ORDER
P. Shanmugam, J. (Vice Chairman)
1. The applicant an Ex-serviceman seeks the following relief:
(i) To set aside the impugned selection and appointment orders No. E/2/Clerks/ RP dated 21.6.2005 passed by the second respondent and
(ii) To direct the respondents to conduct a fresh written examination/practical Test/Interview fairly by giving chance to all eligible candidates like the applicant and to consider the case of the applicant for appointment as Administrative Assistant on Ex-serviceman quota or on UR point if he found more meritorious and
(iii) To pass such further or other orders as this Hon’ble Tribunal may deem fit and proper in the circumstances of the case with cost.
2. According to the applicant, he joined the service as Sepoy in the Indian Military in the year 1985 and retired with effect from 31.12.2002. On seeing the advertisement in the Employment News dated 25-31 December, 2004 calling for applications from eligible candidates for filling up of 7 vacancies in the cadre of Administrative Assistant, he applied for the said post. According to him, he is having all requisite qualifications and applied for selection under the Ex-serviceman quota. The applicant undertook the written examination on 19.6.2005 and he was called for the interview. According to him, he did well in the written test and interview and practical test. While so, to his shock and surprise, he came to know that the second respondent had selected 7 candidates to fill up the 7 vacancies, respondents 3 to 9 herein who are sons and daughters of the employees and who are closely working under the second respondent and Chief Administration Officer. Hence, the above O.A. for the aforementioned relief.
3. On behalf of the official respondents, a reply statement has been filed. According to them, the Appointing Authority gave the guidelines regarding the type of tests to be followed. Regarding the filling up of the vacancies for the Ex-serviceman category, the guidelines directed that recruitment will be from any of the three category of communities, namely UR, OBC, SC. In the open competitive examination, an ex-serviceman enjoys age relaxation benefit only and no other concession is allowed. The applicant is one among the 35 candidates who were shortlisted for practical and personal interview. When the overall merit list was drawn after the three stages of selection i, e. written test, practical and personal interview, the applicant’s name did not figure among the first seven candidates selected based on their rank/merit. The entire selection process was carried out in a fair and transparent manner by an independent Selection Board. They deny the averment that one vacancy was reserved for Ex-serviceman out of the five vacancies allotted for unreserved candidates. They contend that among the 7 vacancies published, one vacancy in any of the community was earmarked for Ex-serviceman since it is horizontal reservation. They deny the allegation of undue favoritism to anybody and aver that every process of recruitment was carried out in a fair manner. Among the seven candidates selected, no one is an Ex-serviceman. The topper amongst the ex-serviceman is at 31st rank whereas the applicant is in 33rd rank only. It is further averred that the reservation for Ex-serviceman has been carried forward to the future recruitments.
4. Learned Counsel for the respondents produced before us a copy of final merit list of the candidates as well as the guidelines issued by the Appointing Authority.
5. We have heard the learned Counsel for the respondents and considered the matter carefully.
6. The above O.A. has to be disposed of on the following question:
Whether the candidates in the Ex-serviceman quota should come within the relative merit list of candidates under General, OBC, SC and ST?
7. The notification for the post of Administrative Assistant (A) under the heading Reservation applied for the posts reads as follows: “SC-1, OBC-1 and UR-5. Out of these, one vacancy is earmarked for Ex-serviceman”…. The specific stand of the respondents in their reply is as follows: After finishing practical and personal interview, the Board prepared a combined merit list and 7 candidates were selected based on the merit and no ex-serviceman figured in the 7 horizontal reservation. In other words, the stand of the respondents is that Ex-serviceman should come within the cut off mark or ranking of 7 selected candidates, From the final list, we see that 5 candidates coming under UR have secured total marks of above 80, OBC candidate has secured 81.5 and the candidate under SC category got 74. The case of the respondents is that since ex-serviceman candidate has got only 60 marks and the applicant has secured only 59 marks they could not be considered for selection. The candidate who have secured 60 marks is not before us. Therefore, it is to be seen whether the procedure for selection of candidate under the Ex-serviceman category is correct?
8. Ex-servicemen (Re-employment in Central Civil Services and Posts) Rules, 1979 have been promulgated as per Notification dated 15.12.1979 (hereinafter referred to as Rules). The recruitment of ex-servicemen under re-employment is done as per this statutory rules. R.4 provides for reservation of vacancies. Rule 4.2 also says that if any ex-serviceman belonging to the Scheduled Caste or Scheduled Tribe is selected, his selection shall be counted against the overall quota of reservation that shall be provided for the Scheduled Castes. Sub-rule (3) of Rule 4 specifically provides that no vacancy reserved for ex-servicemen in a post to be filled by the Appointing Authority by any general candidate, untill and unless the said authority has obtained a No-objection Certificate and has verified the non-availability of suitable candidate by reference to the Director General Resettlement and recorded a certificate and has obtained the approval of the Central Government. Government of India orders under these rules make a special provision regarding educational qualifications and relaxation of minimum educational qualifications. There is an amendment to Rule 6-A for lowering the standard for selection, if sufficient number of candidates belonging to the ex-servicemen are not available on the basis of general standard to fill all the vacancies reserved for them. Rule 7 specifically says that all rules regulating the recruitment of persons to Group ‘C’ and Group ‘D’ posts shall be subject to the provisions of these rules and shall be construed accordingly. Any interpretation has to be referred to the Central Government as per Rule 8. Inspite of these statutory specific provisions, it is rather surprising to this Tribunal that the respondents have chosen to fill up the reserved quota with other candidates. It is clearly not permissible under Rule 4(3).
9. It is further suprising that the merit of candidates who are coming under the Ex-servicemen quota are compared relatively with that of General merit candidates and other reserved candidates of SC and ST. There can be no comparison or relative merit of other candidates in reference to one post reserved for Ex-servicemen. The applicant completely satisfied the educational and other requirements and there is also a provision for relaxation of under Rule 4(5). While so, the interpretation of the respondents that a candidate under the Ex-servicemen quota should secure the same mark as that other categories of candidates is totally unacceptable. The purpose of reservation under these statutory rules is sought to be defeated by this wrong interpretation/Therefore, we are clearly of the view that non-selection of the applicant for the one vacancy reserved for Ex-servicemen quota is illegal and the applicant has made out a case for allowing the O.A. Accordingly, the selection of candidates excluding the applicant from consideration for Ex-servicemen as per the impugned selection and appointment dated 21.6.2005 is set aside and we direct the respondents to consider the case of the applicant to the post of Administrative Assistant under the Ex-servicemen quota. The said exercise shall be completed within a period of one month from the date of receipt of a copy of this order. The O.A. is allowed. No order as to costs.