Sher Singh vs Union Of India (Uoi) And Ors.
2007 Latest Caselaw 1214 Del

JUDGMENT

Manmohan Sarin, J.

1. Petitioner by this Writ Petition, assails the order dated 10.4.2006 dismissing OA No. 72/2006. Petitioner in the said OA had challenged the rejection of his representations and had sought that he be given relaxation by virtue of belonging to the Scheduled Caste category in terms of OM No. 8/12/69-Est. (SCT) dated 23.12.1970. Petitioner also assails in the writ petition the refusal by the Tribunal to grant interim relief of staying the process of holding DPC for promotion to the post of Junior Accounts Officer as prayed for in OA No. 285/2006.

2. Facts culminating in the filing of the writ petition may be noted:

(i) Petitioner belongs to the reserved category (Scheduled Caste). He joined the Pay and Accounts Division (PAD) of B.S.F. as Junior Accountant in the year 1988. He was promoted to the post of Senior Accountant in June, 1991. The next promotion in the hierarchy is of Junior Accounts Officer.

(ii) There were 33 posts of Junior Accounts Officer in the Pay and Accounts Division of B.S.F. 50% of the posts, i.e., 17 posts were to be filled up by promotion of Senior Accountants with six years of regular service and remaining 16 posts by way of departmental examination called the SAS Level Examination. The reservation for the above posts for the Scheduled Caste and Scheduled Tribes is 15% and 7 % respectively, thus, making two posts available to each - promotion from Senior Accountant to Junior Accounts Officer and promotion by selection through the departmental examination.

(iii) The SAS examinations were to be held in two parts. Part I of the SAS examinations were held in December, 2003. Part II of the examinations were held in October, 2005 in which the petitioner was declared unsuccessful. For filling up of posts through SAS examinations, a candidate to be declared successful in the examination must secure 40% marks in the individual subject and 45% marks in the aggregate. Petitioner had secured only 33% marks in paper III of Part II examination.

(iv) Petitioners representation to the respondent for giving concession was declined. Petitioner filed OA No. 72/2006 in the Central Administrative Tribunal for staying the DPC proceedings for the promotion of Junior Accounts Officers. Vide order dated 16.1.2006, the learned Tribunal refused to grant stay on the promotion proceeding through DPC.

(v) The petitioner filed a Writ Petition bearing No. 1632/2006 wherein the High Court directed the petitioner to move an application for stay before learned Tribunal and further directed the Tribunal to consider the application on merits. The said application being M.A. No. 285/2006 was rejected by the Tribunal vide order dated 13.2.2006.

3. We have heard the parties and perused the documents available on record along with the petition and counter affidavit. Counsel for the petitioner challenges the order of the Tribunal on the ground that it failed to appreciate that the action of the respondent in not considering the OM No. 8/12/79-Est. (SCT) dated 23.12.1970 and extending the relaxation in examination standard in the Part II SAS Level in favor of the applicant. It, according to the petitioner, has resulted in substantial failure of justice. Petitioner claims to have passed all the papers with flying colours except paper III. Further, petitioner was the only candidate who secured exemption in two papers. He urges that the order of the Supreme Court relating to an organized accounts cadre has not been implemented even until 2006 and further the recruitment rules have not been framed. Petitioner claims that being under SC/ST category, was entitled to 5% exemption pursuant to the circular dated 31.5.2001 passed by Govt. of India, Ministry of Finance especially when there was no SC/St candidate who had qualified in SAS Part II. Besides, if all the vacancies are filled by the general candidates, there was no likelihood of any further vacancies till next five years, thereby defeating the very purpose of reservation for SC/ST and the provision for relaxation.

4. Counsel for respondent urges that Pay and Accounts Division of B.S.F. was declared as an Organized Accounts Cadre w.e.f. 1st April, 1987 vide DG, BSF order dated 14.11.2005. As a result of this order, 80% posts in each cadre have been placed in higher scale in accordance with Ministry of Finance, Department of Expenditure, OMs dated 12.6.1987, 21.6.1993 and 22.9.1992, from time to time as is applicable to their counterparts in Organized Accounts Department. Counsel for respondent submitted that as a result of the Pay and Accounts Division being declared as an Organized Accounts Cadre, only four posts of Junior Accounts Officer were available to be filled by seniority and three posts of JAOs by candidates, who had qualified the SAS Level examination. In accordance with the reservation policy of the Government and the roster maintained therefore, the roster point for SC/ST did not fall in respect of these vacancies. Accordingly, the counsel argued that as a result of this organizational change, there was no reservation available for the post of JAO either in the seniority quota or in the examination.

5. We have heard the parties and perused the documents available on record along with averments in the petition and reply thereto. The primary issue before us is whether the petitioner is eligible for the post of JAO. It may be noted that as per the qualification requirements for the said post, the terms clearly provide that a candidate shall be declared to have passed in Part I and Part II of the examination if he/she secures not less than 45% marks in aggregate and 40% marks in each subject. In the present case, although petitioner cleared the Part I exam, he was unsuccessful in Paper III of Part II examination securing 50 marks out of a total of 150, i.e. 33%. Counsel for the petitioner urged that being under SC/ST category, petitioner was entitled to 5% relaxation in marks. Even if this relaxation of 5% is applied, petitioner in the present case still falls short by 1.67% to become eligible for the said post. We, therefore, find no merit in petitioners contention.

6. The second issue which calls for consideration relates to the applicability of OM dated 23.12.1970 on which the petitioner is relying. The OM relates to the subject of relaxation of standards in departmental competitive examination for promotion and in departmental confirmation examinations. The OM dated 12.3.1970 reads as under:

Attention of the Ministry of Finance is invited to Ministry of Home Affairs, OM No. 1/1/70-EST.(SCT), dated 25th July, 1970, in which it has been provided that in the cases of direct recruitment, whether by examination or otherwise, if sufficient number of Schedule Caste/Schedule Tribes candidates are not available on the basis of the general standard to fill all the vacancies reserved for them, candidates belonging to those communities may be selected to fill up the remaining vacancies reserved for them provided they are not found unfit for appointment to such post. A question has been raised whether relaxations in the qualifying standards could be granted to Scheduled Castes/Scheduled Tribes candidates on the same basis in promotions made through departmental competitive examinations and in departmental confirmation examinations where such examinations are prescribed to determine the suitability of candidates for confirmation. The matter has been carefully considered and it has been decided that in promotions/conformations made through such examinations, SC/ST candidates who have not acquired the general qualifying standards in such examinations could also be considered for promotions/conformations provided they are not found unfit for such promotions/conformations. In other words, qualifying standards in these examinations could be relaxed in favor of Schedule Caste/Schedule Tribes candidates in keeping with the above criterion.

7. Indisputably, there was no other SC/St candidate who has qualified in the SAS Part II examination. Counsel for the petitioner, therefore, submits that as there is no other SC/St candidate appointed, petitioner should be considered for the reserved vacancy. It it clear from the memorandum that if sufficient number of SC and ST candidates are not available on the basis of general standard to fill all the vacancies reserved for them, candidates belonging to those communities may be selected to fill the remaining vacancies. In the present case, respondent has clarified that none of the vacancies are available for reserved categories according to the Standing Operating Procedure which is to be complied with for filling up the vacancies for the post of Junior Accounts Officer. Therefore, the OM dated 12.3.1970 cannot be advanced or pressed into service to grant the relief prayed for by the petitioner. In any case, as noted earlier, petitioner does not make the grade or quality even if stipulated relaxation is given.

In view of the foregoing discussion, we find no merit in the writ petition.

Petition is dismissed.