Union Public Services Commission vs Sanjeev Kumar And Ors.
2007 Latest Caselaw 633 Del

JUDGMENT

Mukul Mudgal, J.

1. Rule DB. With the consent of the learned Counsel for the parties, the writ petition is taken up for final hearing.

2. This writ petition filed by the UPSC challenges the judgment of the Central Administrative Tribunal (in short 'CAT'), Principal Bench, New Delhi dated 8th August, 2003 in OA No. 3347/2002. The said OA arose on account of the respondents No. 1 to 3 herein filing the said OA praying for the following relief:

A. That the Respondents (UPSC) be directed to produce the original records of vacancies relating to the LDCE-2000 for the perusal of this Hon'ble Tribunal.

B. That the impugned O.M. Dated 24.10.2002 issued by the Respondent No. 1 (UOI through DOPT) be quashed and set aside to the extent that backlog reserved vacancies are to be filled in the year 2001 instead of the year 2000, as illegal, arbitrary and discriminatory and the respondents be directed to consider the case of the applicants for promotion on the basis of and as part of the LDCE-2000 and taking into account the backlog vacancies of previous years during the year 2000.

C. Pass any such other or further order or direction as this Hon'ble Tribunal may deem fit and proper in the facts and circumstances of this case.

3. The facts which have been succinctly stated by the Tribunal in the impugned judgment and are not disputed by either of the parties, read as follows:

3. The brief facts of the case are that Central Secretariat Services (hereinafter called as "CSS") comprising of Assistants and Section Officers' Grades are decentralised into 33 cadres comprising of one or more Ministries/Departments. The Department of Personnel & Training (hereinafter called as "DoPT"), being a nodal authority, coordinating the process of appointment but seniority in these two grades is maintained cadre-wise by the respective cadre controlling authorities. It is for these authorities to report number of vacancies in these grades to be filled through direct recruitment/promotion. The mode of promotion is 20% direct recruitment 40% promotion quota on seniority-cum-fitness and 40% regarding Assistants of CSS and Steno. Gr. 'C' of CSSS through Limited Departmental Competitive Examination (hereinafter called as "LDCE") conducted by UPSC. up to the year 1996 the group up of vacancies, category-wise, was done by DoPT centrally on the basis of indent for vacancies reported by 33 cadre authorities. The SC/ST vacancies to be filled on the basis of LDCE-1996, were worked out by the DoPT and reported to UPSC as per vacancy based roster. In view of the replacement of vacancy base roster with post based roster, separate reservation rosters were to be maintained by each of 33 cadres for direct recruitment and promotion quotas. These vacancies are reported to DoPT by cadre authorities giving break up of vacancies. Based on these indent of vacancies, DoPT coordinate the process of recruitment/promotion with UPSC. From 1997 to 1999 onwards due to instructions of the DoPT's OM dated 22.7.1997 withdrawing the provisions relating to concession/relaxation in the matter of qualifying marks/standards belong to SC/ST categories, these candidates could not qualify on the basis of uniform standards. However, pursuant to Constitution (Eighty Second Amendment) Act, 2000, vide OM dated 3.10.2000, provision for relaxation/concession in the matter of promotion for candidates belong to SC/ST, by way of lower qualifying marks/lesser standards of evaluation, was restored.

4. From 1997 to 1999 no vacancies reserved for SC category for LDCE could be filled and this had created backlog of 7 vacancies for SC category which were forwarded to the year 2000.

5. In LDCE-2000, DoPT intimated only two current vacancies of SC and short reported backlog vacancies to the UPSC.

6. Applicants, who are members of CSS and working as Assistants in different Ministries/ Departments, have come in the quota of 40% vacancies to be filled through LDCE for appointment as Section Officers. Applicants appeared in LDCE-2000 written examination held in December, 2000 and qualified the same. Result was declared by Respondent No. 2 in August, 2001 and ACRs were called for appraisal. Final result of LDCE-2000 was declared on 20.2.2002 and only 2 SC category candidates were recommended for appointment as the backlog vacancies have not been reported and treated as separate class, without counting them towards ceiling of 50% reservation on total number of vacancies for that year.

7. The aforesaid injustice was represented through the Association. On this DoPT decided and informed Respondent No. 2 that additional vacancies intimated by the Ministries/Departments after declaration of final result of LDCE-2000 are not accepted as per long standing policy and have decided to report these unfilled backlog vacancies of the years 1997 to 2000 to the UPSC for LDCE-2001.

4. Before the CAT, the learned Counsel for the respondents contended that Articles 14 and 16 of the Constitution of India has been violated by short reporting of vacancies by the DoPT for LDCE-2000 and by bringing out the supplementary panel. In so far as the DoPT is concerned, it has accepted the judgment of the CAT. However, the same has been challenged only by the UPSC in this Court by filing the present writ petition.

5. The grievance of the respondents was accepted by the Tribunal holding as follows:

21. Whereas as the relaxation standards have been withdrawn in 1997, no SC candidate could have qualified on uniform standards. This lead to backlog of vacancies for SC category. In LDCE-2000 the examination was held in December, 2000 whereas by a Constitutional amendment under Article 16 of the Constitution of India the ceiling of 50% reservation for total vacancies, for the year, for the purpose of reservation, has been declared not to put a bar for treating the unfilled vacancies which included backlog vacancies for reserved categories as a separate class. Accordingly, on 20.7.2000 when the backlog vacancies reserved for SC/ST to be treated as distinct group and it has no applicability of 50% ceiling, the same has not been taken cognizance by the DoPT for reporting the exact number of vacancies for SC/ST, including 6 backlog vacancies. Suo moto this exercise has not been undertaken but on a representation by the Association, the proposal has been delayed and these additional vacancies were reported by the time the final results have been declared. As per the MHA's OM of 25.3.1970, vacancies arising which are not filled up by SC category are to be carried forward to subsequent three recruitment years.

22. ...

23. It is clear that nothing precluded the State that unfilled vacancies of the year for being filled up in that year is to be treated as separate class of vacancies to be filled up in any succeeding year, the aforesaid succeeding year is with reference to the year when the vacancy had fallen and not the selection. Carryforward vacancies pertained to the years 1997 to 1999, are to be filled up as a separate class in succeeding year, i.e. 2000, and accordingly as the aforesaid amendment was in vogue from 20.7.2000 and the examination of LDCE-2000 was conducted in December, 2000 and the result was declared much later, the same has applicability and accordingly the vacancies are to be filled as a separate class for unfilled vacancies of the year (1997 to 1999) without adhering to the 50% ceiling for reservation.

6. Even though the Tribunal has dealt at length with the Office Memorandum (OM) dated 14th July, 1967 which is the sheet-anchor of the UPSC before this Court also, we are of the view that it is the interpretation and effect of Article 16(4B) which holds the field, and no OM can run counter to the mandate of the Constitution. Article 16 of the Constitution reads as follows:

16. Equality of opportunity in matters of public employment--(1) There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.

(2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for or discriminated against in respect of, any employment or office under the State.

(3) Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office [under the Government of, or any local or other authority within, a State or Union territory, any requirement as to residence within that State or Union territory] prior to such employment or appointment.

(4) Nothing in this article shall prevent the State for making any provision for the reservation of appointments or posts in favor of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.

(4A) Nothing in this article shall prevent the State from making any provision for reservation [in matters of promotion, with consequential seniority, to any class] or classes of posts in the services under the State in favor of the Scheduled Castes and the Scheduled Tribes which in the opinion of the State are not adequately represented in the services under the State.]

(4B) - Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under Clause (4) or Clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent reservation or total number of vacancies of that year.

7. We are of the view while interpreting the said provision of the Constitution that the first part of the said Article 16(4B) relates to the year for which the vacancy has fallen due that may be for example taken up as the year 2000 and second part of the said Article refers to the year in which the vacancies are filled or sought to be filled taking for example the year 2002. Our understanding of Article 16(4B), which appears to be the understanding of the Tribunal also, is that when the reserved vacancies for the year (2000) are being filled up even though in year 2002, such vacancies should not be considered in the reserved quota while counting the number of vacancies which are being filled in the year 2002. This view has been vehemently opposed by the learned senior counsel appearing for the UPSC.

8. Mr. Mishra, the learned senior counsel appearing for the UPSC has contended that the preliminary part of Article 16(4B) merely states that the unfilled vacancies of the year are being filled up later on cannot affect the vacancies for year in which they occurred. Mr. Mishra has contended that thus the earlier part of the Article 16(4B) only relates to the acknowledgment of the vacancies for the unfilled year and the fact of filling up such vacancies in the latter year. He submitted that while the vacancies when being filled will not affect the vacancies of the year in which they are being filled up, they cannot be considered to be vacancies for the year in which they had occurred and such appointments made later on cannot be for the unfilled vacancies for the previous year for which they had occurred. His plea thus is that the only effect of Article 16(4B) is that whenever the vacancies are filled up the quota of the year in which vacancies for an earlier year are filled up cannot be affected by such vacancies. He has stressed on the purity of the examination and finality of the examination by relying on the judgment of the Hon'ble Supreme Court in State of U.P. v. Rafiquddin and Ors. 1987 (Supp) SCC 401, and in particular reliance has been placed on paragraph 16 thereof, which reads as follows:

16. In this context, it is necessary to consider as to how long the list of candidates for a particular examination can be utilised for appointment. There is no express provision in the Rules as to for what period the list prepared under Rule 19 can be utilised for making appointment to the service. In the absence of any provision in the Rules a reasonable period must Re followed during which the appointment on the basis of the result of a particular examination should be made. The State Government and the Commission had announced 85 vacancies for being filled up through the competitive examination of 1970. In-normal course, 85 vacancies could be filled on the basis of the result of the competitive examination of 1970 but if all the vacancies could not be filled up on account of non-availability of suitable candidates, the appointment to the remaining vacancies could be made on the basis of the result of the subsequent competitive examination. The unfilled vacancies of 1970 examination could hot be filled after 5 years as subsequent competitive examinations of the year 1972 and of the year 1973 had taken place and the results had been declared. The list prepared by the Commission on the basis of the competitive examination of a particular year could be utilised by the Government for making appointment to the service before the declaration of the result of the subsequent examination. If selected candidates are available for appointment on the basis of the competitive examinations of subsequent years, it would be unreasonable and unjust to revise the list of earlier examination by changing norms to fill up the vacancies as that would adversely affect the right of those selected at the subsequent examination in matters relating to their seniority under Rule 22. The 1970 examination could not' be utilised as a perennial source or inexhaustible reservoir for making appointments indefinitely. The result of a particular examination must come to an end at some point of time, like a "dead ball" in cricket. It could not be kept alive for years to come for making appointments. The practice of revising the list prepared by the Commission under Rule 19 at the behest of the Government by lowering down the standards and norms fixed by the Commission to enable appointment of unsuccessful candidates is subversive of rule of law. This practice is fraught with dangers of favoritism and nepotism and it would open back door entry to the service. We are, therefore, of the opinion that once the result of the subsequent examination of 1972 was declared, the Commission could not revise the list of approved candidates of 1970 examination prepared by it under Rule 19 at the behest of the Government by lowering down the standard fixed by it.

9. In our view the said judgment is not applicable in the facts of the present case, as it merely referred to the result of the examination of a particular year not being the perennial source for making appointments indefinitely. In our view, there is no question of revising of list permitted by Commission under Article 16 as Article 16(4B) brought in by the 81st amendment does not in any manner affect the parity of result declared by the UPSC.

10. Furthermore, we are unable to accept the plea of Mr. Mishra that the earlier portion of Article 16(4B) merely permits the carrying forward of the vacancies of the unfilled year to the year in which they are being filled. In our view such a plea ignores the very words of the earlier portion "Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under Clause (4) or Clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent reservation or total number of vacancies of that year (emphasis supplied). Article 16(4B) clearly states that nothing shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year. In our view the vacancy can be filled by the State in latter years for the years in which they occurred and remained unfilled. In case the interpretation suggested by the petitioner is accepted, the earlier portion of Article 16(4) and in particular the phrase 'for being filled up in that year' shall become redundant. It is settled law that the court cannot prefer an interpretation which makes a word of an Article or the Constitution or Statute redundant. This position of law has also been laid down by the Hon'ble Supreme Court in K. Prabhakaran v. J. Jayarajan the relevant portion of which reads as follows:

32. ...While interpreting a provision of law and pronouncing upon the construction of a statutory provision the Court has to keep in mind that the view of the law taken by it would be applied to myriad situations which are likely to arise. It is also well-settled that such interpretation has to be avoided as would result in creating confusion, anomaly, uncertainty and practical difficulties in the working of any system....

11. Further in the case of D. Saibaba v. Bar Council of India the Hon'ble Supreme Court also relied on the following extract from G.P. Singh (Principles of Statutory Interpretation English Edn. 2001):

17. The learned author states again:

In selecting out of different interpretations 'the court will adopt that which is just, reasonable and sensible rather than that which is none of those things' as it may be presumed 'that the Legislature should have used the word in that interpretation which least offends our sense of justice'. (p.113, ibid)

The courts strongly lean against a construction which reduces the statute to a futility. A statute or any enacting provision therein must be so construed as to make it effective and operative 'on the principle expressed in the maxim: ut res magis valeat quam pereat', (p.36, ibid)

If the language used is capable of bearing more than one construction, in selecting the true meaning regard must be had to the consequences resulting from adopting the alternative constructions. A construction that results in hardship, serious inconvenience, injustice, absurdity or anomaly or which leads to inconsistency or uncertainty and friction in the system which the statute purports to regulate has to be rejected and preference should be given to that construction which avoids such results. (pp.112-113, ibid).

12. The construction on Article 16(4)(B) suggested by the petitioner's counsel does not commend itself for acceptance by this Court as it makes a part of Article 16(4B) redundant.

13. Accordingly, there is no merit in the writ petition. We fully affirm the conclusion arrived at by the CAT even though it is largely based on the O.M. The writ petition is accordingly dismissed. The Tribunal's order shall be given effect to not later than 15th May, 2007.

14. All pending applications also stand dismissed.