Delhi High Court
Ajit Kumar vs Union Of India & Ors. on 1 July, 2015
Author: Pradeep Nandrajog
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on : May 20, 2015
Judgment Delivered on : July 01, 2015
+ W.P.(C) 6969/2011
AJIT KUMAR ....Petitioner
Represented by: Ms.Rekha Palli, Sr.Advocate
instructed by Ms.Punam Singh and
Ms.Garima Sachdeva, Advocates
versus
UNION OF INDIA & ORS .....Respondents
Represented by: Mr.Kirtiman Singh, Advocate with
Mr.Waize Ali Noor and Ms.Prerna
Shah Deo, Advocates
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MS. JUSTICE PRATIBHA RANI
PRADEEP NANDRAJOG, J.
1. Responding to an advertisement issued by the respondents in the
Employment Service Tamil Weekly dated April 21-27, 2010 inviting
applications amongst others, for total 19 posts of Head Constable
(Workshop) in the Water Wing of Border Security Force (BSF),
petitioner who belongs to Hindu Kammalar Community which is notified
as an Other Backward Class (OBC), applied for the post.
2. The post of Head Constable in BSF, is governed by the Border
Security Force Water Wing "C" Recruitment Rules, 2005 published by
notification dated June 29, 2005. Per Rule 4 of these Rules, method of
recruitment, age limit, qualification etc. are to be as specified in the
Schedule. For the post of Head Constable (Workshop), the following has
been prescribed in the Schedule as the Educational and Other
Qualification required for Direct Recruits:-
"(1) Matriculation from a recognised Board or equivalent;
and
(2) ITI Diploma Diesel Engine or Machinist or Welder or
Machine Shop or Carpentry or Electrician or Fitter or Turner
from recognised institution; and
(3) One year experience in the Trade." (Bold by us)
3. Petitioner possesses the requisite qualification, being a qualified
Electrician holding National Trade Certificate from National Council for
Vocational Training in July 2001.
4. The advertisement dated April 21-27, 2010 in para 2 thereof,
provided the age limit for the candidates as between 20 to 25 years. The
crucial date for determining the age limit was to be the closing date for
receipt of application from the candidates i.e. 30 days from the date of
publication of the advertisement. The upper age limit for the candidates
belonging to SC/ST, Govt. Servants (Including serving BSF Personnel)
was relaxable by 5 years and for OBC by 3 years. The Selection
Procedure prescribed in para 3 was to be as under:-
"a) Written Examination
b) Documentation and physical measurement
c) Physical efficiency test
d) Interview and medical examination"
5. The Selection Procedure was to be held in two phases. The first
phase included the written examination whereas the second phase
included documentation and physical measurement, physical efficiency
test and interview followed by medical examination.
6. The respondents however, by a common letter invited all the
candidates for all the posts advertised for both the phases of selection.
7. Result of Written/Physical Efficiency Test/Interview for the
various posts was published on November 16, 2010 wherein petitioner
was declared fit for the post of Head Constable (Workshop). However, in
the final result published on January 31, 2011 name of the petitioner did
not appear in the list of total 11 candidates selected for appointment to the
post of HC (Workshop). Petitioner claims to have made representation
dated February 17, 2011 followed by representations/reminders dated
March 16, 2011 and June 06, 2011. It is claimed that the respondents did
not give any reply to these representations. Petitioner finally approached
this Court praying for a writ of mandamus to appoint the petitioner as a
Head Constable (Workshop).
8. The respondents in their reply point out that since the posts of
Head Constable (Workshop) involved different Technical Trades namely
Diesel Engine Mechanic, Machinist, Welder, Carpenter, Electrician,
Fitter, Turner etc., a Board of Officers was constituted by the respondents
to work out the requirement of different trades and for recommending
trade-wise distribution of the posts. The Board asked all the Water Wing
establishments to submit their trade-wise requirement of the Workshop
Staff taking the requirements of different trades and the ground realities
into account. The Board thus, vide its recommendation dated March 10,
2008, recommended trade-wise allocation of posts to separate Water
Wing establishments. The trade-wise allocation of Workshop Staff was as
under:-
HC/ KMR Jammu PB Guj M&C A&M NB SB
authorised
Distribu-
tion
Recommended
Recommended
Recommended
Recommended
Recommended
Recommended
Recommended
Recommended
Proposed
Proposed
Proposed
Proposed
Proposed
Proposed
Proposed
Proposed
(Diesel &
Petrol)
Motor - - - - - - 4 - - - 3 - 1 - - -
Mech.
nics
Turner - - - - - - 1 - - - 2 - - - 1 -
In view of the trade-wise vacancies, a corrigendum dated August 17,
2010 to the initial advertisement was published. In the corrigendum, the
number of vacancies were distributed not only trade-wise, but category-
wise namely SC/ST/OBC or UR also. As per the corrigendum, the trade-
wise/category wise division of the vacancies in the grade of HC
(Workshop) was as under:-
Vacancy
Sr. Post Gen OBC SC ST Total
No.
3. Welder Nil Nil Nil Nil Nil
6. Fitter Nil Nil Nil Nil Nil
7. Turner Nil Nil Nil Nil Nil
9. According to the respondents this corrigendum was published prior
to the selection process scheduled to be held with effect from October 15,
2010 to October 22, 2010 at the three centres namely Jalandhar, Kolkata
and Bangalore.
10. Though the petitioner had cleared both the first and the second
phase of examinations but in the final result of selected candidates
published on the BSF website on January 13, 2011 on the basis of the
vacancies available for each category in respective trades, his name was
not shown as a selected candidate and for which the reason was that in the
trade of Electrician only one vacancy was available to be filled by a
candidate in the unreserved category. As per the respondents since the
petitioner had applied for selection as an OBC candidate and had availed
the benefit of age relaxation by three years he could not be considered as
a candidate in the unreserved category.
11. Though the petitioner has claimed in the rejoinder that the
corrigendum dated August 17, 2010 was never published and in the initial
advertisement as also in the final selection list, no such trade
wise/category wise bifurcation has been made, yet this claim has not been
substantiated by any document. It is by now settled as observed by the
Supreme Court in the decision reported as 1996 (4) SCC 472 State Vs.
Krishan Chand Khushal Chand Jagtiani which has since been reiterated
in the decision reported as 2013 (14) SCC 304 Mutha Associates & Ors.
Vs. State of Maharashtra & Ors. law presumes and the courts too must
also presume until contrary is established, that a public authority acts
fairly and objectively consistent with public interest and in the interest of
law. The presumption so available in favour of the public authority can be
rebutted by a cogent and satisfactory proof, direct or circumstantial, that
the action lacked bona fides or is infected with mala fides. In the present
case, not even a claim of lack of bona fide or mala fide has been pleaded
by the petitioner. Thus, there is nothing to rebut the presumption of
fairness in the action of the respondents in publishing corrigendum dated
August 17, 2010.
12. Learned senior counsel appearing for the petitioner has contended
that though the cadre of HC (Workshop) consists of various trades, but all
these having been grouped as one category with same pay scale, mode of
recruitment and promotional avenues, the trade-wise distribution of the
entire cadre strength of 99 posts in the cadre of HC (Workshop) could in
no way affect the fact that the post is HC (Workshop) wherein reservation
shall be applied on the cadre as a whole and not with reference to
individual trades. It was submitted that the petitioner admittedly being a
candidate belonging to OBC category would be entitled to be considered
for appointment against the vacancies notified for OBC category,
applying reservation on the cadre as a whole : which will horizontally cut
across all the trades. Petitioner in support relied upon the judgment by a
Division Bench of this Court in W.P.(C) No.1546/2013 All India
Institutes of Medical Sciences Vs. Dillip Kumar Samal & Anr. decided on
December 17, 2013.
13. In service jurisprudence, the term „cadre‟ has a definite legal
connotation. In the legal sense, the word „cadre‟ is not synonymous with
„service‟. Fundamental Rule 9(4) defines the word „cadre‟ to mean the
strength of a service or part of a service sanctioned as a separate unit.
There can be no difference of opinion that the expressions „cadre‟, „posts‟
and „service‟ cannot be equated with each other and are distinct concepts,
yet it is open to the government to constitute as many as cadres in a
particular service as may be chosen according to its administrative
convenience and expediency. The government may also group different
posts in a unified cadre with the rider that unequals will not be treated as
equals. Thus, distinct posts or trades in the same scale of pay having
similar/identical conditions of service though not interchangeable, may be
grouped together according to the administrative convenience of the
government. The Supreme Court in the decision reported as 1999 (3)
SCC 435 State of Orissa & Ors. Vs. Kishore Chandra Samal & Ors.
approved grouping of different posts in equal time scales having duties
and degree of responsibilities of the same nature in one single cadre.
14. In the present case, Recruitment Rules for the post of HC
(Workshop) would reveal such grouping of different trades into one
single cadre of HC (Workshop). The Rules, prescribe the essential
qualification for the post of HC (Workshop) as (1) Matriculation from a
recognised Board or equivalent; and (2) ITI Diploma Diesel Engine or
Machinist or Welder or Machine shop or Carpentry or Electrician or
Fitter or Turner from recognised institution; and (3) one year experience
in the Trade. Thus, use of the word „Trade‟ in the qualification prescribed
in the Rules, makes it clear beyond doubt that besides the qualification
i.e. Matriculation from a recognised Board or equivalent which is
common for appointment to the post of HC (Workshop) in any of the
Trade, ITI Diploma from recognised institution and one year experience
has to be in „the Trade‟. Therefore, a candidate holding Diploma in a
trade and having experience in that trade, shall not be eligible for
appointment in any other trade. Thus, the language of the Rules clearly
reveals that posts in different Trades have been grouped into one cadre
i.e. HC (Workshop). Parties are ad-idem on the fact that the posts in
different Trades in the grade of HC (Workshop) are not interchangeable
and understandably, HC (Workshop) in the trade of Carpenter cannot
perform the work of a HC (Workshop) in the trade of Electrician or
Welder or Mechanic etc. Thus, there is no escape from the conclusion
that the posts in different trades such as Mechanic, Machinist, Welder,
Electrician, Machine shop, Carpentary, Fitter, Turner, Plumber, Upholster
and Painter etc. are distinct and separate and have been grouped into one
cadre of HC (Workshop) for the purposes convenience. These distinct
posts shall not lose their individual characteristics merely because these
are grouped together. Therefore, the contention on behalf of the petitioner
that since the posts have been grouped as HC (Workshop) in the
advertisement as also in the final result, they are to be treated as one for
all purposes, is misconceived.
15. The posts in various trades in the cadre of HC (Workshop) being
distinct and separate, will thus, have to be treated as separate posts. Since
there is plurality of posts in different trades, reservation shall be
applicable to the posts in each trade than to the cadre as a whole. Reliance
placed on behalf of the petitioner on the judgment on this Court in the
case of Dillip Kumar Samal (supra) authored by one of us (Pradeep
Nandrajog, J.), is equally misplaced. In Dillip Kumar Samal‟s case, the
issue raised was of applicability of 3% reservation envisaged under
Section 33 of the Persons with Disabilities (Equal Opportunities,
Protection of Rights and Full Participation) Act, 1955, to the post of
Senior Resident in AIIMS. In that case, this Court has held that the post
of Senior Resident though has different disciplines without scope of any
inter-changeability amongst the disciplines, it would not mean that for the
purpose of effecting reservation under Section 33 of the Act, such
different disciplines would constitute separate posts constituting separate
cadres.
16. In Dillip Kumar Samal‟s case, this Court was dealing with a case
of horizontal reservation which would cut across the vertical including
unreserved posts. Section 32 of the Persons with Disabilities (Equal
Opportunities, Protection of Rights and Full Participation) Act, 1955
envisages identification of the posts for the purpose of application of
reservation under Section 33 thereof. It was in this context that this Court
in the light of the Act being a beneficial legislation held that for the
purposes of application of reservation envisaged under Section 33 on the
„posts‟ identified by the appropriate government under Section 32
thereof, all the disciplines though without scope of any inter-
changeability amongst them, would be constituted as one group
whereupon reservation of 3% to the posts so identified, shall be
applicable. In the present case, however, as against in Dillip Kumar
Samal‟s case (supra), the claim is for reservation under Article 16(4) of
the Constitution of India as a candidate belonging to Other Backward
Category. Reservation under Article 16(4) of the Constitution, shall be
applicable with reference to the total number of posts in a trade unlike the
„posts‟ identified under Section 32 as was the case in the case of Dillip
Kumar Samal (supra). Therefore, the law laid down in the case of Dillip
Kumar Samal (supra) has no application to the facts of the present case.
17. Petitioner is a qualified Electrician holding National Trade
Certificate from National Council for Vocational Training. Therefore, the
application of the petitioner for the post of HC (Workshop) cannot in
terms of the qualification prescribed under the Rules, be considered
holding qualification for the post in any other trade than Electrician.
Therefore, the application of the petitioner for the post of HC (Workshop)
could be considered only for the post in the trade of Electrician.
Corrigendum dated August, 17, 2010 to the initial advertisement has
clarified that there existed only one vacancy in the trade of Electrician
which was to be filled from amongst the candidates belonging to General
(UR) category. Thus, there being no vacancy available to be filled from
amongst the candidates belonging to OBC, the candidature of the
petitioner could be considered for the available vacancy only if the
petitioner would qualify without availing the benefit of reservation. It has
been contended that the petitioner was declared topper amongst the
candidates selected in the result dated November 16, 2010 and therefore,
the petitioner could not have been denied appointment. However, even
this claim of the petitioner is not maintainable. It is settled that by mere
selection, the petitioner would not acquire an indefeasible right to
appointment unless there exists a vacancy against which the petitioner
could be appointed. Petitioner in the present case, applied as a candidate
belonging to OBC category having availed the benefit of reservation in
terms of relaxation in the upper age limit. Thus, the petitioner cannot
claim himself to be his own merit candidate as it is settled that only such
SC/ST/OBC candidates who are selected on the same standards as
applied to General candidates can be treated as such. Petitioner having
availed benefit of upper age limit relaxation cannot be termed as "own
merit candidate" to be adjusted against unreserved vacancies.
18. In the present case, it is not in dispute that in the trade of
Electrician there existed only one vacancy to be filled from amongst the
candidates belonging to General category. Applying the standards as
applied to General candidates, petitioner would be over-aged and thus
ineligible to be considered against the available vacancy in the trade of
Electrician. Resultantly, the petitioner has failed to make out any case.
19. The writ petition is dismissed but without any order as to costs.
(PRADEEP NANDRAJOG)
JUDGE
(PRATIBHA RANI)
JUDGE
JULY 01, 2015
mamta
