Central Administrative Tribunal - Delhi
Praveen Srivastava vs Union Public Service Commission on 29 August, 2014
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH, NEW DELHI
1) OA NO.1925/2013
With
2) OA NO.3602/2013
3) OA NO.1165/2013
4) OA NO.3816/2013
New Delhi this the 29th day of August, 2014
HONBLE MR. ASHOK KUMAR, MEMBER (A)
HONBLE MR. RAJ VIR SHARMA, MEMBER (J)
1) OA NO.1925/2013
1. Praveen Srivastava
S/o Sh. K.N. Srivastava
r/o 446, Nitikhand, 1st,
Indirapuram, Gaziabad, U.P.
2. Arun Kumar
S/o Shri Arjun Singh
R/o B-156, Ashok Nagar,
Ghaziabad, U.P.
3. Sohan Kumar Sharma
S/o Sh. Vishwa Nath Sharma
R/o B-316, Avantika, Sector-1,
Rohini, Delhi. Applicants
VERSUS
1. Union Public Service Commission
Through its Secretary
Dholpur House, Shahjahan Road,
New Delhi.
2. Ministry of Law & Justice,
Govt. of India,
Through its Secretary
Shastri Bhawan, New Delhi.
3. Department of Personnel & Training
Ministry of Personnel, PG & Pension,
Through its Secretary
North Block, New Delhi.
Respondents
2) OA No.3602/2013
1. Subhash Chander Sroai
S/o Shri Banwari Lal
R/o Flat No.18,
Pocket GH-1, Sanskriti Apartment,
Section-28, Rohini, Delhi.
2. Sunjay Kumar Singh
S/o Shri Bali Ram Singh
R/o Chechar Bidupur,
Vaishali, Bihar-844503. Applicants
VERSUS
1. Union Public Service Commission
Through its Secretary
Dholpur House, Shahjahan Road,
New Delhi.
2. Ministry of Law & Justice,
Govt. of India,
Through its Secretary,
Shastri Bhawan, New Delhi.
3. Department of Personnel & Training,
Ministry of Personnel, PG & Pension,
Through its Secretary,
North Block, New Delhi.
Respondents
3) OA No.1165/2013
1. Mohd. Muqeem,
S/o Mohd. Saleem,
R/o House No.4566,
Gali Shahtara, Ajmeri Gate,
Delhi-110006.
2. Pradeep Kumar Shrivastava,
S/o Sh. C.S. Shrivastava,
R/o: Quarter No.18, Type-4,
BSNL Telecom Colony,
Bajaj Nagar, Jaipur -302001.
3. Arvind Nashier,
S/o Sh. Rohtas Nashier,
R/o House No.420, Sector 19,
Dwarka, New Delhi-110075.
4. Japan Babu,
S/o Sh. Roshan Singh,
R/o Plot No.192/193, Pocket-3,
Sector-25, Rohini, Delhi-110083. ..Applicants
VERSUS
1. Union Public Service Commission
Through its Secretary
Dholpur House, Shahjahan Road,
New Delhi.
2. Ministry of Law & Justice,
Govt. of India,
Through its Secretary
Shastri Bhawan, New Delhi.
3. Department of Personnel & Training
Ministry of Personnel, PG & Pension,
Through its Secretary
North Block, New Delhi.
Respondents
4)OA No.3816/2013
Baljinder Singh Sra
S/o Late Sh. Mohinder Singh,
Resident of House No.345,
Advocates Enclave, Sector-49,
Chandigarh. Applicant
VERSUS
1. Union of India through Secretary,
Ministry of Law & Justice,
Govt. of India, Shastri Bhawan,
New Delhi.
2. The Secretary,
Department of Personnel & Training,
Ministry of Personnel, PG & Pension,
Through its Secretary
North Block, New Delhi.
3. Union Public Service Commission
Through its Secretary
Dholpur House, Shahjahan Road,
New Delhi.
Respondents
By Advocates: Shri A.K.Behera for applicants in OA-
1925/2013 and OA-1165/2013.
Shri Amit Kumar for applicants in OA-
3602/2013 and OA-3816/2013
Shri Sidharth Luthra, ASG with Shri Rajesh
Katyal and Shri J.B. Mudgil for respondents
in all the above cases.
O R D E R
Ashok Kumar, Member (A):
All these OAs were taken up together for hearing on the request of counsel for both the parties on the ground that the cause of action and reliefs sought are identical in all these OAs. With the consent of parties, OA No.1925/2013 (in the matter of Praveen Srivastava & Ors. Vs. UPSC & Ors.) has been taken as the lead case for consideration of pleadings and documents on record, as well as for arguments on behalf of the parties. This common order is being accordingly passed in these four OAs.
2. All these four OAs have been filed by the selected candidates for appointment to the post of Deputy Legal Advisor (for short DLA) under the direct recruitment vacancies. In OA-1925/2013, the applicants are three successful candidates; in OA-1165/2013 the applicants are four successful candidates; in OA-3602/2013, there are two successful candidates as applicants and in OA- 191/CH/2012 (which has come on transfer from Chandigarh Bench now numbered as 3816/2013), there is only one successful candidate. Thus, there are in all ten successful candidates who are applicants in these four OAs.
3. Applicants are aggrieved by the action of Union Public Service Commission (UPSC) in suo-moto canceling the recruitment to 11 posts of DLAs (previously designated as Deputy Government Counsel) in Grade III of Indian Legal Service Cadre of Legal Advisors, Ministry of Law and Justice, Department of Legal Affairs. It is stated that the UPSC without assigning any reason issued the cancellation order published on 13.03.2013 (Annexure A/1). The applicants are further aggrieved by the communication dated 21.05.2012 wherein the Ministry of Law and Justice had requested the UPSC not to go ahead with the selection process as the department had decided to withdraw the vacancies in the grade of DLA by way of direct recruitment without indicating any reason. A copy of said letter dated 21.05.2012 is at Annexure A/2 . Yet another grievance of the applicants is that without assigning any reason, UPSC has withdrawn the result vide its Notification dated 22.6.2012 (Annexure-A/3) although they had become functus officio and hence they could not have done so.
The applicants are also aggrieved because Respondent No.2 proposed to convert the post from direct recruitment quota to promotion quota which is against the well settled principle of law, as well as against DOPT OM dated 23.7.2001 dealing with the restriction on regularization of adhoc appointees. The relaxation in the Rules in exercising the power under Rule 14 A of the Indian Legal Services, Rules 1957 (ILS Rules) has also been challenged by the applicant in this OA especially when the UPSC had already finalized the list of selected candidates.
4. The following reliefs have been sought in the lead OA:
A Quash and set aside the following impugnedNotice/order/decision being arbitrary, unjust and illegal:
Cancellation Notice dated 13.03.2013 (Annexure.A/1)published by Respondent No.1 and Withdrawal of requisition dt. 21.05.2012 (Annexure.A/2) sent by Respondent no.2.
WithdrawalNotice dt. 22.06.2012Annexure.A/3 by Respondent no.1.
The reason/circumstances quoted by Shri K.S. Sampath, Consultant, of Respondent no.1 for allowing the proposal of Respondent no.2 for one time relaxation dated 07.12.2012 Annexure.A/4.
The proposal/decision of Respondent no.2 for filling up the vacancies under DR quota by promotion by seeking one time relaxation without giving any reason and thereby keeping the selected panel in abeyance. Annexure.A/5.
The order of Respondent no.3 allowing the proposal of Respondent no.2 seeking one time relaxation dated 09.10.2012. Annexure.A/6.
B. Direct the respondents to restore notice of Result dated 13.06.2012 whereby applicants were selected and recommended along with others for 11 posts of DLA Grade III of the Indian Legal Service cadre on the basis of the merit list given in notice of result in the interest of Justice.
C. Direct the respondent no.1 to complete the procedure of sending the dossiers of recommended candidates immediately to respondent no.2 for further action without any further delay.
D. Direct the respondent no.2 to send the offer of appointment to all the selected candidates as per the recommended list dated 13.06.2012 without any further delay and give full effect to selected panel dated 13.06.2012 with all consequential benefits.
E. To allow this OA with cost of litigation in favour of the applicant and against the respondent.
F. Pass such other and further order, which this Honble Court deems fit and proper in existing circumstance of the case. Similar reliefs have been sought in the connected OAs.
5. The case of the applicants is that the ILS Rules, 1957 provides for conditions of eligibility for appointment by way of direct recruitment to the post of DLA in the Ministry of Law & Justice and also from the post of ALA Grade-IV to DLA Grade-III. Respondent no.2 by letter dated 14.3.2011 had sent a requisition for filling up 11 posts of DLA to the UPSC in accordance with ILS Rules, 1957. Pursuant to this, an advertisement dated 03.09.2011 inviting applications for the post was issued, especially providing that the aforenoted posts would be filled up direct recruitment (Annexure-A/9). The applicants applied for the aforesaid post since they were fulfilling the eligibility conditions. A written examination was held on 27.11.2011 and result of written examination was published vide notice on 03.02.2012. 43 candidates were short listed for the purpose of interview. It is stated by the applicants that the adhoc DLAs who appeared in the written test had failed in the written examination. Subsequently, after the publication of the result of the written examination declared on 03.02.2012 and after verification of their documents and credentials, interview was held on 28.05.2012 and the final result was published in the official web-site of UPSC on 13.06.2012 wherein 11 candidates, including the present applicants were recommended for appointments to the post of DLAs. One of the adhoc DLA who had not appeared in the impugned examination, filed OA No.746/2012 before this Tribunal assailing the validity of selection and prayed that it be quashed. This OA was dismissed by the Tribunal vide order dated 07.03.2012 with liberty to the applicants to file a fresh application as regards his promotion on regular basis by giving correct and proper material. Another OA No.1110/2012 was filed by the same applicant Shri Mahesh Tyagi, adhoc DLA for quashing the selection on the same facts and through MA No.1608/2012 in that OA a stay was granted by the Tribunal on the basis of one letter dated 21.05.2012 addressed to the Secretary, UPSC from Director M/o Law and Justice and by which respondents withdrew the requisitions issued earlier to UPSC. It was further requested in this letter that no further action be taken by the UPSC in the matter. The UPSC however, replied vide letter dated 25.05.2012 that since the recruitment process was at an advanced stage and the interviews was scheduled to be held from 28.05.2012 based on the recruitment test, it was not possible to agree with the withdrawal of the requisition. The Tribunal in the stay order dated 31.05.2012 in MA No.1608/2012 directed that the declaration of the result may be stayed till 01.08.2012. The UPSC withdrew the result dated 13.06.2012 on 22.06.2012. This OA was subsequently dismissed as withdrawn on 19.12.2012 and the present applicants who were respondents in that OA were given liberty to challenge the action of the government. Representations were filed with the Ministry of Law & Justice by the present applicants but in the meantime the Respondent No.2 in alleged connivance with Respondents No.1 and 3 started taking steps to convert the vacancies under the direct recruitment into vacancies for promotion for purpose of regularizing the promotion of adhoc DLAs which are contrary to the provisions of law, OMs and circulars issued from time to time by Respondent No.3 i.e. DOP&T. It is stated by the applicants in the OA that by concealing the material facts, a proposal dated 16.05.2012 regarding filling up of vacancies in various grades of ILS Cadre was moved and approval was obtained as required under Rule 14-A of ILS Rules. Moreover, at the time of seeking withdrawal of requisition from UPSC no reasons were assigned. The reason given was that the Ministry of Law & Justice only wanted the adhoc DLA to be appointed as DLA under the direct recruitment quota which itself was against the direct recruitment quota rules provided in the ILS Rules. The cancellation of recruitment when the entire process was completed, was a malafide action on their part. The action of the respondents to keep the panel of selected candidates in abeyance for the post of DLAs under the direct recruitment quota by moving proposal for conversion of recruitment quota to promotion quota was contrary to law and the settled principle of law laid down by the Honble Supreme Court in a catena of judgments. The action of DOP& T (Respondent No.3) while concurring approval in according one time relaxation to the proposal of Ministry of law & Justice was against the ILS Rules.
6. On the other hand, respondents no.2 and 3 have contended in their counter reply that a proposal for one time relaxation under Rule 14 A of ILS Rules for diversion of 14 posts of DLA from direct recruitment to promotion quota was sent to the DOP&T for their approval and after its approval the same was sent to the UPSC for their concurrence. The UPSC also concurred with the proposal and thereafter a proposal for convening a meeting of the DPC for filling up of 14 posts of DLA by promotion was sent to the UPSC. This relaxation was made in the interest of the Officers of ILS to remove stagnation in grade IV of ILS and the same is in exercise of the powers under Rule 14 A of ILS Rules. The other contention made in the counter reply is that as per well settled proposition of service jurisprudence, the recruitment process is initiated with issue of advertisement but culminates with the offer of appointment issued to the selected candidates by the Government which is to accept the recommendations of recruitment body. The selection process as initiated by the Commission, however can be stopped or suspended by the Government before its completion for justifiable and bonafide reasons. This was so decided by the Honble Supreme Court in Dr. P.K. Jaiswal v. Ms. Debi Mukherjee & Ors AIR 1992 SC 286 and catena of other judgments that have been cited in the counter reply. The declaration of result by the UPSC despite the stay order granted by the Tribunal cannot in any way be termed as culmination of recruitment process. Mere empanelment in select list confers no vested right to the applicants to be appointed and the decision of the government to withdraw the requisitions in advance was judicious and was a bonafide decision based on appropriate reasons.
7. In their counter reply, respondent no.1-UPSC has stated that after the vacancies were advertised and the applicants were declared successful in the examination, based on the communication from the Ministry of Law & Justice for withdrawal of requisition for direct recruitment of the said posts it was decided to cancel the recruitment process since it would not serve purpose in continuing with it. Meanwhile, the Ministry of Law & Justice had sought the approval of the Commission for diversion of 14 direct recruitment vacancies to promotion quota in the grade of DLA (Gr. III of the ILS). Accordingly on 13.03.2013 the recruitment was recalled.
8. Applicants were heard through learned counsel Shri A.K. Behera and Shri Amit Kumar. Learned ASG Shri Sidharth Luthra argued the matter for respondents.
9. Written submissions have been filed on behalf of both the parties.
10. The counsel for the applicants has specifically referred to four issues which are as under:-
i) Whether the impugned cancellation Notice dated 13.03.2013 issued by the UPSC Respondent no.1 is violative of the Rule 6(2) of ILS Rules 1957;
ii) Whether in the present case the exercise of power of relaxation available under Rule 14A of ILS Rules 1957 is arbitrary or not and whether it is violative of Articles 14 and 16 of the Constitution of the India.
iii) Whether the power of relaxation of Rule 14 A ILS 1957 can be exercised in such a manner as to totally abrogate the direct recruitment.
iv) Whether the power under Rule 14 A has been exercised lawfully or not.
11. According to the applicants counsel, so far as issue no.(i) is concerned Rule 6(2) of Indian Legal Service Rules 1957 (hereinafter referred to as Rules) is in a mandatory form because it is worded shall be filled alternatively by direct recruitment and by promotion which makes it clear that specific quota has been prescribed for each source in the ratio of 1:1 for direct recruitment and for promotion. The submission of respondent no.4 in OA No.746/2012 was that 50% posts of DLAs were meant to be filled by direct recruitment and rest 50% by promotion of ALAs and this finds mentioned in para 2 of the judgment dated 7.3.2012 in OA No.746/2012 of this Tribunal. It was further argued that based on this rule, the Tribunal has held the ongoing process of direct recruitment for the post of DLA as valid and legal. This judgment having become final, it is no longer possible to argue that the quota prescribed for direct recruitment need not be adhered to specifically having regard to the fact that selected candidates as per the UPSC standards were available. This issue is, therefore, argued by the counsel to be in favour of the applicants.
12. Insofar as the second issue is concerned, the power of relaxation is exception to the Rule and, therefore, there is a condition precedent that the government must come to the conclusion that it is necessary or expedient so to do. In the absence of any condition of necessity or expediency, exercise of power of relaxation under Rule 14 A of the Rules is not justified. The issue of necessity, according to the applicants counsel, was absent in as much as according to the UPSC standards candidates were available for appointment. On the other hand, since the relaxation was made in favour of those who had been disqualified in the process by selection of UPSC for holding the post of DLAs. Any relaxation, therefore, would imply appointment of disqualified candidates and hence there was absence of the expediency factor as well. There being neither necessity or expediency as argued by the counsel, the relaxation of Rules was not justified.
13. It was further argued that though the impugned notice dated 13.3.2013, respondent no.1- UPSC had cancelled the direct recruitment process for the post of DLAs for the recruitment year 2009-2010 and 2010-2011. On the date when the requisition was sent, not even a single directly recruited DLA was in position in the ministry. Thus the relaxation under Rule 14 A therefore, amounted to an abrogation of recruitment rules and hence relaxation cannot be equated to abrogation. Following citations were referred to by the learned counsel in support of above arguments.
a) State of Orissa and another Vs Smt. Sukanti Mohapatra and others AIR 1993 SC 1650. Relevant para 6,7 & 8.
b) Food Corporation of India v. Bhanu Lodh AIR 2005 SC 2775. Relevant para 20 & 21.
c) Bhupinder Nath Hajarika and another Vs state of Assam and other AIR (2013) SC 234 Relevant para 46.
d) Syed Khalid Rizvi Vs Union of India (1993) Supp (3) SCC 575 Relevant para 33.
14. Learned counsel for the applicants further argued that an exercise of powers of relaxation under Rule 14 A requires that this powers can be exercised only through an order which must refer to the reason for exercising such powers and further that there must be consultationwith the UPSC. Non compliance of any of the aforenoted conditions would result in exercise of the power of relaxation being null and void dehors Rule 14 A ILS 1957. In the instant case, since there was no order in public domain granting such relaxation, the reason for exercising the power are not known. The respondent-UPSC itself had pointed out that while seeking relaxation the respondent Ministry of Law did not state that the UPSC was already engaged in the direct recruitment selection process and that selected candidates were available for appointment. There was thus suppression of facts which the respondent Ministry resorted to. Moreover, according to standing guidelines of the UPSC, relaxation in the modes of recruitment can be resorted to only when candidates were not available or suitable. Even the DOP&T guidelines specifically stipulate to explore the feasibility of filing up a post under the prescribed mode of recruitment in the relevant rules. It must therefore be held that the relaxation in the recruitment is arbitrary and in violation of guidelines to promote the interest of ALAs, adhoc DLAs, who had already been disqualified according to the UPSC standard for holding the post of DLAs. Learned counsel also rebutted the case laws relied by the learned counsel for the respondents stating that the same are not reliable and are distinguishable in view of the facts and circumstances of the case.
15. Following case laws are relied upon by the applicants counsel in their written submissions which is reproduced below:-
1. Union of India and others Vs Rajesh Puthuvalnkiathu and others AIR (2003) SC 4222.
On the point that en-block cancellation of list of selected candidates as improper when no serious allegation of mal practices in process of written examination made either by the candidates or those who actually conducted them was revealed and considered the cancellation of entire selection as extreme and unreasonable.
2. A.V. Papayya Shastry Vs Govt of A.P AIR 2007 SC 1546 has observed in para 19 & 20 On the point that a judgment, decree or order obtained by playing fraud on the Court, Tribunal or Authority is a nullity and non est in the eye of law.
3. Amar Jeet & another Vs Devi Ratan and others AIR (2010) SC 3676 relevant paras of 15 and 16.
On the point that No litigant can derive any benefit from mere pendency of case in a Court of Law, as the interim order always merges in the final order to be passed in the case and if the writ petition is ultimately dismissed, the interim order stands nullified automatically.
4. State of Haryana and other Vs Piara Singh and others AIR (1992) SC 2130.
On the point that appointment of regularly selected candidates cannot be held or kept in abeyance for the sake of such an ad-hoc/ temporary employee.
5. Dr. M.A. Haque Vs Union of India 1993 AIR SCW 784.
On the point that the recruitment rules made under Article 309 of Constitution have to be followed strictly and not in breach. If a disregard of the rules and bypassing of the service commission are permitted, it will open a back door for illegal recruitment without limit
6. The direct recruit the Clause-II Engineering Offices Association and others Vs state of Maharashratra and others AIR (1990) SC 1607.
On the point of Res Judicata and also on the point that, if a rule fixing the ratio for recruitment from different sources is framed, it is meant to be respected and not violated at the whims of the authority. It ought to be strictly followed and not arbitrarily ignored.
7. K. Manju Sree Vs state of Andhra Pradesh AIR (2008) SC 1470.
On the point that a selection criterion has to be adopted and declared at the time of commencement of the recruitment process. The rules of the game cannot be changed after the game is over.
8. Shankarson Dash Vs Union of India AIR (1991) SC 1612. and
9. Mrs. Asha Kaul and another Vs state of Jammu & Kashmir and others AIR (1993) SCW 2314.
On the point that it is the duty of Govt, to act fairly. It has held that Having sent a requisition/request to the Commission to select a particular number of candidates for a particular category,-pursuance of which the Commission issues a notification, holds a written test, conducts interviews, prepares a select list and then communicates to the Government-the Government cannot quietly and without good and valid reasons nullify the whole exercise and tell the candidates when they complain that they have no legal right to appointment. We do not think that any Government can adopt such a stand with any justification today.
10. Bhupinder Nath Hajarika and another Vs state of Assam and other AIR (2013) SC 234. On the point that that the State is a model employer and it is required to act fairly giving due regard and respect to the rules framed by it.
11. Secretary state of Karnataka Vs Uma Devi AIR (2006) SC 1806. On the point that that if rules have been made under Article 309 of the Constitution, then the Government can make appointments only in accordance with the rules, for the State is meant to be a model employer.
12. Y.V. Rangaiah Vs J.Sreenivasa Rao AIR 1983 SC 852. and
13. A.A. Dalton Vs Director of Education AIR 1983 SC1143.
On the point that the vacancies which occurred prior to the amended rules would be governed by the old rules and not by the amended rules
14. East Cost Railways Vs Mahadeva Appa Rao AIR2010 SC 2794.
On the point that the state does not enjoy an unqualified prerogative to refuse the appointment in arbitrary fashion or to disregard the merits of the candidates as reflected from the merits list prepared at the end of the selection process
15. E.P. Royappa Vs state of Tamil Nadu and others AIR 1974 SC 555.
Where an act is arbitrary it is implicit in it that it is unequal both according to political logic and Constitutional law and is therefore violative of Article 14, and if it affects any matter relating to public employment, it is also violative of Article 16. Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment.
16. Jammu & Kashmir Public Service Commission Vs Dr. Narendra Mohan (1994) 2 SCC 630.
On the point that, ad hoc employee should be replaced as expeditiously as possible by direct, recruits. A little leeway to make ad hoc appointment due to emergent exigencies does not clothe the executive government with power to relax the recruitment or to regularize such appointment nor to claim such appointments to be regular or in accordance with rules. Back door ad hoc appointments at the behest of power source or otherwise and recruitment according to rules are mutually antagonistic and strange bed partners. They cannot co-exist in the same sheath. The former is in negation of fair play. The latter are the products of order and regularity. Every eligible person not necessarily be fit to be appointed to a post or office under the State, selection according to rules by a properly constituted commission and fitment for appointment assures fairness in selection and inhibits arbitrariness in appointments. In view of the Explanation-b to Rule 4, the ad hoc appointments to any post in any of the three wings of the services under the rules are therefore de hors the rules.
17. Dani Bello Vs state of Arunachal Pradesh. Gauhati High Court, Itanagar Decided on 20.4.2011, 2011(2) GLT 686. In this case Honble High Court has discussed narious case laws and vide para 24 has observed as under:
24. It is time to recall that the concept of direct appointment, absorption and promotion in service, in relaxation of the relevant recruitment rules, has undergone a prominent development. The present view is that there can be no relaxation of the basic and fundamental rules of recruitment. Thus, the service jurisprudence, now, makes a distinction between conditions of recruitment and conditions of service. While a condition of service may be relaxed, condition of recruitment cannot be relaxed. Subject, however, to the condition that if the recruitment rules, in themselves, provide for relaxation of the condition of recruitment, the condition of recruitment may be relaxed provided that such relaxation does not render the conditions of recruitment, as a whole, nugatory and/or non est in its entirety.
18. State of Orissa and another Vs Smt. Sukanti Mohapatra and others AIR 1993 SC 1650. On the point that, Rule 14 merely permits relaxation by the Govt. of any of the provisions of the Rules in public interest but not the total shelving of the Rules. Rule 14 has to be strictly construed and proper foundation must be laid for the exercise of power under that rule. The Rules have a limited role to play, namely, to regulate the method of recruitment, and Rule 14 enables the Government to relax any of the requirements of the Rules pertaining to recruitment. The language of Rule 14 in the context of the objective of the Rules does not permit total suspension of the Rules and recruitment dehors the Rules. If R. 14 is understood to empower Government to throw the Rules overboard then Rule 14 may not stand the test of Art. 14 of the Constitution. (para 8)
19. Suraj Prakash Gupta and others Vs state of Jammu & Kashmir and others AIR (2000) SC 2386.On the point that there cannot be any relaxation of the basic or fundamental Rules of Recruitment.
20. Keshav Chand Joshi Vs Union of India AIR (1991) SC 284.
On the observation of Honble Supreme court at para 23, that, In order to do justice to the promotees it would not be proper to do injustice to the direct recruits. The rule of quota being a statutory one must be strictly implemented and it is impermissible for the authorities concerned to deviate from the rule due to administrative exigencies or expediency. The result of pushing down the promotees appointed in excess of the quota may work out hardship but it is unavoidable and any construction otherwise would be illegal, nullifying the force of statutory rules and would offend Arts. 14 and 16(1). Therefore, the rules must be carefully applied in such a manner as not to violate the rules or equality assured under Art. 14 of the Constitution. This Court interpreted that equity is an. integral part of Art. 14. So every attempt would be made to minimise, as far as possible, inequity. Disparity is inherent in the system of working out integration of the employees drawn from different sources, who have legitimate aspiration to reach higher echelons of service. A feeling of hardship to one, or heart burning to either would be avoided. At the same time equality is accorded to all the employees.
21. Syed Khalid Rizvi Vs Union of India (1993) Supp (3) SCC575.
On the point that there cannot be any relaxation of the basic or fundamental Rules of Recruitment.
22. In N. K. Chauhan v. State of Gujarat (1977) 1 SCC 308 : (AIR 1977 SC 251), it was held that the rule said that 'as far as practicable', the quota must be followed. Honble Justice Krishna Iyer J. said that there must be evidence to show that effort was made to fill up the direct recruitment quota. It must be positively proved that it was not feasible, nor practicable to get direct recruits. The reason should not be 'procrastinary'.
23. "Food Corporation of India v. Bhanu Lodh" AIR 2005 SC 2775.
Power of relaxation under Regulation cannot be exercised in such manner to completely distort the Regulation.
24. Dinkar Anna Patil v. State of Maharashtra" AIR 1999 SC 152 In the said case Maharashtra Sales Tax Officers Class 1 (Recruitment) Rules (1982), R.4A (as inserted in 1987) - Maharashtra Civil Services (Regulation of Seniority) Rules (1982), R.4 was under consideration. Post of Sales Tax Officer Class 1 comprises of promotees and direct recruits, R. 4-A providing for promotion in exigencies of service by relaxing quota prescribed in R. 4. It was held that Govt. cannot dispense with consultation with Service Commission. The Word "may" used in Rule 4-A has to be read as 'shall'. Further the Fortuitous service of promotee means a temporary appointment made pending a regular appointment in accordance with the provisions of the relevant recruitment rules, therefore it cannot be reckoned for purposes of determining their seniority over direct recruits.
16. The learned ASG appearing on behalf of Respondent No.2 was also heard and according to him the issues which arise for consideration are namely:-
i) Whether there was any cause of action in favour of the applicants by virtue of withdrawal of the results by the UPSC vide Notification dated 22.06.2012 which was in breach of the stay order dated 31.05.2012 granted by the Tribunal in MA No.1608/2012 in OA No.1110/2012;
ii) Whether the Respondent No.2, Ministry of Law and Justice has the power to relax the rules whereby 14 seats from the direct recruitment quota for the posts of DLAs were diverted to the promotion quota of Assistant Legal Advisors; and
iii) Whether the candidates selected by the UPSC had any vested right by virtue of publication of the select list of candidates by the UPSC after the conduct of examination and interviews.
17. Giving the chronology of events, learned counsel for the respondents argued that while the selection process to the post of DLAs was underway, the UPSC was informed by the Government vide letter dated 21.05.2012 of the decision of not filling up the 14 posts of DLAs by direct recruitment and further that the requisition sent for filling up these posts by direct recruitment should be considered as withdrawn. Subsequently, the UPSC vide letter dated 25.5.2012 informed the Department of Legal Affairs that it would not be possible to stop the recruitment process of 11 posts as it had already reached advanced stage. Meanwhile, the Tribunal vide order dated 31.05.2012 in MA No.1608/2012 stayed the declaration of result by UPSC. Despite the presence of the counsel for UPSC before the Tribunal in the said proceedings, UPSC declared the result on 13.06.2012 in breach of the stay order which was ultimately withdrawn vide notice dated 22.06.2012 of the UPSC after initiation of contempt proceeding against them for publishing the result in violation of stay order dated 31.05.2012. Thus, the applicants in the OA cannot take advantage of such declaration/publication of result in violation of the stay order since it itself is non-est in the eyes of law and hence there was no cause of action arising out of the declaration of the result by the UPSC. In this connection, reference was made to All Bengal Excise Licensees Association v. Raghavendra Singh & Ors. (2007) 11 SCC 374. UPSC had admitted this fact that the counsel for UPSC was present when the Tribunal passed the order dated 31.05.2012 and it was also admitted that since the requisitioning Ministry was not interested in recruiting the DLAs, continuing the recruitment process would serve no purpose.
18. Learned counsel for Respondent No.2 further argued that in April, 2012 the ALAs with three years of regular service, who were otherwise eligible for promotion to the post of DLAs were stagnant on their posts for more than double the required years of service for promotion. This resulted in the Government taking the decision to resort to the power of relaxation and to divert 14 posts to the promotion quota. UPSC conveyed its approval for the said relaxation clarifying that it was a one-time relaxation measure and would not be treated as a precedent. The respondents were within their authority in exercising the power of relaxation and to divert seats for the promotion quota and reliance has been placed on the decisions of the Honble Supreme Court in G.S. Lamba & Ors. v. Union of India & Ors. (1995) 2 SCC 604 and P.K. Jaiswal v. Debi Mukherjee, (1992) 2 SCC 148. Reference was also made to the decision of the Division Bench of the Honble High Court of Delhi in W.P. (C ) No.489/2000 decided on 05.12.2008 Central Civil Engineering Service Class I Association v. Union of India & Ors. 156 (2009) DLT 300 wherein the Honble Court has upheld the proposition that the power of relaxation enables diversion of vacancies. This judgment is presently under challenge before the Honble Supreme Court and is pending consideration. As regards the requirement to issue a formal order is concerned, learned counsel argued that a formal order is not mandatory for the purpose of Rule 14 A and also that it was approved by the Honble Minister of Law & Justice. The relaxation was bona fide and legal and was exercised in exigencies of service.
19. As regards the right of appointment of selected candidates, it was argued by the learned counsel that the applicants have claimed that the subsequent withdrawal of results by the UPSC was violative of Article 14 and 16 of the Constitution of India. The selections made by the Commission are only recommendatory in nature and the final authority vested with the Government. In any case, the selection process was not completed and as per settled law, the selection process does not get completed when the interview is complete, the lists prepared or even when the list is published. Reference was made to the following decisions:-
1 Shankarsan Dash v. U.O.I, (1974) 3 SCC 220;
2. Govt. of Orissa v. Haraprasad Das & Ors. (1998) 1 SCC 487;
3. Director, SCTI for Medical Science & Technology v. M. Pushkaran (2008) 1 SCC 448;
4. State of A.P v. Dastagiri (2003) 5 SCC 373;
5. Punjab State Electricity Board v. Malkiat Singh (2005) 9 SCC 22;
6. U.O.I v. Kali Dass Batish & Anr. (2006) 1 SCC 779. It was, therefore, argued by the learned counsel that the publication of the list of selected candidates did not give any vested right of appointment to the applicants in the OA, firstly because the publication of result was itself non est in the eyes of law and secondly the requisition was withdrawn by the Ministry before the interview had been conducted. The respondents Department of Legal Affairs was not, therefore, bound to accept the recommendations of the UPSC, and no violation of Articles 14 or 16 is established.
20. A compilation of citations/ judgments have been filed by the Learned Solicitor General which include the following:
Right to Appointment/Recruitment Process/When is Selection Process Complete.
1. State of Haryana v. Subhash Chander Marwaha & Ors.
(1974) 3 SCC 220;
2. Shankarsan Dash v. U.O.I. (1991) 3 SCC 47;
3. Dr. P.K. Jaiswal v. Ms. Debi Mukherjee & Ors. (1992) 2 SCC 148;
4. Jai Singh Dalal & Ors. v. State of Haryana & Anr. (1993) Supp (2) SCC 600;
5. Government of Orissa v. Haraprasad Das & Ors. (1998) 1 SCC 487;
6. State of A.P. & ors. v. D. Dastagiri & Ors. (2003) 5 SCC 373;
7. Punjab State Electricity Board & Ors. v. Malkiat Singh (2005) 9 SCC 22;
8. U.O.I & Ors. v. Kali Dass Batish & Anr. (2006) 1 SCC 779;
9. Director, SCTI for Medical Science and Technology & Anr. v. M. Pushkaran (2008) 1 SCC 448;
10. Rakhi Ray & Ors. v. High Court of Delhi & Ors. (2010) 2 SCC 637;
11. State of Orissa & Anr. v. Rajkishore Nanda & Ors. (2010) 6 SCC 777;
12. Vijoy Kumar Pandey v. Arvind Kumar Rai & Ors. (2013) 2 SCALE 341;
Power of Relax Rules
13. G.S. Lamba & Ors. v. U.O.I. & Ors. (1985) 2 SCC 604;
14. Subodh Gopal Bose v. State of Bihar (AIR 1969 Pat 72);
15. Hari Nandan Agarwal & Ors. v. S.N. Pandita & Ors. (AIR 1975 All 48);
16. Century Flower Mills Ltd. V.S. Suppiah & Ors. (AIR 1975 Mad 270);
17. Delhi Development Authority v. Skipper Corporation Co. (P) Ltd. (1996 SCC 4 622);
18. All Bengal Excise Licensees Association v. Raghabendra Singh & Ors. (2007 SCC 11 374);
21. During arguments, learned counsel for the respondents produced a copy of the order dated 17.01.2013 of the Honble Supreme Court in Civil Appeal No.5107/2011(Central Engineering Service Class I (DR) Association Versus Union of India and others, as also copy of judgment of the Honble Delhi High Court in Writ Petitions (Civil) No.489/2000 and 2562/2002 of the Honble High Court dated 05.12.2008.
22. Having considered the records in detail and the arguments made by both parties, we now refer to four issues that have been raised on behalf of applicants.
23. In so far as the first issue is concerned, as to whether the impugned cancellation notice dated 13.03.2013 issued by the UPSC is violative of Rule 6(2) of ILS Rules, we find that the cancellation took place because of withdrawal of requisition for recruitment. The withdrawal of requisition in turn was based upon an internal exercise leading to the decision by the respondents No.1 and 2 that 14 posts of DLAs needed to be filled up by promotion. The reasons for such decision have been given by the respondents and the cancellation of notice dated 13.03.2013 is only the culmination of that decision. It is noticed that even the selection of the candidates was notified by the UPSC despite the stay order dated 31.05.2012 in MA-1608/2012 in OA-1110/2012. The resultant effect must be that any declaration of result in breach of the stay order of the Tribunal, specially when such stay was within the knowledge of UPSC, cannot be treated as declaration of the result and it was therefore non-est. Once the declaration of result is treated as non-est, it has to be held that all subsequent actions thereafter were also ab initio, irregular and illegal. Since the notification regarding selection of the candidates was non-est, no right can be held to have accrued to the candidates who were declared successful by the UPSC, specially when the result dated 13.06.2012 was withdrawn by the UPSC on 22.06.2012. In view of above, we would not agree with the contention of the applicants that the cancellation of notice dated 13.03.2013 was violative of Rule 6(2) of ILS Rules which reads as follows:-
6. Filling up duty posts:-
(2) A duty post in Grade III of the Service shall be filled alternatively by direct recruitment and by promotion of a member of the Service in Grade IV. This Rule itself only provides that there shall be an alternative recruitment by direct recruitment and by promotion. The Government having relaxed the said rule under Rule 14-A cannot be said to have acted in violation of Rule 6(2). Even in the case law, cited by the applicants in the matter of Dani Bello Vs state of Arunachal Pradesh (2011(2) GLT 686.), the Honble High Court of Gauhati in paragraph 24 has held that
24. It is time to recall that the concept of direct appointment, absorption and promotion in service, in relaxation of the relevant recruitment rules, has undergone a prominent development. The present view is that there can be no relaxation of the basic and fundamental rules of recruitment. Thus, the service jurisprudence, now, makes a distinction between conditions of recruitment and conditions of service. While a condition of service may be relaxed, condition of recruitment cannot be relaxed. Subject, however, to the condition that if the recruitment rules, in themselves, provide for relaxation of the condition of recruitment, the condition of recruitment may be relaxed provided that such relaxation does not render the conditions of recruitment, as a whole, nugatory and/or non est in its entirety. (emphasis provided) In the present case, the provision of relaxation of the rules existed and such relaxation was exercised and so decided.
24. In G.S. Lamba & Ors. v. Union of India & Ors. (1995) 2 SCC 604, the Honble Supreme Court has held that Where promotees inducted consistently in derogation of mandatory quota rule, rule can be presumed to have been relaxed in exercise of power conferred under relaxation rule. It was further held in this judgment that even the requirement of cancellation of notice would not vitiate the action taken by the Government. In the present OA, it is admitted by both parties that relaxation was accorded under the relevant rules. The answer to the first issue as to whether the impugned cancellation notice dated 13.03.2013 issued by the UPSC was violative, must, therefore, be in the negative.
25. The second issue relates to the exercise of power of relaxation under Rule 14-A of ILS Rules, whether it is arbitrary or not, and whether it is violative of Articles 14 and 16 of the Constitution. Exercise to relaxation of Rule 14-A which has been assailed by the applicants in these OAs starts from filing of requisition for filling up the 14 posts of DLA by direct recruitment. This was followed by written test but from the chronology of events, it is clear that the notice of short listed candidates after the written test was issued on 03.02.2012. This was later on cancelled by the UPSC pursuant to stay order granted by the Tribunal on 31.05.2012 in OA-1110/2012. The result was declared in breach of the stay order and as observed above, the declaration of result was, therefore, illegal and invalid. UPSC withdrew the result on 22.06.12 and, therefore, no result can be deemed to have existed once the UPSC withdrew the result on account of the stay order. At this stage itself, reference was made by the respondents on 18.05.2012 to the UPSC for relaxation in the ILS Rules for diversion of 14 posts from direct recruitment quota to promotion quota. The need for relaxing the recruitment rules had been stated by the respondents. In such situation, it is not for the Tribunal to see whether or not the decision to relax rules to enable promotion of internal candidates was justified or not. Such a decision is not within the scope and ambit of the Tribunal in view of the observations made by the Honble Supreme Court in the case of P.U.Joshi and Ors. Vs. The Accountant General, Ahmedabad and Ors. (AIR 2003 SC 2156). Their Lordships in para 10 of the aforenoted judgment have observed as under:-
10. We have carefully considered the sub-missions made on behalf of both parties. Questions relating to the constitution, pattern, nomenclature of posts, cadres, categories, their creation/abolition, prescription of qualifications and other conditions of service including avenues of promotions and criteria to be fulfilled for such promotions pertain to the field of Policy and within the exclusive discretion and jurisdiction of the State, subject, of course, to the limitations or restrictions envisaged in the Constitution of India and it is not for the Statutory Tribunals, at any rate, to direct the Government to have a particular method of recruitment or eligibility criteria or avenues of promotion or impose itself by substituting its views for that of the State. Similarly, it is well open and within the competency of the State to change the rules relating to a service and alter or amend and vary by addition/substruction the qualifications, eligibility criteria and other conditions of service including avenues of promotion, from time to time, as the administrative exigencies may need or necessitate. Likewise, the State by appropriate rules is entitled to amalgamate departments or bifurcate departments into more and constitute different categories of posts or cadres by undertaking further classification, bifurcation or amalgamation as well as reconstitute and restructure the pattern and cadres/categories of service, as may be required from time to time by abolishing existing cadres/posts and creating new cadres/ posts. There is no right in any employee of the State to claim that rules governing conditions of his service should be forever the same as the one when he entered service for all purposes and except for ensuring or safeguarding rights or benefits already earned, acquired or accrued at a particular point of time, a Government servant has no right to challenge the authority of the State to amend, alter and bring into force new rules relating to even an existing service. (emphasis provided)
26. The second issue is whether there was apparent nexus between relaxation of rules and the objective for which the rules were relaxed. This is established by the fact that the respondents deemed it necessary to fill up 14 posts by promotion quota because there were officers who had more than double the required years of service for promotion under the rules, and were stagnating. Respondents No.1 and 2 withdrew the requisition of the Department of Legal Affairs for filling up these posts by direct recruitment because of such a situation. Only because this decision to fill up the 14 posts of DLAs by promotion was taken subsequent to the requisition sent to UPSC for direct recruitment of 11 posts cannot in itself take away the justification.
27. Rule 14 A of ILS Rules reads as follows:-
Where the Central Government is of the opinion that it is necessary or expedient so to do, it may, by order, for reasons to be recorded in writing and in consultation with the Union Public Service Commission relax any of the provisions of these rules with respect to any class or category or persons or any posts. From the reading of the Rule, the requirement is that the Central Government must opine that it is necessary or expedient to do so. The necessity for resorting to relaxation of rules is well stated by the respondents by way of explanation that because of stagnation in the cadre, there was no need to go ahead with the direct recruitment quota. The expediency factor is also taken care by the decision for according one-time relaxation in order to remove stagnation and to promote such officers. It is not only that the relaxation of rules made by the Respondent Nos.1 and 2 is one time, but it also meets the requirement of consultation with the UPSC. The approval of Honble Minister of Law was also obtained for such relaxation. The exercise of power of relaxation under Rule 14-A resorted to by the respondent, cannot therefore be held to be arbitrary and neither can it be treated as violative of Articles 14 and 16 of the Constitution.
28. The third issue raised is whether the power of relaxation of Rule 14-A can be exercised in such a manner as to totally abrogate the direct recruitment. We have noted above that the relaxation under Rule 14-A had been resorted to for the promotion quota instead of direct recruitment quota and was in consonance with the UPSC advice under the Rules. This relaxation would not be a precedent and was only a onetime relaxation. The provision of recruitment by direct recruitment would automatically get restored to the prescribed ratio under the recruitment rules after the 11 posts were filled up by promotion.
Having regard to the stagnation of officials working in the Department the Government took the decision to accord the one time relaxation of the rules. This cannot be held to have been exercised in such a manner as to abrogate the provision of direct recruitment under the rules. The answer to this issue must also be in the negative.
29. The last issue raised by the applicants in this regard was that whether the power of relaxation under Rule 14A had been exercised lawfully or not. We have answered this issue in reply of Issues 2 and 3 above.
30. Another issue to be determined is whether the rights of the applicants for appointment have been violated or not. In Dr. P.K. Jaiswal v. Ms. Debi Mukherjee & Ors AIR 1992 SC 286, the Honble Supreme Court in paragraph 5 have dealt with this issue and observed as follows:-
5. In support of the first contention, strong reliance was placed on the decision of this Court in N. T. Devin Katti v. Karnataka Public Service Commission, (1990) 3 SCC 157 : (AIR 1990 SC 1233). In that case this Court observed that a candidate who is eligible and otherwise qualified in accordance with the relevant rules and the terms of the advertisement acquires a vested right of being considered for selection in accordance with the rules as they existed at the date of advertisement. He cannot be deprived of that limited right on the amendment of rules during the pendency of selection unless the amended rules are retrospective in nature. While making these observations, it was made clear that a candidate on making an application for a post pursuant to an advertisement does not acquire any vested right of selection or of appointment to the post in question. This is obvious from the ratio of this Court's decision in Jatinder Kumar v. State of Punjab, (1985) 1 SCR 899 : (AIR 1984 SC 1850). In that case, it was clarified that an independent body like the Commission is established to ensure selection of best available talent for appointment to the post in question to avoid arbitrariness and nepotism in the matter of appointment. The selection has to be made by the Commission and on the basis thereof the Government has to fill up the post adhering to the order of merit drawn up by the Commission. This Court emphasised that the selection by the Commission is only recommendatory in nature and the final authority for appointment is the Government, and if the Government declines to accept the recommendation the Constitution enjoins the Government to place on the table of the legislature its reasons and report for so doing. Thereby the Government is made answerable to the elected representatives under the Constitution. This, however, does not clothe the selectee with any right to appointment that is to say that he cannot force the Government to accept the recommendation of the Commission but the Government has to make the appointment strictly in accordance with the recruitment rules and merits as determined by the Commission and it cannot disturb the list at its sweet will. Nor can the Government appoint a person whose name does not appear in the list. It is obvious from the ratio of these two decisions to which our attention was pointedly drawn that if the Commission issues an advertisement at the behest of the Government and pursuant thereto calls a candidate for interview, the candidate has a right to be considered for selection but not a right to be selected or to appointment to the post in question. The right to selection crystallises only after the candidate is called for interview pursuant to the advertisement. But in the instant case the question is whether the Government can withdraw the requisition sent to the Commission for initiating the process of selection because at that point of time no right had crystallised in anyone for being considered for selection. If the Government is at a given point of time considering the question of amending the recruitment rules with a view to providing for promotion to the post in question, the Government can before an advertisement is issued by the Commission and the process of selection is under way request the Commission to withdraw the same till it decides on the question of amending the rules. The decision of the Government to withdraw the requisition sent to the Commission in November 1989 before the issuance of the advertisement does not interfere with any vested right of selection because that stage had yet not reached. In the instant case, that is exactly what happened. Therefore, before the appellant acquired a right to be considered for selection the Government had already intimated that it was examining the question of amending the recruitment rules with a view to providing for appointment by promotion to the post in question. Once this decision was communicated to the Commission before it had set the process of selection in motion by issuing an advertisement, it was not open to the Commission to insist that it will go ahead with the selection process as the extant rule provided for promotion by direct recruitment and the Government could amend the recruitment rules retrospectively, if it so desired with a view to providing for appointment by promotion. Such an exercise by the Commission would be an exercise in futility, waste of public time and money and hardship to candidates who seek appointment.Whether to provide for promotion as a mode of appointment to the post in question is a matter of policy left to the Government to decide and if it desired that the selection process should be held in abeyance till the question was examined and a final decision was taken thereon, it was not open to the Commission to ignore the communication of the Government in that behalf and proceed to set the selection process in motion. We think the action of the Commission was somewhat hasty and unjustified. The appellant, therefore, cannot claim any vested right as urged by his learned counsel. Nor can the Tribunal's omission to notice that two new layers were created have a bearing on the Government's decision to place the process of selection in hibernation till a final decision is taken on the proposal to provide for promotion to the post. (emphasis provided) In view of above, the applicants in these OAs cannot be said to have acquired any right of appointment. It is also to be observed from the aforementioned judgment that to provide for promotion as a mode of appointment to the post is a matter of policy left to the Government to decide.
It is thus well established that selection in itself does not vest any right of appointment and, therefore, even if the selection list was published, the applicants in these OAs did not acquire any right for appointment. In the present case, it is also on record that the selection list notified by the UPSC was not valid because it was in breach of the stay order of the Tribunal. Secondly, the UPSC withdrew the list of selected candidates subsequently and, therefore, no list of selected candidates can be deemed to have been in existence and therefore no right could accrue to the selected candidates.
31. For the reasons above noted, we do not find any scope for interference in the decision of the respondents. Finding no merit in these four OAs i.e. OA Nos. 1925/2013, 3602/2013, 1165/2013 and 3816/2013, the same are dismissed by this common order. No order as to costs.
32. Let a copy of this order be placed in each case file.
(Raj Vir Sharma) (Ashok Kumar)
Member (J) Member (A)
/usha/