Central Administrative Tribunal - Delhi
S/O Sh. Devindar Singh Mann vs Union Of India on 27 November, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH OA 928/2012 New Delhi this the 27th day of November, 2012 HONBLE MR. G. GEORGE PARACKEN, MEMBER (J) HONBLE MRS. MANJULIKA GAUTAM, MEMBER (A) Amit Mann (Roll No. 604258), Recruit SI (Ex.) in Delhi Police Recruitment-2009 (PH-II), S/o Sh. Devindar Singh Mann, R/o H-27, Police Station, Hauz Khas, New Delhi-16. Applicant. (By Advocate Shri Amit Singhal) Versus 1. Union of India, Through its Secretary, Ministry of Home Affairs, North Block, New Delhi. 2. Lt. Governor of Delhi, Raj Niwas, Delhi. 3. Commissioner of Police, Police Headquarter, IP Estate, New Delhi. Respondents. (By Advocate Shri Amit Anand) O R D E R (ORAL)
Shri G. George Paracken:
The applicant has filed this Original Application seeking a direction to the respondents to fill up all the 18 unreserved (`UR for short) vacant posts of Sub Inspector (Executive) in Delhi Police under Open General Category in the Recruitment-2009 (Phase-II) from those candidates like him who are next in the merit list or at least the 5 candidates including him who secured 155 marks which is equivalent to the cut off marks.
2. The brief facts of the case are that the applicant was a candidate for the post of Sub Inspector (Executive). The respondents issued Annexure A-1 Recruitment Advertisement -2009 (Phase-II) for 380 posts of Sub Inspector (Executive) in Delhi Police including 155 vacancies for UR category. The applicant applied under the UR category. He qualified the prescribed test/examination but he did not find his name in the final select list of 380 selected candidates. Out of those 380 candidates, 155 were from the UR category. 06 more UR category candidates were kept in reserve list. Since only 131 out of those 155 candidates joined the service, all the 06 UR candidates whose names were kept in reserve list were given appointment. Thus, a total of 137 UR candidates have been appointed. The cut off date for the UR category was 155 marks. Including the applicant 15 UR candidates obtained 155 marks. Out of them, 12 have been appointed.
3. According to the applicant, since only 137 UR vacancies have been filled up and the balance 18 UR vacancies are still lying vacant, the applicants contention is that at least 5 more candidates including him who has secured 155 marks are to be appointed against the vacant posts. In this regard, he has relied upon the order of this Tribunal in OA 2109/2008 with OA 2402/2008 Ct. Kuldeep Singh Rana Vs. Union of India and Devender Kumar Dahiya decided on 06.01.2009. In the said case, recruitment notice was published on 04.10.2007 for selection of 692 Sub Inspectors (Executive). 36 of the total number of posts were specifically earmarked for departmental candidates in the UR category. Results were declared on 09.05.2008. In the meanwhile, results of 2004 selection for the Sub Inspectors posts were also declared in April, 2008. Some of the constables of Delhi Police had their names in the select lists of both 2004 and 2007 selections. Accordingly, 04 candidates have joined the 2004 select list. Therefore, 04 more candidates could be inducted in 2007 select list. Additional two more persons could be inducted in the selectees of 2007 as two candidates who secured high ranks had opted for other services. This Tribunal held that when vacancies are specifically notified for, in-service candidates, the Administration has the duty to fill up the posts when candidates have proved their eligibility after participating in the selection process and, therefore, their claims were required to be looked into. Consequently, this Tribunal directed the respondents to complete the process of appointment consequent to the selection as referred to above and to consider the most meritorious candidates as appearing from the select list for those two posts.
4. The applicants counsel has also relied upon the order of this Tribunal in OA 2578/2009 Jainender Kumar Prashar Vs. Union of India & Ors. decided on 10.09.2009. The applicant therein applied for the post of Sub Inspector (Executive) in Delhi Police, pursuant to the recruitment advertisement issued on 04.10.2007. He qualified the physical and written examination and was also interviewed. He secured 121 marks. Initially, the cut off marks for departmental candidates was 123, but since 04 candidates were common and qualified in the recruitment held for both the years (2004 and 2007) and they opted for the recruitment year 2004, the respondents appointed next 04 candidates in the merit list against those 04 vacancies of the year 2004 who seemed to have secured 122/121 marks. Vide Tribunals common order dated 06.01.2009 in OA Nos. 2109/2008 and 2402/2008 (supra), 02 more persons were appointed as they secured 122 and 121 marks respectively, bringing down the cut off mark to 121. Thus out of 36 departmental UR vacancies, 34 vacancies have been filled up. Since two more vacancies are still lying to be filled up and the applicant therein got 121 marks, his claim was that those available vacancies should be filled up with candidates who got 121 marks. Finding merit in the aforesaid position, this Tribunal allowed the O.A.
5. The applicants counsel has also relied upon the Order of the co-ordinate Bench of this Tribunal in OA 3452/2009 Anil Kumar Vs. Union of India & Ors. decided on 12.04.2010. The applicant therein applied for the post of Sub Inspector (Executive) (Male) in Delhi Police under Open General Category in the Recruitment held in the year 2009. He was not given appointment on the ground that he failed to make the grade due to younger in age in the list of finally selected candidates. However, it was disclosed in the counter reply that six vacancies could not be filled due to the different reasons. Therefore, this Tribunal held that in the event the six vacancies are filled up by the respondents from among the empanelled candidates, the claim of the applicant shall be considered by them for being appointed as Sub Inspector (Executive) Male. Again in OA 3498/2009 Brijvir Singh Vs. Union of India & Ors. decided on 13.04.2010, this Tribunal has directed the respondents to consider the applicant therein in case the ex-servicemen, who have been given offer, did not join the post.
6. On the other hand, the respondents have submitted that out of 380 vacancies advertised, 155 vacancies were meant for open General Category candidates. The name of the applicant appeared at Serial No. 03 of the unselected Open General Category candidate. A total of 155 candidates under Open General Category (main list) and an additional 06 vacancies (reserve list) were filled up. Thereafter, 02 more Open General Candidates were selected after awarding them Bonus marks for height and NCC certificate making a total 157 candidates. Out of 155 candidates of main list thus joined, candidatures of 23 candidates were cancelled due to various reasons i.e. medically unfit, not willing to join and adverse PVR etc. As a result all the 06 additional candidates in the reserve list were selected. No candidate of Open General Category was left out from the additional list. They have also submitted that total 15 candidates of Open General category secured 155 marks. Out of them, 12 candidates who are senior in age have been selected and they have also joined. The name of the applicant did not fall in the list of additional candidates and hence he was not selected. Unfilled vacancies which were occurred due to cancellation of candidature/registration, etc. of the candidates have been carried forward to the next recruitment and have been informed to the Staff Selection Commission for the Recruitment, 2012.
7. Justifying their action, they relied upon the judgment of the Apex Court in SLP (C) No. 29248 of 2008 and CC Nos. 14852-14854 Rakhi Ray & Ors. Vs. High Court of Delhi & Ors. decided on 01.02.2010 wherein it has been decided that A person whose name appears in the select list does not acquire any indefeasible right of appointment. Empanelment at the best is a condition of eligibility for purpose of appointment and by itself does not amount to selection or create a vested right to be appointed. They have also relied upon an order of the co-ordinate Bench of this Tribunal in OA 2322/2009 Vijay Kaushik Vs. Commissioner of Police decided on 23.05.2011. In he said case, the advertisement was issued by the respondents in the year 2007. A total number of 692 posts of Sub Inspectors (Executive) in Delhi Police had been advertised. The applicant, who is a general category candidate, was claiming appointment against the 281 UR posts. He passed the physical test and also participated in the written test. On short-listing he had been called for interview. However, his name did not figure in the list of the selected candidates as per the result declared on 09.05.2008. His grievance was that the respondents had not selected him despite all the notified vacancies not having been filled up. The respondents in their reply have submitted that 04 departmental candidates were selected to the post of Sub Inspector (Executive) on the basis of the examination 2004 conducted by the Staff Selection Commission. They were also in the select list of candidates prepared on the basis of examination-2007 conducted by Delhi Police. On their request, they have been treated as selected through the examination of 2004 and their candidatures for 2007 examination were cancelled and in their place 04 candidates in their respective category on merit have been selected. This Tribunal dismissed the O.A. holding that applicant who is not a selectee, nor even a panellist has no locus standi. Besides, the selection process has already been closed. The relevant part of the said order reads as under:
6. We have carefully considered the respective submissions of the learned counsels and perused the material on record.
7. Certain facts in this case are undisputed. The applicant had not been empanelled in the list of selected candidates; nor did his name figure in any waiting panel, as no such panel had at all been prepared. There is no averment either of anyone, lower to the applicant in the merit list having been appointed. The claim being raised is against the vacancies caused by non-joining of certain selected candidates. Additionally, the claims are against the vacancies resultant to resignations after the joining. As per the applicant 14 vacancies were in the former category and 17 in the latter. The basis of the same is certain information provided under the RTI and enclosed vide Annexure A/9 and A/10 of the OA. We note that the RTI information about those leaving their jobs after joining covers a span of one year period from July 2008 to July 2009. However, as per the respondents, it is not binding to have a wait-listed panel and the number of persons who did not join, on cancellation of their candidature, the resultant vacancies had been forward and included in the next recruitment cycle which also has been finalized and acted upon. Not to miss the point, the applicant himself is a beneficiary of the subsequent recruitment cycle.
8. The settled law on the subject is that even a selectee has no indefeasible legal right to appointment, least of all a wait-listed panelist. In the present case the applicant was neither. In fact, as per the determining criteria of selection, the applicant had even failed to be included in the list of the finally selected candidates.
It is equally settled a proposition of law that a bonafide decision on the part of the appointing authorities not to make appointments even against notified vacancies is not to be interfered with in judicial review. Laying down the basic law on the subject in Shankarsan Dash vs UOI, {(1991) 3 SCC 47}, the Honble Apex Court had observed:
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 license of acting upon arbitrary manner. The decision not to fill up the vacancies has to be taken bonafide for appropriate reasons.
The above view was reiterated in a catena of judgments. In State of UP & Ors vs Raj Kumar Sharma & Ors { (2006) 3 SCC 330} in a case where the issue had arisen out of selectees of the erstwhile united State of U.P. making claims for appointment against vacancies in the Hill State of Uttaranchal, the claims had not been found tenable. Further, the Honble Apex Court had reiterated that-
Mere inclusion of a candidates name in the list does not confer any right to be selected, even if some of the vacancies remained unfilled and the candidates cannot claim that they have been given a hostile discrimination.
To illustrate the points at issue, a few more the judgments of the Apex Court in Jitendra Kumar & Ors vs State of Haryana {2008 (1) SCC (L&S) 428} / Subha B. Nair & Ors vs State of Kerala & Ors {2008 (2) SCC (L&S) 409}, may also be cited.
9. The present case is not one of arbitrary non-filling of certain notified vacancies. In Shankarsen Das vs UOI (supra) only the Honble Apex Court had cited its two earlier decisions in R.S. Mittal vs UOI {(1995) Suppl. 2 SCC 230} and Asha Kaul vs State of J&K {(1993) 2 SCC 573} as illustrations of arbitrary non-filling of the notified vacancies. In R.S. Mittals case, the non appointment of the persons from the select panel had been on grounds of `inaction on the part of the Government. In Asha Kauls case, the Honble Court had found the entire exercise to have been `reduced to a farce. This was a case in which the respondents after having sent a requisition to the Commission to select a particular number of candidates for a particular category, in pursuance of which the Commission had issued a Notification, completed the selection process and communicated the select list to the Government, the authorities without any valid reasons had nullified the whole exercise.
The learned counsel for the applicant, Shri Ajest Luthra has adverted to the decision in R.S. Mittals case. However, considering the factual matrix, the present case is found to be distinguishable. In this case the respondents after selection of an equal number of candidates as per the notified number of vacancies, on non-joining of certain candidates had cancelled their candidature and carried forward the vacancies to the next recruitment cycle, which itself has since been completed and acted upon. We do not, therefore, find this contention of the applicant regarding the carrying forward of unfilled vacancies being arbitrary as acceptable.
In view of the explanation submitted by the respondents with regard to the different factual circumstances of the 4 candidates appointed in the departmental quota, the averment of an alleged discrimination is also not found to be tenable. As stated above, the appointment of other two candidates in the departmental quota had been in pursuance of certain judicial directions, and as such cannot be relied upon.
10. This is also not exactly a case of mid stream change of rules of the game. The cases of K. Manjusree vs State of A.P. / Hemani Malhotra (supra) both relied upon by the learned counsel for the applicant dealt with a different issue i.e. prescription of minimum marks by the respondent High Court for viva voce, after the written test was over. Besides, the Honble Apex Court had also been seized with the fact that such course of action for purpose of appointment to Delhi Higher Judicial Service was contrary to recommendations in Justice Shetty Commissions Report, as approved with certain modifications in All India Judges Association case { (2002) 4 SCC 247} for the reason that it had expressly provided therein that there should be no cut off marks for viva voce. Evoking the doctrine of circumstantial flexibility, we do not find the ratio of these two cases as applicable in the present case. Even Para-4 of the OA No.215/2010 relied upon by the learned counsel for the applicant cannot be taken in isolation of the overall context.
On the other hand, in Ramesh Kumar vs High Court of Delhi & Anr decided before a 3 Judge Bench : (2010) 1 SCC (L&S) 716, the Honble Apex Court observed:
In absence of any contrary statutory provision, the competent authority can prescribe minimum qualifying process both for written and interview. The same was also held to be permissible for selection.
In Tridip Kumar Dingal & Ors vs State of West Bengal {(2009) 2 SCC (L&S) 119} holding bonafide short-listing to eliminate candidates as justified, it was held by the Honble Apex Court that, in the absence of the statutory provisions the same could be undertaken, even as per administrative instructions, provided the action otherwise was bonafide and reasonable.
On behalf of the applicant, there has been no averment before us of any statutory provision making the preparation of a waiting list as a mandatory obligation on the part of the respondents. The DOPT instructions being adverted to are only enabling in nature. The departmental Standing Order No.321 of 2007 also does not help the case in any manner.
Even as per the DOPT instructions cited before us, the DOPT OM dated 18.1.1990 mentions of a reserve panel being operable in contingencies of resignations or deaths within six months, whereas the RTI information as per the Annex. A/10 covers a period of one year. Thus, there is no definite information on this account. Admittedly the applicant was only 17th in the list.
11. Undisputedly the selection process in this case had already come to an end. As per the settled law no relief can be admissible on the basis of an expired select list.
In Girdhar Kumar Dadhich & Anr vs State of Rajasthan & Ors {(2009) 1 SCC (L&S) 543} the Honble Apex Court held:
Validity of a select list would ordinarily remain valid for one year. Duration if extended must be done in accordance with law.
In Nadia District Primary School Council & Anr. vs Sristidhar Biswas & Ors {(2008) 2 SCC (L&S) 946}, the Honble Apex Court had observed:
Court cannot keep a panel alive for long and direct the staff to appoint empanelled candidates pursuant to a writ petition filed several years later.
In State of Orissa and Anr vs Raj Kishore Nanda & Ors {(2010) 2 SCC (L&S) 313}, the Honble Apex Court had held that empanelment is at best a condition of eligibility for purposes of appointment, and the same did not confer any vested right in favour of an empanelled candidate. Further, it had been reiterated that a bonafide decision by Appointing Authority to leave certain vacancies unfilled even after preparing select list cannot be assailed.
12. The vacancies in this case had been carried forward to the next recruitment cycle. As per the decision of the Apex Court in State of UP & Anr vs. Nidhi Khanna & Anr (supra) relied upon by the respondents, the claims on the basis of even empanelled candidates in an earlier select list are precluded to be agitated in such a situation.
13. In view of the foregoing, we find that the claims in the OA are not tenable. The applicant who is not a selectee, nor even a panelist has no locus standi. Besides, the selection process has been closed. The averment of arbitrariness is not found to be tenable. The applicant himself is a beneficiary of the subsequent selection process to which the unfilled vacancies had been carried forward. Considering the factual matrix of the case and the settled law on the subject, we do not find any merit in the OA which is hereby dismissed with no order as to costs.
8. We have heard Shri Amit Singhal, learned counsel for the applicant and Shri Amit Anand, learned counsel for the respondents. The admitted position in this case is that the entire 155 posts have been filled up by the respondents. However, later on, some persons have not joined. As a result those vacancies remained unfilled. Since the respondents are not maintaining any panel for filling up the unfilled vacancies, those vacancies have been carried forward for the next recruitment year. Therefore, it cannot be said that the vacancies have remained unfilled. In the above facts and circumstances of the case, we do not find any merit in this case. Accordingly, the same is dismissed. There shall be no order as to costs.
(MRS. MANJULIKA GAUTAM) (G. GEROGE PARACKEN)
MEMBER (A) MEMBER (J)
`SRD