Central Administrative Tribunal - Delhi
Sh. Rajesh Ranjan vs Secretary on 21 August, 2014
Central Administrative Tribunal
Principal Bench, New Delhi.
OA-2357/2012
Reserved on : 30.07.2014.
Pronounced on :21.08.2014.
Honble Mr. G. George Paracken, Member (J)
Honble Mr. Shekhar Agarwal, Member (A)
Sh. Rajesh Ranjan,
S/o Sh. Bodha Lal,
R/o 251, Sector-3,
DDA Flat, New Delhi-75. .. Applicant
(through Sh. S.K. Gupta, Advocate)
Versus
1. Secretary,
Ministry of External Affairs,
South Block, New Delhi.
2. Sh. Yogendra Pal,
Cy. Assistant,
C/o PC Section,
Ministry of External Affairs,
Jawahar Lal Nehru Bhawan,
23-D, Janpath, New Delhi-11.
3. Sh. Jaspal Singh,
Cy. Assistant,
C/o PC Section,
Ministry of External Affairs,
Jawahar Lal Nehru Bhawan,
23-D, Janpath, New Delhi-11.
4. Sh. Bijendra Singh,
Cy. Assistant,
C/o PC Section,
Ministry of External Affairs,
Jawahar Lal Nehru Bhawan,
23-D, Janpath, New Delhi-11. . Respondents
(through Sh. R.V. Sinha, Advocate)
O R D E R
Mr. Shekhar Agarwal, Member (A) This O.A. has been filed seeking the following relief:-
(a) quash and set aside the order dated 09.11.2006 (Annexure-A-1), the order dated 09.12.2011 (Annexure-A-2) and order dated 25.04.2012 (Annexure-A-3);
(b) issue an order directing the Respondent no.1 to appoint/promote Applicant notionally on the basis of the result of LDE 2005 against 3rd General category vacancy, maintaining the present service/grade.
(c) Direct respondent no.1 to grant all the consequential benefits on account of appointment as Cypher Assistant w.e.f. 20.10.2006 including calculation of service/eligibility for next stage Limited Departmental Exam of Section Officer, etc., as applicable to the other successful appointees of LDE-2005.
(d) Direct respondent no. 1 to issue pay fixation order of the applicant at part with the other successful appointees of LDE-2005 in a time bound manner.
(e) such other orders and directions as are deemed fit in the facts and circumstances of the case.
2. Facts of the case are that Ministry of External Affairs conducted Limited Departmental Examination, 2005 to fill up the post of Cypher Assistants available in the recruitment year 2005-06. This examination consisted of written exam and assessment of annual confidential reports. Three posts were notified for general candidates, two for SC candidates and 9 for ST candidates. The applicant, who was also eligible for the said examination, applied for the same as a general candidate. The result of the said examination was declared vide Office Memorandum No. Q/CAD/611/4/2005 dated 09.11.2006 in which private respondent No.2 Sh. Yogendra Pal, who was a SC candidate was selected against a general vacancy. The grievance of the applicant, who was next in the merit of general candidates but did not figure in the select list is that private respondent No.2 Sh. Yogendra Pal has been wrongly included in the select list against a vacancy meant for unreserved candidates. He made a representation to the respondents on 28.10.2011, which was rejected by them on 09.12.2011. Another representation made on 02.03.2012 was rejected by the respondents on 25.04.2012. Aggrieved by the same, he has filed this O.A. before us. Along with his O.A. he has also filed MA-2104/2012 for condonation of delay.
2.1 The applicant has challenged the select list prepared by the respondents, mainly, on the following two grounds:-
(i) That Sh. Yogendra Pal, private respondent No.2, was not eligible to appear for this examination because he had not completed requisite three years of service as UDC on the relevant date.
(ii) Sh. Yogendra Pal had joined the department as a SC candidate after availing of the benefits meant for reserved category candidates. As such, the respondents erred by appointing him against a vacancy meant for unreserved candidates in the Limited Departmental Examination.
3. In their reply, the respondents have disputed the averments of the applicant. According to them, this examination was open to all UDCs, Grade-III Stenos and UDC (Telegraphists) and LDCs with not less than 3 years approved service as on 31st December of the year of the examination. As far as UDCs were concerned, there was no stipulation of minimum eligibility service contrary to the contention of the applicant.
3.1 Further, the respondents have stated that the respondent No. 2 herein scored 137 marks out of 200 whereas the applicant has scored 131 marks and was placed at Serial No.4 in the list. Thereafter, on the basis of aggregate marks scored by the respondent No.2 in the written part of the examination and evaluation of his ACRs, he was placed third in the merit list. Since there were three unreserved vacancies, he got the last unreserved slot on the basis of his position in the merit. According to the respondents, assignment of respondent No.2 against unreserved vacancy was done as per provisions of O.M. No. 36028/17/2001-Estt.(Res) dated 11.07.2002.
3.2 Further, the respondents have pleaded that this O.A. is hopelessly barred by limitation since the applicant is challenging the select list, which was prepared on the basis of Limited Departmental Examination conducted in 2005. Further, the orders dated 09.12.2011 and 25.04.2012 by which the representations of the applicant have been rejected do not give rise to fresh cause of action to the applicant as these orders have been passed by the respondents while disposing of his belated representations. In this regard, they have placed reliance on the judgment of Honble Supreme Court in a number of cases including D.C.S. Negi Vs. UOI, [Appeal (Civil) CC No. 3709/2011].
4. We have considered the submissions of both sides and have perused the material on record. The first ground taken by the applicant in support of his case is that private respondent No.2 was not even eligible to appear for the Limited Departmental Examination as he had not completed the prescribed three years service as UDC on the relevant date. The respondents, on the other hand, contended that for UDCs no residency period was prescribed in the Recruitment Rules. For considering the rival claims, we have seen the Recruitment Rules for the aforesaid examination. The relevant para as quoted in the Circular inviting applications for the Limited Departmental Examination reads as follows:-
All officers of Grade-V of the General Cadre of IFS B, Grade-III of the Stenographers Cadre of IFS B, Telegraphists and officers of Grade VI of the General Cadre of IFS B who have rendered not less than three years approved service in the grade as on 31st December, 2004 would be eligible to participate in the proposed examination. Admittedly, the respondent No.2 was working in Grade-V of general cadre of IFS-B i.e. as UDC at the time of the examination. The applicant had stated that a mere reading of the rule quoted above makes it clear that three years service as on 31.12.2004 was required in the grade. Since the respondent No.2 had not completed the prescribed service he should not have been permitted to appear for this examination. On the other hand, the respondents contention was that the three years service mentioned in the above rule was meant only for Grade-VI officers of general cadre of IFS-B i.e. LDCs. To decide which of the two contentions was right, we perused other paras of the Rules. We found that for directly recruited LDCs two years service in the grade was prescribed for taking the examination. Thus, if the applicants contention is accepted then the position that would emerge would be that for directly recruited LDCs only two years service is prescribed whereas for UDCs three years service would be necessary. This obviously is not an acceptable position since UDC is a promotional post for LDC. Hence, we find merit in the contention of the respondents that for UDCs no service was prescribed and for LDCs while two years service was prescribed for direct recruits, three years service was necessary for others. Thus, the first ground taken by the applicant is rejected.
4.1 The next ground taken by the applicant was that the private respondent No.2 had joined the service after availing of concessions meant for SC candidates against the reservation quota meant for such candidates. Therefore, the respondents erred in adjusting him against an unreserved vacancy in the Limited Departmental Examination. The respondents, on the other hand, stated that they had gone by the provisions of DoP&T O.M. dated 11.07.2002, which reads as follows:-
Subject: Reservation in promotion Treatment of SC/ST candidates promoted on their own merit.
The undersigned is directed to say that this Deparunent has been receiving lettuces Gum various Ministries etc. regarding adjustment of SC/ST candidates promoted on their own merit in the reservation rosters introduced vide DOPT's OM No.36012/196-Estt.(Res) dated 17.1997. While it is clear from the OM dated 2.7.1997 that the SC/ST/OBC candidates appointed by direct recruitment on their own merit and not owing to representation will be adjusted against unreserved points of the reservation roster, doubts have been raised about SC/ST candidates promoted on their own merit. It is hereby clarified that:-
(i) The SC/ST candidates appointed by promotion on their own merit and not owing to reservation or relaxation of qualifications will not be adjusted against the reserved points of the reservation roster. They will be adjusted against unreserved points.
(ii) If an unreserved vacancy arises in a cadre and there is any SC/ST candidate within the normal zone of consideration in the feeder grade, such SC/ST candidate cannot be denied promotion on the plea that the post is not reserved. Such a candidate will be considered for promotion alongwith other candidates treating him as if he belongs to general category. In case he is selected, he will he appointed in the post and will he adjusted against the unreserved point.
(iii) SC/ST candidates appointed on their own merit (by direct recruitment or promotion) and adjusted against unreserved points will retain their status of SC/ST and will he eligible to get benefit of reservation in future/further promotions, if any.
(iv) 50% limit on reservation will be computed by excluding such reserved category candidates who are appointed/promoted on their own merit.
3. All Ministries/Der:ran:Dents are requested to bring the contents of this OM to the notice of all authorities under them for information and compliance. 4.2 We have perused this O.M. In our opinion, this O.M. deals with promotion cases and does not cover the situation existing in the present case, namely, that a candidate had joined the service after availing of the reservation quota but had qualified in the Limited Departmental Examination for appointment to a higher post on the basis of his own merit. Hence, the respondents have clearly committed an error by applying this O.M. to the present case. The applicant, on the other hand, has relied on the judgment of the Hyderabad Bench of this Tribunal in OA-251/2003. The relevant para of the aforesaid judgment reads as follows:-
the DOPT Office Memorandum dated 2.7.1997 and further clarification issued on 11.7.2002 that if an SC/ST/OBC candidates recruited through direct recruitment competes with unreserved candidates in all aspect and is selected to the unreserved vacancy based on his own merit, he would be counted as unreserved candidate. But if an SC/ST/OBC candidate gets a higher merit/rank and if he is a person who had earlier availed the benefits of reservations/concessions, he has to be accommodated against reserved quota only. Again in Paras 16 and 18 of the same judgment, the following is observed:-
16. We find sufficient strength in the applicants case that these SC/ST candidates have already availed the benefit of reservation in one form or the other and as such they cannot take their place against the vacancies meant for unreserved candidates and as such they have to be considered and accommodated only against the reserved vacancies.
18. due to callous misinterpretation several SC/ST candidates who have availed the benefit of reservation have been accommodated and promoted against the unreserved points denying unreserved slots for the general candidates. This action of the respondents is contrary to the very concept and object of the office memo dated 2.7.1997 read with the clarificatory memo dated 11.7.2002. Applicant further relying on the judgment of Hyderabad Bench in OA-95/2006 has stated that the Tribunal after discussing the judgment of Chandigarh Bench in OA-59-PB-98 between Bir Singh & Ors. Vs. UOI and CAT Hyderabad Bench in OA-251/2003 concluded that:-
if an SC/ST/OBC candidate gets a higher merit/rank and if he is a person who had earlier availed reservation/concession he has to be accommodated against reserved quota only. Further, the applicant has submitted that the Principal Bench of this Tribunal in OA-2095/2004 between Bharat Bhusan Vs. UOI & Ors. followed the same principle. Thus, on the basis of these submissions, the applicant asserted that private respondent No.2 could not have been adjusted against an unreserved vacancy. Having seen the judgments relied upon by the applicant and having considered his submissions, we are inclined to agree with the applicant in this regard. It is not denied that respondent No.2 joined the cadre of IFS-B as a reserved category candidate. No doubt that for joining service as such he must have availed of the concessions available to such candidates. His eligibility for the Limited Departmental Examination was only a consequence of his joining the IFS-B cadre. Since, the applicant had availed of the concessions meant for reserved category candidates at the time of joining, he could not have been treated as general category candidate in any subsequent promotion or departmental examination of their IFS-B cadre. This issue is, therefore, decided in favour of the applicant.
4.3 However, it is the objection of limitation taken by the respondents that has engaged our attention. According to them, the Limited Departmental Examination was conducted in 2005 and the select list was prepared on 09.11.2006. The applicant has filed this O.A. only on 10.06.2012 i.e. after a gap of about six years. The respondents contended that this O.A. is hopelessly barred by limitation. They have also disputed the explanation offer by the applicant for this delay in which he (the applicant) has stated that due to wrong legal advise given to him he was under the impression that the limitation would count only from the date his representation was rejected by the respondents i.e. 25.04.2012. The respondents stated that between the period 09.11.2006 and filing of this O.A. the applicant was only making representations but repeated representations do not give rise to a fresh cause of action as has been held by the Honble Supreme Court in the case of DCS Negi (supra). The respondents also relied on a number of following other judgments on the point of delay:-
(i) Ms. Shakuntala Sharma Vs. Govt. of NCT of Delhi, through LG of Delhi & Ors., 2006(1) ATJ 239.
(ii) Administrator of Union Territory of Daman & Diu & Ors. Vs. R.D. Valand, 1995 Suppl. 4 SCC 593.
(iii) UOI & Anr. Vs. CAT, Chandigarh & Anr., 2003(2)SCT 863.
(iv) F.S. Virdi Vs. UOI, 2005 AD Delhi 728.
(v) C. Jacob Vs. Director of Geology & Mining & Anr., 2008(2)SCC (L&S) 961.
(vi) UOI & Ors. Vs. M.K. Sarkar, 2010(1)SCC(L&S) 1126.
(vii) DCS Negi Vs. UOI & Ors., CC No. 3709/2011.
(viii) Ekta Shakti Foundation Vs. Govt. of NCT of Delhi, AIR 2006 SC 2609.
The applicant, on the other hand, pleaded that a sympathetic view should be taken by the Tribunal to render substantive justice and not reject the O.A. merely on technical grounds.
4.4 We have considered the submissions of both sides. We would have been inclined to take a lenient view regarding limitation but we notice that in this case third party rights are involved and that in case the relief asked for by the applicant is granted condoning the delay, long standing position of private respondent will get unsettled. Under these circumstances, we come to the conclusion that in this case delay in filing the O.A. cannot be condoned.
5. Thus, on the basis of above analysis, we come to the conclusion that although there is merit in the contention of the applicant that private respondent No.2 could not have been adjusted against an unreserved vacancy, yet the relief asked for by the applicant is barred by limitation and cannot be granted. Hence, the O.A. is dismissed. No costs.
(Shekhar Agarwal) (G. George Paracken)
Member (A) Member (J)
/Vinita/