Central Administrative Tribunal - Kolkata
Rabindra Mohan Dey vs Union Of India (Uoi) And Ors. on 14 May, 1998
JUDGMENT S. Dasgupta, Member (A)
1. The case of the seven applicants, who have jointly filed this Original Application Under Section 19 of the Administrative Tribunals Act, 1985, lies within a short compass.
2. Pursuant to a notice issued by the Garrison Engineer, Barrackpore, the applicants submitted application for appointment as Chowkidar. After interview, they were selected and were placed in a panel in 1985. Police verification and medical examination were conducted and the applicants were cleared. Thereafter, the Govt. of India placed a ban on filling up of the posts and the applicants were not appointed. It appears that subsequently, the ban on filling up of the posts was lifted and thereafter by a letter dt. 30.11.93, the applicants were directed to report to the Garrison Engineer on 20.12.93 along with various documents for being considered for appointment as Chowkidars. They appeared as directed but they were instructed to appear again on 15.1.94 by a notice dt. 22.12.93. They again complied with this direction. But thereafter by a subsequent notice dt. 26.5.94 they were again called to appear on 6.6.94 which direction also they complied. However, so far the applicants have not been appointed on the post of Chowkidar and this led the applicants to file the present application seeking a direction to the respondents to appoint the applicants on the post of Chowkidar restraining them to issue letter of appointment to anyone else.
3. The respondents have contested the case by filing a reply in which there is no denial that the applicants were called for interview and were also selected and their police verification carried out. However, since the Govt. of India imposed ban on 31.3.85 on filling up of vacancies, no further action could be taken to appoint the applicants. It has also been admitted that a panel was prepared in which the applicants found a place. The further case of the respondents is that 12 vacancies of Chowkidar were released by the Hq.CE, Eastern Command, Calcutta by its letter dt. 10.12.93. The applicants along with others sponsored through employment exchange were considered for appointment afresh, but the applicants were not selected not having met the requisite qualitative requirement and the eligibility criteria stipulated by the Board of Officers. The stand taken by the respondents is that the applicants cannot claim appointment merely because they were called for interview for the said post in 1985.
4. In a rejoinder filed by the applicants it has been stated that the applicants were directed to appear from time to time and asked whether they were still interested to work in the said post and on each occasion, they expressed the desire for being appointed as Chowkidar.
5. We heard the learned counsel for both the parties and carefully perused the pleadings on record.
6. Admittedly the applicants were called for interview against certain declared vacancies and were eventually selected and placed in a panel. Also admittedly, they could not be given appointment since a ban was imposed on filling up of the posts. The question which is required to be determined by us is whether such placement in the panel confers any right on the applicants to claim appointment on the post for which they were selected once the ban was lifted on the basis of their placement in the panel prepared in 1985. The applicants in this regard have placed strong reliance on the instructions contained in the OM No. 22011/2/79-Estt. dated 8.2.83 issued by the Ministry of Home Affairs (Deptt. of Personnel & Admn. Reforms), a copy of which is available at Annexure-E to the OA. The instructions contained in the aforesaid OM are self-explanatory and the relevant extracts are quoted below :
"(2) Normally, in the case of direct recruitment a list of selected candidates is prepared to the extent of the number of vacancies (other persons found suitable being put on a reserve list, in case some of the persons on the list of selected candidates do not become available for appointment). 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, as the examination is competitive and selection is based on merit. A problem may arise when there is a fluctuation in the vacancies after the list of selected candidates is announced.
(3) The matter has been carefully considered. Normally recruitment whether from the open market or through a Departmental Competitive Examination should take place only when there are no candidates available from an earlier list of selected candidates, however, there is a likelihood of vacancies arising in future, in case, names of selected candidates are already available, there should either be no further recruitment till the available selected candidates are absorbed or the declared vacancies from the next examination should take into account the number of persons already on the list of selected candidates awaiting appointment. Thus, there would be no limit on the period of validity of the list of selected candidates prepared to the extent of declared vacancies, either by the method of direct recruitment or through departmental competitive examination.
(4) When a person is declared successful according to the merit list of selected candidates, which is based on the declared number of vacancies, the appointing authority has the responsibility to appoint him even if the number of vacancies undergoes a change, after his name has been included in the list of selected candidates. Thus when the selected candidates are awaiting appointment, recruitment should either be postponed till all the selected candidates are accommodated or alternatively intake for the next recruitment reduced by the number of candidates already awaited appointment and the candidates awaiting appointment should be given appointments first, before starting appointments from a fresh list from a subsequent recruitment or examination."
7. From the aforesaid instructions, it would be evident that when a person has been declared successful and found a place in the merit list of selected candidates based on the declared number of vacancies, the appointing authority is obliged to a point him even if the number of vacancies undergoes a change after his name has been included in the list of selected candidates. It has also been enjoined that when selected candidates are awaiting appointment, recruitment should either be postponed till all the selected candidates are accommodated or in case further recruitment is to be resorted to, the number of posts to be filled by such recruitment shall be reduced by the number of candidates already awaiting appointment.
8. In order to ascertain whether the applicants were placed in the panel and if so, what was their position, we directed the learned counsel for the respondents to make available a copy of the panel prepared by the respondents in 1985. The learned counsel had made available for our perusal a copy of a letter dated 7.12.84 by which the number of vacancies were defined and also a copy of the panel which was prepared. The letter dated 7.12.84 indicates that 12 vacancies of Chowkidar were released with the following break-up :
(Authority : AG's Br. New Delhi letter No. 72613/REL/Org 4(Civ)(b) dt. 12.11.84
9. The panel indicates that 10 general category candidates and 3 S/C category candidates were placed in the panel for the post of Chowkidar. The applicant No. 1 is at serial No. 1, applicant No. 2 is at sl. No. 2, applicant No. 3 is at sl. No. 3, applicant No. 5 is at sl. No. 5, and applicant No. 6 is at sl. No. 7 of panel of UR candidates whereas applicant No. 4 is at sl. No. 1 and applicant No. 7 is at sl. No. 2 of the SC panel. Since the communal composition of the declared vacancies has not been indicated either in the letter dt. 7.12.84 or in the copy of the panel produced before us, we are unable to decide whether the positions of the aforesaid applicants are within the declared vacancies.
10. It is settled law that placement in a panel does not confer a indefeasible right on the selected candidate to be appointed on the post for which selection was made. This was the proposition of law laid down by the Hon'ble Supreme Court in the case Shankarsan Dash v. Union of India, (1991) 3 SCC 47. This proposition of law has been consistently followed in the subsequent decisions also. However, this proposition is based on the fact that it is the prerogative of the authorities to decide whether the posts for which selection has been made are to be filed or not. The law, however, also recognises the fact that the authorities do not have the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bonafide for appropriate reason and if the vacancies or any of them are filled up, the authorities are bound to respect the comparative merit of the candidates, as reflected at the recruitment test.
11. The respondents have indicated that the reason for not filling up the vacancies after the panel was drawn up, was a ban imposed by the Govt. Thus non-filling up of the posts or non-issue of appointment letters to the applicants when the ban was in operation cannot be termed as arbitrary. The question, however, remains whether after the ban was lifted, it was still open to the respondents to fill up the posts by resorting to fresh recruitment process ignoring the claim of the applicants who were already awaiting appointment as a result of their inclusion in the earlier panel.
12. In the case G. Vishwanathan v. Union of India and Ors., (1990) 12 ATC 120, which was decided by a Bench of the Central Administrative Tribunal, Ernakulam Bench, the applicant was successful in the departmental test held in 1975 and he secured 5th position. But he was not appointed in that year due to dearth of vacancy. The respondents directed him to appear in subsequent tests held in 1979, 1981 and 1983. He was not declared successful in the tests held in 1979 and 1981 but in the test held in 1983 he was declared successful after securing maximum number of marks. The grievance of the applicant was that without exhausting the list of eligible candidates included in 1975 panel, the respondents held tests in 1979 and 1981 and appointed those who were declared successful. The Tribunal noted that the Hon'ble Supreme Court had examined the merit of the circular of the Deptt. of Personnel & Adm. Reforms dated 8.2.83 in the case of Prem Prakash v. UOI, 1984 Supp. SCC 687 and made the following observations :
"It is clear from the notification that if selected candidates are available from the previous list there should either be no further recruitment until those candidates are observed or in the alternative vacancies which are declared for the subsequent years should take into account the number of persons who are already in the list of selected candidates who are still awaiting appointment. The notification further shows that there should be no limit on the period of validity of the list of selected candidates prepared to the extent of declared vacancies. Once a person is declared successful according to the merit list of selected candidates the appointing authority has the responsibility to appoint him even if the number of vacancies undergoes a change after his name is included in the list of selected candidates."
The Tribunal accordingly held that the letter whereby the respondents informed the applicant that the validity of the panel prepared in 1975 expired in 1976, was illegal and quashed the same. The respondents were directed to consider appointment of the applicant in the vacancy which arose in subsequent years when his juniors were appointed.
13. Similarly in the case of Union of India and Ors. v. Ishwar Singh Khatri and Ors., 1993(2) SCALE 730, the Hon'ble Supreme Court upheld the decision of the Tribunal that a panel of selected candidates not only with reference to the declared vacancies but also in respect of anticipated vacancies shall be valid till all the candidates are offered appointment.
14. In view of the detailed reasons given in the foregoing paragraphs, we hold that the panel which was prepared in 1985 and in which the applicants had figured will continue to remain valid until all those selected candidates are offered appointment subject to the number of vacancies declared and also the vacancies which could be clearly anticipated at the time of preparation of the panel. As we have already stated, in the absence of full facts on record, we are not in a position to determine which of the applicants are occupying positions in the panel within the number of declared vacancies or anticipated vacancies.
15. We, therefore, dispose of the application with a direction to the respondents to appoint those of the applicants who come within the number of declared vacancies and the vacancies which could have been clearly anticipated at the time of preparation of the panel in 1985. Such appointment shall be given not later than two months from the date of communication of this order. In case any appointment has been made by way of fresh recruitment ignoring the claim of the applicants, the applicants shall be given seniority over such fresh appointees. There will be no order as to costs.