Central Administrative Tribunal - Delhi
Satish Bhatt vs Health And Family Welfare on 25 April, 2025
Central Administrative Tribunal
Principal Bench, New Delhi
(Nainital Circuit Sitting)
O.A. No.1966/2024
With
O.A. No.3132/2024
This is the 23rd April, 2025
Hon'ble Mr. Manish Garg, Member (J)
Hon'ble Mr. Rajinder Kashyap, Member (A)
O.A. No.1966/2024
Satish Bhatt, aged about 33 years, son of Shri Devraj Bhatt,
Resident of Parvati Vihar, Sewala Kala, Chandrabani Road,
ISBT, Dehradun, Uttarakhand.
...Applicant
(By Advocate: Mr. Ashish Srivastava)
Versus
1. Union of India, through the Secretary,
Ministry of Health and Family Welfare,
Department of Health, Nirman Bhawan, New Delhi.
2. All India Institute of Medical Sciences,
Rishikesh, Uttarakhand through its Director.
3. Administrative officer,
All India Institute of Medical Sciences, Rishikesh,
Uttarakhand.
...Respondents
(By Advocate: Mr. D. S. Shukla)
2 OA No.1966 and 3132 of 2024
O.A. No.3132/2024
Ravindra Tiwari,
aged about 36 years,
son of Shri Santosh Kumar Tiwari,
Resident of Room No.60302, Residential Complex,
AIIMS, Rishikesh.
...Applicant
(By Advocate: Mr. Ashish Srivastava)
Versus
1. Union of India, through the Secretary,
Ministry of Health and Family Welfare,
Department of Health,
Nirman Bhawan,
New Delhi.
2. All India Institute of Medical Sciences,
Rishikesh, Uttarakhand through its Director.
3. Administrative officer,
All India Institute of Medical Sciences,
Rishikesh, Uttarakhand.
...Respondents
(By Advocate: Mr. D. S. Shukla)
O R D E R (Oral)
Hon'ble Mr. Manish Garg, Member (J):
Since the issue involved in both the OAs are identical and the reliefs claimed are also same based on the similar grounds and with the consent of the learned counsel for the parties, we proceed to dispose of both the OA(s) by this common order. With the consent of the learned counsel for parties since the matter is ripe for hearing as well as reasons 3 OA No.1966 and 3132 of 2024 mentioned in said application, we are allowing the Misc Application, the counter/short reply is taken on record thereby recalling our order for forfeiting the rights of respondents to file response. The learned counsel undertakes to deposit payment of cost of Rs.5,000/- imposed vide order dated 19.12.2024 to be deposited in Nainital CAT Bar Association within 10 days. The registry is directed to assign the number to said Misc application.
2. For the convenience, the OA No.1966 of 2024 is taken as a lead case.
3. By filing the OA No.1966/2024 under Section 19 of the Administrative Tribunals Act, 1985, the applicant has prayed for the following reliefs:-
"(a) This Hon'ble Court may graciously be pleased to quashed and set aside the impugned order dated 26.02.2024 and notice dated 18.04.2024 (Annexure No.A-1 and A-2)
(b) This Hon'ble Tribunal may be pleased to direct the respondents to issue the wait list for general category qualified candidates against unfilled vacancy of Lower Division Clerk in Continuation to result notification No.2017/141/92 dated 11.02.2019 for recruitment examination held on 04.02.2019.
(c) This Hon'ble Court may be pleased to direct the respondents to appoint the applicant on the post of LDC.
(d) Any other relief, which this Hon'ble Tribunal may deem fit and proper in the circumstances of the case, may be given in favour of the applicant.
(e) Award the costs of the original application in favour of the applicant."4 OA No.1966 and 3132 of 2024
3.1 Highlighting the facts of the case, learned counsel for the applicant draws our attention to the impugned order dated 26.02.2024 passed by the respondents,the relevant para of which reads as under:
"8) Accordingly, representation of petitioner dated 24.11.2022 and 17.12.2022 and various other representations and emails as sent by petitioner to Institute from time to time have been evaluated in light with rules, facts and circumstances of the case and merits of the case and are hereby disposed off by this Reasoned and Speaking Order in compliance to the order of Hon'ble Central Administrative Tribunal, Principal Bench, New Delhi (Circuit sitting at Nainital, Uttarakhand) dated 22 day of November, 2023 in OA No. 3609/2023 with a finding that the request of applicant to release waiting list can not be acceded upon due to being not released by then Director, AIIMS Rishikesh due to administrative reasons and the same cannot be released at this stage as it being too late, especially when recruitment for said posts is completed.
This Speaking Order is issued for and on behalf of Competent Authority of AIIMS Rishikesh with prior approval."
3.2 Learned counsel for the applicant has drawn our attention to the fact that Wait List for various categories namely OBC, SC & ST was published on 11.11.2019 whereas no Wait List for general category was ever published.
3.4 Learned counsel for the applicant has pointed out that right to file counter affidavit of the respondents has been forfeited vide order dated 07.03.2025. An Misc Application 5 OA No.1966 and 3132 of 2024 seeking to take the counter /short reply on record, which has been preferred but yet to be numbered.
4. Opposing the grant of relief(s) as well as maintainability of present OA, learned counsel for the respondents relies upon the judgment dated 12.12.2022 of the Hon'ble Supreme Court in the matter of The State of Uttar Pradesh Vs. Karunesh Kumar & Ors. in Civil Appeal Nos. 8822-8823 of 2022. He further relies upon the order so passed by the competent authority, which is impugned herein and states that the decision taken by the respondents is fully justified in light of paras 5 & 6 of the order dated 26.09.2024, which reads as under:
"5. That it is found in light with all relevant facts and rules that the demand made by the applicant for consideration of their request for release of waiting list for LDC exam held against Advertisement No. 2017/141 for the various posts including Lower Division Clerk (LDC) be published could not be acceded upon as then Competent Authority, AIIMS Rishikesh did not release any waiting list for UR category and same cannot be made and released at this date as selection process for the post of LDC is completed.
6. That the fact is that on the basis on CBT examination held on 04.02.2019, result of 30 provisionally selected candidates were declared vide No. 2017/141/92 on 11.02.2019 as per merit after approval of Competent Authority. Out of 30 (UR-18, OBC-8, SC-4) provisionally selected candidates, only 27 (UR-18, OBC-6, SC-3) candidates appeared in further process and balance 03 (OBC-2, SC-1) candidates were absent at that time. Hence, waiting list of remained 03posts were released vide Νo. 2017/141/251 on 11.11.2019"
6 OA No.1966 and 3132 of 20245. We have heard the learned counsel for the parties and perused the records as well. Narrow compass to the present OA is the that whether the action of the respondent was justified in not operating the Wait List for General Candidates whereas the Wait List was prepared and operated in respect of other category.
6. Analysis 6.1 We observe that in all probabilities, there cannot be any dispute that there is a provision of operation of Wait List as it is apparent that Wait List in various categories i.e. SC, ST & OBC categories was issued,as reflected in the impugned order itself.
6.2 It is also astonishing to note that para 13 of the reply following plea has been taken by the respondents:
"13. That it is further humbly submitted that waiting list was declared against only the selected category of candidate(s) who failed to report for eligibility & original document verification on scheduled date and time after approval of Competent Authority."
6.3 We are conscious of the fact that in a recent decision inCIVIL APPEAL NO. 2473 OF 2022titled as Vallampati Sathish Babu Versus The State of Andhra Pradesh & Ors. decided on 19.04.2022, the Hon'ble Apex Court held as under:-
"An identical question came to be considered by this Court in the case of Suresh Prasad and Ors. (supra). In the said 7 OA No.1966 and 3132 of 2024 decision, it is specifically observed and held that even in case candidates selected for 14 appointments have not joined, in the absence of any statutory rules to the contrary, the employer is not bound to offer the unfilled vacancy to the candidates next below the said candidates in the merit list. It is also further held that in the absence of any provision, the employer is not bound to prepare a waiting list in addition to the panel of selected candidates and to appoint the candidates from the waiting list in case the candidates from the panel do not join. The aforesaid decision of this Court has been subsequently followed by the Andhra Pradesh High Court in the case of Samiula Shareef and Ors. (supra). "
6.4 We are equally conscious of the fact that it is always open to the Government not to fill up all the vacancies for a valid reason or even operate Wait List, but the selection cannot arbitrarily be restricted to a few candidates, notwithstanding the number of vacancies and the availability of qualified candidates. There is no indefeasible right to be appointed. However, the Hon'ble Supreme Court also stated that it does not mean that the State has the license of acting in an arbitrary manner and the decision not to fill up the vacancies has to be taken bonafide for appropriate reasons. It is also a well settled law that if the vacancies or any of them are to be 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. As a model employer there is obligation on the part of the Government to act fairly and the whole exercise cannot be reduced to a mere farce.
8 OA No.1966 and 3132 of 20246.5 To address the said issue, we also draw a reference to DoPT's OM dated 13.06.2000 wherein directions have been given to form reserve panel of candidates for appointment in the eventuality a candidate does not join, The OM dated 13.06.2000 reads as under:-
"No.41019/18/97-Estt(B) Government of India Ministry of Personnel, Public Grievances & Pensions Department of Personnel & Training ****** New Delhi, dated 13th June, 2000 OFFICE MEMORANDUM Sub: Operation of reserve panels prepared on the basis of selections made by UPSC, Staff Selection Commission, other recruiting agencies and where selections are made by Ministries/Department etc. - acceptance of recommendations of Fifth Central Pay Commission - regarding.
.........
1. The undersigned is directed to invite attention to this Department's Office Memorandum quoted in the margin and to say that in terms of these Office Memorandum, it was informed that the Union Public Service Commission, wherever possible, maintains a reserve panel of candidates found suitable on the basis of selections made by them for appointment on direct recruitment, transfer on deputation, transfer basis and the reserve panel is operated by the UPSC on a request received from the Ministry/Department concerned when the candidate recommended by the UPSC either does not join, thereby causing a replacement vacancy or he joins but resigns or dies within six months of his joining. Ministries/ Departments were advised that whenever such a contingency arises, they should first approach the UPSC for nomination of a candidate from the reserve panel, if any. The recruitment process be treated as completed only after hearing from the UPSC and the Ministry/Department concerned may resort to any alternative method of recruitment to fill up the vacancy thereafter.9 OA No.1966 and 3132 of 2024
2. The Fifth Central Pay Commission, in para 17.11 of its Report, has recommended that with a view to reduce delay in filling up of the posts, vacancies resulting from resignation or death of an incumbent within one year of his appointment should be filled immediately by the candidate from the reserve panel, if a fresh panel is not available by then. Such a vacancy should not be treated as a fresh vacancy. This recommendation has been examined in consultation with the UPSC and it has been decided that in future, where a selection has been made through UPSC, a request for nomination from the reserve list, if any, may be made to the UPSC in the event of occurrence of a vacancy caused by non-joining of the candidate within the stipulated time allowed for joining the post or where a candidate joins but he resigns or dies within a period of one year from the date of his joining, if a fresh panel is not available by then. Such a vacancy should not be treated as fresh vacancy.
3. It has also been decided that where selections for posts under the Central Government are made through other recruiting agencies such as Staff Selection Commission or by the Ministries/Departments directly and the reserve panels are similarly prepared, the procedure for operation of reserve panels maintained by UPSC as described in para 2 above will also be applicable for the reserve panels maintained by the other recruiting agencies/authorities."
6.6 In Ravi Raj And Ors. vs Union of India AndAnr. decided on 2 May, 2022 in W.P.(C) 3408/2019, CM APPL. 15675/2019, CM APPL., 38109/2019 & CM APPL. 40072/2019, the Hon'ble High Court of Delhi has held as under:-
"13. In Dinesh Kumar Kashyap and Others vs South East Central Railway and Others, (2019) 12 SCC 798 decided on 27.11.2019, the Supreme Court has held inter-alia as under:
"....
6. Our country is governed by the rule of law.
Arbitrariness is an anathema to the rule of law. When an employer invites applications for filling up a large number of posts, a large number of unemployed youth apply for the 10 OA No.1966 and 3132 of 2024 same. They spend time in filling the form and pay the application fees. Thereafter, they spend time to prepare for the examination. They spend time and money to travel to the place where written test is held. If they qualify the written test they have to again travel to appear for the interview and medical examination, etc. Those who are successful and declared to be passed have a reasonable expectation that they will be appointed. No doubt, as pointed out above, this is not a vested right. However, the State must give some justifiable, non- arbitrary reason for not filling up the post. When the employer is the State it is bound to act according to Article 14 of the Constitution. It cannot without any rhyme or reason decide not to fill up the post. It must give some This is a digitally signed Judgement.plausible reason for not filling up the posts. The courts would normally not question the justification but the justification must be reasonable and should not be an arbitrary, capricious or whimsical exercise of discretion vested in the State. It is in the light of these principles that we need to examine the contentions of SECR.
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12. Another argument raised is that recruitment policy is an executive decision and the courts should not question the efficacy of such policy. Neither the appellants nor this Court is questioning the efficacy of the policy contained in the letter dated 2-7-2008. All that has been done is to ensure implementation of the policy by Respondent 1, especially when it has failed to give any cogent reason to justify its action of not calling for candidates from the replacement list of extra 20 per cent candidates.
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14. While allowing the appeals we issue the following directions:
14.1. The benefit of this judgment shall only be available to those appellants who had approached CAT;
14.2. The appellants shall not be entitled to any back wages;
14.3. The appellants shall, for the purpose of seniority and fixation of pay be placed. While the respondents were instructed to take a view in this regard, nothing worthwhile has been done in the last three years.11 OA No.1966 and 3132 of 2024
14.4. The appellants shall be entitled to notional benefits from the date of such deemed appointment only for the purposed of fixation of pay and seniority. ..."
6.7 In this regard, the judgment of the Hon'ble Supreme Court in R.S. Mittal v. Union of India, (1995) Supplement (2) SCC 230 is worthwhile to mention:-
"It is no doubt correct that a person on the select panel has no vested right to be appointed to the post for which he has been selected. He has a right to be considered for appointment. But at the same time, the appointing authority cannot ignore the select panel or decline to make the appointment on its whims. When a person has been selected by the Selection Board and there is a vacancy which can be offered to him, keeping in view his merit position, then, ordinarily, there is no justification to ignore him for appointment. There has to be a justifiable reason to decline to appoint a person who is on the select panel. In the present case, there has been a mere inaction on the part of the Government. No reason whatsoever, not to talk of a justifiable reason, was given as to why the appointments were not offered to the candidates expeditiously and in accordance with law. The appointment should have been offered to MrMurgad within a reasonable time of availability of the vacancy and thereafter to the next candidate. The Central Government's approach in this case was wholly unjustified."
15.Consequently, this court directs the respondents to prepare a Reserve Panel/Wait List of candidates taking into consideration the result already declared on 28.08.2017.
16.For the foregoing reasons, this Court sets aside the order passed in OA No.3528/2017 by the Central Administrative Tribunal, Principal Bench, New Delhi dated 15.03.2019. Those figuring in the Reserve Panel/Wait List, including the petitioners, shall be sent offers of appointment within six weeks of receipt of this order.immediately above the first selected candidates of the selection process which commenced in the year 2012 and, immediately below the candidates of the selection list of 2010 in order of seniority;"
12 OA No.1966 and 3132 of 20246.8 The Hon'ble High Court of Delhi at New Delhi in batch of W.P.(C) 5211/2022 & CM APPL. 15475/2022 Subhash Chhilar and Others decided on December 21, 2022, also held as under :-
"In Union Public Service Commission Versus Grishma Goyal and Another 2021 SCC OnLine Del 3193 had dealt with a case where a candidate, who had tie-breaking marks with the last candidate, had sought appointment against a vacancy which had arisen due to non-joining of a candidate, this Court while rejecting the petition filed by the Union of India had observed and held as under:-
"17. In the present case, as in the case of Manoj Manu (supra), when the Department of Economic Affairs had written to the UPSC that the case of Ms. Grishma Goyal be examined in the light of the refusal to join by another successful candidate, the UPSC ought to have, without hesitation, recommended the name of the respondent No. 1. Instead, by taking shelter in the phrase "as per the relevant rules by the Commission" and claiming that because they do not have a wait-list, the rules do not permit the appointment of the respondent, they unjustly rejected her claim. This stand of the UPSC is unacceptable, particularly when a candidate with the same marks had been appointed on the basis of their own rule of "tie-breaking" and the notified vacancies would not have been exceeded by appointment of the respondent as a vacancy had arisen due to non- joining of another successful candidate, and there was no-one else over whom the respondent would have stolen a march as admittedly, she is as meritorious as the last person selected.
18. We find no cause to interfere with decision of the learned Tribunal directing the UPSC to forward the profile of the applicant to the Ministry. The appeal is accordingly dismissed with further direction to the petitioner/UPSC to ensure that all formalities for the appointment of the respondent No. 1 are completed within two weeks from the date of this judgment."
13 OA No.1966 and 3132 of 202432. While relying upon the decision of this Court in Union Public Service Commission Versus Grishma Goyal and Another (Supra), the Single Judge of Punjab and Haryana High Court in a decision dated 08.03.2022, titled as Anshul Vs. State of Haryana And Another, held as under:-
"7. The facts of the case in hand are parimateria with the ones in the aforesaid two judgments rendered by the Apex Court and by Delhi High Court. Therefore, I see no reason why the ratio rendered therein be not applied to the case in hand. I am of the view that the concept of waiting list as defined under the Act cannot be interpreted so as to mean that it is to be confused and/or misconstrued as not maintaining list of the candidates as per their merit. To that extent, merit list is not a waiting list. Merit list is not to be treated as waiting list for defeating the legitimate rights of a candidate next in merit against the unfilled post as has been unequivocally held by the Apex Court in judgment dated 26.07.2013 ibid.
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33. On application of the afore-noted decisions to the facts of the petitions in hand, we find that it would not only be in favour of meritorious candidates to get appointments against the unfilled seats, due to non-joining of candidates as well as left-over vacancies; but also in the interest of respondents to prevent them to undergo an exhausting and laborious recruitment process of vacancies pertaining to the year 2016 and 2018. It has already been held that mere selection does not give an indefeasible right to a candidate for appointment; however, it has also been held that if the posts advertised are lying vacant, appointments can be made through wait/panel list and in the absence of panel list/ wait list, any seat lying vacant due to non-joining of a candidate or leftover vacancy, can also be filled from candidates who meet the selection criteria."
6.9 It is apparent that the Wait List has been operated in a selected manner by adopting pick and chose method, which is itself is not only arbitrary but discriminating as well. The said discretion exercised by the Authority ie the then Director is colour-able exercise of powers vested thereto. No 14 OA No.1966 and 3132 of 2024 justification is coming forth as to what were the plausible reasons for not operating the Wait List for General Category, more particularly when there is large scale unemployment in the country. The respondents ought to have followed the procedure established for operation of Wait List.
6.10 Keeping in view the above, we are of the considered view that the reasoning assigned in the impugned order, not only arbitrary, discriminatory, unjustified or irrational but the same are also without any logic, since the Director (AIIMS) Mr. Ravi Kant did not release the wait list of General category candidates for administrative reasons, which have not been disclosed to the General category candidates, and the only reason assigned was that it cannot be released at this belated stage in the light of paras 5 and 6 of the order so passed as the selection process was over long back. It is also observed that the speaking order itself has to go as the same has been signed bythe authorized representative issued for and on behalf of the competent authority at AIIMS with his prior approval. However, no note of reasoning prior approval and reasoning assigned thereto.
7. Now coming to the relief(s) sought in present situation what direction(s). We, therefore, of the view that the impugned order on the face of it is liable to be quashed. As during the course of hearing, submission has also been made by the learned counsel for the applicant that five vacancies for the post in question for the relevant selection 15 OA No.1966 and 3132 of 2024 process under General category are available, which is disputed by the learned counsel for the respondents. Be that as it may, even if assuming that vacancies which were available and carried forward for the subsequent selection process if held, the candidates who were appearing as per their own merits ought to be issued an offer of appointment within 30 days thereafter as a onetime measure.
8. Conclusion 8.1 In the peculiar facts and circumstances of these cases, the impugned orders are quashed and set aside. The respondents are directed to prepare and publish a wait list of General category candidates for relevant recruitment process selected candidates within a period of 45 days from the date of receipt of a certified copy of this Order. Opportunity shall be afforded to the wait-listed General category candidates strictly as per their own merits by offering the appointments.
8.2 We also make it clear that if the vacancies are carried forward, the persons, who were offered appointments, shall be adjusted against future supernumerary posts.The fact of the matter is that the applicants have been treated to be outsource as on date. In the event the names of both the applicants are found to be in the respective merit in the wait- listed panel in General Category so prepared they shall be offered appointments as per their own merit subject to fulfilling other eligible conditions. The said appointments shall be treated as fresh appointments for all practical 16 OA No.1966 and 3132 of 2024 purposes. The applicants are not entitled to any back wages or lay a claim of seniority. We also make it clear that this Order has been passed as a one-time measure in the present cases and the same shall not be treated as a precedent. No further opportunity to any other wait listed candidate(s) other than the vacancies which were not filled due to non availability of wait-listed in the General category shall be operative. The above exercise be completed within a period of three months from date of receipt of the certified copy of this order.
8.3 With the aforesaid observations and directions, both the OAs are disposed of. All pending applications, if any also disposed of. There shall be no order as to costs.
8.4 Registry is directed to place a copy of this order in the connected OA also.
(Rajinder Kashyap) (Manish Garg)
Member (A) Member (J)
ravi/ks