Central Administrative Tribunal - Kolkata
Dipangshu De vs D/O India Post on 11 July, 2022
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CENTRAL ADMINISTRATIVE TRIBUNAL
KOLKATA BENCH, KOLKATA
0.A/350/01548/2021
0.A/350/01549/2021
0.A/350/01550/2021
0.A/350/01551/2021
er)
Date of Order: Il ¢4- 2922
Coram: Hon'ble Ms. Bidisha Banerjee, Judicial Member
Hon'ble Dr. (Ms.) Nandita Chatterjee, Administrative Member
(1) 0.A./350/01548/2021
Dipangshu De,
Son of Dipen De,
Aged about 27 years,
Working as Clerk at State Bank,
Residing at Shiva Heights,
Flat No. 3B, 3 Floor, 171A,
Ramesh Dutta Street,
Kolkata -- 700006.
Vs.
1) Union of India, service through the Secretary,
Ministry of Communication, Department of Post, Dak
Bhawan, Sansad Marg, New Delhi-110001.
2) . The Accounts Officer (Postal Accounts-
Administration), Ministry of Communication,
Department of Post (Postal Accounts Wing), 441A, qh
Floor, Dak Bhawan, Sansad Marg, New Delhi-110001.
3) The General Manager(Postal Accounts and
Finance), West Bengal Circle, C. R. Avenue, Kolkata-
7000012.
4) The Director of Accounts (Postal), Mahanadi
Vihar, Cuttack, Orissa-753004. .
5) The Director, Staff Selection Commission,
Kendriya Karyialay Parisar, Lodhi Road, New
'Delh110003.
rh
{
rd
2 1548/21, 1549/21, 1550/21, 1551/21
6) The Deputy Director General Sr. (Postal Accounts
and Finance) Dak Bhawan, Sansad Marg, New Delhi-
110001.
7) The Secretary, Department of Personnel and
Training, Ministry of Personnel, Public Grievances and
Pensions, Government of India, North Block, New Delhi-
110001.
8) Mr. Pritam Debnath, bearing Roll No. 4405011121
in the CGLE, 2018 and selected as Junior Accountant in
Kolkata Postal Account Office, service through the
General Manager (Finance), West Bengal Circle, C. R.
Avenue, Kolkata-700012. |
(2) O.A. /350/01549/2021
Sayan Dutta, |
Son of Alok Nath Dutta,
Aged about 29 years,
Working as Clerk at Bank of India,
Residing at 42, Raja Basanta Roy Road,
Post Office- Sarat Bose Road,
Kolkata -- 700 029.
Vs.
1) Union of India, service through the Secretary,
Ministry of Communication, Department of Post, Dak
Bhawan, Sansad Marg, New Delhi-110001.
2) The Accounts Officer (Postal Accounts-
Administration), Ministry of Communication,
Department of Post (Postal Accounts Wing), 441A, q*
Floor, Dak Bhawan, Sansad Marg, New Delhi-110001.
3) The General Manager(Postal Accounts and
Finance), West Bengal Circle, C. R. Avenue, Kolkata-
7000012.
4) The Director of Accounts (Postal), Mahanadi
Vihar, Cuttack, Orissa-753004.
5) The Director, Staff Selection Commission,
Kendriya Karyialay Parisar, Lodhi Road, New
Deih110003.
ne
" \ . 3 1548/21, 1549/21, 1550/21, 1551/21
0 6) The Deputy Director General Sr. (Postal Accounts
O and Finance) Dak Bhawan, Sansad Marg, New Delhi-
110001.
7) The Secretary, Department of Personnel and
Training, Ministry of Personnel, Public Grievances and
Pensions, Government of India, North Block, New Delhi-
110001.
8) Mr. Nabarun Paul, bearing Roll No. 4410002994 in
the CGLE, 2018 and selected as Junior Accountant' in:
Kolkata Postal Account Office, service through the
General Manager (Finance), West Bengal Circle, C. R.
Avenue, Kolkata-700012.
(3) 0.A./350/01550/2021
Saikat Das,
Son of Shyamal Kumar Das,
Aged about 26 years,
Working as MTS at CQA(Metel),
Residing at South Development,
Railway Qtr. No. $/1/28, Unit-2,
Kharagpur-721301.
Vs.
1) Union of India, service through the Secretary,
Ministry of Communication, Department of Post, Dak
Bhawan, Sansad Marg, New Delhi-110001.
2) The Accounts Officer (Postal | Accounts-
Administration), Ministry of Communication,
Department of Post (Postal Accounts Wing), 441A, 4'
Floor, Dak Bhawan, Sansad Marg, New Delhi-110001.
3) The General Manager(Postal Accounts and
Finance); West Bengal Circle, C. R. Avenue, Kolkata-
7000012.
4) The Director of Accounts (Postal), Mahanadi
Vihar, Cuttack, Orissa-753004.
5) The Director, Staff Selection Commission,
Kendriya Karyialay Parisar, Lodhi Road, New
Delh110003.
lady
4 1548/21, 1549/21, 1550/21, 1551/21
QO 6) The Deputy Director General Sr. (Postal Accounts
O and Finance) Dak Bhawan, Sansad Marg, New Delhi-
110001. --
7) The Secretary, Department of Personnel and
Training, Ministry of Personnel, Public Grievances and
Pensions, Government of India, North Block, New Delhi-
110001. .
8) Mr. Subhajit Paul, bearing Roll No. 4402011842 in
the CGLE, 2018 and selected as Junior Accountant.in -
Kolkata Postal Account Office, service through the
General Manager (Finance), West Bengal Circle, C. R.
Avenue, Kolkata-700012.
@ §) (4) 0.4./350/01551/2021
Monica Das,
Daughter of late Samaresh Das,
Aged about 29 years,
By occupation- unemployed,
Residing at West Hyderpur, Malda,
Pin code-732101.
Vs.
1) Union of India, service through the Secretary,
Ministry of Communication, Department of Post, Dak
Bhawan, Sansad Marg, New Delhi-110001.
2) The Accounts Officer (Postal Accounts-
Administration), Ministry of Communication,
Department of Post (Postal Accounts Wing), 441A, qt
Floor, Dak Bhawan, Sansad Marg, New Delhi-110001.
3) The General Manager(Postal Accounts and
Finance), West Bengal Circle, C. R. Avenue, Kolkata-
7000012. .
4) The Director of Accounts (Postal), Assam Circle,
Guwahati-781008. a,
5) The Director, Staff Selection Commission,
Kendriya Karyialay Parisar, Lodhi Road, New
Delh110003. --
Me
5 1548/21, 1549/21, 1550/21, 1551/21
© 6) The Deputy Director General Sr. (Postal Accounts
and Finance) Dak Bhawan, Sansad Marg, New Delhi-
110001. ;
7) The Secretary, Department of Personnel and
Training, Ministry of Personnel, Public Grievances and
Pensions, Government of India, North Block, New Delhi-
110001.
8) Mr. Afzal Kabir, bearing Roll No. 44100064127 in
the CGLE, 2018 and selected as Junior Accountant in
Kolkata Postal Account Office, service through the
General Manager (Finance), West Bengal Circle, C. R.
Avenue, Kolkata-700012.
D | ¢) For The Applicant(s): Mr. Arpa Chakraborty, Counsel
% Ms. P. Mondal, Counsel
For The Respondent(s): Mr. R. Halder, Counsel
ORDER
Per: Hon'ble Dr. (Ms.) Nandita Chatterjee, Administrative Member
1. Heard both Learned Counsel.
Learned Counsel for the applicant in OA 350/01551/2021 would submit that the applicant has since decided to withdraw the instant Original application and would furnish a memo of withdrawal which is taken on record. Accordingly, OA 350/01551/20211 is disposed of as withdrawn.
2. Due to parity in the nature of grievance, facts pleaded and relief claimed, 0A/350/1548/2021, OA/350/1549/2021 and OA/350/1550/2021 are being heard out analogously, upon due notice and with consent of all the sides, to be disposed of by this common order.
be 6 1548/21, 1549/21, 1550/21, 1551/21 eu 'on 3, Aggrieved with their cadre allocation, the applicants have approached this Tribunal in second round of litigation under Section 19 of the Administrative Tribunals Act, 1985, to seek the following relief :-
"(a) The Office Order/ Speaking Order dated 24.09.2021 issued by the respondent no. 6 is not tenable in the eye of law and the same should be quashed ;
(b) The office order being F. No, 2(05)/2018/PA Admn. 1/4789 dated 09/10.08.2021 issued by the respondent no. 2 allocating the posting of the applicant in Junior Accountant cadre under -
respondent no. 4 at Cuttack PAO is not tenable in the eye of law and as such the same may be quashed;
(c) The Office Order being F. No. 2(05)/2018/PA Admn. |/ 4802 dated 09/10.08.2021 issued by the respondent no. 2 allocating the posting of the private respondent and others in Junior Accountant cadre under respondent no. 3 Kolkata PAO is not tenable in the eye of law and as such the same may be quashed;
(d) An order do issue directing the respondents to cause allocation of posting of the candidates in Junior Accountant Cadre by strictly following the merit cum preference basis and thereby an order do issue directing the respondents to alfocate the candidature of the applicant to the respondent no. 3 in terms of his first/higher preference in Junior Accountant cadre at Kolkata Postal Account Office under the respondent no, 3 at an earliest;
(e) An order do issue directing the respondents to modify the . letter of appointment dated 18.08.2021 issue in favour of the applicant to the extent of his allocation of posting under respondent no. 4 and thereby issue a letter of appointment posting him in the cadre of Junior Accountant at Kolkata PAO under respondent no. 3 at an earliest;
(f) Such further or other Order or orders be passed and/or direction or directions be given as Your Lordships may deem fit and proper."
4, Examined pleadings and documents on record. Written notes of argument have been filed by both Learned Counsel. The respondents have also filed a short reply dated 07.01.2022 in response to this Tribunal's order dated 04.10.2021, as well as a memorandum of clarifications/ instructions in compliance to the order of this Tribunal dated 31.03.2022.
hot.
a 7 _ 1548/21, 1549/21, 1550/21, 1551/21 OD 5. For the sake of brevity, the facts of OA 350/001548/2021 (Dipangshu De
o) as vs. UO! & Ors.) is being delineated and discussed hereunder :
That, in response to a notification issued by respondent no. 5 for Combined Graduate Level Examination, 2018 (hereafter referred to as CGLE-2018), the applicant had applied for the post of Junior 'Accountant. That, the notification(annexed at Annexure-A/1 to the OA) had indicated, inter alia, as follows :-
eneenesreevearoere Final selection through the Combined Graduate Level Examination, 2018 to various posts would be according to the confirmed number of vacancies from the concerned Indenting Ministries/Departments/ Offices/ Cadres before declaration of result. A further notification dated 28.05.2021 (annexed at Annexure-A/2 to the OA) followed on the subject matter of "State Wise preference in respect of eligible candidates of CGLE-2018 of Group 'C' in JA cadre". The said notification, inter alia, stated as follows :-
"sub : State Wise Preference in respect of eligible candidates of CGLE-2018 of Group 'C' inJA cadre.
IV. The allocation of the candidates eligible under PH category shall be made in accordance with reference to the rank obtained in the CGLE-2018 exam vis-a-vis preferences given and vacancies available in the respective category, as per the instructions contained in DoP&T OM dated 10" May, 1990 and 13" March, 2002.
dpecveceeeseencsaeses nen enr sap een een see rae Per veneer sas rer eer ree ree rer eee cre That, the applicant accordingly indicated his state-wise preference in the... appropriate proforma (annexed at Annexure-A/2 to the OA). hy, a
8 1548/21, 1549/21, 1550/21, 1551/21 0 a The. applicant was dismayed to learn, however, that, vide a communication dated 09/10.08.2021 (annexed at Annexure-A/3 to the OA), his dossier was forwarded to the office of respondent no. 4 which imply that he would be allotted a posting at Cuttack instead of his preferred posting at Kolkata in West Bengal. The applicant, thereafter, received an offer of appointment dated 18.08.2021 (annexed at Annexure-A/4 to the OA), prior to which he has approached the respondent on 12.08.2021 ventilating his grievance against: his allocation of posting at Cuttack (annexed at Annexure-A/6 to the OA). The applicant received a \. response on 26.08.2021 (annexed at Annexure-A/6 to the OA) informing him that while the state allocation of selected candidates depends on parameters such as rank, manpower available in the Postal Accounts Offices as well as administrative exigencies, the candidates on selection, may be available to serve anywhere in the country as per the notification of CGLE-2018. The applicant, thereafter, attempted to obtain certain information through RTI whereupon he obtained a list of allocation of candidates of CGLE-2018 at Kolkata (annexed at Annexure-A/6 to the OA). The applicant would allege that, although he had excelled in merit, the private respondent and others who belong to the OBC category have been accommodated against the UR category at Kolkata PAO. He has therefore been rightfully deprived of posting at Kolkata, that, although the applicant could have applied for a higher position, he had chosen to apply for the post of Junior Accountant on personal grounds, and, that, his deprivation on account of accommodating the OBC candidates in the UR category has led to abject discrimination in cadre allocation against the applicant. The applicant also approached this Tribunal in first round of litigation along with 3 others in OA No. 350/01365/2021 (annexed at Annexure-A/7 to the bak a"
] 1548/21, 1549/21, 1550/21, 1551/21 © © __ OA), and, this Tribunal had disposed of the same original application with the Nee following directions :-
PPITITTIT TT
7. Therefore, we give liberty to the applicants to furnish their documents as asked for vide memo dated' 28.05.2021, within 17.09.2021, without prejudice to their rights and contentions to prefer individual representation to the competent respondent authority to seek reconsideration in the matter of allocation of zones in terms of the draft DOPT OM dated 04.06.2010 (annexure A-7) and the Department of Post instructions dated 28.05.2021 (annexure A-2), within a period of 7 days from this date. In the event such representation is preferred, the competent authority shall consider and dispose it of in the light of the DOPT -
OM extracted supra and if necessary by changing their allocated zones in accordance with their ranks and preferences.
8. Till such time, respondents shall not compel the applicants to join the place of allocated zones at Cuttack and Guwahati as we would note that in the case of Monica Das, (OA 1371/2021) she has been allocated to PAO Guwahati. PPPITTITT OT ld The applicant, thereafter, preferred a comprehensive representation (annexed at Annexure-A/7 to the OA), and, in compliance, the authorities disposed of the same vide a speaking order dated. 24.09.2021 (annexed at Angexure-A/7 to the OA), wherein his prayer for being allocated to PAO Kolkata Circle was rejected. Assailing the same, the applicant has approached this Tribunal praying for the abovementioned relief.
6. The applicant would, inter alia, advance the following grounds in support of his claim :-
(i) That, the respondents have violated the terms and conditions of DoPT's OM dated 04.06.2010 and a consequent instructions of the respondents dated "28.05.2021.
Nw a 10 1548/21, 1549/21, 1550/21, 1551/21 oe
(ii) That, despite the directions of this Tribunal in its earlier round of litigation to consider the representation of the applicants in the light of such OMs, the respondents have failed to deliberate thereon.
(iii) That, the respondents have incorrectly submitted that, there was nil vacancy in PAO Kolkata against the UR category.
(iv) That, all the vacancies in the UR category have been filled up by OBC candidates {annexed at Annexure-A/6 to the OA) as per information obtained through RTI by the applicant.
(v) That, further information obtained through RTI (annexed at Annexure-A/8 to the OA) would reveal that there were 19 UR vacancies in PAO Kolkata and hence, the authorities' submission that there were nil vacancies in UR category + is a distortion of facts.
(vi) That, Rule 38 of Postal Manual Volume IV, relied upon by the respondents relates to transfer and accommodation of serving employees. The same is not applicable to the applicant who is an aspiring entrant to the post of Junior ° Accountant in the respondent organization.
(vii) That, the applicant, being a meritorious candidate, cannot be deprived of his preferred. place of posting by appointing OBC candidates, lower in merit than him, in the UR category to which he is rightfully entitled.
(viii) That, a reserved category candidate can be adjusted against an UR vacancy if he does not receive any preference or concession which are not available to the candidates applying against UR category. Hence, candidates who are obtaining concessions as reserved categories cannot be rightfully accommodated against unreserved categories.
a 11 1548/21, 1549/21, 1550/21, 1551/21 © 7 (ix) That, the only criteria which should govern the field is the principle of merit cum preference.
7. Per contra, the respondent authorities would refute the claim of the applicant with their following arguments :-
(i) That, no OBC candidates were adjusted against the UR vacancies at PAO Kolkata and, that, the OBC candidates have indeed been adjusted against OBC vacancies in PAO Kolkata. Such information was also furnished by the authorities in response to a RTI query and that such clarification had been provided to the applicant.
(ii) That, vide orders dated 06.08.2021, the competent authority had issued instructions in the matter of allocation of dossiers of candidates who had qualified in CGLE-2018 for the post of Junior Accountant, and, that, DoPT OM dated 09.08.2007 had been scrupulously followed in this regard.
(iii) That, the number of vacancies reported to respondent no. 5 was based on PAN India total vacancies which were reported category wise to respondent : _ no. 5. Accordingly, a total number of 353 vacancies comprising 187 UR, 55 SC, 27 ST and 84 OBC were sent to respondent no. 5 for initiating the process of recruitment. Such requisition also provided for 33 vacancies to be filled up by ex-servicemen and 12 vacancies were earmarked for the physically Handicapped (annexed at Annexure-'C' to Written notes of arguments of the respondents) respectively.
(iii) That, in the notification of respondent no. 5, it has been stated that the final selection would be according to the confirmed number-of vacancies from - the indenting department. And, that, in their reply dated 28.06.2021(annexed bat a 12 1548/21, 1549/21, 1550/21, 1551/21 at Annexure-A/6 to the OA), the respondents had advised the applicant that the office of respondent no. 5 does not have any role in the posting of nominated candidates by the user departments.
(iv) That, once nominations were received from respondent no. 5, the final allotment of vacancies within the PAOs was finalized by the competent authority (annexed at Annexure-'D' to Written notes of arguments of the respondents). And, that, upon such reallocation, the final vacancy position, as settled for PAO Kolkata, West Bengal was 3 for UR, 7 for SC, 1 for ST and 12 for OBC totalling to 23, of which 4 were to be allotted to ex-servicemen and 1 for a physically handicapped candidate (annexed at Annexure-'E' to Written notes of arguments of the respondents).
(v) That, the 3 vacancies under the UR category in PAO Kolkata was thereafter filled up by ex-servicemen/HH candidates. That, a communication dated 09.03.2022 (annexed at Annexure-'WN/3' to Written notes of arguments of the respondents) provided the requisite clarifications on the allotment of vacancies among different PAOs.
(vi) That, DoPT's OM dated 09.08.1995, further confirmed in OM dated 09.08.2017, has laid down a clear timeline for candidates to join during the validity period of the offer of appointment, and, that, such offer would automatically lapse after expiry of 6 months of issue of original offer of appointment. As the applicant's offer of appointment was dated 18.08.2021 and as 6 months have expired therefrom, the applicant can no longer claim his right to appointment at PAO Cuttack and the original application has therefore been largely rendered as infructuous.
mh 13 1548/21, 1549/21, 1550/21,.1551/21 .
'
8. Having considered rival contentions, and, having examined pleadings and -- documents on record, as well as those furnished in compliance to the directions of this Tribunal, it transpires that the following issues are to be decided upon during adjudication of the instant matter :-
(i) What is the policy for allocation of cadre.
_ (ii) Whether the respondents have violated the criteria laid down in such policy in cadre allotment of Junior Accountants in pursuance to CGLE-2018.
9. At the outset, we would refer to a draft office memorandum dated - va 04.06.2010 (Annexure-A/9 to the OA), which was issued by DoPT on the subject matter of allocation of zones to Inspectors of Central Excise in pursuance to the directions of Co-ordinate Bench of this Tribunal at New Delhi in OA 3494/2009 (Shri Surendra Singh vs. Uol & Others). The relevant contents of the said OM are extracted as below :-
(with emphasis supplied) "Subject : Allocation of Zones to Inspectors (Central Excise) -- Implementation of the orders of the Central Administrative Tribunal in the matter of Shri Surendra Singh v. Uol & Others {0.A. No. 3494/2009}.
5. This Department discussed the matter with the officers of the Department of Revenue and also got some information in writing from that Department. The information so elicited from the Department of Revenue reveals that:
(i) Selection of the candidates for the post of Inspector (Central Excise) is made on the basis of a combined competitive examination conducted by the Staff Selection Commission.
(ii) A common merit list of the selected candidates is prepared by the Staff Selection Commission and is sent to the Department of Revenue. The Commission, in the merit list, shows some of the SC/ST/OBC candidates as selected on their own merit and other ~ SC/ST/OBC candidates as selected against reserved quota.
By ly "
14 1548/21, 1549/21, 1550/21, 1551/21
(iii) Department of Revenue allots zones to the selected candidates on the basis of their merit and preference given by them. .
(iv) Each zone maintains the seniority list of Inspectors allotted to that zone. There is no common seniority list of the Inspectors working in different zones and thus there is no system of maintaining inter-se seniority of Inspectors in one zone vis-d-vis Inspectors in any other zone.
(v) After allocation of the zone, the zone of an Inspector is not changed in normal course. if zone of a candidate is changed in any-special case, his seniority is fixed in the new zone which has no relationship with the seniority of that candidate in his earlier zone.
(vi) Promotion from the grade of Inspector to the next grade of Superintendent is made zone-wise. While making promotions in a zone, the Inspectors posted in other zones are not considered.
(vii) An Inspector after promotion to the grade of Superintendent continues to remain in the same zone. Thus as a consequence of allotment of the zone at the level of inspector, a _ candidate continues to remain in that zone as Inspector as well as Superintendent.
(vii) Reservation Rosters for SC/ST/OBCs are maintained zone-wise.
HOR FEF SUS eee ese ene eds sae Ode DOD ROE SAE ASE DDO OED OUHREEFODERE SED DEE EAP OOH DED DOP PER DED BOD OSDD
10. The Department of Revenue has given the benefit of reservation to reserved category candidates in the matter of allotment of zones and at the same time adjusted them against "unreserved vacancies. A candidate can be adjusted against an unreserved vacancy, if he does not get any preference or concession which is not available to unreserved category candidates. The system adopted by the Department of Revenue goes against this principle and has resulted into denial of the right to equality to the unreserved category candidates.
11. Keeping all aspects in view, it is suggested that after the selection process for the post is completed by the Staff Selection Commission, the Commission should arrange the candidates in the order of merit as disclosed by the aggregate marks finally awarded to each candidate. Thereafter, the Commission should prepare a list of candidates to be recommended against unreserved vacancies and separate lists of candidates to be recommended against vacancies reserved for the Scheduled Castes, the Scheduled Tribes and the Other Backward Classes. The candidates belonging to the Scheduled Castes, Scheduled Tribes and the Other Backward Classes who have not availed themselves of any of the concessions or relaxation in the eligibility or the selection criteria, at any stage of the examination and who after taking into account the general qualifying standards are found fit for recommendation by the Commission should be included in the list of candidates to be recommended against unreserved vacancies. The number of candidates recommended by the he, a 15 ; 1548/21, 1549/21, 1550/21, 1551/21 >. : Commission, in the first instance, should be equal to the total number of vacancies reduced by the O number of candidates belonging to the Scheduled Castes, the Scheduled Tribes and Other Backward Classes included in the list of candidates to be recommended against unreserved vacancies. Allocation of zones to candidates recommended against unreserved vacancies may then be made by the Department of Revenue strictly by following the principle of merit-cum-preference. However, candidates belonging to the Scheduled Castes, the Scheduled Tribes and the Other Backward Classes recommended against unreserved vacancies may be adjusted against reserved
- yacancies if by doing so, they get the zones of their higher preference. Thereafter, the candidates recommended against the vacancies reserved for the Scheduled Castes, Scheduled Tribes and Other Backward Classes may be allocated zones strictly by following the principle of merit-cum-preference. BRO ee eae e rede ES het DPD EDD DESEO GUE OFOEI TAPS EOR EOD SOE FES POS UECSEOTOE EDO POS OEFEDE PPO DOG OER DATOS Although, the office memorandum finalized on the basis of the abovenoted draft has not been brought before us, what we would gather from the contents of _ para 11, as relied upon by the applicants is as follows :-
(a) That, the Staff Selection Commission should arrange the candidates in order of merit as disclosed by aggregate marks finally awarded to each candidates.
(b) Thereafter, the Commission should prepare a list of candidates to be recommended against the UR vacancies.
(c) That, separate list of candidates are to be recommended against reserved vacancies for Scheduled Casts, for Scheduled Tribes and Other Backward Class.
(d) Those candidates belonging to SC/ST/OBC who have not availed those of any concessions or relaxation in eligibility of selection criteria at any stage of the examination and who, after taking into account the general qualifying standards are found fit for recommendation by the Commission, should be included in the list for UR vacancies.
bd oO 16 1548/21, 1549/21, 1550/21, 1551/21
(e) Thereafter, the allocation of zones within the UR vacancies may then be made by the requiring department by following the principle of merit cum preference.
(f) Candidates belonging to Scheduled Castes, Scheduled Tribes and Other Backward Classes recommended against UR vacancies should be adjusted against the reserved vacancies if by doing so, they get zones of higher preference.
(g) Thereafter, the candidates recommended against reserved vacancies would be allotted zones strictly on the basis of principle of merit cum preference. -
10. In the instant matter, as admitted by the respondents, 352 candidates in - total were recommended by the Staff Selection Commission for allocation of dossiers of Junior Accountant of CGLE-2018 to the PAOs. Of such 352 candidates, 331 candidates had submitted their state preference to the competent authority. The respondent administration had thereafter examined the need for posting of staff zone wise taking into account administrative exigencies and an even distribution of working strength across the country. Out of 19 UR dossiers as reflected in Annexure-A/8 to the OA for West Bengal, 16 dossiers were moved to other PAOs in the following manner :-
3 dossiers were to be given to PAO Chennai, 4 dossiers to PAO Guwahati, 4 dossiers to PAO Shillong and 5 dossiers to PAO Raipur, consequent to which 3 UR dossiers remained to be filled up by UR candidates at PAO Kolkata. The dossiers were not moved in only from PAO Kolkata, but they were similarly moved from PAO Lucknow and PAO Bengaluru and the authorities set up a 3-members 'Committee to allocate such dossiers of CGLE--2018 for the post of Junior bg _--
ex } | respondents) ta 17 1548/21, 1549/21, 1550/21, 1551/21 Accountant (annexed at Annexure- 'D' to the written notes of arguments of the respondents). This therefore, settles the discrepancy between the 19 UR vacancies as revealed in Annexure-A/8 to the OA and the final 3 vacancies against UR category in PAO Kolkata (annexed at Annexure- 'A' to the written notes of arguments of the respondents).
11. The respondents, would place their reliance on DoPT's OM dated 09.10.2007 (annexed at Annexure- 'B' to the written notes of arguments of the on general stan less meritoriou deciding on the general standar if it is favourabl memorandum a In this co applicant that, deprived of UR candidate (ann representation the OA).
Annexure Hard should not be placed at a disadvantageous position vis-a-vis a s candidate belonging to that category and therefore, while allotment of zones, a reserved category candidate qualifying on ds should be treated as belonging to concerned reserved category e to him. Such contention has been reiterated in the draft office f June, 2010 (supra).
ntext, this Tribunal will proceed to examine the allegation of the posting in PAO Kolkata as his post was usurped by an OBC exed at Annexure-A/6 to the OA) and as ventilated in the bf the applicant dated 14.08.2021 (annexed at Annexure-A/6 to
-A/6 to the OA reveals as under :-
nh state that a candidate belonging to a reserved category qualifying . although higher in merit and performance, he was actually | 18 - 1548/21; 1549/21, 1550/24, 1551/24 dn response to a RTI query, the authorities have furnished to the applicant ..
the allocation of the candidates in respect of CGLE-2018 for the post of Junior Accountant as above, The applicants would allege that Nabarun Paul {private | fespondent no. 8 in the OA-1549/2021}, Subhajit Paul (private respondent no. 8 in "the OA 1550/2024), Pritam Debnath (private respondent no. 8 in the OA 1548/2021}, Afzal Kabir {private respondent no, 8 In the OA 1551/2021), Aman Kumar Shaw, Adil Al Ayub and Shubhra Aon, although belonging to the OBC category, have weonely filled up the UR category and accordingly the applicants have been deprived of their rightful allocation. The respondents, in compliance to the directions of this Tribunal, have » furnished their clarification as under + {i} That, the OBC candidates named herein had all submitted representations to be placed in OBC categories, as, if they are placed in UR cotenory; they may not be entitled to claim a suitable Allocation of posting as they would be placed below other UR candidates on merit, Qn the other hand, if they are -- placed in the OBC list, they would be higher up than the other OBC candidates lin h, _ _ 19 | 1548/21, 1549/21, 1550/21, 1551/21 and would be in advantageous position. Therefore, in their prayer the said OBC candidates had referred to the principle as contained in DoPT's OMs of 2007 and 2010 (supra).
Accordingly, the respondent authorities vide their orders dated 25.08.2021 (annexed at Annexure- 'C' to the memo of clarification dated 21.04.2022 ) reallocated the OBC candidates against the OBC vacancies as under the said order as reproduced below in confirmation of the contentions of the respondents :-
"F. No. 2(05)/2018/PA Admn.1/4902 Government of India, Ministry of Communications Department of Posts, PA Wing, Dak Bhawan, Sansad Marg, New Delhi.110001.
Dated: 25.08.2021 To, The General Manager (Finance) West Bengal Circle, Kolkata-700012 Sub: Regarding allocation of candidates as JA on the basis of SSC CGLE-2018 Ref no: F.No. 2(05)/2018/PA Admn.1/4802 dated 09/08/2021 Sir.
In continuation with this office letter no cited above, this is to inform that the following candidates, who belong to OBC category but were selected against UR category, have been allocated against the OBC vacancies:
_1. Pritam Debnath (Roll no-4405011121)
2. Aman Kumar Shaw (Roll no-4410095322)
3. Nabarun Paul (Roll no-4410002994) 4, Subhajit Paul (Roll no-4402011842)
5. Afzal Kabir(Roll no-4410064127)
6. Adil Al Ayubi (Roll no-728703625)
7. Subhra Aon(Roll no-4405009930) | 2. The roster may be maintained accordingly.
3, This. is issued with the approval of the competent authority. Yours sincerely, Sd/-
AO(PA Admn.)"
he
20 "1548/21, 1549/21, 1550/21, 1551/21 Given such assertions of the respondents which has not been controverted since and which modifies the information furnished under RTI Act, 2005 on 23.08.2021, the claim of the applicants that Nabarun Paul, Subhajit Paul, Pritam Debnath, Aman Kumar Shaw, Afzal Kabir, Adil Al Ayubi and Shubhra Aon had been accommodated in UR posts despite being categorized as Other Backward Class(OBC), does not hold good.
In such reallotment of OBC candidates based on their representation against OBC vacancies, the respondents have also adhered to the policy enumerated in DoPT's OM of 2007 and 2010 (supra).
Therefore, we would infer that the CGLE-2018 for Junior Accountant had led to an outcome of 352 selected candidates as nominated by.respondent no. 5. This was against PAN India vacancies of which initially PAO Kolkata had been allocated 19 UR vacancies, 7 SC vacancies , 1 ST vacancy and 12 OBC vacancies, totalling to 39. The horizontal reservations of ex-servicemen and PH were 4 and 1 respectively in PAO Kolkata. The authorities, in order to have an even distribution of manpower, and, in the exigency of administration, reallocated 16 of the UR vacancies to other PAOs. Consequently, PAO Kolkata was left with 3 UR vacancies, 7 SC vacancies, 1 ST vacancy and 12 OBC vacancies, totalling to 23 vacancies in which horizontal reservations of ex-servicemen and PH would account for 4and1°.- respectively. Although, in the initial allocation, 7 OBC candidates were to be accommodated against UR categories, given their overall performance in the qualifying examination, on 25.08.2021, and, on the basis of their representations, they were all reallocated in OBC vacancies. Hence the remaining 3 UR vacancies left in PAO Kolkata could only be filled by ex-servicemen and/or physically handicapped candidates.
Kr, a ", 21 1548/21, 1549/21, 1550/21, 1551/21 O The respondent authorities have furnished, during hearing, a clarification dated 09.03.2022 (annexed at Annexure-WN/3 to the written notes of arguments . of respondents), in which they have clarified as under :-
PPE ODE OTE eee eee eee e eters enoenesaeee TaD EGE EDEEPEEPE SEES In respect of page 78 of DoPT Office Memorandum dated 04.06.2010, Staff Selection Commission prepares a list of candidates to be recommended against unreserved vacancies and separate lists of candidates to be recommended against vacancies reserved for the -- Scheduled Castes, the Scheduled Tribes and the Other Backward Classes. The applicants will be posted as per the State Wise Preference form submitted by them and as per the vacanicies available in various circles.
It is clarified that no OBC candidates were adjusted against UR vacancies of PAO. The OBC candidates were allotted against the available OBC vacancies in PAO Kolkata. 4 ae Similar view had been earlier furnished to the applicant by way of the --
- appellate order under RTI Act, 2005 dated 09.09.2021 (annexed at Annexure-A/8 to the OA), which is as under :-
dO OaO CED eH ROD DeD Deo Eee ore ere ebeeen TED DED FES
3. | have examined the original RTI application and reply of the CPIO thoroughly and observed that information supplied by the CPIO is correct and appropriate. In this connection, it may be stated that all the Circle Postal Accounts offices are part of the Accounts Wing of Postal Directorate. Every individual Postal Accounts Office sends it requisition to PA Wing of the Postal Directorate which compiles it for onward transmission to Staff Selection Commission. So, when the candidates are finally allotted to Postal Department by SSC, the nominations are similarly send to PA Wing of Postal Directorate which in turn allocate candidates to different Postal Accounts Offices as per their requisition. - .
Hence, as an individual entity no material information about the manner of allocation of candidates is available at this end. It is solely due to this reason that CPIO transferred the application under Section 6(3) of RTI Act, 2005 to ADG (PA-Admn)}, Department of Posts, Dak Bhawan, New Delhi. The appellant's allegation of incomplete, misleading or false information is very unfortunate and completely baseless. With this, appeal is disposed of. Pee ene ece cece ree eer een eer Pereer ver ber DED DOD SSD DER ReP RGD ESD ECEE In support, Learned Counsel for the applicant would refer to the ratio in ' Purushottam vs. Chairman MSEB and Anr.[(1999) 6 SCC 49], to aver that the right 22 1548/21, 1549/21, 1550/21, 1551/21 OY 7 of the appellant to be appointed against the post to which he has been selected cannot be usurped by another due to erroneous decision of the employer. Further reliance is placed on WPCT 16 of 2022 {Union of India & Ors. vs. |. | Subhankar Sarkar & Anr.) to cite that, "when technicalities are pitted against substantial justice, the latter should prevail". We would note here that the applicant had applied against a PAN India notification of filling up posts of Junior Accountant and not a notification issued exclusively for appointment to the post of Junior Accountant, PAO Kolkata. The circular dated 28.05.2021 also referred to ' allocation subject to vacancies available in respective categories, as per i £ gc.
a 3 > / instructions contained in DoPT's OM dated 10.05.1990 and 13.03.2002. DoPT's instructions, as cited above, refers to the posting of ohysically handicapped | candidates, a category to which the instant applicant does not stake his claim. |
12. This Tribunal would, henceforth, proceed to examine the speaking order which is under challenge in the instant original application. In their speaking order, the respondents have stated as follows :-
PrPrere ieee r
5. That the representations of the applicants has been considered by the competent authority with the following observations:
i) That the Draft OM extracted supra under Hon'ble CAT Order dated 14.09.2021 is regarding Allocation of Zone to Inspectors (Central Excise) in the matter of Shri Surendra Singh Vs. Uol & Others (OA No. 3494/2009).
ii) That the ibid draft is regarding the reserved category candidates shown as own merit candidate and included in the list as general category candidates.
iii) It is hereby clarified that the competent authority vide order dated 06.08.2021 has issued following instructions in the matter of allocation of dossiers of candidates qualified CGLE 2018 for Junior Accountant Cadre:- .
"Reviewed the recommendation of the allocation committee on allocation taking into account the following:
a. Few OBC Candidates from W. Bengal who were selected in UR Category submitted representation for the consideration as OBC Category citing specific rules/quidelines of DoP&T for allotment (F.No. 36028/31/2007-Estt (Res) dated 09.10.2007) b. Under Rule 38 of Postal Manual Volume IV of the Department of Posts, order for transfer issued by Hqtrs with the due approval of DG (Posts) in view of several he wae 23 1548/21, 1549/21, 1550/21, 1551/21 __ representation from Union and discussion held with union by Secretary (P), DG (P) & Sr. DDG (PAF) for settlement of Pending Rule 38 cases which are pending for quite some time. Rule - 38 permits circle transfer of accountants from one circle to other as a welfare measure allowing senior officials to migrate to their parent / selected circle. Consequent upon issue of these transfers order, Junior Accountants & Senior Accountants were transferred to West Bengal as the request of same was pending fro quite some time.
c. Further, adjustment of Vacancies in the deficit Circles like Assam, NE, Chhattisgarh, J&K, Punjab, Haryana, Himachal Pradesh was done to overcome the administrative exigencies faced in the circles.
iv) Consequently, Dossiers were sent to allotted Circles with revised vacancies. There was nil vacancy in PAO Kolkata against UR Category due to the reasons mentioned under Para {iii) above. Only OBC, SC, ST, Ex-Servicemen & PH Category candidates were allotted PAO Kolkata.
6. That SSC vide its letter No. 10/1/2017-P&P-H (P.1]) dated 21.08.2019 has informed that the Commission does not have any role in further posting of nominated candidates by the user departments. However, as per the notice of the examination, candidates on selection may be asked to serve anywhere in the country.
7. That the applicant has the option to join the department at first go at the allotted circle & then apply for transfer under Rule 38 of Postal Manual Volume IV of the Department of Posts. Same may be considered by the competent authority as per the laid down guidelines of the department. - oe PUREE FED OOD OED DED DEF DED OLR REP SED DED DED OED OOD EOE SOD DOR ROR SED ORE SROOS The speaking order, therefore, reiterates the contentions of the respondents as follows :-
(i) That, the OBC candidates who were selected in UR category were thereafter reallocated as per their own representations. |
(ii) That, transfers are permissible among zones under Rule 38 of Postal Manual Volume IV, once candidates join the service of the respondent organization. |
(iii) That, there have been a readjustment of vacancies to counter administrative exigencies and for more equitable distribution of staff among zones. |
(iv) That, while the Staff Selection Commission has no role in posting of candidates, the candidates are liable to be posted anywhere in the country Os ' 24 1548/21, 1549/21, 1550/21, 1551/21 and, that, the authorities have not fallen short of complying with the policy directions issued from time to time.
13. It is axiomatic that posts can be filled up subject to availability of vacancies. In Ashwani Kumar vs. State of Bihar [(1994) 2 SCC 1], Hon'ble Apex Court ruled a that, there cannot be an employee without a vacancy. For the said purpose, the cadre strength of the category to which the post belongs is required to be considered. | In Uttaranchal Jal Sansthan vs. Laxmi Devi (2009) 7 sec 205], it was held that the onus is on the person who asserts that a regular vacancy existed. The applicant's claim is based on 19 vacancies as revealed at Annexure-A/8 to the OA.
Records furnished subsequently by the respondents, however, disclose:
that, upon redistribution of dossiers, only 3 UR vacancies survived for Junior Accountants in PAO Kolkata which had also to cater to the claim of successful ex- servicemen and PH candidates.
In his written notes, Learned Counsel would enter into an elaborate exercise on PAN India allocation of vacancies and actual working strength, _ reportedly upon reallocation of dossiers.
In Government of Orissa vs. Haraprasad Das [(1998) 1 SCC 487], the Hon'ble Apex Court has ruled that it is a policy decision to fill up posts, and, unless | shown to be arbitrary, it is not open to judicial interference. The respondents' decision on reallocation is based on administrative need and equitable distribution. Such an approach cannot be struck down as arbitrary. In Sangeeta Sharma vs. Union Territory of Chandigarh [2005 (3) SLR 775], the Court was cautioned to refrain from directing employers to fill up particular ao bro 25 4548/21, 1549/21, 1550/21, 1551/21 --
"8 ' 'ex ; posts, and, further held in Ashwani Kumar Singh vs. UP Public Service Commission [(2003) 11 SCC 584] that, applicants cannot insist on post specific appointments. | | The applicant, in his rejoinder, would furnish a list of allocations dated 21.10.2021 vide information provided in response to RTI dated 01.10.2021 respectively. We decipher, that such information has been updated on the basis : of the reallotments made upon final allocation of dossiers (annexed at Annexure-
'A' of the written notes of arguments of the respondents) and the OBC candidates --
have been reallocated against the OBC vacancies vide respondents' orders dated _ 25.08.2021.
Accordingly, the allegations that the policy guidelines were violated by the | respondents in placing OBC candidates against UR vacancies and, that, the applicants have been deprived of posting despite availability of-vacancies are not _ substantiated and the applicant's claim ails.
14, The instant OAs therefore fail to succeed.
There will be no orders on costs.
-- -- Ae (Dr. Nandita Chatterjee) Oo (Bidisha Banerjee) Administrative Member Judicial Member sl