Central Administrative Tribunal - Delhi
Lochan Sharma vs M/O Finance on 7 April, 2025
0.A. No. 1246/2024
Item No.116 / Court-IV
Aministr
Central Administrative Tribunal
Principal Bench, New Delhi
Duna
0.A. No. I246/2024
Order reserved on 19.03.2025
Order pronounced on
Hon'ble Mr. Manish Garg, Member (J)
Hon'ble Dr. Sumeet Jerath, Member (A)
Lochan Sharma, Aged- 25 Years,
S/o Sh. Ramniwas Sharma,
Residence of 433, Gandhi Chowk,
Gram Past Halena, Tehsil Weir,
Bharatpur, Rajasthan-32 1601
...Applicant
(By Advocate: Mr. Yogesh Sharma)
Versus
1. Pension Fund Regulatory and Development
Authority
Through the Chief General Manager,
B-14 1A,Chatrapati Shivaji Bhawan,
Qutub nstitutional Area, Katwaria Sarai,
New Delhi 110016
...Respondent
(By Advocate: Mr. BS Sharma)
Item No.1 16 / Court |V 0.A. No. 1246/2024
ORD ER
By Hon' ble Mr. Manish Garg, Member (J):
Brief facts of the case as narrated by learned counsel for the applicant reads as under:
2.1 Learned counsel for the applicant submitted that the Pension Fund Regulatory and Development Authority (PFRDA)- respondent had acted in an illegal, arbitrary, and discriminatory manner by not considering the applicant's candidature for appointment to the vacant post of Officer Grade 'A' (Assistant Manager) in the General Stream-OBC category.
2.2 The applicant fulfilled all the eligibility criteria for the post and successfully appeared in the phase-1 examination, phase-2 examination, and phase-3 interview, securing 68.52 marks out of 100. His rank in the General Stream-OBC category was 6, as informed by the PFRDA through a letter dated November 1, 2023. Subsequently, one of the selected candidates resigned during the probation period, creating a 3 Item No, 116 / Court IV 0A. No. l246/2024 vacancy. The applicant submitted representation to the competent authority, requesting consideration for appointment to the vacant post from the reserve list. However, no response was received, and the PFRDA failed to consider the applicant's candidature.
2.3 Learned counsel for the applicant contended that the PFRDA's inaction is in contravention of the principles of natural justice and the rules governing the recruitment process. The applicant had a legitimate expectation of being considered for appointment, given his eligibility and performance in the selection process. Furthermore, the PFRDA's decision not to consider his candidature is discriminatory, as it has resulted in the applicant being denied an opportunity to serve in the post, despite being eligible and meritorious.
2.4 In view of the above, by way of the present OA following reliefs have been sought:
")That the Hon'ble Tribunal may graciously be pleased to pass an order declaring to the effect the inaction on the part ofthe respondents not considering the candidature of the applicant for his appointment to the post of Officer Grade A' (Assistant Manager) against the vacant post under General Stream-OBC category is totally illegal, arbitrary and discriminatory ,and consequently, pass an order directing the respondents to consider and to appoint the applicant to ltem No lo/ (ou V 0A No l246/2024 the post of Officer Grade 'A' (Assistant Manager) against the Vacant post under General Stream-OBC category immediately with all the consequential benefits from due date.
(i) Any other relief which the Hon 'ble Tribunal deem fit and proper may also be granted to the applicant along uwith the costs of litigation."
2.5 In support of his contention, learned counsel for the applicant relied upon the decision rendered in W.P. (C) No. 3408/2019 dated 02.05.2022 of the Honble High Court of Delhi.
3. Per contra, learned counsel for the respondent reiterated the arguments made in the counter affidavit. He asserted that the respondents reserve the right to increase, decrease, fill, or not to fill the posts as stated in the advertisement. This clause is essential for an organization to manage its staffing requirements. He emphasized that no candidate has a vested right to appointment. This means that the PFRDA has the discretion to decide who to appoint, and candidates cannot claim an automatic right to the position.
3.1 Learned counsel for the respondents submitted that the decision not to fill vacant posts is based on administrative requirements and the availability of adequate fresh recruits which suggested that the 5 Item No. 116 / Court IV 0.A. No. 1246/2024 respondents have assessed its current staffing necds conira and determined that illing the vacant posts is not 11ecessary.
3.2 Learned counsel for the respondents pressed that the decision is uniform and applies to all categories and streams, with no discrimination against the applicant. This implies that the respondents have not unfairly targeted the applicant but has instead applied a general policy. The decision is conscious and in the best interest of the respondent, based on the facts and circumstances. This indicated that the respondents have carefully considered its options and made an informed decision.
3.3 Learned counsel for the respondents further submitted that out of 22 advertised posts, 3 remained vacant due to non-joining or resignation, but would not be filled due to adequate fresh recruits as there is sufficient staffing to meet its needs. He further submitted that the no advertisement for the post in question has been issued by the respondents after 09.09.2022.
Item No. 116 / Court V OA No 1246/2024 3.4 In support of his contention, learned counsel for Centra the respondents rclied upon the following case laws:
(i) The Hon'ble Supreme Court of India, in State of Karnataka and Others vs. Bharathi S. reported in 2023 SCC OnLine SC 665, has stated as under:
"It is true that Proceedings dated 11.04.2003 is only an executive instruction and cannot override the application of Rules that govem services. The Rules that govem the services are the Karnataka Education Department Services (Department of Public Instructions) (Recruitment) Rules, 1967 as amended in 2001. On a close reading of the relevant rule applicable to the services i.e. Entry 66, it is clear that there is no obligation on the State to make appointments. Mere publication of the Additional List does not create any right to be appointed. There is no such mandate in the Rule. Entry 66 of the Rules merely provides that the Selection authority shall prepare and publish an Additional List of candidates not exceeding ten percent of the vacancies and the said list shall cease to operate from the date of publication of notification for subsequent recruitments."
(ii) The Hon'ble Supreme Court of India, in State of Haryana vs. Subash Chander Marwaha and others reported in (1974) 3 SCC 220, has stated as under:
"7. In the present case it appears that about 40 candidates had passed the examination with the minimum score of 45 per cent. Their names were published in the Government Gazette as required by Rule 10(1) already referred to. It is not disputed that the mere entry in this list of the name of a candidate does not give him the right to be appointed. The advertisement that there are 15 vacancies to be filled does not also give him a right to be appointed. It may happen that the Government for financial or other ltem No. \6/'out IV 0A No l246/2024 admiistrative reasons may not fill up any vaIcancies. In such a case the candlidates, even the first in the list, will not have a right to be appointed. The list is merely to help the State Government in making the appointments showing vhich candidates have the minimum qualifications under the Rules. The stage for selection for appointment comes thereafter, and it is not disputed that under the Constitution it is the State Govemment alone which can make the appointments. The High Court does not come into the picture for recommending any particular candidates. After the State, Govenment have taken a decision as to which of the candidates in accordance with the list should be aypointed, the list of selected candidates for appointment is forwarded to the High Court and the High Court then will have to enter such candidates on aRegister maintained by it. When vacancies are to be filled the High Court willsend in the names of the candidates in accordance with the select list and in the order they have been placed in that list for appointment in the vacancies. The High Court, therefore, plays no part except to suggest to the Government who in accordance with the select list is to be appointed in aparticular vacancy. It appears that in the present case the Public Service Commission had sent up the rolls of the first 15 candidates because the Commission had been informed that there are 15 vacancies. The High Court also in its routine course had sent up the first 15 names to the Government for appointment. Thereupon the Chief Secretary to Government, Haryana wrote to the Registrar ofthe High Court on May 4, 1971 as follows :
"I am irected to refer to Haryana Government endst. No. 1678-1 GS 11-71/3802, dated the 22nd April, 1971, on the subject noted above, and to say that after careful Consideration of the recommendations of the Punjab and Haryana High Court for appointment of first fifteen candidates to the Haryana Civil Service (Judicial Branch), the State Govermment have taken the view that it would be appropriate that only the first seven candidates should be appointed to the Haryana Civil Service (Judicial Branch) and a notification has been issued accordingly. The reason is that in the opinion of the State Government, only those candidates who obtained 55% or more marks in the Haryana Civil Seruice (Judicial Branch) Examination, should be appointed as that was serve to lItemNo, Il6 / Court IV 0.A. No. 1246/2024 maintain minimum standard in the appointments to the Service. It may he mentioned that the last candidate appointed against unreserved vacancies out of the merit list prepared on the basis of the Haryana Civil Service (Judicial Branch) Examination held in May, 1969, secured 55.67% marks.
The State Govermment have also received information that the Punjab and HaryanaHigh Court themselves recommended to the Punjab Government that in respect of P.C.S.(Judicial Branch) Examination held in 197O, candidates securing 55% marks or more should be appointed against unreserved vacancies. Thus, the decision-taken by Haryana Government is in line with the recommendations which the High Court made to the Punjab Government regarding recruitment to the P.C.S. (Judicial Branch) on the basis of the Examination held in 1970, and a similar policy in both the cases would be desirable for obvious reasons. *****
9.t is rather difficult to follow the reasoning of the High Court in this case. It agrees that the advertisement mentioning 15 vacancies did not give aright to any candidate to be appointed to the post of a Subordinate Judge. Even so it somehow persuaded itself to spell out a right in the candidates because in fact there were 15 vacancies. At one place it was stated 'so long as there are the number of vacancies to be filled in and there are qualified candidates in the list forwarded by the Public Service Commission along with their Rolls, they have got a legal right to be selected under rule 10fti)in Part C.
10. One fails to see how the existence of vacancies gives a legal right to a candidate to be selected for appointment. The examination is for the purpose of showing that a particular candidate is eliqible for consideration. The selection for appointment comes later. It is open then to the Government to decide how many appointments shall be made. The mere fact that acandidate's name appears in the list will not entitle him to a mandamus that he be appointed. Indeed, if the State Government while making the selection for appointment had departed from the ranking given in the list, there would have been a legitimate grievance on the ground that the State Government had departed from the rules in this respect. The true effect of rule 10 in Part C is that if and when the State Govermment propose to make Item No,||6 /Cou V 0A No D46/2024 appointnments of Subordinate Judqes the State Govemment () shall not make such appointments by travellinq outside the list arid (ü) shall mnake the selection for appointments strictly in the order the candidates have been placed in the list published in the Govemment Gazette. In the present case neither of these two requirements is infringed by the Government. They have appointed the first seven persons in the list as Subordinate Judges. Apart from these constraints On the power to make the appointmnents, nule 10 does not impose any other constraint. There is no constraint that the Government shall make an appointment of a Subordinate Judqe either because there are vacancies or because a list of candidates has been prepared and is in existence."
4. We have heard learned counsel for both parties at length and perused the record of the case.
5 ANALYSIS 5.1 In the instant OA, the applicant being at Serial No. 1 as Wait listed Candidate has been seeking appointment in lieu of non joining/resignation the candidate in main list. He also challenged the decision of respondents of not operating a wait list panel even before the expiry of one year from date of declaration of result.
5.2 We are reminded of the following observations made in decision rendered by the Hon'ble Apex Court in Civil Appeal Nos. 8822-8823 OF 2022 (Arising out of SLP (C) Nos. 10386-10387 of 2020] -The State of Item No. |l6/'0ut V 0A No 1246/2024 Uttar Pradesh Versuskarunesh Kumar & Ors decided on 12.12.2022:
"An employer shall always have adequate discretion with an element of flexibility in selecting an employee. Interference can only be made when a selection is arbitrary or contrary to law, which we do not find to be the case in the present matter. The approach of the High Court is like a visually impaired person looking for a black cat in a dark room when the cat itself is not there."
5.3 A three Judges Bench of the Hon'ble Supreme Court in the case of Gujarat State Dy. Executive Engineers' Assn. -Vs- State of Gujarat, reported in 1994 Supp (2) SCC 591 have held that -
"A waiting list prepared in service matters by the competent authority is a list of eligible and qualified candidates who in order of merit are placed below the last selected candidate. Such lists are prepared either under the rules or even otherwise mainly to ensure that the working in the office does not suffer if the selected candidates do not join for one or the other reason or the next selection or examination is not held soon. A candidate in the waiting list in the order of merit has aright to claim that he may be appointed if one or the other selected candidatedoes notjoin. But once the selected candidates join and no vacancy arises due to resignation etc. or for any other reason within the period the list is to operate under the rules or within reasonable period where no specific period is provided then candidate from the waiting list has no right to claim appointment 11 Item No.116 / Court-IV 0.A. No. 1246/2024 Amlnisls to any future vacancy which may arise unless the selection was held for it. She has Laounal no vested right except to the limited extent, indicated above, or when the appointing authority acts arbitrarily and makes appointment from the waiting list by picking and ch0osing for extraneous reasons. Awaiting list prepared in an examination conducted by the Commission does not furnish a source of recruitment. It is operative only for the contingency that if any of the selected candidates does not join then the person from the waiting list may be pushed up and be appointed in the vacancy so caused or if there is some extreme exigency the Government may as a matter of policy decision pick up persons in order of merit from the waiting list. But the view taken by the High Court that since the vacancies have not been worked out properly, therefore, the candidates from the waiting list were liable to be appointed does not appear to be sound. This practice, may result in depriving those candidates who become eligible for competing for the vacancies available in future. If the waiting list, in one examination was to operate as an infinite stock for appointments, there is a danger that the State Government an may resort to the device of not holding examination for years together and pick up candidates from the waiting list as and when required. The constitutionaldiscipline requires that this Court should not permit such improper exercise of power which may result in creating a vested interest and perpetrate waiting list for the candidates of one examination at the cost of entire set of fresh candidates either from the open or even from service.
the operation of a waiting list should be confined to the vacancies notified for that examination and not for any vacancy arising Item No.116 /Court |V 0A No 1246/2024 in future nless a poliey dccision is the Govenment to that effect. laken by Appointment in future vacancies from waiting list the Commission should be exception prepared by rather than the rule. It has many ramifications. In any case, the High Court should not have assumed upon itself the role of appointing authority unless itfound that the Government was acting arbitrarily. No rule has been shown that selection of direct recruits was to take place every year. In absence of such rule, the provisocould not apply. However, its validity was not challenged either in the High Court or in this Court. It has, therefore, to be construed so as not to defeat the objective of its enactment. For its working reasonably it has to be understood that once recruitment by direct selection has been made in any year then the quota of direct recruits till then should be deemed to have been exhausted and if anyvacancy could not be flled for any reason then it should be deemed to have lapsed and could'not be carried foruward."
5.4 It has been held that Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and even 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 Item No. 116/ Court |V OA No l246/2024 0r any of thenm are iled up, the State is bound to respect the comparative merit of the w) candidates, as rellected at the recruitment test, and no discrimination can be permitted. This correct position has been consistently followed by Courts in State of Haryana v. Subash Chander Marwaha (1974) 3 SCC 220, Neelima Shangla v. State of Haryana (1986) 4 SCC 268, or Jatindra Kumar v. State of Punjab (1985)1 SCC 122.
5.5 In S.s. Balu v. State of Kerala, (2009) 2 SCC 479, it was held that the State as an employer has a right to fill up all the posts or not to fill them up. A candidate will have no legal right for claiming a writ in the nature of mandamus unless there is discrimination or arbitrariness in regard to the filling up of the vacancies. The Court held as under:
"12. There is another aspect of the matter which cannot also be lost sight of. A person does not acquire legal right to be appointed only because his name appears in the select list. (See Pitta Naveen Kumar v. Raja Narasaiah Zangiti [(2006) 10 SCC 261. The State as an employer has aright to fill up all the posts or not to fill them up. Unless a discrimination is made in regard to the filling up of the vacancies or an arbitrariness is 14 Item No. 116/Court-]V 0.A. No. 1246/2024 committed, the cundidate concemed will have no legal right for oblaining a writ of or in the nature of mandamus. (See Batiarani Gramiya 23 Bankv. Pallalb Kumar (2004) 9 SCC 100. 5.6 In Kulwinder Pal Singh Vs. State of Punjab, (2016) 6SCC 532, this Court held that the name of a candidate may appear in the merit list but he has no indefeasible right to seek an appointment. It was held as under:
"10. It is fairly well settled that merely because the name of a candidate finds place in the select list, it would not give him indefeasible right to get an appointment as well. The name of a candidate mayappear in the merit list but he has no indefeasible right to an appointment ( See also :Food Corporation of India v. Bhanu Lodh (2005) 3 SCC 618, All India SC & ST Employees' Assn. UPSC U. A. Arthur Jeen (2001) 6 SCC 380 and U. GauravDwivedi (1999)5 SCC 180."
5.7 In factual matrix of the present case , we observe has been taken that once a decision by respondents recruits are not to fill remaining posts since present suffice to meet the present requirement of the evident from autonomous organization, which is als0 the fact that no fresh recruitment has taken place since 2022 till date for reasonable period of three years.
15Item No. l16/Court-IV 0.A No. I246/2024 Such reason cannot be said to be wholly arbitrary slra which warrant a mandate to the respondents to appoint the applicant who is not in merit list but at best in the waiting list. The State has right not to fill up advertised. The stand that the any vacancy requirement to fill up all vacant posts was not felt warranting a mandamus cannot be said to be arbitrary We cannot direct the to app0int the applicant.
candidate fromn Wait list,
respondents to appoint a
posts to be filled up. The
when it does not require the
vacancies has been taken for
decision not to fill up
arbitrary nor
appropriate reasons and is neither
substitute the
discriminatory. We otherwise cannot
respondents and also
cannot direct
decision of the
candidates in the waiting list.
them to appoint the
6. CONCLUSION
discussion, After careful
In view of the above
in the
consideration, we do not find any infirmity
upon the applicant
action of the respondents in calling from the wait-list panel for offering the appointment.
to be in accordance The respondents' decision appears 16 Item No. 116 / Court-IV 0.A. No. 1246/2024 inistra with established rules and procedures. Accordingly, the OA is dismissed. Pending application(s), if any, shall alsostand dismissed. No costs.
(Dr. Sumeet Jerath) (Manish Garg)
Member (A) Member (J)
/sm/