case, the above numbers reveal that the ratio is not 50:50 between promotees and direct recruits. Factually, there is violation of Rule 7 as the said rule prescribes and mandates total vacancies to be filled up on 50:50 basis.
11. The records placed before us would reveal that prior to 1992, the vacancies were the basis of filling up by promotion and direct recruits on 50:50 ratio and the Rule 7 was followed for the newly created posts and the vacancies arising due to retirement, dismissal, removal, resignation, if caused by direct recruits by the direct recruitment, and if by promotees by promotion methods. It has been stated by the counsel for the Respondent on the basis of the notes in the file that in the year 1992 a decision was taken to fill up all vacancies on 50:50 ratio through direct recruitment and promotion. The file further reveals that in consultation with Government of NCT of Delhi, the Respondents interpreted Vacancies and Posts as synonym and followed the practice to fill up vacancies to maintain direct recruits and promotion posts on 50:50 ratio. It is stated that as per DOP&T instructions dated 2.7.1997 conveyed by Govt. of NCT of Delhi in circular dated 16.7.1997, a post based roster is to be maintained. In para 4(c) of the said instructions two rosters are to be drawn up. The internal note of September, 1997 indicated that the total sanctioned strength of SI (Exe) was 3233 out of which 1342 promotees and 1727 direct recruits were there. A decision was taken then (a) to balance the posts in 2 streams of feeder, (b) the direct recruitment should not be made till the promotion quota of SI (Exe) was made good and a combined seniority rosters of SIs would be maintained. The said file indicates that 214 SI(Exe) posts were abolished as per the Ministry of Home Affairs letter dated 7.7.2004, and a decision was taken by the Spl. Commissioner of Police to reduce SI (Exe) from 94 to 59 for the year 2004. It is inter alia stated in the note that more than 60 posts of SI (Exe) male promotion quota have been abolished. After deduction of 60 posts, the vacancies for promotion being 214, 196 have been empanelled for promotion. The noting in the file gives us an impression that Respondents have not arrived at total vacancies to work out 50:50 ratio for direct recruitment and promotion. Had such vacancy position been arrived at after taking into account the abolition of posts, the ratio of 50:50 between the two streams could have been fixed. Respondents have faulted in this respect as the Rule 7 envisages ratio of 50:50 on the basis of vacancies not on the basis of posts. In our considered opinion the procedure mandated in the statutory Rule 7 has been violated in the recruitment process in the year 2004.
12. Considering the totality of facts and circumstances of the case, guided by the judicial precedents, and the statutory Rule in the subject, we are of the considered view that the Respondents having not calculated the vacancies of SI (Exe) Male, the vacancy position for the promotees has been advantageous and for the direct recruits it has been disadvantage. Taking note of the promotions already granted by the Respondents, we do not want to disturb such promotions already held. However, we come to the firm conclusion that persons competing in the direct recruitment stream including 10% departmental candidates have been prejudiced. We, therefore, direct the Respondents to recalculate the vacancies in the 10% departmental quota, as per the Rule 7 and thereafter consider the case of the Applicant subject to his eligibility, suitability and the marks obtained by him in the examination for the year 2004. In case, he is found suitable and gets selected for appointment to the post of SI (Exe) male, the same shall be given effect to prospectively. Respondents are directed to complete the above exercise within 9 weeks from the date of receipt of a certified copy of this order.
13. In terms of our above directions, the Original Application is disposed of leaving the parties to bear their respective costs.
( Dr. Dharam Paul Sharma ) ( Dr. Ramesh Chand Panda )
Member (J) Member (A)
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