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1. The applicant in this case, is aggrieved that following his success in the Combined Engineering Services Examination, 1995 (CESE 1995), he has not been allotted to his parent Department, i.e., CPWD/Central Engineering Service (CES).

2. Heard Mr. Dalip Singh, learned Counsel for the applicant and Mr. E.X. Joseph, learned Senior Advocate with Mr. Rajinder Khatter for the respondents.

3. Shri G. Vivekanand Swamijee, the applicant joined CPWD as a Junior Engineer (JE) on 7.4.1984 and was promoted as an Assistant Engineer (AE) on 17.9.1993. He appeared as a departmental candidate in the Central Engineering Service Examination, 1995. He was granted age relaxation under Rule 5 (b) of the Examination Rules, being a departmental candidate. He had given his preference for appointment in the CES/CPWD. When the results on CESE 1995 were announced, the applicant's name was missing. However, after three years, in March, 1998, following a police inquiry on applicant's antecedents, he represented to UPSC on 14.8.1998 which was replied on 7.12.1998 stating that on account of the slight amendment in the results of CESE 1995, he has also been declared as among those who finally qualified in the examination with his rank at 96. However, on 5.4.1999, he was given offer of appointment as Assistant Supervisor of Works in MES by Ministry of Defence letter dated 5.4.1999 against the specific preference made by him for allocation in CPWD/CES. He felt that his career was in jeopardy by not being given CPWD, but accepted an offer and requested for allocation to his parent Department. He repeated his request as he had been working with the CPWD for 15 years and had been working as Assistant Engineer (AE) a post analogous to that of AEE of the CES, since September, 1993. On 28.6.1999, Ministry of Defence communicated that the allotment of candidates came under the purview of UPSC/Railway Board. Accordingly, he requested the Ministry of Defence for extension of joining time, which was turned down. He had to join MES before 4.10.1999. According to him, he had appeared as a departmental candidate and indicated his preference for allocation in his parent Department. His grievance could have been redressed only by allocating him there, but the Railway Authority on 15.3.2000 had declined to do so. According to him, in terms of Rule N.B. (iv) of Rule 2 and Rule 15 of the Ministry of Railways, Railway Board Rules, the applicant, being a departmental candidate, was entitled to be allocated to his parent Department. In terms of Rule 15 successful candidates were to be considered for appointment on the basis of order of merit and departmental candidates could be first considered for appointment in their own department subject to merit position and only in the event of non-availability of vacancies, they were to be considered for other Departments. As, according to the applicant, he was the only successful departmental candidate that year, he was entitled as of right to be allocated to his parent Department. His allocation to MES was in violation of Rule 15, representations of the applicant have been rejected illegally. The letters issued by the Railway Ministry and Defence Ministry were arbitrary and illegal and according to him, his case was clearly covered by the judgment of the Hon'ble Supreme Court in the cases of Union of India and Ors. v. Parmanand, 1996(5) SJR 313 and Rajinder Singh v. Union of India and Ors., O.A.-1869/ 96, decided on 12.5.1997 by the Tribunal. In view of the above, he states that the Ministry of Defence letter No. PC/3(3)/94/MES/D(Apptts.) dated 5.4.1999 as well as letter No. 75628/3057/EIB (Cadre)/796/D (Aptts) dated 28.6.1999 and Ministry of Railway's letter dated 15.3.2000 should be quashed and set aside and he be allocated to CES/CPWD.

4. In the counter reply filed on behalf of the respondents, it is pointed out that applicant's name did not originally figure in the list of recommended candidates on the basis of the CESE 1995. Subsequently, following the rectification of certain errors, three more candidates were added to the list, including the applicant. While the UPSC conducts the CESE for filling engineering posts in as many as 55 Departments/ Ministries of Central Govt., the work of allocation of all the qualified candidates on the basis of the notified criterion which envisages rank, preferences exercised by the candidate, medical fitness, etc., was entrusted to Railway Ministry. Selected individuals/ candidates' cases are taken up subject to their medical fitness and their preference and depending on the availability of vacancies, services. While Considering the allocation successful departmental candidates are generally considered for allocation in their parent department, depending on their relative merit so that the experience gained by them is made available to the Department without compromising the merit. The allocation of departmental candidate was not different from the open market candidate and when the turn of allocation came, he was first considered for his Department for which he may or may not have given his first preference. But the same would depend on his position in the merit list, In the normal circumstances, the person is considered for his own Department as he had appeared in the examination with age relaxation and this was meant as a restriction rather than a benefit compromising the merit position in the list. The applicant, in this case, came as a departmental candidate with age relaxation for the CESE 1995 and obtained 96th rank in the merit list. He was the last but third candidate to be included in the selection. His case was considered for CES wherefrom he came but could not be allocated, as he was very much lower down in the merit list and the only two vacancies in the general category--unreserved--were available for the year 1995 for CPWD/CES, they were filled by the candidates holding the 19th and 20th positions by merit. He was, therefore, allocated to MES for being posted as Assistant Surveyor of Works (ASW.). The applicant in this case was seeking allocation to CES which has been denied to candidates from 21st to 25th ranks merely because he originally held from the said Department. He has thus claiming not only age relaxation but also reservation for post for which was not provided for. The applicant had claimed that his case was similar to those of Shri Parmanand and Shri Rajendra Singh candidates of 1989 Examination. In terms of Rule 15 of 1989 Rules, Departmental candidates arc to be first considered for allotment to their own department without any restriction, subsequently, Rules of 1990 have provided that allocation should be on the basis of merit. Parmanand took the examination in 1989 though he was lower in the merit list and preferred allocation of Department which was denied. On his approaching this Tribunal in O.A. 1565/1991, his claim was endorsed by the Tribunal on plain reading of the rule. Hon'ble Apex Court upheld the Tribunal's order on the ground that without the nomenclature 'subject to merit' in the rule departmental candidates enjoyed overriding priority in the matter of allocation of department in the Engineering Services Examination 1989. The aspect of merit had not formed part of the notified rules for that year concerned. The case of Rajendra Singh similar. However, the rule position had undergone a change with the instructions of CESE 1990 on wards whereby the concept of merit was brought in, That Being the case, the applicant cannot plead that his case was covered by the rules and their he should have been given CPWD/CES, he had asked for, as he was originally from CPWD.

5. During the personal hearing, Mr. Dalip Singh, learned Counsel for the applicant referred to Rule 15 ibid with specific reference to the decisions in the O.A. filed by the Parmanand, which was should get the benefit of allocation to CES. According to him, the expression "by merit" brought in the Rules from 1990 onwards, including 1995 Examination, wherein he was a candidate, did not alter the situation in any way. According to him, this was only meant to deal with tic between two departmental candidates and not between the departmental candidates on the other hand and the open market candidates on the other. The concept of distinction could be only when more than one departmental candidate, apply for the CES/CPWD any other department to which he originally belonged. Departmental candidates right was absolute as far as selection to CES/CPWD was concerned. Reading anything further into it to deny the above the benefit to him would amount to violation of the orders of the Hon'ble Supreme Court in the case of Parmanand (supra) and would render the provisions of Rule 15 redundant. This was impermissible. Learned Counsel emphasised that the insertion of the expression 'by merit' in the Rules of 1990 onwards, including in Rules of 1995, did not alter the basic structure of the scheme for providing the benefit of allocation of the applicant to his own organisation keeping in mind his preference. In fact only, with the CESE, 2000, the concept of the departmental candidates gaining special treatment in allocation was given up and, therefore, till 2000, those like the applicant, should have been given benefit, pleads Mr. Dalip Singh. According to him, having worked in the Department for about 16 years and having gained experience in the field and also having been employed in an equivalent post of AE for nearly 6 years there was no reason why the applicant could not have been allocated to CES/CPWD, as the rules specifically provided for. Denial of the above was illegal and arbitrary urges Mr. Singh.

7. We have given anxious and deep consideration to the points raised by the rival contenders. We have also seen the papers brought on record.

8. The applicant in this case had appeared as a departmental candidate in the CESE 1995 with the relaxed age conditions and came to be included in the select list and was placed at 96th rank. He had given his preference for CPWD/CES, wherefrom he originally came, but as there were only two vacancies in the CES for the year, the same had gone to candidates placed at 19th and 20th ranks. The applicant's plea is that being a person from the Department originally, in terms of the Examination Rules, his case should have been considered for allocation to CES. He states that as has been happened in the cases of Parmanand and Rajendra Singh (supra), his case would merit inclusion in the CPWD/CES. However, we find that the relevant rules regarding the examination had undergone certain changes. In Para 15, the Engineering Service Examination Rules of 1989 provided as follows: