Central Administrative Tribunal - Delhi
Shri Manoj Manu vs The Secretary on 29 March, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH : NEW DELHI O.A. NO.3511/2010 New Delhi, this the 29th day of March, 2011 CORAM: HONBLE DR. K.B.S. RAJAN, MEMBER (J) HONBLE DR. VEENA CHHOTRAY, MEMBER (A) 1. Shri Manoj Manu, SO, Fund Bank III Section, Department of Economic Affairs, Ministry of Finance, North Block, New Delhi-1 2. Shri Binod Kumar Mandal, Assistant, Ministry of Civil Aviation, Rajiv Gandhi Bhawan, Safdarjung Airport, New Delhi Applicants (By Advocate: Shri Padmakumar S) Versus 1. The Secretary, DOP&T, North Block, New Delhi 1 2. The Secretary, Union Public Service Commission, Dholpur House, Shahjahan Road, New Delhi 3. The Secretary, Ministry of Finance, North Block, New Delhi 1 4. The Secretary, Ministry of Civil Aviation, Rajiv Gandhi Bhawan, Safdurjung Airport, New Delhi 3 Respondents (By Advocate: Shri Naresh Kaushik for R-2) O R D E R By Dr. Veena Chhotray, Member (A):
Both the applicants in this OA are working as Assistants in the Central Secretariat Service. They are aspirants for appointment to the post of Section Officers Grade of the Central Secretariat Service, on the basis of the Limited Departmental Competitive Examination, 2005 conducted by the UPSC. The applicants are resting their claims against the 5 general category vacancies requisitioned by the DOP&T vide their letter dated 20.11.2009. The UPSC instead had found it appropriate to recommend names for only 3 vacancies (Annex A/1). The applicants are challenging this selection recommendation by the UPSC as arbitrary and discriminatory. Besides, since according to the applicants as per the RTI they had scored marks equivalent to the other 3 recommended candidates, it is also said to entail infraction of their Fundamental Rights under Articles 14 and 16 of the Constitution of India.
In this background, the OA seeks the following reliefs:-
A direction to the Respondent no.2 (UPSC) for sending the names of the applicants, who have the same marks as the three general candidates recommended by the impugned order as supplementary list.
A direction to the respondents to give the applicants, if their names in the supplementary list, the appointment of Section Officers and all consequential benefits.
Besides, award of costs of litigation in their favour and passing any other directions in its discretion, deemed fit under the circumstances, have also been prayed.
In response to the prayer for interim relief, initially vide the order dated 21.10.2010, interim protection was provided by way of a direction of any vacancies which are diverted, remaining subject to the final outcome. These, however, were not got renewed thereafter.
2. On behalf of the applicants, the learned counsel, Shri Padmakumar S and for the Respondent No.2, Shri Naresh Kaushik would appear and make the submissions. Despite due opportunity, none however represented the Respondents 1, 3 and 4.
3. The brief factual background as revealed before us is stated below:
3.1 The LDCE in question was a Combined Examination for recruitment to several categories of posts of Section Officers and Stenographers belonging to different services. The applicants, however, had applied for the category-I which pertained to Section Officers Grade of the Central Secretariat Service. The selection criteria for SOs comprised a written test with maximum 500 marks. Besides, there was evaluation of record of service carrying a maximum of 100 marks. Whereas the minimum qualifying marks in the written examination were as fixed by the Commission for each category; in case of evaluation of service records a minimum of 40% qualifying marks had been prescribed. The names of the applicants had been included in the list of candidates who had qualified the written test.
3.2 For the posts of S.O. in Category-I, against 196 vacancies (Gen. 160, SC-17 and ST 19) intimated by the DOPT, UPSC recommended 184 candidates in 2 lots (141 + 43). In the ST category 12 vacancies remained unfilled for want of recommendations regarding suitable candidates. Vide the letter dated 20.11.2010, the DOP&T requested UPSC for providing a supplementary list of 18 candidates (Gen. 5, SC-1 and ST-12) on the basis of aforesaid LDCE (Annex.A/4). Para-3, being critical to the issues raised in the present OA, is being reproduced as here under:
3. In this connection, it is stated that out of 184 candidates (total General-160, SC-17 and ST 19 = 184) recommended for Category I, 6 vacancies (General-5 and SC-1) have arisen in the following manner:-
S.No Roll No. Name (S/Shri) Category Reasons for the vacancies to arise 1 001417 Sanjay Bora General Already appointed as PS vide OM No.5/2/2009-CS.II dated 16.3.2009 2 000713 Ms Kitty General Already appointed as PS vide OM No.5/2/2009-CS.II dated 16.3.2009.
3 001823 Devjyoti Chakravarty General Technically resigned on 17th August, 2007 i.e. prior to the declaration of the result. His lien is over on 17th August, 2009.
4 001604 Sanjeev Jain General He has opted for appointment against Seniority Quota, 2005 instead of LDCE 2005 5 001376 Vishwajit Kalyani General He has given his undertaking to remain as Personal Secretary.
6 001711 Jai Kishore SC Qualified in LDCE 2005 Exam., however pursuant to a Court direction, he has been adjusted against SL 2000 (LDCE). 3.3 In their response vide the letter dated 20.2.2010 (Annex A/1), the UPSC recommended a supplementary list of 4 (Gen-3, SC-1) candidates against vacancies caused by repeat and common candidates. The reasons for not recommending any candidates against the remainder 2 Gen. S.Os vacancies were stated:
2. Two General vacancies (one caused due to resignation of a candidate and another due to inclusion of a candidate in Select List of seniority quota of 2005) have not been taken into account by the Commission as a matter of policy.
4.1 The applicants are relying upon an information received under the RTI, according to which they had secured an overall score of 305; the same as of one Shri Rajesh Kumar Yadav recommended by the UPSC in the supplementary list (Annex. 2). It is contended that as per the Scheme of Examination and admitted stand of the UPSC the ACRs are seen only for the purpose of the minimum qualifying mark and for determining the merit position inter-se among people declared to have qualified the written test. The impugned order of the UPSC is alleged to be discriminatory per se by allowing some general candidates appointment while denying the same to some other general candidates securing the same marks (Grounds D & F). The learned counsel, Shri Padmakumar S would argue that once the DOPT had made a requisition for a supplementary list, the UPSC could not have on its own made a class within a class.
4.2 The learned counsel would also question the UPSCs stand in the impugned order as their non-recommendation of the names of the applicants against the remaining 2 Gen. category vacancies on the basis of a policy. It would be averred that no document was attached with the counter in support of any such policy. Dubbing the so-called policy as clandestine, the impugned order would be stated to be arbitrary for the policy if any, not having been revealed by the UPSC (Grounds C &E).
4.3 The learned counsel, Shri Padmakumar S would also submit that the counter reply only referred to an OM of 14.7.1967 which did not talk of any sub-classification on any ground. Thus, the distinction being drawn by the UPSC in the nature of vacancies, while recommending the names in the supplementary list, could not be viewed as satisfying the prescribed criteria of satisfying a reasonable nexus with the objective sought to be achieved. On this ground also the impugned order would be argued to be arbitrary and violative of Articles 14 and 16.
4.4 The respondents stand in their counter about not maintaining any supplementary list would be negated too by the learned counsel as a fallacious contention; since the Commission had itself recommended 3 names in the Gen. Category in the supplementary list. The learned counsel would contend about the availability of vacancies even now and the applicants being under a cover of interim protection. Thus, non-furnishing the supplementary list against the remaining two vacancies as well would be averred to be discriminatory and violative of the applicants rights under Articles 14 and 16.
5.1 The claims in the OA have been contested by the respondents. While admitting that the applicants had qualified the written test; it is submitted that they could not find a place in the final list recommended by the Commission. The final result is said to be prepared by combining the marks of both the written examination and the ACRs evaluation, in accordance with the number of vacancies in that category. Besides, in case of two or more candidates securing equal aggregate marks the principle for resolving the inter-se ranking has also been enclosed (Annexure R/1).
5.2 On the issue of supplementary lists, it is stated that there is no provision of any such lists in the rules of the said examination, nor the Commission encourages entertainment of such requests. Further, the procedure laid down by the Government vide the Ministry of Home Affairs OM dated 14.7.1967 has been referred and copy annexed as Annex.R/2. This prescribes broad guidelines regarding timely recruitments by the UPSC.
It is the stand of the respondents that in accordance with the aforesaid Govt. instructions, normally the Commission makes all efforts to declare the results of an Examination in time, well before conducting the next years examination and not release any supplementary lists for any of its examinations. However, sometimes due to the vacancy positions not being firmed up by the requisitioning departments which is more so in cases of Combined Competitive Examinations for several participating user departments, as in the present one the results get delayed till after the conduct of the next years examination. This in turn leads to the same candidates finding place in the results of more than one examination. Besides in some cases where the examinations are conducted for multiple categories, the same candidate gets selected in more than one categories. Only to meet such peculiar situations, the Commission as a matter of practice and policy, has decided to release supplementary lists only in repeat (recommended in the same category in two successive years) and common (recommended in two categories of the same examination) candidates and in no other cases. Accordingly, in the present case also the two vacancies caused due to resignation of one candidate and another due to inclusion of a candidate in the select list under the seniority quota said to have been not covered under the prevailing policy of the Commission.
The learned counsel, Shri Kaushik would justify the present prevailing practice of the Commission of restricting the release of supplementary lists only in these two peculiar situations and no other, as otherwise there would be no end to the examination process of any particular year. Further, the learned counsel would make a statement at Bar about there having been a perceptible improvement lately in observance of prescribed schedule of requisitions of vacancies by the user departments in pursuance of a Division Bench judgment of the Honble Delhi High Court. It would also be submitted by the learned counsel that even this limited exception in case of repeat and common candidates was being discontinued by the Commission.
5.3 Thus, as per the learned counsel for the respondents, lists were prepared as per the number of vacancies notified and there was no concept of maintaining a reserve or a waiting list as such. Rejecting any vice of arbitrariness or discrimination in the policy being followed by the Commission, it would be contended that there were no cogent or valid reasons to assail the respondents action. The learned counsel, Shri Kaushik would also argue against the necessity to produce a policy in black and white and insist that the prevailing practice, evolved taking into consideration the ground realities, would hold the field and could not be flawed on such a logic. As regards the 1967 MHAs OM interpretation by the applicants counsel would also be rebutted as being against viewing the guidelines holistically and being out of context.
5.4 The learned counsel for the respondents would cite a few judicial rulings to reinforce his contentions. The judgment of the Apex Court in Prem Singh & Ors vs Haryana State Electricity Board & Ors {(1996) 4 SCC 319}would be adverted to contend that as per the ratio decidendi in this case the selection process can be started only for clear and anticipated vacancies, but not for future vacancies. The learned counsel would also refer to the Apex Courts judgment in Secretary, A.P. Public Service Commission vs B. Swapna & Ors {(2005) 4 SCC 154}, particularly para 10 where indisputable principles of service laws were reiterated : firstly, there cannot be appointment beyond the advertised number and secondly, norms of selection process cannot be altered midstream. Besides, the learned counsel would also place reliance upon the service law on the subject laid by the Honble Apex Court in State of U.P. & Ors vs Rajkumar Sharma & Ors {(2006) 3 SCC 330} where it was laid down that filling up of vacancies over and above the number advertised would be violative of the Fundamental Rights guaranteed under Articles 14 and 16 of the Constitution of India. And also reiterating the principle about selectee not entitled to claim an appointment as a matter of right, nor could there be raised plea of hostile discrimination even if some vacancies remained unfilled or in some cases appointments were made by mistake.
6.1 We have carefully considered the averments on both sides, besides perusing the material on record.
6.2 It is settled in law that a selectee has no legally indefeasible right for appointment. Besides, a bonafide decision on the part of the State not to fill up vacancies is not to be interfered in judicial review. [Shankarsan Dash v. Union of India {(1991) 3 SCC 47} / State of UP & Ors vs Rajkumar Sharma & Ors {(2006) 3 SCC 33} relied upon by the Respondents / Jitendera Kumar & Ors vs State of Haryana {2008 (1) SCC (L&S) 428} / Subha B. Nair & Ors vs State of Kerala and Ors {(2008) 2 SCC (L&S) 409} / Stte of M.P. & Ors vs. Sanjay Kumar Pathak & Ors {(2008) 1 SCC (L&S) 207}.
In the present case the applicants have not even been finally selected. They have only qualified the written test. The reliance placed in the OA on the information received under the RTI and the contention about the same indicating as final evaluation of the UPSC has been rebutted by the respondents. Even the use of the expression overall in these RTI communications is to be viewed in the context of the scheme of the Examination (Annex. A/7). Since the prescribed written test comprised of 5 papers, each carrying maximum 100 marks; the score 305 obtained by the applicants had a reference to the overall marks obtained in the written test. As such the applicants are not even selectees and thus have no locus standi to agitate any claims. Besides in the present case the respondents consistent stand is against maintenance of any supplementary lists. Hence the claims in the instant OA do not emanate from any candidates empanelled in a supplementary or a waiting list. In State of U.P. & Anr vs Uttar Pradesh Khanij Vikas Nigam Sangarsh Samiti & Ors {(2009) 1 SCC (L&S) 23}, the Honble Apex Court observed:
A writ of mandamus presupposes a legal right in applicants favour.
6.3 The thrust of the applicants arguments is on alleged discrimination and arbitrariness targeting the selective recommendations made by the UPSC in response to the request of the DOP&T vide their letter of 20.11.2009. However, we do not find this tenor of argument as convincing taking into account the detailed factual submissions made by the respondents, necessitating a limited exception (in the case of common and repeat candidates only) to their general policy of not entertaining requests for supplementary lists. There has been no averment on the part of the applicants pointing out any deviation from the professed policy of UPSC. With due respect to the learned counsel for the applicants, we do find ourselves inclined to agree with the contention of there being no clear and reasonable nexus with the objective behind the policy being followed. As was observed by the Honble Apex Court in Union of India & Ors vs Ajay Wahi {(2010) 2 SCC (L&S) 746}:
Article 14 of the Constitution frowns on discrimination but it permits reasonable classification.
The argument about the imperative necessity of a policy in black and white would also not carry any force in the given factual context.
6.3 As regards the MHA OM dated 14.7.1967, we find merit in the plea submitted by the learned counsel Shri Kaushik that this needs to be interpreted taking an overall view. In order to cope with the difficulties being experienced by the UPSC in holding timely examinations, certain broad guidelines had been prescribed through their Office Memorandum. While emphasizing the necessity of advance planning and detailed programming, timely finalization of Rules, reporting of firmed up vacancies had been prescribed. Para 4 (c) dealt with the actions on the part of the Commission. As this has been specially highlighted by the applicants learned counsel, Shri Padmakumar S, we find it apt to reproduce as here under:
(c) Once the results are published, additional persons should not normally be taken till the next examination. Nor should vacancies reported before declaration of the results, be ordinarily withdrawn after declaration of the results. If, however, some of the candidates recommended/allotted for appointment against the specific number of vacancies reported in respect of a particular examination do not become available for one reason or another, the Commission may be approached, within a reasonable time, with request for replacements from reserves, if available. When replacements may not be available, the vacancies that may remain unfilled should be reported to the Commission for being filled through the next examination. It is evident that the guidelines contained in this OM are of very broad name and the contention of these not envisaging any class within a class to invalidate the action of the respondents would not hold good.
6.4 While dealing with the issue of discrimination, we may also extract below the observations of the Honble Apex Court in State of U.P. vs Rajkumar Sharma (supra):
14. Selectees cannot claim the appointment as a matter of right. Mere inclusion of candidates name in the list does not confer any right to be selected, even if some of the vacancies remained unfilled and the candidates concerned cannot claim that they have been given a hostile discrimination. 15. Even if in some cases appointments have been made by mistake or wrongly that does not confer any right on another person. Article 14 of the Constitution does not envisage negative equality, and if the State committed the mistake it cannot be forced to perpetuate the same mistake.
7. To conclude, the claims of the applicants do not rest on any sound factual foundations. The pleas of arbitrariness or discrimination on the part of the respondents or any infraction of the applicants rights have not been found tenable either. Accordingly, finding it bereft of merit, the OA is dismissed hereby. No orders as to costs.
(VEENA CHHOTRAY) (K.B.S. RAJAN) MEMBER (A) MEMBER (J) /pkr/