Keti Bhogeswar Rao And Others vs Union Of India And Others

The applicants in all these cases seek grant of Permanent Commission Special List (PCSL) category. Aggrieved by their nonselection and grant of

permanent commission in the appropriate category i.e. (PCSL), these applications have been filed.

In 0.A No. 1883 of 2018, the applicant claims to be serving as a Naik in the ASC, who was enrolled on 19.08.2000 in the trade of Driver MT and

was promoted as Naik on 01.09.2016 in accordance with seniority in his trade category after rendering 16 years of unblemished service. It is stated

that on 06.12.2012, the respondents issued a notification inviting applications from eligible candidates for the 15 vacancies for PCSL in Record Officer

category against the '2013 quota'. Thereafter, on 16.01.2014, the vacancy was increased from 15 to 22, thereby inviting applications from eligible

candidates, i.e. serving PBOR, to fill up the form and compete for the above mentioned 22 notified vacancies. On 01.01.2014, another notification was

issued for PCSL in Record Officer category against the '2014 quota'. However, the initial allocation of 22 vacancies were reduced to 15 by

withdrawing 07 vacancies. It is said that the applicant, in response to both the notifications, applied as per the rules and his applications were duly

recommended on each occasion by the Commanding Officer for PCSL category against the quota reserved for both the years. The applicant

underwent the process of selection, attended the Service Selection Board (SSB) interview as detailed in the application and finally, it is stated, on

25.04.2014, the merit list for 2013 quota was published. The name of the applicant appeared as merit SI. No. 39, and thus he could not make to the

final merit list for the 2013 quota on account of non-availability of vacancy. Similarly, for the merit list of 2014 quota also, the applicant's name

appeared at SI. No. 32, hence he could not make to the final merit list in the 2014 quota also due to shortage of vacancies. It is the case of the

applicant that even though, on both the occasions, he was a candidate recommended, but on account of non-availability of vacancy, he could not make

it to the final merit list. The applicant is said to have submitted representations and thereafter, when his grievances were not met, he approached this

Tribunal.

During the course of hearing, learned counsel Mr. I.S. Singh appearing for the applicant, made the following three-fold submissions:

(i) Once a candidate has been found meritorious and is selected in the process undertaken by the SSB, then all candidates who are empanelled in

themerit list should be appointed and, if adequate vacancies for a particular year in a particular quota are not available, then, as was done in the

previous years upto 2013, additional quota should have been sanctioned, so that all merited candidates who have passed SSB as per the list, should be

granted permanent commission.

(ii) If, in a particular category, for example Record Officer, if vacancy was not available, then in any other available category where vacancies

remained unfilled, option should have been given to a particular candidate to switch over to the said category. Various examples were pointed out in

this regard to contend that, for example, in the 2014 quota for Record Officers, against the notified vacancy of 50, about 46 candidates as per merit list

were found fit. However, only 15 candidates could be appointed due to non-availability of vacancies, whereas, in certain other categories, even though

07 vacancies were available, only 03 candidates made to the merit list and as a consequence thereof, 04 vacancies remained unfilled. Accordingly, the

second submission was that option should be given to a merited candidate of one category (Record Officer in this case) to switch over to any other

category (e.g. Education Branch) where vacancies were available in a particular year.

(iii) In Navy, Personnel Below Officers Rank (PBORs) are permitted to apply for grant of commission on promotion to the rank of Acting Sub

Lieutenant, known as Special Duty List Officers and, as per Navy Instruction No. 1/96 dated 01.03.1996, a provision is contained in Para 17 of the

aforesaid Instruction vide Appendix A, wherein an eligible Sailor, who is not promoted due to lack of quota in their respective Duty List, will continue

to be considered on subsequent occasions till they are promoted or till they become over age. It is contended that, as in the case of Navy, Army should

also follow the same practice of carrying forward the merit list till all SSB qualified personnel are absorbed or candidates in the merit list become

overage.

Reliance was placed on an order passed on 21.01.2019 by a Coordinate Bench of this Tribunal in LD Satendra Kumar v. Union of India and others

(0.A No. 747 of 2017 decided on 21.01.2019), while it was contended that, even if the relief claimed by the applicants is beyond the purview of judicial

review, still, as directed in the aforesaid case, the matter should be placed before the Chief of Army Staff (COAS) through proper channel and the

representation of the applicant in this regard considered sympathetically in accordance with the observations made in the said case.

Similarly, in OA No. 183 of 2019 also, the applicant, who was enrolled as a soldier in the ASC of the Indian Army on 07.11.1995 was promoted

from time to time and became a Havildar in September 2012 when notification was issued notifying 15 vacancies in the PCSL in Record Officer

category against '2013 quota' and vacancies were notified similarly for the 2014 quota', when 22 vacancies were notified and the applicant also, as in

the earlier case (0.A No. 1883 of 2018) was empanelled in the merit list published after due selection by the 5513 but he could not be promoted for

want of vacancy. This applicant also claims similar benefits on the three grounds as are indicated herein above. That apart, an additional ground raised

in this case is that the applicant viz. Hay Ved Parkash, had applied for empanelment in two categories vi. PCSL Record Officer category and

Education Officer category. But, it is stated that his option for PCSL Education Officer category mentioned by him in the application was struck off

by somebody in the office and his case was not considered for this category. By referring to Para 5 of the parawise comments in the counter affidavit,

it was vehemently argued by the counsel for the applicants that the respondents affirm in the counter affidavit that the application of the applicant

submitting his candidature for Education Officer and Quarter Master was amended or tampered with by somebody in the office and, therefore, the

applicant has suffered the consequence of illegal manipulation in his application by the office of the respondents. Accordingly, a submission is made in

this case to say that, by manipulating the record, the candidature of the applicant in the category of Education Officer and Quarter Master have not

been considered.

In O.A No. 192 of 2019 also, identical relief on identical grounds are claimed and in the said case, the applicant, who was enrolled in the ASC of

the Indian Army in the trade of SKT on 07.11.2002, became a Havildar on 05.06.2014 and applied for permanent commission PCSL Record Officer

in the '2016 Quota'. 10 vacancies were notified and it is his case that even though he was empanelled in the merit list after he was selected for

interview by the SSB, but, on account of non-availability of vacancy, he did not make it to the merit.

In O.A No. 791 of 2019 also, the applicant has come out with identical claim. The applicant in this case was also appointed as a SKT in the ASC of

the Indian Army on 27.09.2001. He was promoted as Naib Subedar on 01.03.2019. The respondents notified for 22 vacancies in the PCSL in Record

Officer category against '2014 quota' and the applicant had applied and, after interview, he was empanelled as per the merit list, but could not be

promoted due to non-availability of vacancies.

In each of the aforesaid cases, as detailed herein above, it is the case of the applicants that for selection for permanent commission in the Special

List (PCSL) in each year, when the quotas were notified, they had appeared for the selection process. They cleared the SSB interview, were

empanelled as per merit, but they could not make to the final selection and were not granted permanent commission due to non-availability of vacancy.

Accordingly, the prayer made in each of the applications is that the respondents be directed to grant permanent commission to the applicants by either

granting additional quota in a particular year, as was done up to 2013, or they be given option to switch over to some other category, where vacancies

are available or in the alternative, as done in the Navy, carry forward the same till the merit list is exhausted.

The respondents have filed a detailed counter affidavit in 0.A No. 2072 of 2018, which is adopted by them in 0.A No. 183 of 2019 (Hay Ved

Parkash) and it is pointed out by the respondents that PCSL entry is an in-service entry for commissioning of PBOR as officers, which is governed by

Army Instruction (Al) No.85/74 (Annexure R1 available in the counter affidavit filed in 0.A No. 183 of 2019) and standing instructions issued vide

letter dated 17.01.2007 (Annexure R2). It is argued that the quantum of induction through this entry is planned, based on future organisational

requirement, well in advance and after following a well-defined procedure. It was submitted that the frequency of induction through PCSL entry is

annual and the quantum of vacancies is 100 per year. Further, the schedule of selection procedure is decided in accordance with the procedure laid

down in the policy dated 17.01.2007 (Annexure R2) and the calendar for the process of selection is as is detailed in Para 1 of the counter affidavit

filed in 0.A No. 183 of 2019. It is emphasised by the respondents that the vacancies are distributed among sub categories and the distribution of

vacancies is done based on the deficiency, trend of induction into all sub cadres during the previous years and organisational requirements. The twin

objectives of not only meeting individual aspirations for career progression, but also organisational requirements are kept in view. A detailed tabulated

chart has been produced in Para 2 of the counter affidavit to show as to what were the original vacancies required in a particular year from 2008 to

2013. It is emphasised again in the counter affidavit that the vacancies are worked out keeping in view not only the aspirations of the individuals, but

also the organisational requirement and the ceiling with regard to the overall cadre strength. It is emphasised in the counter affidavit that the total

number of vacancies authorised in this cadre is only 500 and this ceiling of 500 cannot be violated in any manner. The vacancies are worked out

keeping in view the cadre strength of 500. Accordingly, the respondents submit that the contention of the applicants cannot be accepted. Vacancies of

a particular year can neither be carried forward nor can the system followed in the Navy be adopted in the Army, as the norms followed have to be

different, keeping the peculiarities of each service in view. As far as grant of option is concerned, the respondents pointed out that under the standing

instructions for submission of application for PCSL, Instruction No. 10 contemplates a provision for option to the applicant to opt for two different

categories in his application, but once the option is granted, there is no provision of permitting switch over from one category to another, only because

vacancies are available in another category. It is argued that this is not permissible because for each category, separate qualifications, eligibility

conditions and other requirements are prescribed and once, based on the eligibility criteria, a candidate has given his option either to apply for one or

more categories as per his eligibility, after the merit list is prepared, switching over to or filling up of vacancies in different categories cannot be

permitted, as it would result in upsetting the entire procedure laid down and may adversely affect the rights of an individual in another category.

Accordingly, the respondents submit that no indulgence can be made in this manner. Even though the applicants were empanelled in the merit list,

when vacancy in a particular category is not available, the applicants cannot be permitted to be appointed on the grounds canvassed. As far as the

system which was followed prior to 2013, it is contended that they were worked out after due sanction from the competent authority, after evaluating

various aspects of the matter arid now the same cannot be permitted.

9 In 0.A No. 791 of 2019, learned counsel appearing for the respondents had vehemently argued that the applicant therein had applied for appointment

in a quota which was for the year 2014. The cause of action arose in April 2015 when the list for the particular year was published and the application

filed after a delay of more than three years is not maintainable. Placing reliance on the decision of the Hontle Supreme Court in the case of DCS Negi

v. Union of India and others (2019) 1. SCC (MS) 321, Mr. V.S. Tamar, learned counsel appearing for the respondents vehemently argued that the

claim of the applicant in this case is liable to be rejected on account of the inordinate delay in filing this case. On the ground of delay and 'aches, he

invited our attention to certain principles laid down in Halsbury's Laws of England, para 911, page 395, to canvass a contention that delay and laches is

a good ground for dismissal of this application.

We have heard the learned counsel for the parties at length and considered various aspects of the matter on merit.

As indicated herein above, the applicants, who are serving PBOR, are claiming permanent commission in the Special List on the basis of a policy

as contained in the standing instructions notified by the Army vide Annexures R1 and 2 available in the counter affidavit filed in 0. A No. 183 of 2019.

There is no dispute nor is it the case of the applicants that the empanelment and grant of permanent commission in 2013 and 2014 were vitiated or

undertaken contrary to these instructions. Their only grievance is that even though they have been empanelled in the merit list after due selection and

recommendation by the SSB, they are not being granted the commission as they did not make it to the final merit list due to want of vacancy. They

want this Tribunal to issue a direction to create additional quota so as to adjust the applicants in a particular year or to permit them to opt for some

other category where vacancies are available or to carry forward the select list as done in the Navy. In our view, none of these suggestions made by

the applicants can be accepted. While dealing with similar appointments, when it came up before a Coordinate Bench of this Tribunal in the case of

LD Satendra Kumar (supra), it was observed in Para 11 that the filling up of vacancies outside the number of vacancies and various other issues

connected thereto is nothing but cadre management, an administrative action based on instructions and policies and beyond the scope of judicial

review. In Para 11, the legal principle has been discussed by the Coordinate Bench, which reads as under:

Be that as it may, we feel that the cadre management or reduction of provisional vacancies is essentially beyond the scope ofj udicial

review as the head of the organisation has to run the show and the court cannot decide as to the number of vacancies which are required to

be/have been filled in or the number of vacancies which are available to the applicants until and unless the applicant shows a vested right

for a particular vacancy.

We have no hesitation in accepting the aforesaid principle of law as this is the cardinal principle of service jurisprudence in matters of creation of

vacancies and filling up of vacancies, that these are all purely administrative and executive action, which is within the domain of the executive

authorities. These are primarily policy matters, and in the absence of there being any statutory or constitutional violation or an enforceable legal right

of an individual being adversely affected, a Court or Tribunal cannot enter into these areas of administrative or executive action governed by policy

matters, purely which are within the domain of the policy makers. In the case of LD Satendra Kumar (supra), the Tribunal only made certain

observations and requested the head of the Army family to look into the matter. In our considered view, for the same the applicants can always

approach the competent authority and it would be for the competent authority to look into their grievances and take such action as may be permissible

administratively or as per the policy, for which no direction is required to be issued by this Tribunal, nor should it be, especially when we are of the

view that such issues cannot be the subject matter of judicial review.

As detailed herein above, the applicants had made a three-fold submission. Their first submission is, that, as was done in the previous years, till the

entire merit list is exhausted, additional quota should be allotted, so that the candidates, whose names appeared in the merit list, are appointed. The

respondents, in the counter affidavit filed, have clearly stated that the distribution of 100 vacancies among sub cadres of PCSL is carried out based on

deficiency, trend of induction into all sub cadres during previous years and organisational requirements while also taking into account the ceiling of

permanent commission available i.e. 500 sanctioned cadre strength, which cannot be breached. That being the position, we are of the considered view

that the question of providing additional quota or releasing additional vacancies to accommodate the applicants is an administrative and executive

action, which can be done only by the administrative authorities, after taking note of various administrative requirements and no direction in this regard

can be issued.

As far as the second question of permitting option to switch over from one category to another is concerned, when the statutory instruction permits

submission of option for more than two categories and when appointment in a particular category is based on eligibility criterion fixed, a direction to

permit switching over from one category to another, without any option being submitted while submitting the application, would be contrary to the

mandate of the instructions and it is not legally permissible, particularly when there i s no provision in the policy for permitting change of option after

the selection process is over. We are afraid, we cannot issue any direction to permit exercise of option for adjustment of candidates in a category

where vacancies are available when the instructions do not so permit. That apart, this again is an administrative exercise based on policy matters and

other administrative considerations and a direction in this regard cannot be issued.

As far as following the Navy pattern in the matter of carrying forward of quota is concerned, the requirements of service in the Army and the

Navy are based on various considerations, particularly on the basis of the specialised requirement in a particular Force and a Tribunal or a judicial

authority cannot, under the garb of judicial review, direct implementation of a policy followed in another organisation. This is nothing but a policy

matter to be formulated based on requirements of an organisation, its working pattern and other considerations and merely because in the Navy, a

particular system is followed, a direction to follow the same system in the Army is beyond the jurisdiction of this Tribunal. This is a matter solely within

the discretionary power of the policy makers of the Army and it is for the authorities to look into this aspect of the matter and formulate an appropriate

policy as per organisational requirements. For this, no direction can be issued by us. Accordingly, in our considered view, on the grounds canvassed

before us, we cannot issue any direction as prayed for.

As regards giving direction to the Chief of Army Staff to look into the grievance of the applicants and take action, as was done in the case of LD

Satendra Kumar (supra), we are of the view that for this, no direction is required and it is for the applicants to represent in the matter and it is solely

within the discretionary power of the competent authority to consider and take appropriate action in accordance with law. In the facts and

circumstances of the case, no specific direction is required. Accordingly, we find no merit in the grounds canvassed.

As far as the ground of manipulation in the record in the case of the applicant in 0.A No. 183 of 2019 is concerned, we find that after the

application was submitted by this applicant way back in the year 2014, he is alleging manipulation in the record after the merit list was published in the

year 2015 for the first time by making averment in this application filed on 24.09.2018, and that also, by making a vague allegation without any

complaint or representation in this regard with regard to the manipulation being made in the past to any competent authority of the department. If the

applicant felt that any manipulation in his application was made in the office of the respondents, he should have, at the very first instance, pointed out

these facts to the competent authority. The applicant seems to have not made any such complaint to the competent authority, instead has come out

with vague allegations in ground (k) of his application by saying that he had applied for two categories in the option submitted, but one of the

categories had been deleted in the Army HQs. The applicant does not whisper in this application as to how and in what manner he came to know and

when he was informed about this and why he did not disclose it till the filing of this application (from 2015 to 2018). Even the contention of the

applicant that the respondents have admitted this fact in the counter affidavit seems to be incorrect. In the counter affidavit, it is the case of the

respondents that the deletion of ""Education Officer"" in Para 16(a) of the application has been made by some functionary in the specified channel for

scrutiny of documents and the same is duly authenticated. In our considered view, the pleadings as are available on record does not permit us to cause

a fact finding enquiry into the same and based on vague averments in ground (k) of the application and without any rejoinder or rebuttal to the counter

affidavit, we are not inclined to go into this aspect of the matter at the instance of the applicant, now, after more than three years, in these

proceedings.

That apart, as far as the ground of delay and laches canvassed by Mr. Tomar in 0.A No. 791 of 2019 is concerned, once we have adverted to

various issues on merit and have indicated reasons for not entering into the matter, it is not appropriate now to dismiss this application on the ground of

delay. Accordingly, we leave the question of delay open to be considered in an appropriate case as and when required. Accordingly, taking note of the

totality of the matter, we find no reason to interfere in the matter.

Resultantly, all the 0.As are dismissed. No order as to costs.

Pronounced in open Court on this the 24th day of January, 2020.