K. George Joseph, Administrative Member
1. This O.A. has been filed by the applicant for the following reliefs :
(i) To issue necessary order or direction to the 3rd respondent for appointing the applicant as Social Security Assistant against the available non-filled sanctioned vacancy meant for OBCs in the direct recruitment quota on the ground that the 11th rank holder Simil K.S not joined for duty under the 3rd respondent as he already got appointed in the Gramin Bank, Panamaram in Wynadu District and the next rank holder to fill the resultant vacancy is the applicant and as such the applicant is eligible and entitled to get the appointment;
(ii) To issue any other appropriate order or direction this Hon'ble Tribunal may deem fit on the facts and circumstances of the case; and
(iii) To allow costs to this proceedings.
2. The applicant had participated in the written examination and skilled test for appointment to the post of Social Security Assistant (SSA) in the Kerala region under the Employees' Provident Fund Organisation (EPFO) in the year 2009. She ranked 66th in the rank list in the OBC category published on 01.05.2010. There were 69 sanctioned posts of SSA for appointment in the Kerala region in the OBC category. Sl. Nos. 1 to 65 from the rank list were selected in the order of their marks. Sl. Nos. 66 to 69 who were far below the applicant were selected for filling up the vacancies set apart for Ex-servicemen. But the 11th rank holder did not join duty as he got an employment elsewhere.
3. The applicant contended that being the 66th rank holder, she is eligible and entitled to be appointed in the non-joining vacancy of the 11th rank holder as SSA. The applicant learnt that the non filled sanctioned posts in all the other 16 States in respect of which the rank lists were published, were filled up in May, 2011 by the next highest rank holders through a 2nd spell of appointment.
4. In the reply statement, the respondents submitted that the 3rd respondent had issued offer of appointment letters to all the 69 candidates and all of them accepted the offer. The 11th rank holder was issued offer of appointment vide order dated 08.10.2010. But he did not report for duty. As there was no vacancy or cancellation of offer of appointment before 30.04.2011, no request was made by him for release of dossier of candidates in the remaining panel. Further, no instruction was received from the 2nd respondent to send an offer of appointment to the applicant. Although the vacancies available were only 17, offer of appointment was given to all the 69 selected candidates belonging to the OBC in Kerala region adhering to the notification in Annexure A-2.
5. In the rejoinder statement, the applicant alleged that the 3rd respondent had purposely not sent any communication regarding cancellation of the appointment of the 11th rank holder to the 2nd respondent on time, even after repeated demands from the 2nd respondent, to enable him to issue necessary orders for appointment of the applicant in the sanctioned unfilled vacancy on the ground that the applicant was the next highest rank holder at Sl. No. 66 in Annexure A-3. If there was shortage of vacancy, applications would not have been invited for filling up of 69 vacancies under direct recruitment quota. Even after finding that only 17 direct recruitment vacancies were available, the 3rd respondent sent appointment letters to all 69 candidates. As the 11th rank holder failed to join duty, a non-joining vacancy arose in which the applicant being eligible, should have been appointed. The time limit fixed for joining duty was seven days. The appointment order to the 11th rank holder was issued on 08.10.2010. Even after lapse of more than six months after expiry of the date fixed for joining duty, no action was taken by the 3rd respondent to make appointment in the non-joining vacancy.
6. In the additional reply statement filed by the respondents, it was submitted that the 3rd respondent had taken action for cancelling the appointment letter issued to the 11th rank holder without waiting for his letter and that SSAs were in excess of the sanctioned strength as on 30.04.2011.
7. We have heard Mr. Vellayani Sundara Raju, learned counsel for the applicant and Mr. N.N.Sugunapalan (Sr.) with Mr. S. Sujin, learned counsel appearing for the respondents Nos. 2 and 3 and perused the records.
8. The short question to be decided in this O.A. is whether the applicant is entitled to be appointed in the non-joining vacancy of the 11th rank holder or not.
9. The respondents had held written and skilled tests to fill up 69 vacancies of SSA meant exclusively for the OBC. If there were only 17 vacancies available as stated by the respondents, there was no sense in selecting 69 persons and sending all of them offer of appointment. Having sent the appointment letters to all 69 candidates, it is not open for the respondent No. 3 to say that there was no vacancy for the applicant when the non-joining vacancy arose.
10. The 11th rank holder was sent appointment letter on 08.10.2010. The 3rd respondent did not dispute the fact that the stipulated time for joining duty was seven days. The 11th rank holder did not join duty within the stipulated seven days as there was a non-joining vacancy. Being the highest rank holder available, the applicant was eligible to be appointed to the non-joining vacancy. She should have been appointed to that post well in time. The plea of the 3rd respondent is that he had not received the non-joining report from the 11th rank holder before 30.04.2011, the last date prescribed for release of dossiers of candidates for filling up the unfilled vacancies. The actions taken by the 3rd respondent to cancel the appointment order issued to the 11th rank holder are not at all convincing.
11. Curiously, the letter rejecting the appointment order received from the 11th rank holder is dated 30.04.2011. In fact, there was no need for the 3rd respondent to have waited for a non-joining letter from the 11th rank holder. As per the condition of the appointment order, the 11th rank holder should have joined duty within seven days. On noticing that he did not join within the stipulated time, the 3rd respondent could have very well appointed the applicant in the non-joining vacancy after obtaining necessary permission. The 2nd respondent had been repeatedly demanding information on vacant posts. There is nothing on record to show that the 3rd respondent responded to the 2nd respondent in all sincerity.
12. The failure on the part of the 3rd respondent in taking effective action to appoint the applicant in the non-joining vacancy of the 11th rank holder to which she was entitled by virtue of her being the next highest rank holder available, should not visit the applicant with civil consequences. The applicant cannot be punished for the delay on the part of the 3rd respondent. He should have at least informed the 2nd respondent about the non-joining of the 11th rank holder well in time and sought direction.
13. In view of the above, the O.A. is liable to be allowed.
14. The O.A. is allowed. The respondents are directed to consider appointment of the applicant as SSA against the non-joining vacancy of the 11th rank holder within a period of 2 months from the date of receipt of a copy of this order. No costs.