Central Administrative Tribunal - Ernakulam
Abdul Shukoor.P.P vs The Administrator on 5 December, 2008
CENTRAL ADMINISTRATIVE TRIBUNAL ERNAKULAM BENCH O.A No. 673 and 723 of 2007 Friday, this the 5th day of December, 2008. CORAM: HON'BLE MR. GEORGE PARACKEN, JUDICIAL MEMBER HON'BLE DR K.S.SUGATHAN, ADMINISTRATIVE MEMBER O.A.673/2007 Abdul Shukoor.P.P. S/o Kidan Haji, Puthiyapura House, Kadamath, Union Territory of Lakshadweep. ....Applicant (By Advocate Mr PV Mohanan ) v. 1. The Administrator, Union Territory of Lakshadweep, Kavaratti. 2. The Director of Education, Department of Education, Union Territory of Lakshadweep, Kavaratti. ....Respondents (By Advocate Mr S Radhakishnan ) O.A.723/2007 K.P.Akbar, S/o E.P.Attakoya, Kunhipovakada House, Kalpeni Island, U.T of Lakshadweep. -Applicant (By Advocate Mr PV Mohanan) v. 1. The Administrator, Union Territory of Lakshadweep, Kavaratti. 2. The Director of Education, Department of Education, Union Territory of Lakshadweep, Kavaratti. ....Respondents (By Advocate Mr S Radhakishnan ) This application having been finally heard on 23.10.2008, the Tribunal on 5.12.2008 delivered the following: O R D E R
HON'BLE MR. GEORGE PARACKEN, JUDICIAL MEMBER The issue involved in both these O.As is the same and therefore, they are disposed of by this common order.
O.A.673/20072. Applicant in his O.A was one of the candidates applied for the post of Trained Graduate Teacher (TGT for short) (Maths) notified by the respondent- administration vide notice dated 8.12.2005. Three were 3 posts of TGT(Maths). 21 candidates participated in the written test held on 9.4.2006. Out of them, 5 candidates, including the applicant, have qualified. Following certain representations/complaints against the procedure adopted by the Administration in the recruitment process, the respondents, vide order dated 14.7.2006, decided to cancel the examination already conducted and to re-start the same in accordance with the NCTE Guidelines. The said decision of the respondents to cancel the examination was challenged by some of the selected candidates before the Hon'ble High Court of Kerala vide W.P.C.No.5225/2007. On the directions of the High Court in the said Writ Petition, vide Annexure A-1 notice dated 5.2.2007, interview of the 5 candidates who have qualified in the written test was held on 15.2.2007 after due notice to them. The selection Board selected 3 candidates against the 3 notified vacancies and the applicant who was next in the merit was kept in the waiting list. Results of the selection was notified vide Annexure A-2 notice dated 19.2.2007. All the 3 selected candidates on receiving the offer of appointment joined the post immediately. Thereafter, vide Annexure A-3 order dated 2.7.2007, one Shri Jaison Sebastian, TGT (Maths) was promoted. On the deputation of the incumbent to the post of Warden JNSS School, Kadmat, another post as TGT(Maths) also became vacant at GHS, Amini. The applicant has, therefore, made the Annexure A-5 representation dated 30.6.2007 stating that the aforesaid 2 posts have become vacant even before expiry of six months of the last select list issued on 19.2.2007 and requested to consider him for appointment against one of those posts. It was followed by Annexure A-6 representation dated 30.7.2007 enclosing therewith a copy of the Annexure A-4 decision of this Tribunal dated 8.6.2007 in O.A.664/2005 in support of his claim. The applicant in the said O.A also had applied for a post of Nursery Trained Teacher pursuant to a notification dated 1.9.2004 to fill up 3 vacancies and 3 persons were placed in the select list and his name was kept in the waiting list vide order dated 16.10.2005. On 1.5.2005, another vacancy became available and he claimed appointment against that vacancy on the basis of his position in the waiting list as No.1 and also in view of the fact that the vacancy has arisen before the expiry period of the select list. The contention of the respondent-administration therein was that wait listed candidates could be considered only when anyone of the selected candidates did not turn up to take up the post and since all the vacancies against the advertised posts have already been filled up, the applicant could not have staked the claim to a vacancy which has not been notified. The applicant, however, relied upon the Circular No.12/103/90-Services dated 26.11.1990 (Annexure R1(d) in this O.A). The respondent-administration has specifically invited attention to the OM No.22011/2/79-Estt.(D) dated 8.2.1982 in which the following instructions with regard to the recruitment/preparation of select list of candidates/appointments been issued:
"(i) In the case of direct recruitment, a list of selected candidates shall be prepared to the extent of the number of vacancies. Other persons found suitable are to be put on reserve list only to be appointed in case someone in the regular list decline to accept the appointment.
(ii) Similarly in the case of Departmental Competitive Examinations, the list of selected candidates has to be based on the number of vacancies on the date of declaration of results."
Clause (ii) of the said circular provides for preparation of a reserve list not exceeding the 10% of the total notified vacancies including vacancies certified by the Department to be likely to occur in unforceable situations. It reads as follows:
"xii) The Select List of candidates should be prepared to the extent of the number of vacancies notified to the Employment Exchange. A Reserve List also could be prepared if found necessary, in the order of merit. However, such list should not exceed 10% of the notified vacancy including vacancies certified by the Department to be likely to occur in forseable future to the requirements under unforceable situations. This would ensure consideration of new eligible candidates who are meritorious in further recruitment process."
As in the present case, the applicant therein had also relied upon the judgment of the Apex Court in Virender S Hooda v. State of Haryana [AIR 1999 SC 1701] and Oriental Insurance company Ltd. v. T.S.Sastry [2004(1) SCC 136]. In the case of Virender Hooda (supra), the Apex Court held as follows:
"In terms of circulars issued by the Government on March 22, 1957 and May 26, 1972 when such vacancies arise within six months from the receipt of the recommendation of the Public Service Commission they have to be filled up out of the waiting list maintained by the Commission. In respect of the vacancies which arise after the expiry of six months it is necessary to send the requisition to the Commission. It is also made clear that if the Commission makes recommendations regarding a post to the department and additional vacancies occur in the department within a period of six months on the receipt of the recommendations, then the vacancies which occur later on can be filled in from amongst the additional candidates recommended by the Commission. It is urged on behalf of the appellants that letter dated January 7, 1992 indicated that the cadre strength in the Haryana Civil Service (Executive Branch) was 440 and the officers filling these posts were around 129 and there was shortfall of 111 and 23 posts had to be filled up by direct recruitment. Thus 12 posts for direct recruitment were vacant when the advertisement for recruitment was made which was held in 1991. Therefore, the appellants' case ought to have been considered when some of the vacancies arose by reason of non-appointment of some of the candidates, therefore, the Government ought to have considered the case of the appellants as per the rank obtained by them and the appellants had to be appointed if they came within the range of selection. Thus when these vacancies arise within the period of six months from the date of previous selection the circulars are attracted and hence the view of the High Court that vacancies arose after selection process commenced has no relevance and is contrary to the declared policy of the Government in the matter to till up such posts from the waiting list."
In the case of Oriental Insurance company Ltd (supra), the apex Court has held as follows:
"In terms of para 14 of the promotion policy, the list prepared would not only include number of candidates equal to the number of vacancies but also a number equal to 20% of the declared vacancy. Such a contingent list is prepared for the purpose of giving promotions in a vacant post as and when required prior to the formation of the next promotion committee."
After considering the aforesaid submissions of the applicant, this Tribunal disposed of the aforesaid O.A.664/2005 with a direction to the respondents to exactly ascertain the date of the three vacancies against which the select list candidates were accommodated. The respondents were also directed to work out the recruitment year and to consider the applicant for the said post subject to the condition that the post is still vacant if the vacancy as of 1.5.2007 fell within the same recruitment year.
3. Apart from the aforesaid case of Virender Hooda (supra) and Oriental Insurance company Ltd (supra), the applicant has relied upon the judgment of the Hon'ble High court of Kerala in Jyotish Kumar v. State of Kerala [1996(2) KLT 444] and in Administrator, U.T. Of Lakshadweep v. Mushthak [2004(2) KLT 880]. In Jyotish Kumar's case (supra), the High Court held as under:
".... Here, the notification was in 1988 and the list was prepared in 1994. About 5 = years had taken to prepare the list. Naturally, several vacancies would have arisen during this long time taken to complete the process. The list is to be kept alive for 3 years. Naturally, further more vacancies will arise during such period. Therefore, to continue the list only to the 22 vacancies as contended by the petitioner in Alleppey District would defeat the entire recruitment process. The Public Service Commission is following a definite procedure for the purpose of recruitment. That procedure is laid down in the form of Rules notified in gazette dt. 5.10.1976. R.14 of the Public Service Commission Rules of Procedure reads as follows:
"The commission shall advise candidates for all the vacancies reported and pending before them and the vacancies which may be reported to them for the period during which the ranked list are kept alive in the order of priority, if any, in the order of merit subject to the rules of reservation and rotation, wherever they are applicable".
Thus, the notification as well as the Rules of procedure followed since long provides that all the vacancies notified and existing and arising during the currency of the list, which may be kept even for a period of 3 years, shall be made use for appointment to the candidates included in the list. Therefore, in such case taking into account, the Note-I in the notification, the vacancies that are to arise till the expiry of a list are the vacancies notified as per notification like Ext.P1."
In Administrator, U.T. Of Lakshadweep's case (supra) the Hon'ble High Court held as under:
"7. No provision has been brought to our notice by either side prescribing any period of validity of a list prepared for appointment. Necessarily, the list will be applicable only for the vacancies notified, for which the recruitment process commenced. In the decision reported in Ashok Kumar & Ors v. Chairman, Banking Service Recruitment Board & Ors (1996) 1 SCC 283, the Apex Court has clearly held that, operation of a select list prepared, after verifying the number of vacancies, to fill up more vacancies than notified will offend the rights of others under Art.16 of the Constitution other words it will violate the equality clause enshrined in the Constitution. This court also had again considered that aspect with respect to the appointment in Agricultural University in Kerala Agricultural University v. Gopinathan Unnithan (1996 (1) KLT 344). Para 10 thereof reads as follows:
"Learned Single Judge has issued a writ of mandamus directing the Agricultural University to appoint the petitioner as Professor in Agricultural Statistics. It is trite law that this court in exercise of the powers under Art.26 of the Constitution is not to issue a writ of mandamus directing the appointment of a candidate who is included in the select list. In State of Kerala v. A Lakshmikutty & Ors. (AIR 1987 SC 331), Their Lordships after stating that a candidate who is included in the select list has no legal right to the post held that the High Court in exercise of the powers in Art. 226 of the Constitution, cannot issue a writ of mandamus directing the authorities to make the appointment. In view of this statement of law, the learned Single Judge was clearly in error in issuing a writ of mandamus directing the University to appoint the petitioner against the third vacancy of Professor in Agricultural Statistics, that arose on a subsequent date."
8. The dictum in Ashok Kumar's case has been followed by this court and held that more vacancies than that notified cannot be filled up, enforcing the list so prepared, as it will offend the rights of others under Arts. 14 and 16 of the constitution. In the decision reported in Sanjoy Bhattacharjee v. Union of India & Ors. (AIR 1997 SC 2179) the Supreme Court has also made it clear that the list prepared cannot be made operative for the vacancies that had arisen subsequently. The dictum laid down in the decision reported in Madanan Lal & Ors. v. State of J & K & Ors. (1995) 3 SCC 486) is also almost to the same effect."
4. The respondents have submitted that, vide notification dated 9.10.2007 published by the Education Department, the 2 vacancies of PGT(Maths) and they have arisen as a result of the promotion of Shri Jaison Sebastian, TGT (Maths) and on termination of one Shri K Vijayan, TGT(Maths) have already been advertised and since those vacancies have arisen in the month of July, 2007, they were not the vacancies for the recruitment year 2005-2006 for which the select list has already been published in the year 2007.
5. They have relied upon the judgment of the Hon'ble High Court in the case of Administrator, U.T. Of Lakshadweep v. Mushthak [2004(2) KLT 880] in which the circular (Annexure R1(d)] dated 26.11.1990 was considered and held as under:
"The list will be applicable only for the vacancies notified, for which the recruitment process commenced. Operation of a select list prepared, after verifying the number of vacancies, to till up more vacancies than notified will offend the right of others under Article 16 of the Constitution. In other words it will violate the equality clause enshrined in the Constitution. More vacancies than that notified cannot be filled up, enforcing the list so prepared, as it will offend the rights of others under Articles 14 and 16 of the Constitution. The list prepared cannot be made operative for the vacancies that had arisen subsequently."
6. They have also relied upon the judgment of the Apex Court in the case of Ashok Kumar and others v. Chairman, BSRB [ (1996)1 SCC 283]. In para 5 of the judgment, it was held as under:
"5. Article 14 read with Article 16(1) of the Constitution enshrines fundamental right to every citizen to claim consideration for appointment to a post under the State. Therefore, vacant posts arising or expected should be notified inviting applications from all eligible candidates to be considered for their selection in accordance with their merit. The recruitment of the candidates in excess of the notified vacancies is a denial and deprivation of the constitutional right under Article 14 read with Article 16(1) of the Constitution. The procedure adopted, therefore, in appointing the persons kept in the waiting list by the respective Boards, though the vacancies had arisen subsequently without being notified for recruitment, is unconstitutional. However, since the appointments have already been made and none was impleaded, we are not inclined to interfere with these matters adversely affecting their appointments. However, hereafter the respective Boards should notify the existing and excepted vacancies and the Recruitment Board should get advertisement published and recruitment should strictly be made by the respective Boards in accordance with the procedure to the notified vacancies but not to any vacancies that may arise during the process of selection."
The respondents have contended that in terms of the aforesaid judgment, the vacant post arisen or expected should be notified inviting separate applications from eligible candidates to be considered for the selection in accordance with the merit as the recruitment of candidates in excess of notified vacancy is a denial/ deprivation of the constitutional rights guaranteed under Article 14 read with Article 16(1) of the Constitution.
7. They have further relied upon the judgment of the Apex Court in Madal Lal and others v. State of J&K [(1995) 3 SCC 486] in which it has been held that the appointments from the list could be made only in the specified number of vacancies and in none other. Para 23 of the judgment reads as follows:
"23. It is no doubt true that even if requisition is is made by the Government for 11 posts the Public Service Commission may send merit list of suitable candidates which may exceed 11. That by itself may not be bad but at the time of giving actual appointments the merit list has to be so operated that only 11 vacancies are filled up, because the requisition being for 11 vacancies, the consequent advertisement and recruitment could also be for 11 vacancies and no more. It is easy to visualise that if requisition is for 11 vacancies and that results in the initiation of recruitment process by way of advertisement, whether the advertisement mentions filling up of 11 vacancies or not, the prospective candidates can easily find out from the Office of the Commission that the requisition for the proposed recruitment is for filling up 11 vacancies. In such a case a given candidate may not like to compete for diverse reasons but if requisition is for larger number of vacancies for which recruitment is initiated, he may like to compete. Consequently the actual appointments to the posts have to be confined to the posts for recruitment to which requisition is sent by the Government. In such an eventuality, candidates in excess of 11 who are lower in the merit list of candidates can only be treated as wait listed candidates in order of merit to fill only the 11 vacancies for which recruitment has been made, in the event of any higher candidate not being available to fill the 11 vacancies, for any reason. Once the 11 vacancies are filled by candidates taken in order of merit from the select list that list will get exhausted, having served its purpose."
8. They have relied upon the following judgment and submitted that even a selected candidate does not have a vested right to get appointment even if there are vacancies and if that be so, a person whose name is included in the waiting list cannot have any better claim:
i) All India SC&ST Employees Association v. A Arthur Jeen [(2001) 6 SCC 380]. In para 10 of this judgment, it was held as under:
"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 this Court, after referring to earlier cases in Shankarsan Dash v. Union of India [(1991) 3 SCC 47]. 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 this Court, and we do not find any discordant note in the decisions in State of Haryana v. Subhash Chander Marwaha [(1974) 3 SCC 220], Neelima Shanghla v. State of Haryana [(1986) 4 SCC 268] or Jatinder Kumar v. State of Punjab [(1985) 1 SCC 122]."
ii) Vinodan T v. University of Calicut [ (2002) 4 SCC 726]. In para 14 of this judgment, it was held as under:
"14. The principle that persons merely selected for a post do not thereby acquire a right to be appointed to such post is well established by judicial precedent. Even if vacancies exist, it is open to the authority concerned to decide how many appointments should be made. However, the selected candidates have a right to compel such authority not to make appointments by travelling outside the batches in the college for delinking, issue of executive orders, orders stopping admission for the batches proposed to be discontinued and suitable deployment of the staff, both teaching and non-teaching which may be rendered surplus. For protecting the service interests of the existing teaching and non-teaching staff, it was also decided that further appointments of teaching staff and non-teaching staff in the colleges and university should be stopped immediately. The circular also states that though the decision in this regard was taken in December 1996 "it is reported that the private colleges and universities have been resorting to recruitment of teaching and nonteaching staff which may become a great financial burden for the Government in future."
iii) S Renuka v. State of A.P [(2002) 5 SCC 195]. In para 8 of this judgment, it is held was under:
"8. It is settled law that no right accrues to a person merely because a person is selected and his or her name is put on a panel. The petitioners have no right to claim an appointment. Even otherwise, the selection was contrary to the rules in force at that time. There could not be 100% reservation for women. Also the reservation policy had not been adhered to. The posts which are created are posts of District and Sessions Judges, Grade II. There are no separate posts for Judges of Family Courts and Mahila Courts. Thus the petitioners could not be appointed as Judges of Family Courts and Mahila Courts in ex-cadre posts even provisionally. This would amount to creation of ex-cadre posts not sanctioned by the Government. No fault can be found with the High Court being in favour of not appointing the petitioners."O.A.723/2007
9. Applicant in this O.A. was also one of the candidates who applied in the post of Primary School Teacher against 9 notified vacancies. Like the applicant in O.A.673/2007, he was also wait listed at Sl.No.1.
10. In our considered view, there is no merit in the cases of the applicants in both these O.As. The vacancies which have arisen in the subsequent years cannot be filled up by the candidates wait listed in the earlier select list years. Admittedly, the 3 vacant posts of TGT(Maths) for which the applicant had applied in terms of the notice dated 8.12.2005 belonged to the Recruitment Year 2005. It is altogether a different matter that the respondents have held he written test to select the suitable candidates for the said 3 vacant posts only on 15.2.2007. All the three selected candidates have joined immediately after the results of the test were notified on 19.2.2007. The vacancy for which the applicant has laid his claim as a wait listed candidate has occurred only on 2.7.2007 i.e. in the next to next selected year in which the aforesaid 3 vacancies have occurred. Therefore, the judgments of the Apex Court relied upon by the applicant are not relevant in this case. Resultantly, these two Original Applications are dismissed. There shall be no order as to costs.
DR K.S.SUGATHAN GEORGE PARACKEN ADMINISTRATIVE MEMBER JUDICIAL MEMBER trs