Central Administrative Tribunal - Delhi
Shri Vijay Kaushik vs Commissioner Of Police on 23 May, 2011
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH : NEW DELHI O.A. NO.2322/2009 M.A. 2305/2010 New Delhi, this the 23rd day of May, 2011 CORAM: HONBLE MR. G. GEORGE PARACKEN, MEMBER (J) HONBLE DR. VEENA CHHOTRAY, MEMBER (A) Shri Vijay Kaushik, S/o Shri Hawa Singh Kaushik, R/o E-2/2/21, MIG Flats, Sector 15, Rohini, New Delhi Applicant (By Advocate: Shri Ajesh Luthra) Versus Commissioner of Police, PHQ, M.S.O. Building, I.P. Estate, New Delhi Respondent (By Advocate: Shri B.N.P. Pathak) O R D E R
By Dr. Veena Chhotray:
The applicant, who got appointed as a Sub Inspector (Executive) under the Delhi Police on the basis of an Advertisement in 2009 is agitating claims regarding his non-selection in the same capacity, in the context of the earlier Advertisement of 2007. The applicant had not been selected in this case on the ground of not fulfilling the minimum prescribed cut off marks and being low in merit. This was despite certain notified vacancies remaining unfilled. The OA seeks the following reliefs:-
8 (a) quash the recruitment notification of Sub-Inspector (Exe.) Male in Delhi Police 2009 to a limited extent it wrongly includes unfilled vacancies of recruitment process of 2007 and;
(b) to direct the respondent to consider the applicant for appointment to the post of Sub-Inspector (Male) (Executive) with all consequential benefits as given to his counterparts who have been so appointed pursuant to recruitment of SI (Ex.) Male-2007. However, in view of the subsequent selection of the applicant, his learned counsel Shri Ajesh Luthra would not press the relief under clause 8(a). On behalf of the respondents, the learned counsel Shri P.M. Pathak would argue the matter.
2. The brief facts of the case are that as per the Advertisement issued by the respondents in the year 2007, a total number of 692 posts of Sub Inspectors (Executive) in Delhi Police had been advertised. The applicant, who is a general category candidate, is agitating claims against the 281 unreserved posts. The applicant passed the physical test and also participated in the written test. On short-listing he had been called for interview. However, the name of the applicant did not figure in the list of the selected candidates as per the result declared on 9.5.2008.
2.1 Through a series of applications under the RTI, the applicant was able to obtain the information that he had secured 118 marks in the written test and 9 marks in the interview, making a total of 127. It was also revealed that the cut off in the written test was 108 and the final cut off 128.
2.2 The grievance of the applicant is that the respondents had not selected him despite all the notified vacancies not having been filled up. As per the RTI only it was revealed that under the unreserved categories against 281 notified vacancies only 267 had been filled up (Annex A/9). Besides, 17 Sub Inspectors of general category had left the Department from July 2008 to July 2009 (Annex. A/10). Thus, it would be contended that even though 31 (14 + 17) vacancies had been left unfilled, despite availability of eligible candidates including the applicant, the respondents had not filled the same. Instead the unfilled vacancies had been carried forward to the next recruitment and included in the 2009 Notification (no recruitment in the year 2008 stated to have taken place).
2.3 An earlier OA No.543/2009 filed by the applicant was disposed vide the Tribunals order dated 11.5.2009, permitting him to withdraw the OA, with a liberty to take appropriate steps to challenge the Notification stated to have been issued by the administration in the meanwhile, for fresh selection (Annex. A/6).
This has occasioned the present OA.
3. The learned counsel for the applicant, Shri Ajesh Luthra would submit that as the applicant had got selected as an SI on the basis of the 2009 Notification, he did not feel any further need to press with the relief claimed in 8 (a). It would also be submitted by the learned counsel that even though the applicant has been appointed as a Sub Inspector, he has nonetheless been wrongly denied his due service entitlements on the basis of the earlier selection in 2007. This would be averred to be on account of unjustified and legally untenable actions on the part of the respondents. The applicant had had to suffer on account of his seniority as also notional fixation of pay, which would have an adverse effect throughout his career prospects. In this background the relief prayed in para 8 (b) of the OA would be strongly urged by the learned counsel.
Despite an averment on the part of the respondents learned counsel regarding the OA in its present form not being maintainable, as it had not been appropriately amended; we find this a hyper-technical plea and over-rule it in the interest of substantive justice. Similarly, the preliminary objections raised in the counter reply about the OA being barred by limitation and delay and latches and being bad in law on account of non-joinder of necessary parties are not found tenable. The former taking into account the fact that the present OA has been filed in pursuance of the liberty granted in the first OA; and the latter again for the reason that the applicant in any case is not pressing the relief in clause 8 (a). this the OA is being considered on merit.
4.1 In support of the claims in the OA a number of contentions would be made by the learned counsel Shri Luthra. It would be submitted that the so called cut off marks had not been determined in advance or prior to the initiation of the selection process. Such fixation during the selection process would be averred to be as illegal, as ruled by the judicial fora in a number of judgments. Besides, non-preparation of a waiting list despite specific instructions of Govt. of India would also be questioned (para 4.ix/OA). Further, it would be stated that as per the prevailing practice the respondents had been filling up the notified vacancies by appointing equal number of candidates in order of merit after adding marks of interview to those in the written examination. Only the marks of the last selected candidate in a particular category were termed as the cut off marks for that category. This conventional practice would be averred to have been erroneously deviated from in the present context (para 4 X) 4.2 The thrust of Shri Luthras argument would be on the alleged arbitrariness behind the prescription of the cut off marks in question. This would be on the ground of the vacancies having remained unfilled and having been unjustly carried forward to the next selection year (para 4 (VIII)/(XV)/OA). It would also be on the respondents allegedly adopting double standards while dealing with candidates under different quotas. The OA submits that since the 36 posts reserved for departmental candidates had not been filled, 4 candidates had been allowed to be appointed, with the orders of the Commissioner of Police, despite their not fulfilling the prescribed cut off marks (para 4 (X1). Again 2 more such candidates had been appointed in pursuance of the judicial directions by the Tribunal in the departmental quota.
4.3 The learned counsel, Sh. Luthra would also cite certain instructions in support. The guidelines pertaining to Direct Recruitment by Competitive Examinations, particularly dealing with the aspect of estimate of vacancies and their filling up, had inter alia, prescribed:
If, however, some of the candidates recommended/allotted for appointment against the specific number of vacancies reported in respect of a particular examination do not become available for one reason or other, the Commission may be approached within a reasonable time for replacements from the reserves, if available. When replacements are not available, the vacancies remaining unfilled should be reported to the Commission for being filled through the next examination. [G.I., M.H.A., O.M. No.23/11/67-Estt.(II) dated the 14th July, 1967, O.M. No.23/38/69-Estt.(B) dated the 13th March, 1969 and O.M. No.9/21/58-RPS dated the 10th June, 1959.] As per the Govt. of India, Deptt. of Personnel & Training, O.M. No.39036/88-Estt.(B), dated the 18th January, 1990, it was prescribed the panel of candidates in order of merit, to be kept in reserve is made use of in a contingency when the recommended candidate does not join the post for one reason or the other and resultant replacement vacancy occurs. The reserve panel is also operated in the event of the resignation or death of a candidate within six months of his appointment. In such event, the Ministry/Department concerned should approach the Commission for nomination of a candidate from the reserve panel, if any, maintained by the UPSC. Only after hearing from the UPSC in the matter, should the recruitment process be treated as completed and the Ministry/Department concerned resort to any alternative method of recruitment to fill up the vacancy. Besides, the provisions of the standing order No.321/2007 for the selection of candidates for appointment as Sub Inspector(Executive) Male in Delhi Police would also be adverted to. The learned counsel would particularly draw our attention to the provisions of Para 11 regarding the INTERVIEW. This is extracted as below:
Candidates shall be called for interview on the basis of their performance in the written test. The Interview will carry 10 marks. Successful candidates shall be invited on an appropriate date and time to appear before an Interview Board consisting of a Joint C.P. and 2 Addl. CsP or as directed by the Commissioner of Police, Delhi who may constitute one or more boards for this purpose.
It would be submitted by Shri Luthra that this standing order did not contain any mention of prescription of the cut off marks.
4.4 Shri Luthra would also make an averment that as per the respondents stand in the counter affidavit it had no where been stated that the applicant was not successful. On the other hand, their stand was that he was low in the merit list which was stated to be the reason for his non selection. While admitting that the applicant was the 17th next eligible candidate to the last selected candidate in the UR category, it would be contended that had the selection process been implemented appropriately, the applicant would still have been appointed as a Sub Inspector against the selection process of 2007 itself.
4.5 To reinforce the claims, a number of judicial rulings would also be relied upon. The decision of the Apex Court in R.S. Mittal v. Union of India (1995 Vol.II SCR 437), particularly para 10 thereof would be cited where it was held that even though a select panelist did not have a vested interest, appointment against notified vacancies could not be declined by the state on its arbitrary whims and fancies and without any justification. Besides, the decision in Himani Malhotra v. High Court of Delhi, 2008 Vol.II (L&S) 203 and that in K. Manjushree vs State of A.P., (2008) 1 SCC (L&S) 841 would also be cited where it was held that prescription of minimum marks for viva voca cannot be done midstream after initiation of the selection process. The decision of a coordinate Bench of the Tribunal in the OA 215/2010 (Deepak Kumar vs UOI & Ors.) decided on 16.03.2011 would also be referred, particularly, para 4 of this order which is regarding the cut off being lowered in the same merit list and regarding the consideration of the candidates being in accordance with the order of merit.
4.6 On these grounds, the learned counsel Sh. Luthra would strongly urge the justifiability of the claims being pressed by the applicant in the OA.
5. The claims in the OA have been contested by the respondents. By way of substantive grounds it has been stated that the applicant had no claim whatsoever since he had failed to make the grade in the list of the finally selected candidates in the 2007 recruitment. Besides, violation of no statutory rule in issuance of the subsequent advertisement of 2009 or in the selection process in pursuance thereof has also been averred.
To clarify their stand on the factual aspects, the counter reply submits that as against 281 vacancies in the unreserved category an equivalent number had been selected by the respondents. However, those candidates who did not join due to various reasons, their candidature had been cancelled and the resultant vacancies had been included for the next recruitment advertised in January 2009. Further, the completion of even the subsequent recruitment cycle and the joining of the selected candidates for training w.e.f. 29.9.2009 has also been submitted. The respondents have strongly rebutted the rival contention of there being any illegality in carrying forward of the unfilled vacancies from the selection process of 2007 to that in 2009.
The plea raised in the OA of the name of the applicant appearing in the merit list has been stated to be misconceived by the respondents. The non-selection of the applicant is averred to be on account of the low merit position. It is also submitted that whereas the overall cut off marks for selection in the unreserved category was 128 and the applicant had secured only 127 marks, 9 candidates securing a higher score than him of 128 could not be selected.
As per the respondents there was no arbitrariness on their part in prescribing the overall cut off marks. It is submitted that the cut off marks are not fixed prior to the selection. Instead they are determined according to the marks obtained and available vacancies in respective category.
In their reply to para 4 (xi), the case of the 4 departmental candidates is stated to be on an entirely different basis. It has been submitted that these candidates had been selected to the post of Sub Inspector (Executive) on the basis of the examination 2004 conducted by the Staff Selection Commission and also in the examination-2007 conducted by Delhi Police. On their request treating them as selected through the examination of 2004, their candidature for 2007 examination had been cancelled and in their place 4 candidates in their respective category on merit have been selected.
On the point of having a waiting list, the reply to para 4 (ix) states that there is no rule or binding instructions for maintaining waiting list of candidates. It is also submitted that it is for the employer to decide as to how many posts have to be filled up and upto what merit point should they be filled up.
Further, the learned counsel Shri B.M. Pathak would aver that the judicial rulings being relied upon by the applicants counsel were not applicable in the facts of the present case. Shri Pathak would also draw our attention to the decision by the coordinate Bench of the Tribunal in the OA 2007/2010 decided along with several other OAs by a common order dated 04.05.2011. Para 10 of this order relies upon the decision of the Apex Court in State of UP and Anr. v. Nidhi Khanna and Anr. (2007) 2 SCC (L&S) 225 where it was held that once a fresh select list is prepared pursuance to a subsequent advertisement, a person empanelled in the earlier select list issued in an earlier advertisement is not entitled to be appointed.
Thus as per the respondents the claims in the OA deserved to be rejected.
6. We have carefully considered the respective submissions of the learned counsels and perused the material on record.
7. Certain facts in this case are undisputed. The applicant had not been empanelled in the list of selected candidates; nor did his name figure in any waiting panel, as no such panel had at all been prepared. There is no averment either of anyone, lower to the applicant in the merit list having been appointed. The claim being raised is against the vacancies caused by non-joining of certain selected candidates. Additionally, the claims are against the vacancies resultant to resignations after the joining. As per the applicant 14 vacancies were in the former category and 17 in the latter. The basis of the same is certain information provided under the RTI and enclosed vide Annexure A/9 and A/10 of the OA. We note that the RTI information about those leaving their jobs after joining covers a span of one year period from July 2008 to July 2009. However, as per the respondents, it is not binding to have a wait-listed panel and the number of persons who did not join, on cancellation of their candidature, the resultant vacancies had been forward and included in the next recruitment cycle which also has been finalized and acted upon. Not to miss the point, the applicant himself is a beneficiary of the subsequent recruitment cycle.
8. The settled law on the subject is that even a selectee has no indefeasible legal right to appointment, least of all a wait-listed panelist. In the present case the applicant was neither. In fact, as per the determining criteria of selection, the applicant had even failed to be included in the list of the finally selected candidates.
It is equally settled a proposition of law that a bonafide decision on the part of the appointing authorities not to make appointments even against notified vacancies is not to be interfered with in judicial review. Laying down the basic law on the subject in Shankarsan Dash vs UOI, {(1991) 3 SCC 47}, the Honble Apex Court had observed:
It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post unless the relevant recruitment rules so indicate the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the license of acting upon arbitrary manner. The decision not to fill up the vacancies has to be taken bonafide for appropriate reasons.
The above view was reiterated in a catena of judgments. In State of UP & Ors vs Raj Kumar Sharma & Ors { (2006) 3 SCC 330} in a case where the issue had arisen out of selectees of the erstwhile united State of U.P. making claims for appointment against vacancies in the Hill State of Uttaranchal, the claims had not been found tenable. Further, the Honble Apex Court had reiterated that Mere inclusion of a candidates name in the list does not confer any right to be selected, even if some of the vacancies remained unfilled and the candidates cannot claim that they have been given a hostile discrimination.
To illustrate the points at issue, a few more the judgments of the Apex Court in Jitendra Kumar & Ors vs State of Haryana {2008 (1) SCC (L&S) 428} / Subha B. Nair & Ors vs State of Kerala & Ors {2008 (2) SCC (L&S) 409}, may also be cited.
9. The present case is not one of arbitrary non-filling of certain notified vacancies. In Shankarsen Das vs UOI (supra) only the Honble Apex Court had cited its two earlier decisions in R.S. Mittal vs UOI {(1995) Suppl. 2 SCC 230} and Asha Kaul vs State of J&K {(1993) 2 SCC 573} as illustrations of arbitrary non-filling of the notified vacancies. In R.S. Mittals case, the non appointment of the persons from the select panel had been on grounds of inaction on the part of the Government. In Asha Kauls case, the Honble Court had found the entire exercise to have been reduced to a farce. This was a case in which the respondents after having sent a requisition to the Commission to select a particular number of candidates for a particular category, in pursuance of which the Commission had issued a Notification, completed the selection process and communicated the select list to the Government, the authorities without any valid reasons had nullified the whole exercise.
The learned counsel for the applicant, Shri Ajest Luthra has adverted to the decision in R.S. Mittals case. However, considering the factual matrix, the present case is found to be distinguishable. In this case the respondents after selection of an equal number of candidates as per the notified number of vacancies, on non-joining of certain candidates had cancelled their candidature and carried forward the vacancies to the next recruitment cycle, which itself has since been completed and acted upon. We do not, therefore, find this contention of the applicant regarding the carrying forward of unfilled vacancies being arbitrary as acceptable.
In view of the explanation submitted by the respondents with regard to the different factual circumstances of the 4 candidates appointed in the departmental quota, the averment of an alleged discrimination is also not found to be tenable. As stated above, the appointment of other two candidates in the departmental quota had been in pursuance of certain judicial directions, and as such cannot be relied upon.
10. This is also not exactly a case of mid stream change of rules of the game. The cases of K. Manjusree vs State of A.P. / Hemani Malhotra (supra) both relied upon by the learned counsel for the applicant dealt with a different issue i.e. prescription of minimum marks by the respondent High Court for viva voce, after the written test was over. Besides, the Honble Apex Court had also been seized with the fact that such course of action for purpose of appointment to Delhi Higher Judicial Service was contrary to recommendations in Justice Shetty Commissions Report, as approved with certain modifications in All India Judges Association case { (2002) 4 SCC 247} for the reason that it had expressly provided therein that there should be no cut off marks for viva voce. Evoking the doctrine of circumstantial flexibility, we do not find the ratio of these two cases as applicable in the present case. Even Para-4 of the OA No.215/2010 relied upon by the learned counsel for the applicant cannot be taken in isolation of the overall context.
On the other hand, in Ramesh Kumar vs High Court of Delhi & Anr decided before a 3 Judge Bench : (2010) 1 SCC (L&S) 716, the Honble Apex Court observed:
In absence of any contrary statutory provision, the competent authority can prescribe minimum qualifying process both for written and interview. The same was also held to be permissible for selection.
In Tridip Kumar Dingal & Ors vs State of West Bengal {(2009) 2 SCC (L&S) 119} holding bonafide short-listing to eliminate candidates as justified, it was held by the Honble Apex Court that, in the absence of the statutory provisions the same could be undertaken, even as per administrative instructions, provided the action otherwise was bonafide and reasonable.
On behalf of the applicant, there has been no averment before us of any statutory provision making the preparation of a waiting list as a mandatory obligation on the part of the respondents. The DOPT instructions being adverted to are only enabling in nature. The departmental Standing Order No.321 of 2007 also does not help the case in any manner.
Even as per the DOPT instructions cited before us, the DOPT OM dated 18.1.1990 mentions of a reserve panel being operable in contingencies of resignations or deaths within six months, whereas the RTI information as per the Annex. A/10 covers a period of one year. Thus, there is no definite information on this account. Admittedly the applicant was only 17th in the list.
11. Undisputedly the selection process in this case had already come to an end. As per the settled law no relief can be admissible on the basis of an expired select list.
In Girdhar Kumar Dadhich & Anr vs State of Rajasthan & Ors {(2009) 1 SCC (L&S) 543} the Honble Apex Court held:
Validity of a select list would ordinarily remain valid for one year. Duration if extended must be done in accordance with law.
In Nadia District Primary School Council & Anr. vs Sristidhar Biswas & Ors {(2008) 2 SCC (L&S) 946}, the Honble Apex Court had observed:
Court cannot keep a panel alive for long and direct the staff to appoint empanelled candidates pursuant to a writ petition filed several years later.
In State of Orissa and Anr vs Raj Kishore Nanda & Ors {(2010) 2 SCC (L&S) 313}, the Honble Apex Court had held that empanelment is at best a condition of eligibility for purposes of appointment, and the same did not confer any vested right in favour of an empanelled candidate. Further, it had been reiterated that a bonafide decision by Appointing Authority to leave certain vacancies unfilled even after preparing select list cannot be assailed.
12. The vacancies in this case had been carried forward to the next recruitment cycle. As per the decision of the Apex Court in State of UP & Anr vs. Nidhi Khanna & Anr (supra) relied upon by the respondents, the claims on the basis of even empanelled candidates in an earlier select list are precluded to be agitated in such a situation.
13. In view of the foregoing, we find that the claims in the OA are not tenable. The applicant who is not a selectee, nor even a panelist has no locus standi. Besides, the selection process has been closed. The averment of arbitrariness is not found to be tenable. The applicant himself is a beneficiary of the subsequent selection process to which the unfilled vacancies had been carried forward. Considering the factual matrix of the case and the settled law on the subject, we do not find any merit in the OA which is hereby dismissed with no order as to costs.
(DR. VEENA CHHOTRAY) (G. GEORGE PARACKEN)
MEMBER (A) MEMBER (J)
/PKR/