Central Administrative Tribunal - Delhi
Ms. Shikha Malhotra vs Council Of Scientific And Industrial ... on 19 September, 2011
Central Administrative Tribunal Principal Bench OA No.3359/2011 New Delhi this the 19th day of September, 2011. Honble Mr. M.L. Chauhan, Member (J) Honble Mrs. Manjulika Gautam Member (A) Ms. Shikha Malhotra, D/o Mr. N.K. Sharma, R/o EA-123, First Floor, Inderpuri, New Delhi-110012. -Applicant (By Advocate Shri M.M. Sudan) -Versus- 1. Council of Scientific and Industrial Research, Through its Director General, Anusandhan Bhawan, 2 Rafi Marg, New Delhi-110001. 2. National Physical Laboratory, (Council of Scientific Research), Through its Director, Dr. K.S. Krishnan Marg, New Delhi. -Respondents O R D E R Mr. M.L. Chauhan, Member (J):
This is the second round of litigation. Earlier the applicant has filed OA-2849/2010, thereby challenging the communication dated 5.5.2009, whereby the respondent-authority have decided not to hold interview for the post covered under Code No.8.25.5 (Physics) and subsequent communication dated 12.11.2009 whereby a decision was taken to re-advertise the said post along with another post covered under Code No.8.2.6 (Chemistry). This Tribunal disposed of the said OA vide its order dated 17.02.2011, directing the Director General, CSIR to dispose of the pending representation of applicant dated 25.01.2010 forwarded along with letter dated 17.02.2010 within a period of two months. It was further observed that a copy of the OA may also be treated as an additional representation in the manner. It was also observed that the decision regarding appointment of candidates against the post advertised on 05.05.2009 under the post Code No.8.2.5 will be subject to the final decision of Director General, CSIR on the representation of the applicant. Now the CSIR has passed order dated 20.05.2011 (Annexure A/1) whereby NPL, New Delhi has been ordered to advertise afresh for the positions under Post Code No.8.2.5 in the area of Physics and the Post Code No.8.2.6 in the Area of Chemistry and while calling the candidates for interview, also call those candidates who had already been interviewed for the said posts in December, 2008 so that all have an equal opportunity to project before the Selection Committee, in which no one of the two earlier Selection Committees in respect of those two posts Codes finds a place, their talent and caliber in a fair and just manner without any influence. It is this order, which is under challenge in this OA. The applicant besides praying for quashing of this order dated 20.05.2011 (Annexure A/1) has also prayed that respondents be directed to immediately appoint the petitioner in the post of Technical Staff Group-III (1) retrospectively with all consequential benefits.
2. At this stage, few facts may be noticed. Respondents issued an advertisement for 22 posts of Technical Staff Group-III (1) vide advertisement No.3/2008, including 06 posts in the area of Physics, Post Code 8.2.5. As can be seen from the material placed on record, out of 06 posts meant for Physics category 03 were unreserved, 01 SC and 02 OBC. The selections against the advertised posts were made on 22/23-12-2008 by a duly constituted Selection Committee. Since some complaints were received regarding selection of the candidates in respect of Post Code No.8.2.5 (Physics) and Post Code No.8.2.6 (Chemistry) the then Director, NPL called for the proceedings of the Selection Committee and approved the proceedings of all the posts except those of posts code 8.2.5 (area: Physics) and 8.2.6 (area: Chemistry). As regards the aforesaid two proceedings the Director NPL observed that on account of some complaints received by him about these selections, it was best to re-invite the same candidates before a newly constituted Selection Committee in the interest of fairness in selection. Pursuant to same, the select list of the approved proceedings was notified and appointments made accordingly. Whereas in respect of the withheld proceedings (post codes 8.2.5 & 8.2.6 of Physics and Chemistry), selection was withheld and it was proposed to re-constitute the Selection Committee. However, this decision was subsequently changed on the advice of the then COA and it was decided to re-advertise the positions in the interest of fairness of selection and also to widen the scope of selection. It may be stated here that we are concerned with the selection, which was withheld in respect of 06 posts meant for category of Physics, as no challenge appears to have been made in respect of other category, i.e. Chemistry. As can be seen from the impugned order although the decision taken by the Director General, NPL had recorded on 30.04.2009 that he had received some complaints about this selection, therefore, it is best to re-invite the same candidates before a newly constituted selection committee in the interest of fairness in selection but subsequently in June, 2009 the said procedure was changed to re-advertise the position afresh. Further, it has been observed in the impugned order that the record of the NPL do not show that before the decision was taken in April, 2009 the Director has taken into consideration the three complaints received i.e., dated 19.12.2008, 05.01.2009 and 07.01.2009 on the basis of which the decision was taken, though these complaints were anonymous in nature, but still vide the impugned order the Director General, CSIR did not interfere with the matter, as according to the Director General approval to the selection in question would not be according to the tenets of justice and equity.
3. We have heard the learned counsel of the applicant at the admission stage and also perused the material placed on record, including the reply filed by the respondents in the earlier OA, which has been annexed along with this OA and we are of the view that the applicant is not entitled to any relief.
4. Learned counsel of applicant vehemently argued that even the Director General, CSIR in the impugned order has given a categorical finding that the prejudice has been caused to the applicant, thus it was not permissible for the Director General, CSIR to uphold the action to re-advertise the post again by constituting a fresh selection committee. The further grievance raised by the learned counsel is that the respondents could not have taken note of the anonymous complaints received by them.
5. We have given due consideration to the submissions made by the learned counsel of applicant. It is not in dispute that the three complaints dated 19.12.2008, 05.01.2009 and 07.01.2009 though anonymous in nature were received where the allegation was that the selection of candidates for the post Code 8.2.5 and other posts is pre-decided and the interview is merely an eyewash. Even in the complaint dated 19.12.2008 names of some persons were mentioned, including the name of applicant. The complaint dated 19.12.2008 has been placed on record by the applicant, which is at page 106 of the paper-book. At this stage, it will be useful to quote the said anonymous complaint, which thus reads:
The interview being held for technician posts are fixed for the kith and kins of organization and illusion for 100s of candidates. For interview on 23-12-2008 appointments orders are already being issued to Smt. Shikha Malhotra daughter of Shri NK Sharma, CSIR employee, and for Mirnali Joshi, Smt. Rashmi Yadav, Smt. Shimul Chaunal etc. Your organization is reputed world wise, but few black sheeps are bent upon to malign it. I request you to probe into the complete appointment game to know the truth. If nothing is done at your level, I may go to media to expose the appointment racket as I have adequate proof.
6. As can be seen from this complaint, it is evident that name of the applicant, who is daughter of Shri N.K. Sharma, CSIR employee has been specifically mentioned. Further, as can be seen from the result declared for 06 posts meant for Physics category (page 109 of the paper-book) out of three unreserved posts meant for Physics category, name of applicant and one Smt. Minali Joshi find mentioned at serial Nos. 1 and 3, meaning thereby that if the said list is operated, out of 03 posts meant for general category, applicant and Smt. Mirnali Joshi have to be given appointments on the posts of Technical Staff Group-III (1) in the category of Physics. It may be stated here that the complaint was made on 19.12.2008 whereas interview for this category was held on 23.12.2008, as such the complaint was made well in advance with specific allegations. As such, it cannot be said that the Director General, CSIR has acted arbitrarily in not giving effect to the recommendations made by the Selection Committee while passing order on 30.04.2009. The contention raised by the learned counsel of applicant that such an anonymous complaint could not have been acted, according to us, deserves outright rejection, if it is seen in the light of the specific allegations leveled in the complaint, which has resulted into selection of 03 out of 02 general category candidates in the interview held by the Selection Committee subsequently.
7. That apart, the appropriate authority after taking into consideration all these materials and complaints has taken a decision to re-advertise the post again in the fields of Physics and Chemistry and to interview the candidates who apply for the said posts, including all those candidates (51 in number) who had already appeared in the interview for the said posts in December, 2008 by constituting a fresh Selection Committee. It is not permissible for us to substitute the decision taken by the authorities in exercise of power of judicial review, more particularly when the applicant has neither pleaded mala fides against the person who has taken the decision nor has he stated that such an authority has acted arbitrarily for some extraneous reasons. According to us, the applicant has got no indefeasible right to be appointed against the post solely on the basis that her name has been recommended by the Selection Committee, more particularly, as already stated above, there is no such allegation of mala fide against the person who took the decision to re-advertise the post or he has acted arbitrarily and in an unfair manner by re-advertising the post again. Law on this point is no more res integra. The Apex Court in number of decisions has held that even if the name of the person appears in the select list, the same by itself would not give rise to a legal right unless action on the part of the State is found to be unreasonable, unfair or mala fide. It is further held that the State, thus, subject to acting bona fide as also complying with the principles laid down in Articles 14 and 16 of the Constitution of India, is entitled to take a decision not to employ any candidate even from amongst the select list. It is also legally settled that if the action of the State was not bona fide and/or otherwise unfair, it is not permissible for us to issue a writ in the nature of mandamus. As already stated above, this is not a case of such nature and the applicant has not raised any plea in the OA that the authority who has passed the order for re-advertising the post his action is mala fide, arbitrary or unreasonable and is not founded on any existing material. As already stated above, in this case if the specific allegations leveled in the complaint dated 19.12.2008 is seen in the light of the declaration of result in the category of Physics whereby out of 03 posts meant for general candidates 02 persons mentioned in the complaint were subsequently selected, it cannot be said that the decision arrived at is not founded on any existing material or is extraneous. At this stage, we may also wish to notice some of the decisions of the Apex Court on the subject. The Apex Court in the case of Shankarsan Dash v. Union of India [(1991) 3 SCC 47 and Asha Kaul v. State of J & K [(1993) 2 SCC 573 has held that even selected candidates do not have legal right in this behalf.
8. In K. Jayamohan v. State of Kerala and Another [(1997) 5 SCC 170], Apex Court held:
5. It is settled legal position that merely because a candidate is selected and kept in the waiting list, he does not acquire any absolute right for appointment. It is open to the Government to make the appointment or not. Even if there is any vacancy, it is not incumbent upon the Government to fill up the same. But the appointing authority must give reasonable explanation for non-appointment. Equally, the Public Service Commission/recruitment agency shall prepare waiting list only to the extent of anticipated vacancies. In view of the above settled legal position, no error is found in the judgment of the High Court warranting interference. [See also Munna Roy v. Union of India (2000) 9 SCC 283] In All India SC & ST Employees Association and Another v. A. Arthur Jeen and Others [(2001) 6 SCC 380], it was opined:
10. Merely because the names of the candidates were included in the panel indicating their provisional selection, they did not acquire any indefeasible right for appointment even against the existing vacancies and the State is under no legal duty to fill up all or any of the vacancies as laid down by the Constitution Bench of Apex Court, after referring to earlier cases in Shankarsan Dash Vs. Union of India. Para 7 of the said judgment reads thus :-
"7. It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been consistently followed by Apex Court, and we do not find any discordant note in the decisions in State of Haryana vs. Subhash Chander Marwaha, Neelima Shangla vs. State of Haryana or Jatendra Kumar vs. State of Punjab."
10. The principles laid down in the aforementioned cases have been upheld by Apex Court in Food Corporation of India and Others v. Bhanu Lodh and Others [(2005) 3 SCC 618] stating:
14. Merely because vacancies are notified, the State is not obliged to fill up all the vacancies unless there is some provision to the contrary in the applicable rules. However, there is no doubt that the decision not to fill up the vacancies, has to be taken bona fide and must pass the test of reasonableness so as not to fail on the touchstone of Article 14 of the Constitution. Again, if the vacancies are proposed to be filled, then the State is obliged to fill them in accordance with merit from the list of the selected candidates. Whether to fill up or not to fill up a post, is a policy decision, and unless it is infected with the vice of arbitrariness, there is no scope for interference in judicial review
11. In Pitta Naveen Kumar and Others v. Raja Narasaiah Zangiti and Others (2006) 10 SCC 261], Apex Court observed:
32. The legal position obtaining in this behalf is not in dispute. A candidate does not have any legal right to be appointed. He in terms of Article 16 of the Constitution of India has only a right to be considered therefor. Consideration of the case of an individual candidate although ordinarily is required to be made in terms of the extant rules but strict adherence thereto would be necessary in a case where the rules operate only to the disadvantage of the candidates concerned and not otherwise In a situation of this nature, no appointment could be made by the State in absence of the Select List. The State could not substitute itself for the Selection Committee.
Furthermore, ordinarily, the writ court should not, in absence of any legal right, act on the basis of sympathy alone.
12. In Ramakrishna Kamat and Others v. State of Karnataka and Others [(2003) 3 SCC 374] albeit in the light of right of regularization in service, Apex Court opined:
7. It is clear from the order of the learned single Judge and looking to the very directions given a very sympathetic view was taken. We do not find it either just or proper to show any further sympathy in the given facts and circumstances of the case. While being sympathetic to the persons who come before the court the courts cannot at the same time be unsympathetic to the large number of eligible persons waiting for a long time in a long (SIC) seeking employment [See also Maruti Udyod Ltd. v. Ram Lal and Others, (2005) 2 SCC 638, State of Bihar & Ors. v. Amrendra Kumar Mishra, 2006 (9) SCALE 549, Regional Manager, SBI v. Mahatma Mishra, 2006 (11) SCALE 258 and State of Karnataka v. Ameerbi & Ors. 2006 (13) SCALE 319]
13. In view of what has been stated above, we are of the view that the applicant has not made out a case for grant of relief. Accordingly OA is dismissed, being devoid of merit, at the admission stage itself with no order as to costs.
(Manjulika Gautam) ( M.L.Chauhan )
Member (A) Member (J)
San.