Ravindra Kumar Vs. the Commissioner of Police Police Headquarters, New Delhi and Another

SHRI M.L. CHAUHAN:

1. The applicant has filed this OA, thereby praying for the following reliefs:-

“(a) direct the respondents to consider the candidature of applicant as open/SC candidate and consequently declare his result to the post of Sub-Inspector (Ex.) and offer him appointment to the post with all consequential benefits

(b) award costs of the proceedings and

(c) pass any other order/direction which this Hon’ble Tribunal deem fit and proper in favour of the applicant and against the respondents in the facts and circumstances of the case.”

2. Briefly stated, facts of the case are that the respondents issued an advertisement in the Employment News dated 17-23.1.2009 for filling up of 400 vacancies of Sub Inspector (Executive) Male in Delhi Police. Out of 400 vacancies, 320 were meant for open category, 40 were meant for departmental candidates and remaining 40 meant for ex-servicemen. Out of 40 vacancies meant for departmental category, 21 vacancies were meant for general category candidates, 9 for OBC, 7 for SC and remaining 3 for ST category candidates. As can be seen from paragraph 3 (c) (iv) of the advertisement, a “departmental candidate” means a Constable, Head Constable or an Assistant Sub Inspector enlisted in Delhi Police with a minimum of 5 years service and who otherwise fulfills all other qualifications. Sub para 3 (c) (v) of the advertisement prescribed age relaxation in respect of the departmental candidates. The applicant, who was having more than 5 years of service in the rank of Constable, applied for the aforesaid post under departmental category being SC candidate. This fact is also not disputed by the applicant in this OA. The applicant after qualifying the physical endurance and measurement tests and also qualifying the written examination was asked to appear before the interview board. It is not disputed that the applicant obtained 135 marks whereas the minimum cut-off marks of departmental SC category is 136, as such the applicant could not be selected against the departmental category. Now the grievance of the applicant is that he should be considered against the open category, as the final cut-off marks for open category is 126.

3. The question, which requires our consideration, is whether the applicant, who has applied under departmental category, can be allowed to change his category after the declaration of the result? According to us, the matter is no longer res integra, which stands decided by the coordinate Bench of this Tribunal in Mahesh Kumar v. Govt. of NCT of Delhi and another (OA-913/2010) decided on 3.6.2011 and in Karamvir v. Govt. of NCT of Delhi and another (OA-273/2010) decided on 3.6.2011. The decision in Mahesh Kumar’s case (supra) was also relied upon by this Tribunal in Rajender Singh v. Govt. of NCT of Delhi and another (OA-4031/2010) decided on 5.8.2011. At this stage, it will be useful to quote paragraphs 11 to 15 of the decision in Mahesh Kumar’s case (supra), which thus read:-

11. At this stage, we may advert to the advertisement, application forms of the Applicant and associated facts for analysis. Admittedly, the Recruitment of Sub-Inspector (Executive-Male in Delhi Police-2009 advertisement furnished interalia the information which is relevant to determine the issue flagged in this OA.

Item No.1 in the Advertisement:

1. Applications are invited to fill 400 vacant posts of Sub-Inspector (Executive)-Male in Delhi Police under the following categories in he pay scale of PB-2 Rs.9300-34800+Grade pay Rs.4200/- and other allowances as admissible. Recruitment will be held at Delhi for which candidates from all parts of the country fulfilling conditions mentioned hereunder can apply :-

6. Category: Candidate should Tick (?) the right category to which he belongs.

Example: If candidate belongs to general category, the box against “General" category should be tick marked as (?).

7. Other Category: Candidate should tick (?) the right category to which belongs.

Example

(i):-If candidate is applying as an “ex-serviceman”, then tick (?) the box and write the date of discharge.

(ii) If candidate is applying as a “departmental candidate”, then tick the box and write the date of enlistment.”

IIIItem 6 and 7 in the Application form

“6. Category 1. SC

2. ST

3. OBC

4. General 5. 6. 7.7. Other Category

8.12. The Advertisement by Delhi Police is unambiguous about the following (i) the vacancies are to be filled up only by direct recruitment through a selection procedure; (ii) the candidates have option of 3 categories viz (1) open, (2) Departmental, and (3) Ex-Serviceman, (iii) number of vacancies earmarked for UR and Reserved has been clearly mentioned (iv) the reserved vacancies have been quantified for SC, ST and OBC, (v) the advertisement provides an application form to be filled up by the candidates wherein it has interalia provides the candidates to tick (?) Item No.6 and 7 for which the advertisement provides the guidance at para No.6 and 7 to the candidate to tick (?) the right category to which the candidate belongs; (vi) the tick (?) is to be marked in item No.6 for the UR or Reserved Candidate where 4 boxes exist for SC, ST, OBC and UR; (vii) in the item No.7, there are only two boxes viz Ex-servicemen and Departmental candidate and (viii) the candidate applying for any of these two categories in item has to tick (?) according to the candidates eligibility. These facts lead us to infer that if a candidate does not belong to Ex-Servicemen and Departmental Categories, the candidate need not have to tick this item No.7. Thus such candidate, as per the advertisement will be automatically considered by the Respondents in the Open Category. If such candidates belonging to any of the categories mentioned therein as SC/ST/OBC/UR ticks the relevant box, the candidate will be considered accordingly. The counsel for the Applicant contends that the Applicant belongs to “SC” Category which he has ticked and as such he should have been considered for “SC-Open Category”. The Respondent’s counsel contradicts the same to say that once the Applicant exercises option in “other categories” in Item No.7, he cannot be considered in the “open” category. Between, these two interpretations by the parties, we are not convinced of the stand taken by the Applicant and we find logic and rationality in the stand of the Respondents.

13. Admittedly, the Applicant belongs to SC Category and has ticked the “SC” box in his application form. There is no issue on this point. But the claim of the applicant in the OA is that he should have been considered for two categories of vacancies viz (i) “SC-Open Category” and (ii) “SC-Departmental Category”. This claim has come in the OA. He has not raised this issue at the time of submitting the application with the Respondents. Is he entitled to change his option after the result of the selection process published? On this question, the law laid by Hon’ble High Court of Delhi in Jata Shankar Shukla’s case (supra) that the candidate cannot change the information furnished in the application form at a subsequent stage is fully applicable here. Once the Applicant exercised the option in item 7 as “Departmental Candidate”, cannot now claim that he should be considered in the open category. The advertisement and the application form do not envisage for a candidate to apply for two categories mentioned in item No.6, even if the candidate is eligible for more than one category mentioned therein. In case of the Applicant, it is noticed that he is qualified to apply as open SC candidate or Departmental SC Candidate. He chose to be considered as Departmental SC Candidate and now his claim to change to be treated as open SC candidate is not legally and procedurally admissible.

14. It so happened that in the selection for the vacancies the cut off mark for the open SC Candidates is lower (126) than the Departmental SC Candidates (136) and the Applicant having secured 133 marks , he is taking chance through the OA seeking direction to consider him for the vacancies in Open SC Category. This in our opinion is an after thought. But, once he has exercised his option to be considered in the Departmental SC Category, he cannot get favourable order from the Tribunal to treat his candidature in the Open SC Category.

15. Considering the facts and circumstances of the case and our analysis above, we come to the considered conclusion that the Applicant is not entitled to be considered in the SC Open Category vacancies.”

4. According to us, the reasoning given by this Tribunal in the aforesaid case, relevant portion of which has been reproduced hereinabove and pertained to the same selection, is squarely applicable in the facts and circumstances of the present case. Once the applicant has applied under the departmental category, he cannot be permitted to be considered against the open category.

5. Learned counsel for applicant has also drawn our attention to the judgment of the Apex Court in the case of Jitendra Kumar Singh and another v. State of U.P. and others, 2010 (1) SLR 526 to contend that since the applicant has not obtained the benefit of relaxation of age under departmental category, he should be considered as a general category candidate. We fail to understand how the applicant can take assistance from this judgment. It is not the case of the applicant that against the departmental category, general candidate, who has been selected, has secured less marks than the applicant, as such he should be considered as general category candidate. Here the applicant wants his consideration against the open category for which he has never opted. Thus, the ratio laid down by the Apex Court in the case of Jitendra Kumar Singh (supra) is not attracted in the facts and circumstances of the present case.

6. Learned counsel for applicant has further argued that in respect of the combined graduate level examination 2001, the Staff Selection Commission has selected one departmental candidate under un-reserved standard. The respondents have filed additional affidavit qua this aspect, as this contention was raised by the learned counsel for the applicant during the course of arguments on 28.10.2010. The respondents in the additional affidavit have stated that no reply is required from the replying respondents, as the selection was made by the Staff Selection Commission. As already stated above, such a contention was raised by the learned counsel for applicant during the course of arguments based on the information supplied under RTI Act of 2005 but no such foundation was laid in the OA as to on what basis such selection was made by the Staff Selection Commission. Be that as it may, the applicant cannot take any assistance from such selection made by the Staff Selection Commission without placing on record the scheme of the advertisement. In any case, we are of the firm view that once the applicant has applied under the departmental category and his result was declared under that category, he cannot be allowed to shift to the open category to the disadvantage of open category candidates, who have been selected under that category.

7. For the foregoing reasons, the OA is bereft of merit and is accordingly dismissed without any order as to costs.