1. Vijender Kumar, Head Clerk in the office of respondents, the applicant herein, has filed this Original Application under Section 19 of the Administrative Tribunals Act, 1985, seeking to set aside order dated 23.5.2007 (Annexure A-I), whereby, as per the case set up by the applicant, ineligible candidate, namely, Shri Ram Singh, arrayed as 4th respondent herein, has been called for selection for the post of OS-II, which is contrary to the settled law. In consequence of setting aside of the order aforesaid, the applicant further prays for a writ in the nature of mandamus directing the respondents to consider him for the post of OS-II and to accord him all consequential reliefs.
2. The facts on which the connected reliefs as mentioned above are sought to rest reveal that the applicant joined services of the respondents in the year 1980, and is currently holding the post of Head Clerk in grade Rs. 5000-8000. It is the case of the applicant that next promotion in the hierarchy of posts is that of OS-II and he is eligible to be considered for that post. It is further his case that instead of considering him for the post of OS-II, with a mala fide intention, the respondents are still continuing with the post in a downgraded form which would be evident from letter dated 31.7.2003 (Annexure A-III), just to frustrate his legitimate claim. Against downgrading of the post the applicant made a representation on 12.12.2005, but the same remained unanswered, thus constraining him to give reminder on 15.2.2006. The respondents vide letter dated 17.3.2006 informed him that there was only one post of OS-II which was occupied by Shri Chaudhary. The applicant was not satisfied with the reply received by him and, therefore, gave yet another representation clearly stating that if one post had been abolished, then how come Ram Singh came to be selected on the downgraded post. It is then the case of the applicant that suddenly, in contravention of their own stand, the respondents are now conducting selection for the two posts of OS-II, whereas as per their own stand, there is only one sanctioned post of OS-II. It is further averred in the Application that selection is being conducted for two posts, whereas only one post exists in reality, which is to confer undue benefit to Ram Singh who does not even fall in the zone of consideration.
3. Even though, facts constituting the cause of the applicant are not clearly spelt out from the averments made in the Application, Shri Amit Anand, the Learned Counsel representing the applicant, would mainly contend that there were two posts of OS-II, but one post was downgraded with a view to accommodate respondent Ram Singh, and he was appointed in the said post. It is further stated that in 2003 there were definitely two posts of OS-II but only one was filled, and it is in July, 2003 that one post was downgraded and Ram Singh was accommodated, as mentioned above. It is further urged by him that the applicant who is Head Clerk is eligible for promotion to the post of OS-II. Shri Chaudhary who was occupying the one post of OS-II has retired, and in the manner aforesaid the said post became vacant. It is urged by him that if the post is only one, Ram Singh would not be eligible to be considered against the said post, as the service rendered by him on a downgraded post cannot be counted, and if the posts were two, as is now made to look, which is now to be filled on permanent basis, the procedure to fill up both the posts cannot be the same, or in other words, separate procedure has to be followed for selection.
4. Pursuant to notice issued by this Tribunal, the respondents have entered appearance and filed their counter reply, from where only the facts can be clearly gathered. It has been inter alia pleaded in the counter reply that the applicant has not stated all the relevant facts in the Original Application and has concealed many relevant facts which go to the root of the matter. It is pleaded that selection for one post of OS-II grade Rs. 5500-9000 in Budget Branch, Northern Railway was initiated and written test to this effect was scheduled for 14.12.2006, wherein three eligible seniormost candidates including the applicant were called. It is further pleaded that in the meanwhile one work-charged post of OS-II in grade Rs. 5500-9000 was sanctioned by the competent authority vide order dated 2.2.2007 (Annexure R-1). The subject/caption of Annexure R-1 is 'Creation of one work charged post of Office Suptt.II Grade Rs. 5500-9000 (NG) in Central Budget Branch', wherein it has been mentioned that the currency of work-charged post of OS in grade Rs. 5500-9000 would be extended from year to year as the work of Budget Branch is of permanent nature. It is further pleaded that to avoid repeated selection or keeping the post vacant for a longer period, it was decided by the competent authority that the present selection may be discontinued and the fresh selection for two posts of OS-II in grade Rs. 5500-9000 may be initiated so that both the posts are filled simultaneously. Selection for two posts of OS-II was initiated, and out of these two posts, one was reserved for SC candidate, and by applying the ratio of 1:3, three candidates belonging to unreserved community and three belonging to SC community were required to be called. Three candidates belonging to unreserved community, including the applicant, being the seniormost, were called for written test. Only two candidates belonging to SC community with two years service in immediate preceding grade were available, and as such both were called for examination. It is admitted that in the present selection the applicant remained the seniormost candidate.
Total five candidates (three from unreserved and two from SC communities) were called for selection as per letter dated 23.5.2007 (Annexure R-2). Written test for the aforesaid selection was fixed for 22.6.2007 and in the meanwhile the applicant submitted a representation dated 6.6.2007 seeking the benefit of restructuring from 1.11.2003, failing which his unwillingness may be registered against the written test. At the same time, the applicant filed the present Application which was listed for 12.6.2007, on which date the Tribunal issued short notice and granted interim direction to the effect that result of the written examination proposed to be held on 22.6.2007 would be subject to the final outcome of the present Application. It is the case of respondents that as a result of cadre restructuring of ministerial staff Group 'C' of Budget Branch in terms of Railway Board's letter dated 9.10.2003 circulated by the Northern Railway, the cadre was restructured w.e.f. 1.11.2003 and one post of OS-II in grade Rs. 5500-9000 was decreased and a letter to that effect was issued on 12.8.2004. Written test for the post of OS-II was conducted on 22.6.2007 wherein one candidate, Kasmlesh Kumari (SC) submitted her refusal and the applicant did not appear at all. It is the case of respondents that whether the test was being held for one post or more, the applicant remained the seniormost, and his prospects for qualifying and placement on the panel remained the same, and it could not have any adverse affect on the applicant because anyhow he had first to qualify the selection for finding a place on the panel. The post of OS-II in grade Rs. 5500-9000 is stated to be a selection post and the applicant without qualifying the selection cannot be promoted on the said post.
It has further been clarified that one post of OS-II in grade Rs. 5500-9000 was downgraded as Head Clerk in the grade Rs. 5000-8000 and respondent Ram Singh, the seniormost SC Clerk, was promoted vide letter dated 31.7.2003 as Head Clerk in grade Rs. 5000-8000, as he had more than two years experience in the immediate preceding grade which was required for promotion to the post of OS-II in grade Rs. 5500-9000 as per recruitment rules. It is the case of respondents that after restructuring in the Budget Branch, there remained only one post of OS-II in grade Rs. 5500-9000.
5. The applicant has filed rejoinder wherein inter alia it has been pleaded that the respondents have admitted that in the year 2004 one post of OS-II was surrendered, and that being so, the said year onwards there was only one regular post on which Shri Chaudhary was working, and that there was no post left (downgraded or otherwise) on which respondent Ram Singh could work because there has to be a post first and then only a person can work thereon. It is then pleaded that now two vacancies of different years and of even different kind are being clubbed which is not sustainable. The applicant also takes exception to clubbing two vacancies of different kind, which, according to him, has caused him prejudice.
6. We have heard the Learned Counsel representing the parties and with their assistance examined records of the case.
7. No occasion would arise, at this stage for the applicant, to lament downgrading one post of OS-II and appointing respondent Ram Singh on the same, as that was done in 2003. The applicant would not make any complaint of that at that stage. Insofar as the plea of the applicant canvassed through his Learned Counsel that if the post is only one, Ram Singh would not be eligible to be considered against that post as the service rendered by him on a downgraded post cannot be counted, is concerned, suffice it to mention that even if the said service is not counted, Ram Singh would have sufficient and requisite experience to compete for the post under contention. We fail to understand as to on what basis it is being urged that the procedure to fill up both the posts cannot be the same. In any case, once, the applicant was given a fair chance to compete for the unreserved vacancy, for which alone he could compete, whether both the posts were to be filled in one go or otherwise, would have not made the least difference to the case of the applicant. The plea raised by the respondents in their counter affidavit that one post reserved for SC candidate has not been disputed in the rejoinder filed by the applicant. The applicant, it appears to us, has to blame himself for creating an unnecessary row, and in the bargain not even competing for the post of general category, for which he was invited. It is not disputed that as per recruitment rules, the promotion is selection-based and, therefore, without competing for selection and on the basis of seniority alone, the applicant cannot clamour for promotion to the post under contention.
8. Finding no merit in this Application, we dismiss the same, leaving, however, the parties to bear their own costs.