Union Of India And Ors vs Chander Narayan Joshi
2012 Latest Caselaw 4768 Del

               THE HIGH COURT OF DELHI AT NEW DELHI


%                                          Judgment delivered on: 14.08.2012

+       W.P.(C) 4871/2012


UNION OF INDIA AND ORS                                               ... Petitioners

                                         versus


CHANDER NARAYAN JOSHI                                                ... Respondent

Advocates who appeared in this case:
For the Petitioners   : Mr Jagjit Singh and Mr Amit Dubey.
For the Respondent    : Mr Sudarshan Rajan, Mr S.Ritam Khare, Mr Rajat
                        Agnihotri and Mr Amit Anand.




CORAM:-
HON'BLE MR JUSTICE BADAR DURREZ AHMED
HON'BLE MR JUSTICE SIDDHARTH MRIDUL

                                       JUDGMENT

BADAR DURREZ AHMED, J (ORAL)

CAV.841/2012

The learned counsel for the caveator is present. The caveat stands

discharged.

CM 9994/2012(Delay in re-filing)

The delay in re-filing the appeal is condoned.

This application stands disposed of.

WP(C) 4871/2012 & CM 9993/2012

1. This writ petition is directed against the order dated 07.03.2012 passed

in OA No.3841/2011. By virtue of the said order the Tribunal had concluded

as under:-

"As the 12 waitlisted candidates were not shown in the order of their merit and on the basis of their caste, it cannot be said from the proceedings of this case as to the point at which the applicant's name would fall within the aforesaid 11 unfilled vacancies. We, therefore, direct the respondents to identify the 11 candidates out of those 12 in the Annexure A-3 waiting list in accordance with their merit position and thereafter nominate all of them against those vacancies as per the roster. The aforesaid directions shall be complied with, within a period of two months from the date of receipt of a copy of this order. This original Application is accordingly disposed of. There shall be no orders as to costs."

2. It appears that according to the Tribunal there were 11 vacancies

which were unfilled. However, that, to us, does not seem to be a correct

position.

3. 45 vacancies for Staff Nurses were notified by the Railway

Recruitment Board. These Staff Nurses were to be deployed in Central

Hospitals at New Delhi and the Ambala Division. Initially a list of 42

candidates who had been selected by the Railway Recruitment Board had

been sent. This was followed by a second batch of 3 candidates totalling 45

as against the 45 vacancies. A panel of 12 extra candidates was drawn up by

way of a replacement panel. The respondent was placed in the list of extra

candidates.

4. It is the case of the petitioners that 7 vacancies had arisen on account

of the fact that persons who had been selected had either not joined or had

been declared medically unfit. Out of the 7, 3 vacancies were for the

unreserved (General) category. The other vacancies were for SC and OBC

candidates. Consequently a request was made to the Railway Recruitment

Board to forward a set of 7 candidates from the list of extra candidates. It

appears that the Railway Recruitment Board sent in only 3 candidates, 2 of

which were against the unreserved (General) category. It is the case of the

respondent that out of the vacancies which arose on account of persons not

joining or not declared medically fit, there were only 3 vacancies in respect

of unreserved category. One of those vacancies was filled in by an OBC

candidate who was taken in against that unreserved vacancy. That person

was already in the original panel of 45 at Serial No.21. This meant that there

were only two vacancies available for the unreserved category and those

were filled in by the names forwarded by the Railway Recruitment Board by

virtue of the letter dated 12.12.2011. The learned counsel for the petitioner

drew our attention to paragraphs 4, 5 and 6 of the counter affidavit filed

before the Tribunal. It is apparent from a reading of the said paragraphs that

in respect of the said 45 posts there were 23 vacancies in total for the

unreserved category and they were all filled in by the initial panel as well as

the replacement panel. The respondent did not figure in these 23 vacancies

because he was low down in order of merit in the list of extra candidates.

5. However, we find that this aspect of the matter has not at all been

considered by the Tribunal. The Tribunal has also not ascertained as to

whether there were 7 vacancies or there were 11 vacancies as indicated by it.

The petitioners' case is that there were only 7 vacancies and the respondent's

case is that there were 11 vacancies. Anyhow, the petitioners' case is also

that all the unreserved vacancies have been filled and since the respondent is

an unreserved candidate he cannot be considered at all.

6. In view of the fact that the Tribunal has not examined these aspects

and has not returned clear cut findings in respect of them, we feel that the

Tribunal's order ought to be set aside and the matter be remitted to the

Tribunal for consideration afresh.

7. The impugned order is set aside and the matter is remitted to the

Tribunal for considering the matter afresh in the light of the observations

made in this order. The parties shall appear before the Tribunal in the first

instance on 10.09.2012. The writ petition stands disposed of accordingly.

There shall be no order as to cost.

BADAR DURREZ AHMED, J

SIDDHARTH MRIDUL, J AUGUST 14, 2012 mk