OA No. 3062/2013. Case: Ms. Shweta Bansal Vs Union of India through Secretary, Ministry of Personnel and Public Grievances Department of Personnel & Training and Union Public Service Commission Represented by Chairman. Central Administrative Tribunal

Order:

Dr. B. K. Sinha, Member (A), (Principal Bench, New Delhi)

1. The instant OA, despite the seeming bulk of its pleadings, involves a simpler matter. The applicant has by means of this OA assailed the impugned order (Annexure A-1) allocating services to the selected candidates wherein the applicant has not been allocated any service despite having achieved a rank of 769 in the CSE 2012.

2. The applicant has prayed for the following relief(s):-

Direct the respondents to allot the applicant Indian Administrative Service or Indian Foreign Service. Alternatively, allow the applicant choose a service of her preference from the complete list of service in CSE 2012 in lieu of the services which had been opted by the applicant in the detailed application form but no vacancy is available for the applicant therein.

Pass any other order or direction that this Hon'ble Tribunal may deem it fit and necessary in the facts and circumstances of the present case and in the interest of justice and equity.

3. The facts of the case, in brief, are that the applicant suffers with locomotor disability on the left lower side of the limb with slight muscular weakness in the right ankle and heel. The afore disability has been categorized as per the medical certificate dated 25.08.2011 as OL i.e. one leg affected only on account of having suffered a childhood accident leading to spinal injury. The applicant is a law graduate serving in a Law Firm namely Amarchand & Mangaldas & Suresh A Shroff & Co. for seven years. The applicant had appeared in the Central Services Examination, 2012 (for short CSE-2012); was interviewed and recommended for appointment by the UPSC against 34 vacancies reserved for PH candidates having achieved 769th rank in the general category. The applicant, while filling up the application form, admittedly opted for the following eight services:-

1. Indian Administrative Service

2. Indian Foreign Service

3. Indian Revenue Service (I.T.) Group 'A'

4. Indian Revenue Service (Customs and Excise) Group 'A'

5. Indian Audit and Accounts Service Group 'A'

6. Indian P&T Accounts Services Group 'A'

7. Post of Assistant Security Commissioner in Railway Protection Force

8. Indian Corporate Law Services Group 'A'.

The Press Note issued while recommending the services specified as under:-

following is the list, in order of merit, of candidates who have been recommended for appointment to:-

Indian Administrative Service

Indian Foreign Service

Indian Police Service; and

Central Services, Group A and Group B

A total number of 998 candidates have been recommended for appointment including 457 General (including 23 physically challenged candidates), 295 other backward classes (including 09 physically challenged candidates), 169 Scheduled Castes (including 02 physically challenged candidates) and 77 Scheduled Tribes candidates against 1091 vacancies (550 General, 295 Other Backward Classes, 169 Scheduled Castes and 77 Scheduled Tribes).

The number of vacancies reported by the Government for the Indian Administrative Service is 180 (94 General, 45 Other Backward Classes, 28 Scheduled Castes and 13 Scheduled Tribes); for the Indian Foreign Service is 30 (16 General, 09 Other Backward Classes, 05 Scheduled Castes and 'NIL' Scheduled Tribes); for the Indian Police Service is 150 (75 General, 41 Other Backward Classes, 23 Scheduled Castes and 11 Scheduled Tribes); for the Central Services Group 'A' is 630 (323 General, 172 Other Backward Classes, 89 Scheduled Castes and 24 Scheduled Tribes); and for Central Services Group 'B' is 101 (42 General, 28 Other Backward Classes, 24 Scheduled Castes and 07 Scheduled Tribes). This includes 34 vacancies for physically challenged candidates in Central Services Group 'A' & 'B'.

4. However, when the final allocation of services was made, the name of the applicant was missing. The applicant has challenged the act of non-allocation of any service to her principally on the following grounds:-

(i). The advertisement for CSE 2012 issued in the official gazette dated 04.02.2012 contained in Annexure IV a list of services identified suitable for physically disabled out of which the services opted by the applicant are extracted hereunder:-

According to the classification, the advertisement indicates that there were vacancies for the OL category of the physically disabled. However, during the course of final allocation that has taken, there is no post reserved for this category as for instance in the Indian Foreign Service. This, the applicant contends, is illegal, arbitrary, null and void ab initio.

Candidates having a lower place of merit have been allocated services like IAS and/or IFS while the applicant having a higher place in the order of merit has not been allocated any service at all. This is discriminatory and violative of Article 14 of the Constitution of India.

The action of the respondents is contrary to the decision of the Bangalore Bench of this Tribunal in the case of N. Manjushree (Ms) versus Union of India and Others [OA No. 353/2010 decided on 03.06.2011] wherein it has been held that a person who may be affected from both legs is eligible for IAS. The afore decision has since attained finality. The applicant has also filed a rejoinder wherein it has been submitted that out of 34 vacancies appointments have made only against 29 vacancies and the remaining vacancies are still available for allocation. The applicant has also given a list to this effect at pages 330 to 332 of the paper book. The applicant has further submitted during the course of arguments that had the factual position been indicated in the advertisement, she would have filled up the form where the vacancies were available for her category of physically disabled.

5. The respondent no. 1 has filed a counter affidavit resisting the OA contending that a duty of due care and caution is upon the applicant while filling up the form under the terms of Rule 2 of the CSE 2012. The respondent has particularly referred to Note-I of Rule 2 wherein a duty has been cast upon the candidates of being more careful while filling up the form qua preferring services.

6. The learned counsel for the respondent argues that in not having exercised due care and caution while filling up the form, the applicant is estopped at this stage from taking up the plea that non-allocation of service to her is the consequence of faulty advertisement and practices on part of the respondents. In the second place, the learned counsel for the respondent submits that the vacancy position in respect of each of the services for which examination is being held is reported directly by the concerned cadre controlling authority to the respondent no.2 to be filled up through the CSE. The respondent no.1 has also given a vacancy position at Annexure A-1 annexed with counter affidavit (page 292 of the paper book). The respondent no.2 after declaration of the result of the CSE forwards to the respondent no.1 a list of the successful candidates and also the category of each candidate equal to the total number of vacancies to be filled up in the relevant examination for allocation to the services reported by the cadre controlling authority to UPSC. While undertaking this exercise, the respondent no.2 takes into account preferences expressed by various services, their medical status (PH sub-category i.e. Locomotor Disability & Cerebral Palsy, Visual Impairment and Hearing Impairment in case of PH Category candidates) and vacancies in the categories i.e. SC, ST, OBC, General category and PH category. The respondent no.2 declares the category of each candidate as to whether one belongs to SC, ST, OBC, General or PH. The role of the respondent no.1 is confined to allocation of service to the candidates declared successful...