Govt. Of Nct Of Delhi And Anr. vs Sh. Anil Kumar And Ors.
2013 Latest Caselaw 4048 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI
                                           Date of decision: 10.09.2013
+      W.P.(C) 5665/2013, C.M. APPL.12536/2013 & 12537/2013
       GOVT. OF NCT OF DELHI & ANR.                ..... Petitioners
                     Through : Sh. Arjun Pant, Advocate.

                          versus

       SH. ANIL KUMAR & ORS.                      ..... Respondents

Through : Dr. K.S. Chauhan, Sh. Ajit Kumar Ekka and Sh. Ravi Prakash, Advocates, for Resp. No.1. Sh. Naresh Kaushik and Ms. Aditi Gupta, Advocates, for UPSC.

HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE NAJMI WAZIRI

MR. JUSTICE S. RAVINDRA BHAT (OPEN COURT) %

C.M. NO.12536/2013 (for exemption) Allowed, subject to all just exceptions.

W.P.(C) 5665/2013, C.M. NO.12536/2013 (for stay)

1. The Govt. of NCT of Delhi claims to be aggrieved by the order of the Central Administrative Tribunal (CAT) dated 09.01.2013 by which the first respondent's application for appropriate directions to quash the letter of 29.09.2011, addressed to the Union Public Service Commission (UPSC) by the Govt. of NCT of Delhi, was allowed. The Govt. of NCT of Delhi had requisitioned the UPSC to fill up three vacancies in the cadre of Assistant Engineer (Mechanical) in the Irrigation and Flood Control Department, Govt. of NCT of Delhi on 17.03.2008. The advertisement was accordingly issued sometime in

W.P.(C)5665/2013 Page 1 March 2010. The first respondent had applied in the Reserved Category - Scheduled Castes (SC) and participated in the recruitment process. On 31.03.2011, UPSC recommended three names - one against the single reserved vacancy and two against the General category Unreserved vacancies. The first respondent is recommended to the vacancy reserved for SC. In this background, on 05.01.2011, the Govt. of NCT of Delhi asked the UPSC to fill up only two vacancies on the basis of the post-based reservation roster, for General category vacancies. The letter reads as follows:

"To,

Sh. Vijay Kumar, Under Secretary, Union Public Service Commission, Dholpur House, Shahjahan Road, New Delhi-110069.

Sub:Recruitment to the Three posts of Assistant Engineer/Assistant Surveyor of Works (Mechanical) in Irrigation & Flood Control Department, Govt. of NCT of Delhi

Sir,

With reference to your letter No. F.1/87/2008-R-III dated 27.12.2010, I am directed to request you that at present the Government has decided to fill up only two (02) vacancies and as per Post Based Reservation Roster these two (02) vacancies fall under the category of Unreserved vacancies. Therefore, it is requested that the interview may be conducted in respect of two (02) Unreserved vacancies and recommendation be made accordingly.

W.P.(C)5665/2013 Page 2 I am directed to say that the duty of Assistant Engineers/Assistant Surveyor of Works (Mechanical) in I&FC Department namely comprise of running & maintenance of machinery i.e. pumps, dragline, bulldoggers, trucks, exactors, dredgers, responsible to carry out electrical works and other Mechanical works.

Sh. V.P.S. Tomar, Chief Engineer (I&FC), Zone-I on current duty charge, 4th Floor, ISBT Building, Kashmere Gate, Delhi-6, his telephone No.(O) 23864919 and Mobile No. 9958689666 will represent as a Representative of Irrigation & Flood Control Department, Govt. of NCT of Delhi to apprise/brief the interview board. He is working in the pay scale of Rs.15,600-39,100 + 7600 G.P. which is equivalent to the Deputy Secretary, Govt. of India.

It is also informed that no court cases/orders are pending with regard to direct recruitment of this post.

All the folders of the applicants received by this department are returned herewith in original.

Yours faithfully, Encl: As above.

Sd/-

(S.S. KANAWAT) ADDL. SECRETARY (I&FC)"

2. The respondent approached the CAT for a direction that the Govt. of NCT of Delhi's letter should be quashed. Before the Tribunal, the Government's position was that even though the requisition originally indicated one vacancy as falling to the share of SC candidates, yet on a closer examination, it was discerned that such

W.P.(C)5665/2013 Page 3 vacancy ought to have gone to the Other Backward Class (OBC) category employees. The CAT further rejected the contentions of the petitioner, the Govt. of NCT of Delhi, holding as follows:

"5. It is not denied that initially the requisition had been sent for one post of SC, against which the applicant had been recommended. Learned counsel for Govt. of NCT of Delhi argued that the department had made a mistake in computation probably because two candidates who had been recommended and had not joined in the past were also counted in the roster. Consequently, the post recommended for filling up by UPSC were No. 5th, 6th and 7th in the roster, the 7th being one for SC candidate. However, if two candidates who had earlier been recommended by UPSC and had not joined were excluded than the posts which would be filled up would have No. 3rd, 4th and 5th in the roster, the 4th being for OBC candidate. Learned counsel for the applicant has argued that two candidates who had earlier worked as Assistant Engineers, namely, Sh. Ajit Prasad and Sh. R.K. Mandhar should also be counted while operating the roster. However, learned counsel for respondent No.1 pointed out that these two officers had been promoted to higher post in 1982/1983 much before the roster came into operation from 1997. As such, this contention of the applicant is not acceptable."

3. Learned counsel for the Govt. of NCT of Delhi endeavoured to submit on the basis of pleadings on record, especially paras 3.7 and 3.8 of the reply to the first respondent's application that according to the prevailing circulars and roster position, the vacancy earmarked for SC category candidate was to be filled by an OBC candidate. It was submitted that the Tribunal fell into error in not appreciating the aspect of the matter.

W.P.(C)5665/2013 Page 4

4. This Court has carefully considered the submissions. Ex-facie, the letter dated 05.01.2011 of the Addl. Secretary (I&FC), Govt. of NCT of Delhi nowhere states that the vacancy position is such that the post earmarked for being filled by SC ought to be filled by some other candidate or that it rightly falls to the share of an OBC. All that the letter states is that instead of filling three vacancies, the UPSC should fill only two in the unreserved category. Such being the position and the Govt. of NCT of Delhi not having produced any documents in support of contention that the third vacancy actually fell to an OBC category candidate or that it had been earlier occupied by an OBC candidate, no fault can be found with the impugned order of the CAT. The petition being meritless is accordingly dismissed along with the pending application.

S. RAVINDRA BHAT (JUDGE)

NAJMI WAZIRI (JUDGE) SEPTEMBER 10, 2013

W.P.(C)5665/2013 Page 5