Central Administrative Tribunal - Madras
T Sekizhar vs Ut Of Puducherry on 23 February, 2024
\ 1 OA 5345/2023 CENTRAL ADMINISTRATIVE TRIBUNAL a CHENNAI BENCH . OA/310/00545/2023 VA : Dated day, the ys day of February, Two Thousand Twenty Four CORAM : HON'BLE MR .MANISH GARG, Member (J) & HON'BLE MR.VARUN SINDHU KUL KAUMUDI, MEMBER(A) 1. T. Sekizhar, S/o. Tambiradja, Residing at, No.16, East Street Nallavadu and Post, Puducherry - 605 007 2. S.Vikeshwaran. S/o. K.singaravelu, Residing at, No.i4, Bharathi Street, Jeevananandhapuram, Lawspet, Puducherry - 605 008 3. T. Rajkumar, S/o. A.Thalamuthu, Residing at, Mp/129, Annai Priyadarshini Street, Jeevanandhapuram, Lawspet, Puducherry - 605 008 4, R.Angalan, S/o. R.Rajendiran, No.1, ist Kailash Nagar, Pakkamudiyanpet, Puducherry - 605 008 5. PKeerthivasan, S/o. K.Perurmal, No.i7, Mariamman Kovil Street, Andiarpalayam Kattupalaym Post, Puducherry .. Applicants By Advocate M/s.M.Gnanasekar / Vs , 1.Union of India, Represented by Secretary to Government, Government of Puducherry Chief Secretariat, Puducherry - 605 001 2. The Secretary to Government, Department of Personnel and Administrative Reforms, Personne! Wing, Chief Secretariat, Puducherry -605 001. AS/mer » 2 OA 545/2023 3. The Under Secretary to Government, . Department of Persannel and Administrative Reforms, Personnel Wing, Chief Secretariat, Puducherry -605 001 Respondents By Advocate Mr.R.Syed Mustafa 3 OA 5345/2023 ORDER
(Pronounced by Hon'ble Mr.Manish Garg, Member(J)) The applicants have filed the present OA seeking the following relief:
"LSet aside the Notification No. A.34012/7/E1/2022/DP&AR (Exam)PF-9 dated 05.07.2023 passed by the 3" respondent and quash the same and ii. pass such further order of as are necessary to meet the ends of justice and iii, award exemplary cost and thus render justice ." .
2. The brief facts of the case, as submitted by the applicants, are as under:
2.1 The applicants submit that by notification, dated 05.07.2023, the respondents proposed to fill up the vacancies by persons who have applied pursuant to the earlier notification, dated 29.09.2022, and the said notification deprives the young, energetic, eligible qualified and talented graduates, who are all waiting, of the opportunity to participate in the recruitment to the public appointment.
2.2 The applicants would contend that they are aggrieved by the action of the respondents in so far as non-consideration of their applications is concerned. They have been deprived of their legitimate right for consideration by issuing the second notification. The first notification, which was issued on 29.09.2022, notified 116 vacancies for the post of UDC.
2.3. The applicants do not dispute the fact that the examination of the said post was also held on 23.07.2023. They further contend that, by virtue of further notification, dated 05.07.2023, the vacancies were further increased to 146, in addition to the vacancies already notified in the previous notification for which the examination was conducted on 06.08.2023.4 OA 5453/2023
2.4 In respect of the notification, dated 06.08.2023, the applicants have given a chart showing details of applications and requested for clarification.
' They draw reference to the Recruitment Rules.
2.5 As per the notification and the Recruitment Rules (RRs), the required educational qualification for the post is a degree from a recognised university. They would contend that the requisition from the employment exchange ought have to be called. Fs 2.6 They rely upon OM, dated 11.01.2016, which contemplates that the entire recruitment process should be completed within 6 months. They would contend that the earlier notification already contemplated anticipatory vacancies and, therefore, subsequent notification ought not to have increased the vacancies. Therefore, the applicants have Jost the chance of making an application.
3. Opposing the grant of relief, the learned standing counsel for the respondents would rely upon the averments in the counter affidavit.
3.1 He would rely upon the terms and conditions, as per the notification, dated 29.09.2022. He would strongly rely upon the note in the notification and he would contend that the subsequent notification is issued to supplement and not to extend the date of submission of the online application.
3.2 He would contend that for the 116 vacancies notified, 46,100 applications were received by the respondents and the level of competition is so high that for one post, 397 candidates are competing (1:397) and even after Including the 146 anticipated vacancies, the ratio remains as high.as 1:176. Therefore, he would finally contend that the said notification is only in a nature of corrigendum.
3 OA 545/20234, We have heard the learned counsel for the parties and gone through the records of the case. "4
5. ANALYSTS 5.1 Taking note of the above noted facts, the applicants' counsel faid much stress on the office memodrandum, dated 11.1.2016, which is reproduced herein below:-
"E No. Mise-14017/15/2015-Estt. (RR) Government of India Ministry of Personnel, RG. & Pensions Department of Personnel & Training North Block, New Dethi OFFICE MEMORANDUM Dated: 11,1.2016 Subject: Instructions regarding time limit for holding examinations / interviews from the date of advertisement for the post under direct recruitment -- reg.
The undersigned is directed to refer to the subject and to say that it has come to notice of this Department that there are instances of a fong time lag between the date of advertisement for the vacancy and date of examination or interview. This delay may deny the opportunity to fresh candidates who become eligible during that period, while creating an atmosphere of uncertainty to candidates who have applied. .
2. All Ministries / Departments are, therefore, requested that while initiating the recruitment process to fill vacant posts(s) by the method of direct recruitment in their Ministries / Departments, it may be ensured that the entire recruitment process including and starting from advertisement, conducting written examination or holding of interview may be completed within six months.
3. The administrative Ministries / Departments may issue similar instructions to autonomous bodies / PSUs / statutory bodies under their administrative control.
To Alf Ministries / Departments of Government of India. "6 OA 3545/2023
5.2. The Learned Counsel for applicant(s) laid much emphasis on the fact that non-adherence of the OM, dated 11.1.2016, has lead to uncertainty, delay has denied the opportunity to fresh candidates who become eligible during that -period, while creating an atmosphere of uncertainty to the candidates who have applied.
5.3 The Learned Counsel for applicant(s) also relied upon the decision rendered in High Court of Kerala Vs Reshma A decided on 11.1.2021, which came up for consideration in CIVIL APPEAL NOS.6233-6234 OF 2023 (ARISING OUT OF SLP (C) NOS.15522-15523 OF 2021) in VIVEK KAISTH & ANR. Versus THE STATE OF HIMACHAL PRADESH & ORS decided on 20.11.2023, "19, All the same, even if there is an apparent dichotomy between what the Service Rules suggest and what is mandated by this Court in Malik Mazhar this must be resolved by making a harmonious interpretation between the Service Rules and Articles 14 and 16 of the Constitution of India, as held by this Court in High Court of Kerala v. Reshma A. and Others (2021) 3 SCC 755. The importance of the Service Rules cannot be belittled. The directions given in Malik Mazhar too emphasise that appointments have to be made as per the Service Rules of each State, as the procedure of selection and appointment may vary between different states. This Court was conscious of this aspect. 5 The concern of this Court was for timely recruitment to fill the judicial vacancies. Removing any doubt on a conflict between the directions in Malik Mazhar and Service Rules, this Court in Reshma A. (supra) explained as under:
"BOL cesceeeeceees The object and purpose of this Court in the decision in Malik Mazhar (3) [Malik Mazhar Sultan (3) v. U.P. Public Service Commission, (2008) 17 SCC 703] was to ensure the expeditious filling up of judicial vacancies in the State Judicial Services. It was in this perspective, that the Court set down strict timelines for compliance. At the same time, it is evident that the decision did not provide for essential aspects such as eligibility, modalities for conducting the examination and the application of reservations in making appointments to State Judicial Services. Hence, 2 significant field in regard to the process of selection and appointments to the judicial services is not covered by the decision in Malik Mazhar (3) [Malik Mazhar Sultan (3) v. U.P. Public Service Commission, (2008) 17 SCC 703] for which one has to fall back upon construing the mas governing the State Judicial Service in question."7 OA 545/2023
In Malik Mazhar, this Court had dealt with any probable conflict of duties on interference with the independent functioning of State Commissions where it reiterated its sole purpose of timely filling up of judicial vacancies. This is what it said:
"6. Though no submission was made by any learned counsel appearing for any State Government that the constitution of Selection Committee by the Chief Justice of the High Court to monitor the timely appointment of Judges at subordinate/district level would amount to interference with the independent functioning of the State Public Service Commission, but some State Governments in their responses have indicated so. In view of what we have already noted about the appointments to be made in accordance with the respective Judicial Services Rules in the States, the apprehension of interference seems to be wholly misplaced. A Committee constituted by the Chief Justice of the High Court to ensure that the vacancies are timely filled and the problem of delay in dispensation of justice is tackled to some extent can under no circumstances be said to be interference with the independent functioning of the authorities under the Rules or of independent functioning of the State Public Service Commission,"
20. In Reshma A. (supra) while dealing with a situation where there was an almost similar dichotomy between the Kerala Judicial Service Rules and the directions given in Malik Mazhar, this Court was of the opinion that in such cases, it is better to seek harmony between the two and held that "A better line of approach is to seek an interpretation which will bring harmony between them." Without going into the details of the Reshma A. (supra) case, the problem which arose there was that the Service Rules in Kerala required the "merit list" to be "twice" the number of "probable vacancies", After the first half of the candidates fram the list were given appointments on the notified vacancies, the remaining candidates of the list, i.e., nearly half, claimed appointment on vacancies which came subsequently i.e., subsequent to the notification of vacancies. The claim of these candidates was based on a provision of Service Rules [Rule 7(2)]which stipulated that the list shall be valid for "one year", and therefore since the merit list was still a valid fist, appointments could be made on these vacancies, was the case of the petitioners before the Kerala High Court. Their claim was accepted by the learned Single Judge in writ petition as well as in Appeal before the Division Bench. The Kerala High Court was thus here before this Court, in Reshma A (supra). Indeed, a literal interpretation of sub-rule (2) of Rule 7 would give a right of consideration to the petitioners who were before the Kerala High Court, but that would be against service jurisprudence as that would amount to making appointments on vacancies which were not advertised, vacancies which came up after the notified date on which would also rest the claim of such candidates who gained eligibility subsequently and had a right of consideration. Hence, this exercise would principally be in violation of Articles 14 8 OA 545/2023 and 16 of the Constitution of India. This is how this Court resolved the issue:
"71,1, Undoubtedly, the validity of Rule 7(2) was not in question before the High Court. The counsel for the respondents argued that it does not lie in the province of the appellant to raise a doubt about the validity of its own rules, more particularly Rule 7(2). It is necessary to note that Mr V. Giri, learned Senior Counsel appearing on behalf of the appellant did not suggest or argue that Rule 7(2) should be held to be invalid. The submission of the learned Senior Counsel is that the expression "probable"
denotes an addition/deduction which has to be made due to the imponderables of service such as death, resignation and promotion. The submission of the appellant is that a literal interpretation of Rule 7(2), without reference to the constitutional requirement of not operating a select list beyond the notified vacancies, would render the Rule violative of Articles 14 and 16 and such an interpretation should be avoided. In other words, his submission was that a constitutional interdict cannot be overcome in the manner it has been suggested by the respondents and a harmonious interpretation of the judicial service rules in the light of the directions in Malik Mazhar Sultan (3) [Malik Mazhar Sultan (3) v. U.P. Public Service Commission, (2008) 17 SCC 703 : (2010) 1 SCC (L&S) 942] should have been resorted to by the High Court. We are in agreement with this line of submissions, based as it is on the precedent of this Court.
71,2,.It is a settied principle of service jurisprudence that when vacancies are notified for conducting a selection for appointments to public posts, the number of appointments cannot exceed the vacancies which are notified. The answer to this submission, which has been proffered by the respondents is that under Rule 7(1) a probable number of vacancies is required to be notified and since an exact number is not notified, there is no constitutional bar in exceeding the 37 probable vacancies that were notified in 2019. The difficulty in accepting the submission is simply this : it attributes to the expression "probable number of vacancies" a meaning which is inconsistent with basic principles of service jurisprudence, the requirement of observing the mandate of equality of opportunity in public employment under Articles 14 and 16 and is contrary to the ordinary meaning of the expression. Black's Law Dictionary [ 1ith Edn. (Thomson Reuters West, 2019).The definition of "Probable" in the 4th Edn., Revision 6 (1971) of the Black's Law Dictionary was:"Having the appearance of truth; having the character of probability; appearing to be founded in reason or experience ...; having more evidence for than against; supported by evidence which inclines the mind to believe, but leaves some room for doubt; Apparently true yet possibly false."] defines the expression "probable" as:
"Probable : likely to exist, be true, or happen"
"Probable number of vacancies", as we have seen, is based on computing the existing vacancies and the vacancies anticipated fo occur during the year, It also accounts for the possibility of 9 OA 5345/2023 inclusion of some of the candidates that are in the wait list. However, the expression "probable" cannot be interpreted as a vague assessment of vacancies that is not founded in reason and ~ . can be altered without a statutorily prescribed cause. To allow ; the concept of probable number of vacancies in Rule 7(i) to trench upon future vacancies which will arise in a succeeding year would lead to a serious constitutional infraction. Candidates who become eligible for applying for recruitment during a . | succeeding year of recruitment would have a real constitutional ° grievance that vacancies which have arisen during a subsequent year during which they have become eligible have been allocated to an earlier recruitment year. If the directions of the High Court are followed, this would seriously affect the fairness of the || process which has been followed by glossing over the fact that * vacancies which have arisen during 2020 will be allocated for candidates in the select list for the year 2019, Such a course of action would constitute a serious infraction of Articles 14 and 16 and must be avoided.
71.3. To reiterate, the submission of the appellant which we are inclined to accept is not that Rule 7(2) is invalid but that a harmonious interpretation of Rules 7(1) and (2) must be adopted that is consistent with the Article 142 directions in Malik Mazhar Sultan (3) [Malik Mazhar Sultan (3) v. U.P. Public Service Commission, (2008) 17 SCC 703 : (2010) 1 SCC (L&S) 942] to bring the rules in accord with the governing principles of constitutional jurisprudence in matters of public employment."
21, Appointments cannot be made over and above the vacancies which have been advertised, except in an emergency situation or for some unforeseen reasons, in public interest or when a policy decision is taken by the State Government in this regard, as held by this court in Gujarat State Dy. Executive Engineers' Assn. v. State of Gujarat (1994) Supp 2 SCC 591.
22, In Hoshiyar Singh v. State of Haryana (1993) Supp. 4 SCC 377, this Court had held that Public Service Commission cannot recommend more names than what have been advertised and any appointment, which is made in excess to the vacancies, which have been advertised would be arbitrary. The reason being that such selection/appointment would deprive those candidates who are not eligible for appointment at the time these posts were advertised but had become eligible in the subsequent year would be deprived of competing against such posts. This decision has been followed in a catena of other judgments by this Court. Reference may be made here to some of these decisions, such as State of Bihar v. Secretariat Asstt. Successful Examinees' Union (1994) 1 SCC 126 and State of Bihar v. Madan Mohan Singh (1994) Supp 3 SCC 308.
23. The common thread that runs in all the above judgments is that appointments cannot be made over and above the vacancies which were advertised i.e., clear and anticipated vacancies, even though the Public Service Commission may have prepared a longer merit list than it was required to do.
10 OA 545/202324, In Malik Mazhar-2, this Court had directed that a waiting list of candidates should also be prepared. Evidently in the present selection process there was no "waiting list". There ought to have. | been one. However, the absence of a waiting list has not caused any difficulty as all the eight candidates who were selected gave their joining and were consequently appointed. The purpose of a waiting list is that when selected candidates are unable to join the post for any reason whatsoever, the post should not remain, _ vacant and this shortfall of candidates can be met from the + candidates who are in the waiting list. The candidates who are in the waiting fist have also qualified the examination in every respect, but they are just lower down .in the merit and for this reason they could not make it to the final select list of candidates. But they are just short of it and that is why they are in the waiting = list. The purpose of a "waiting list" is only to fill the shortfall of "clear and anticipated vacancies."
5.4 By virtue of the notification, dated 29.9.2022, a note was already in place, which reads are under :-
"Note:
The vacancies notified are existing as well as anticipated. However, Government reserves the right either to enhance or to reduce the number of vacancies notified depending upon the actual requirement at the time of selection and also to cancel the recruitment process. No interim enquiry will be entertained."
5.5 The notification, dated 5.7.2023, was Issued by the respondents , which reads as under :-
"In continuation of the recruitment notification issued on 29-09-2022 to fill up 116 vacancies in the grade of Upper Division Clerk, it is informed that 146 anticipated vacancies likely to arise on account of conduct of Limited Departmental Competitive Examination (LDCE) to be held on 06-08-2023 for promotion to the post of Assistant from . among the Upper Division Clerks will also be filled up based on the results of the Competitive examination for recruitment to the post of Upper Division Clerk to be held on 23-07-2023 (Sunday). '
2. The category-wise reservation breakup for 146 anticipated vacancies Is as follaws:-11 OA 545/2023
Total UR Reservation Number Vertical Horizontal Vacancies MBC|SC/OBC|EWS |EBC|BCM|BT|ST|XSM |PwBD |MSP 146 59 |26 (23/16 |14 |3 3 1 |i [14 5 7 B
3. The filling up of above anticipated vacancies shall be subject to the outcome of 0.A. No.241, 248 and 257 / 2023 pending before the Hon'ble Central Administrative Tribunal, Madras Bench, Chennai.
_ Based on the results of the recruitment examination a separate merit + list will be drawn for the above mentioned anticipated vacancies after the declaration of results for Limited Departmental Competitive Examination for promotion to the 'post of Assistant."
5.6 As per the chart produced by the applicants , the applicants acquired the essential qualification, i.e., a degree, between the closing date of notification dated 22.9.2022 and 5.7.2023:- --
SI.No. Name Date of acquiring qualification 1 T.Sekizhar 06.05.2023 (B.Tech) 2 S.Vikeshwaran 06.05.2023 (B.Tech) 3 T.Rajkumar 06.05.2023 (B.Tech) 4 R.Angalan 06.05.2023 (B.Tech) 5 P.Keerthivasan 06.05.2023 (B.Tech) 5.7. It ts not in dispute that the examination was conducted on 23.7,.2023.. The applicant(s) ought to have approached the Court before the said date, i.e, 23.07.2023.
5.8 The applicants have neither made out a case that they were not aware of the above factual position, nor there is anything on record to show that some Rule has been violated which has caused adverse impact. There would be some other aspirants who would be similarly situated and had not 12 OA 545/2023 knocked at the doors of justice.
6. We may say that any change in vacancies, by itself, cannot be said. to be either arbitrary or discriminatory, so as to make out a case of any change in the Rule of the game after the selection process has commenced. No change in the terms and conditions, dated 22.09.2022, have beén highlighted in the OM, dated 05.07.2023, except increase in vacancies. The said OM fs only in the nature of a corrigendum. It is not the case of the a applicants that they were waitlisted candidates who were on a better footing. /. CONCLUSION In view of the above discussion, we find that there is no infirmity in the decision taken by the respondents in adding up the vacancies. Hence, the OA is rejected. Pending applications, if any, also disposed of. No costs.