Central Administrative Tribunal - Delhi
Shri Arun Kumar vs Dmrc And Others Through on 26 July, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
T.A. No. 325/2009
{W.P. ) 5235/2008}
Reserved on:20.07.2012
Pronounced on: 26:07.2012
HONBLE MRS. MEERA CHHIBBER, MEMBER (J)
HONBLE MRS. MANJULIKA GAUTAM, MEMBER (A)
Shri Arun Kumar
S/o Shri Narain
R/o Village and Post Offie Khera,
Dabar,
New Delhi. ..Applicant
By Advocate: Shri M.K. Bhardwaj.
Versus
DMRC and others Through :
1. The Chairman,
Delhi Metro Rail Co-operation,
Delhi.
2. The Senior Manager (Personnel)
Delhi Metro Rail Co-operation,
Delhi. ..Respondents
By Advocate: Ms. Monica Sharma and Shri V.S.R. Krishna.
ORDER
Mrs. Meera Chhibber, Member (J) Petitioner had filed Writ Petition No. 5235/2008 with a prayer to issue a writ or order to give appointment to him as a Plumber from the date of appointment of similarly situated persons with all consequential benefits including pay and allowances and seniority.
2. The said Writ Petition was transferred to the Tribunal and renumbered as TA No.325/2009. TA was allowed on 16.3.2010 on the ground that when the vacancies were available and all the other 14 persons were appointed, petitioner could not have been isolated and panel ought to have been exhausted. Thus respondents were directed to consider the claim of the petitioner for appointment as Plumber.
3. RA was filed by the respondents on the ground that they had not stated at any stage that 14 vacancies were filled. On the contrary, panel had lapsed. The RA 298/2010 was allowed on 12.4.2012 by observing as follows:-
On request of counsel for the original applicant, list this case for final disposal on 17.4.2012, on which date respondents shall produce the entire record of selection for the post of Plumber including the panel and how they state that they had given notice of lapse of panel on the website. They shall also explain who are the persons, who were appointed as Plumbers.
4. The matter has now been listed before us for fresh hearing.
5. The brief facts, as stated by the petitioner, are that an advertisement was issued by Delhi Metro Rail Corporation Ltd. (hereinafter referred to as DMRCL) in May, 2005 for different posts. Petitioner fulfilled the eligibility, he thus applied for the post of Plumber. The petitioner appeared in the written examination and was declared as qualified in September, 2005. He appeared in the interview and after he was selected, his name was included in the select list at Sl.No.15.
6. It is submitted by the petitioner that respondents had advertised 15 posts of Plumber and panel was also of 15 persons. Petitioner was not given the offer of appointment, while all other successful candidates were given appointment so he gave a representation in September, 2007.
7. Petitioner could not have been denied appointment as his name was within the declared number of vacancies. Their action in not appointing petitioner is contrary to OM dated 8.2.1982.
8. Respondents have stated that Notification No.DMRC/OM/HR/II/2005 was issued on 14.5.2005 for filling up 15 posts of Plumbers. In pursuance to the said advertisement a written examination was held on 7.8.2005 and 45 successful candidates were interviewed on 19.9.2005. 15 candidates were provisionally short-listed for medical examination. The life of the panel was only 2 years and meanwhile, the said panel lapsed. Accordingly, a notice dated 8.3.2008 was posted on DMRC website advising that the candidates of the notified categories of posts, Plumber being one of them who were empanelled but could not be called for medical examination or joining, their candidature shall be treated as lapsed. They have further stated that though the petitioner was placed at Sl.No.15 for the selected panel but he was not issued offer of appointment as the induction was phase wise and after commissioning of the first Phase, the exercise of rationalization of manpower, especially for maintenance activities started and intake for categories of posts like Plumber etc. were frozen. In the meantime, the panel lapsed and, therefore, the petitioner was not given an appointment. As per present manpower planning, in future also no post of plumber will be created for maintenance wing, considering the multi-activity/muti-tasking being done in Operation and Maintenance Wing. They have further stated it is settled law that merely empanelled for selection does not create any right to the post. Candidate was not called for even medical examination, so the process for selection was not even complete.
9. In the counter affidavit, respondents have specifically stated that applicant along with some other persons could not be called for even medical examination meaning thereby that even his name did not figure in the final select list. This aspect has not been disputed by the applicant in his rejoinder. Moreover, perusal of the record shows that only 11 persons were appointed as Plumber, namely, Dayasindhu Kumar Dayanand Kumar Kamal Prakash Kain Sanjay Kumar Madhukar Pusp Mahendra Kumar Mithilesh Kumar Molli Ravanappa Rao Kamlesh Kumar Raj Kishore Kumar Sivadasan MB
10. As per petitioners own averment, his name figures at Sl.No.15 which means there would have been 3 persons above him. Petitioner could have had a valid grievance if only person below him in the select panel, as alleged by him, would have been given appointment ignoring his claim but that is not the case here. Since petitioner was the last person in the panel, as stated by himself, naturally there was no scope of appointing a person below him (refer to Sanjoy Bhattacharjee Vs. U.O.I. & Others reported in 1997 (4) SCC 283).
11. It is also relevant to note that on 8.3.2008, the DMRC had given a notice on the website which reads as under:-
NOTICE, dated 8th March 2008 All the candidates, who were placed on the Recruitment Panel for the following posts in terms of Employment Notices shown again and have not been called for next stages of selection process i.e. Medical Examination and subsequent joining, are informed that on change in the recruitment of manpower, they could not be offered appointment, within the currency/validity of the Recruitment Panel from the date of operation of Panel.
S. No. Employment Notice No. Panels for Post Discipline
1. No.DMRC/OM/II/2005 Dated 14th-20th May, 2005 Skilled Artisans/ Maintainers DSL Mechanic Plumber Carpenter Machinist Welder F&HT
2. - do - Junior Executives HR Mechanical
3. No.DMRC/R&T/US (Emp.Ex.)05 Sponsored by Employment Exchange Unskilled Group D Since the currencies of these panels have expired, the candidates who were on the panel & could not be called for medical examination appointment, are hereby advised that their candidature for the above noted posts have lapsed and they will not have any claim for appointment on these posts, as mentioned above.
Now Expiry of Currency of Recruitment Panel (Year-2005) meaning thereby that it was clarified in the notice itself that all those candidates who were placed on the recruitment panel in terms of Employment Notice but have not yet been called for the next stages of selection process, i.e., Medical Examination and subsequently joining, on change in the recruitment manpower, they could not be offered appointment and currency or recruitment of panel has expired. The discipline included Plumber also as noted above. This notice has not been challenged by the petitioner in the present proceedings. If petitioner is aggrieved by the fact that panel could not have been scrapped, he ought to have challenged the above notice. Not having done so, he cannot be heard of saying that the panel could not be termed as having lost its life. It is also relevant to note that no person below the petitioner has been given appointment as Plumber, therefore, simply because his name appeared in the recruitment panel, it would not give him a right to claim appointment, specially when respondents have explained that after commissioning of the first phase, the exercise of rationalization of manpower especially for maintenance activities started and intake for categories of post like Plumber etc. were frozen. They have further stated that as per present manpower planning, in future also, no post of plumber will be created for maintenance wing, considering the multi-activity/muti-tasking being done in Operation and Maintenance Wing meaning thereby that they did not want to appoint any further Plumber in view of their work requirement.
12. At this juncture it would be relevant to refer to the following judgments wherein it has been reiterated that mere empanelment does not give any right to the individual to claim appointment:-
(i) It has been held by Honble Supreme Court in the case of Shankarsan Dash Vs. Union of India reported in 1991 (3) SCC page 47 as follows:-
Even 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.
(ii) Similarly Honble Supreme Court in Rani Laxmibai Kshetriya Vs. Chand Behari Kapoor and Othes etc. reported in 1999 Vol.2. AISLJ page 287 observed as follows:-
Though the panel ordinarly remains alive for one year but in accordance with the guidelines of the Government of India, Ministry of Finance it would be open to Board to extend the said period under intimation to the Government in the Banking Division. In the case in hand the resolution of the Board dated 28-3-1985 indicates that the life of the panel had been extended by for a further period of six months, and therefore, after expiry of the said period it was not open for the Court to issue direction to appoint people from the said panel.
(iii) In Ludiana Central Co-operative Bank Ltd. Vs. Amrik Singh and Others reported in 2004 SCC (L&S) page 56, Honble Supreme Court observed as follows:-
Even otherwise it is well settled by now that a person whose name is said to find place in a select panel has no vested right to get appointed to the post in spite of vacancies existing..
Therefore, simply because petitioners name figured in the select list, as claimed by him, he cannot seek a direction to the respondents to appoint him specially when they have explained that they do not need any more Plumbers.
13. In view of above discussion, it cannot be stated that any legal right of the applicant has been violated nor the relief, as claimed by the applicant, can be granted in the given circumstances. We, therefore, find no good ground to interfere in this case. The same is accordingly dismissed without any costs.
(Mrs. Manjulika Gautam) (Mrs. Meera Chhibber)
Member (A) Member (J)
Rakesh