Central Administrative Tribunal - Delhi
Kaptan vs Union Of India on 6 September, 2010
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH : NEW DELHI O.A. NO.3654/2009 New Delhi, this the 6th day of September, 2010 CORAM: HONBLE MR. SHANKER RAJU, MEMBER (J) HONBLE DR. VEENA CHHOTRAY, MEMBER (A) Kaptan S/o Shri Dharam Bir, Vishal Nagar, Gali No.5, House No.989/26 Sonepat, Haryana-131 001 Applicant (By Advocate: Shri G.D. Gupta, Sr. Counsel with Shri S.K. Sinha) Versus 1. Union of India, Through its Secretary, Ministry of Health & Family Welfare, Govt. of India, Nirman Bhawan, New Delhi 2. Director General of Health Services, Govt. of India, Nirman Bhawan, New Delhi 110 018 3. Director, National Centre for Disease Control, (Directorate General Health Services), Govt. of India, 22, Shamnath Marg, Delhi 110 054 Respondents (By Advocate: Shri Rajesh Katyal) O R D E R By Dr. Veena Chhotray, Member (A):
The applicant, a wait listed candidate for the post of Laboratory Attendant on the basis of a panel prepared by the Selection Committee on 29.7.2008, is aggrieved with his non-appointment as Lab. Attendant under the Respondent no.3 i.e. The National Centre for Disease Control. By way of relief the OA seeks a direction for appointment of the applicant on this post on the basis of his position and rank in the select panel prepared after considering his case for the vacancies for the years 2001 2007 with grant of all consequential benefits. As an omnibus clause, a prayer for passing such other or further orders as deemed fit in the interest of justice has also been made. By way of interim relief, the Tribunal had directed the respondents for keeping one post of Lab Attendant as vacant in the meanwhile.
2. On behalf of the respondents, a detailed counter affidavit has been filed. For the applicant, the Learned senior counsel, Shri G.D. Gupta assisted by Shri S.K. Sinha, and for the respondents, the learned counsel, Shri Rajesh Katyal would make the submissions. The present order is being passed after carefully considering the submissions by the learned counsels, the material on record and the law on the subject.
3.1 The brief facts of the case are that the National Centre for Disease Control, earlier known as the National Institute of Communicable Diseases, functions under the control of Directorate General of Health services, Union Ministry of Health and Family Welfare. It is governed by the policy decisions taken by the Government of India with regard to formulation of Annual Direct Recruitment Plan (ADRP) from the year 2001 by all the Ministries, Departments and Organizations including the Autonomous Bodies wholly or partly financed by the Government as a part of an exercise to reduce the staff strength. In accordance with these directions such ADRPs are to be prepared from the year 2001 onwards in respect of all categories of services Group A, B, C and D. Further the vacancies required to be filled up by the concerned Organizations are to be reflected in this Plan, which can only be filled up after their clearance by the prescribed Screening Committee at the Government level. As per these directions, no vacancies can be filled on direct recruitment basis unless and until cleared by these Committees. The unapproved vacancies have to be abolished.
3.2 The present claims have arisen for the posts of Lab. Attendant, which are non-technical Group D posts. It is stated that the NCDC (respondent no.3) had submitted its Annual Direct Recruitment Plans for the years 2000-01 to 2005-06 to the Union Ministry of Health & Family Welfare. In respect of Laboratory Attendants, 4 such posts had been approved vide the Ministrys letter dated 18.12.2006 communicated in turn vide the Directorate of Health Services letter dated 10.1.2007. As per the GOI instructions, two posts out of these were earmarked for compassionate appointment.
Subsequently the NCDC submitted further proposal to the Directorate General of Health Services in respect of the ADRPs for the years 2006-07 and 2007-2008 respectively vide their letter dated 21.8.2007and 24.12.2007 (Annexure R/1 (colly.)). For the year 2006-07 against four proposals for 4 Lab. Attendants none was approved. For the year 2007-08 against four proposals two were approved. This was by the Screening Committee meeting held on 23.10.2008 under the Chairmanship of Secretary, H&FW and communicated vide the Ministrys letter dated 26.11.2008 to the Directorate which in turn communicated the approval to the NCDC vide its letter dated 6.1.2009 (Annexure R/8 with the CA).
3.3 In the meanwhile an advertisement was issued in the Employment News 28th July 3rd August 2007 inviting applications for certain Group D posts under the Respondent No.3. These, inter alia, included two posts of Laboratory Attendants (UR-1, OBC-1). Under Para 10 of the general terms and conditions, there was a specific mention that number of vacancies may vary (Annexure R/2 with the CA). The applicant had applied for the post of Lab. Attendant in response to this advertisement.
3.4 The Selection Committee for filling up these two posts of Lab. Attendants had met and on the basis of the applications received selected two persons under UR and the OBC category. A copy of the minutes has been enclosed along with the OA as Annexure A/1. It makes clear that the specific context for holding of the Selection Committee was filling up the two posts of Lab. Attendants on the basis of the ADRPs for the year 2000-01 to 2005-06 as per the aforesaid advertisement. However, while selecting the two candidates under the UR and OBC categories, the Committee had also additionally recommended a select panel of five candidates each both under the UR and the OBC categories. The name of the applicant before us figures at serial no.1 under the OBC category. The concluding para of the proceedings ran as follows:-
The Selection Committee conducted the interviews of all the eligible candidates, and recommended the names of the following candidates to be appointed as Laboratory Attendant in NICD in order of merits in selection and recommended for keeping panel of the candidates for one year as per the Rules. The future vacancies likely to occur during the current recruitment year may be filled up from the waiting list panel of this selection. 3.5 Vide their OM dated 6.5.2009, the respondents had intimated the applicant regarding his name being under consideration for appointment to the post of Lab. Attendant at NICD, Delhi. He had been asked for submitting the relevant information for verification of character and antecedents and marital status; report for medical examination and submit two passport-size photographs (Annexure A/3). The applicant of course had treated this as an offer for appointment and had also vide his letter dated 11.5.2009 communicated acceptance of the same. This contention regarding the aforesaid communication being construed as an offer of appointment has been rebutted by the respondents in their counter affidavit.
3.6 Subsequently, however, the respondent no.3 had sought certain clarifications from the DGHS on this subject. A copy of the letter dated 17.6.2009 (enclosed as Annexure a/5 with the OA) ran as follows:-
Subject: Clarification regarding filling up the posts under Direct Recruitment from the wait list panel.
Sir, I am directed to state that interview for filling up the posts of Laboratory Attendant under direct recruitment was held from21.7.2008 to 29.7.2008 at NICD, Delhi. As per proceedings, the panel was kept for one year and it was also mentioned that future vacancies likely to occur during the current recruitment year may be filled up from the waiting list panel of the selection. A copy of the recommendations of the selection committee is enclosed herewith for perusal.
The Screening Committee, Ministry of Health & family Welfare has sanctioned two posts in the annual direct recruitment plan of this Institute for the year 2007-08 vide Dte. GHS letter No.A.12034/04/2007-O&M dated 6.1.2009 (copy enclosed).
It is, requested that this office may kindly be advised whether the present 2 posts of Laboratory Attendant can be filled from the above panel, as the panel is still alive as posts were sanctioned by the screening committee in January 2009.
3.7 The Counter Affidavit reveals that the Office of the DGHS had responded to this vide their OM dated 07/16.09.2009 (Annexure R/6) advising the NICS to fill up the posts as per the DoP&T OM No.41019/18/97-Estt.(B) dated 13.06.2000 which provided for utilizing the reserve panel in the event of a vacancy occurring by non-joining of a selected candidate within a stipulated time or where the candidate joined or resigned or died within one year. This was, however, made subject to the rider of a fresh panel not being available by that time. It was also clarified that in such situations the vacancies should not be treated as fresh vacancies (Annnexure R/6).
However, the Respondent No.3 had still found it expedient and well justified to fill up the remaining two vacancies from the panel recommended by the Selection Committee on 29.07.2008 and had sought the permission of the Government to fill up these two posts of Lab. Attendant from the above panel. Considering the significance, the full text of this letter dated 27.10.2009 (Annexure R/7) is extracted below:
Subject: Clarification regarding filling up the posts under Direct Recruitment from the wait list panel.
Sir, With reference to your letter No.A.60011/21/2009-PH (CDL) dated 16.07.2009 on the subject noted above, I am directed to say that:-
Two posts of Laboratory Attendants were advertised in the Employment News dated 28th July 3rd August, 2007.
The interviews for the above mentioned post were held during July 2008. As per the recommendations of the Selection Committee, 2 Laboratory Attendants were selected and a panel was prepared to fill up the future vacancies of Laboratory Attendant likely to occur under Direct Recruitment within a year from the panel.
The Dte. G.H.S. conveyed the approval of the Screening Committee sanctioning 2 post of Laboratory Attendant at NCDC Delhi vide their letter No.A.12034/04/2007-O&M dated 6.1.2009. These belong 1 each to the unreserved and OBC categories respectively as per roster maintained by NCDC.
It was recommended by the Selection Committee that future vacancies arising within a year may be filled from the panel. Accordingly the two wait list candidates were considered for appointment against these 2 vacancies and were asked to submit the proforme for verification of character and antecedents. They have also submitted the requisite information to this office.
In view of the above, it is requested that this office may kindly be permitted to fill up these two posts of Lab. Attendant from the above mentioned panel. Para 4.8 of the Counter Affidavit avers about a reply to this communication as still being awaited and the case being under process. In fact one of the objections raised in the Counter Affidavit i.e regarding the maintainability of the OA is about non-exhaustion of departmental remedies by the applicants.
3.8 However, in the meanwhile, the applicant for want of any further development to the communication of 6.5.2009, had submitted a representation dated 24.8.2009 (annexure A/6) followed by another one dated 22.10.2009 on the subject. No reply to these communications was received.
On an application under the RTI Act, vide their letter dated 18.9.2009 the Respondents had confirmed certain facts regarding the validity of the select panel being for one year, the name of the applicant figuring at serial no.1 in the OBC panel and the fact that the offer of letter having been issued to the applicant as well as the submission of the duly filled in proforma in response to this letter. It is also stated about the clarifications having been asked from the DGHS vide the respondents letter dated 17.6.2009 and no reply still having been received from them (Annexure A/7).
This has occasioned the filing of the present OA.
4. On behalf of the applicant, the learned Senior Council, Shri G.D. Gupta would submit about the vacancies in this case existing on the date of selection. The learned counsel would be at pains to stress this point that the vacancies in question had pertained to the year 2007-08, which was prior to the date of the Selection Committee proceedings i.e. 29.7.2008. It would also be submitted by the learned counsel that as per the relevant advertisement an enabling clause for varying the number of vacancies specifically being advertised for different posts had been deliberately retained. Further the learned counsel would emphasize the fact of the conscious recommendation on the part of the Selection Committee for recommending the selection panel for vacancies likely to occur during the current recruitment year, with a definite stipulation regarding the validity of the panel being for one year. The subsequent approval to the additional two vacancies for the year 2007-08 having been received during the same recruitment year when the DPC was held i.e. 2008-09 would also be highlighted by the learned counsel.
In this context, it would be strongly contended by the learned senior counsel, Shri Gupta that the vacancies in question could not be considered as future vacancies and such a nomenclature in this case was only a misnomer. The fact of the respondents themselves asking the applicant to complete the pre-appointment formalities would also be averred before along with recommendations by the Respondent No.3 themselves to the DGHS justifying the filling up of these vacancies on the basis of the clear recommendations of the Selection Committee.
5. The stand of the respondents appears to be ex facie ambiguous. On the one hand they have stated about the matter being still under process in pursuance of their recommendations to the DGHS vide the letter dated 27.10.2009 on the other several arguments have been submitting contesting the claims agitated in the OA. The learned counsel, Shri Rajesh Katyal would submit that the applicant had only been wait-listed and as per the settled law a mere selectee has no legally enforceable right. Thus, the very maintainability of the OA would be questioned by the learned counsel for want of any locus-standi of the applicant. It would further be submitted by Shri Katyal that the advertisement in question had clearly mentioned only two vacancies. The mere incorporation of an enabling clause about the possibility of variance in the number of vacancies advertised would not be stated as bestowing any right on the applicant, in contravention of the settled law on the subject. It would similarly be contended regarding preparation of a waiting panel not conferring any legally enforceable right on the applicant even if for a moment, for argument sake, it was taken that the Selection Committee in this case had committed an error by preparing a larger panel.
Rebutting the rival contention of the vacancies having been caused prior to the initiation of the selection process, the learned counsel would argue that in view of the restrictions imposed by the Government occurrence of vacancies in this case could only be construed from the date of approval of the competent committee. Prior to that date no duly approved vacancy existed against which the applicant could have been considered. It would further be argued by the learned counsel that after the receipt of approval of the vacancies for the year 2007-08, against which the applicant now was agitating his appointment, the only appropriate course for the respondents would be to initiate a fresh selection process which is not only in accordance with the settled law on the subject but would also justify the organizational interests as there could always be a possibility of getting better and more qualified candidates.
6. A number of judicial rulings on the subject have also been brought to our notice in this case. The learned counsel for the respondents would rely upon the Apex Courts decisions in State of Bihar & Anr. vs Madan Mohan Singh & Ors {1994 SCC (L&S) 1438} and Surinder Singh & Ors vs State of Punjab & Anr. etc. {AIR 1998 SC 18} to reinforce his arguments. On the other hand the learned counsel for the applicant, at the behest of the Tribunal, would advert to the decision of the Apex Court in State of Orissa & Anr v. Rajkishore Nanda & Ors {2010 (6) SCALE 126} as well as in Rakhi Ray & Ors v. High Court of Delhi & Ors {(2010) 1 SCC (L&S) 652} and would seek to distinguish the facts of the present case from those in these two judgments. Whereas it would be contended by the applicants learned counsel that the claims in the OA were within the four corners of law as propounded by the Apex Court; the learned counsel for respondents would strongly rebut these contentions.
7. We have carefully considered the facts of this case and also the various contentions raised by both the learned counsels. It is no more res integra that a selectee has no legally enforceable right for appointment even against an advertised vacancy and the State for valid reasons, would be well within its legitimate domain to take a decision regarding filling up or non-filling up of even a vacancy. The claim in the present OA is not with regard to the vacancies specifically advertised as per the relevant advertisement; instead this pertains to the vacancies that had arisen in the peculiar circumstances of the case in the same recruitment year as the date of the Selection Committees proceedings.
Considering the stipulations under the GOI instructions regarding a vacancy being filled up only on the approval of the prescribed Screening Committee, the fact of its occurrence in the year 2007-08 would not make the vacancy as having existed at the time of the selection process. Such a situation can only be averred to exist after its due approval in accordance with rules and instructions. However, the fact remains that while advertising for only two posts of Lab. Attendants the respondents had also incorporated a stipulation in the advertisement about there being the possibility of variance in the number of vacancies.
It is trite that a select panel ordinarily remains valid for one year unless provided otherwise under rules or changed as per law. This settled proposition of law was inter alia, reiterated by the Apex Court in Girdhar Kumar Dadhich & Anr vs State of Rajasthan & Ors {(2009) 1 SCC (L&S) 543}. Considering the background under which the respondents, despite having the vacancies were not able to fill them up for want of approval of the Governmental Screening Committee and the process being on, the fact of the Selection Committee having made recommendation for a select panel of five each under the UR and OBC categories also deserves due consideration. We further note that the respondent no.3 themselves in their proposal to the Ministry vide the letters dated 17.6.2009 and 27.10.2009 had found ample justification for making these appointments.
In this factual background of the case, the learned respondents counsels endeavour to justify initiating a fresh selection process not only runs counter to their own stand in the aforesaid communications but also amounts to approbating and reprobating at the same time. It would be pertinent to note at this point that the validity of the selection process, the credential of the Selection Committee or even the eligibility of the applicant for the post have not been disputed in this case.
8. The issue also needs to be considered in the context of judicial pronouncements on the subject of filling up of more vacancies than the number advertised. At the outset, it seems apposite to refer to the decision of the Apex Court reported in 2004 (6) SCALE 232 {Collector of Central Excise Culcutta vs M/s Alnoori Tobacco Products & Anr} emphasizing the doctrine of a circumstantial flexibility. It was held by the Apex Court that one additional fact may make a world of difference and the Judges must be committing an error if they blindly rely or follow a decision.
Against this background, we would now briefly discuss the factual matrix of the four cases cited by both the sides, and whether they can broadly be considered as representing similar situations as in the present OA or there are some vital distinguishing factors that deserve due consideration.
8.1 The learned counsel for the respondents has relied upon the Apex Courts judgment in State of Bihar & Anr. vs Madan Mohan Singh & Ors (supra) and Surinder Singh & Ors vs State of Punjab & Anr (supra) to contend that deviations by State from the principle of limiting the number of appointments so advertised was not found as in consonance with law by the Honble Apex Court.
8.2 The case of Madan Mohan Singh (supra) had pertained to filling up vacancies of Additional District and Sessions Judge in Bihar. The relevant advertisement dated 29.9.1989 had invited applications for filling up 32 vacancies. After written test, interview and medical examination, a panel of 32 candidates out of 139 ( 32 x 4 = 128, besides one more candidate had been included because the candidates at serial nos. 128 and 129 positions had secured same marks) had been recommended by the High Court on the administrative side. The entire selection process had extended till the year 1991. These 32 empanelled candidates had been appointed by the State Government. However, while the selection process was on, the High Court on the administrative side had passed a resolution on 24.11.1990 that any further vacancies within one year against direct recruitment quota would be filled up from the merit list already prepared by it.
This was held invalid by the Apex Court which had been duly seized with the relevant facts i.e. the advertisement and the selection process being clearly meant only for 32 vacancies; there being no statutory rule mentioned in the advertisement about the duration of the panel remaining in force. In these circumstances, the Honble Apex Court had ruled about the selection process coming to an end as soon as the 32 vacancies had got filled. Further it was laid down that keeping alive the same panel for future vacancies would amount to deprivation of rights of other candidates who had become eligible subsequent to the said advertisement and the selection process.
8.2 The other judgment relied upon by the learned counsel, Shri Katyal is Surinder Singh vs. State of Punjab (supra). In this case also the facts assume importance. Vide this common judgment, the Apex Court was deciding four appeals pertaining to the appointments against different categories of teachers; whereas the relevant advertisement dated August 19, 1992 had advertised for filling up of only 2461 vacancies of teachers; subsequently between this date and June 22, 1994 when the interview process had been completed and appointments made, 7737 further vacancies had arisen. Keeping in view the interests of the students, the State Government had decided to fill up these additional vacancies also out of the panel prepared on the basis of August 1992 advertisement. The High Court by its judgment dated September 28, 1994 had quashed the 7737 additional appointments.
The State Government though accepting the judgment of the High Court had still decided to appoint these candidates on ad hoc basis initially for 89 days as stop gap arrangement. The matter being raised before the High Court, the ad hoc appointments had been extended from time to time. While directing the State Government to complete the fresh selection process, in the meanwhile the ad hoc candidates had been allowed by the High Court to continue till the availability of regularly appointed candidates.
In these cases the State Government had subsequently issued further advertisements i.e. December 28, 1994 for 10,000 fresh posts; January 12, 1996 and October 18, 1996 for 12,200 posts respectively. The process for selection against these subsequent advertisements was also on. In this context, claims and counter claims from various quarters including the ad hoc appointees had been considered. Considering all the relevant facts, the Apex Court had ruled that the selection process could be for clear as well as anticipated vacancies and not for future vacancies. Relying upon its earlier judgment in Prem Singh vs Haryana State Electricity Board, 1996 (4) SCC 319, the law as laid down in Para 25 of that judgment was reiterated. This is being reproduced as hereunder:
From the above discussion of the case law it becomes clear that the selection process by way of requisition and advertisement can be started for clear vacancies and also for anticipated vacancies but for not future vacancies. If the requisition and advertisement are for a certain number of posts only the State cannot make more appointments than the number of posts advertised, even though it might have prepared a select list of more candidates. The State can deviate from the advertisement and make appointments on posts falling vacant thereafter in exceptional circumstances only or in an emergent situation and that too by taking a policy decision in that behalf. Even when filling up of more posts than advertised is challenged the Court may not, while exercising its extraordinary jurisdiction, invalidate the excess appointments and may mould the relief in such a manner as to strike a just balance between the interest of the State and the interest of persons seeking public employment. What relief should be granted in such cases would depend upon the facts and circumstances of each case. (emphasis supplied) We may at this point note down a few salient points of law flowing from these observations of the Apex Court that are relevant in the context of the instant OA:
A distinction has been made between anticipated vacancies and future vacancies. While the selection process initiated for clear vacancies can include in its compass anticipated vacancies, it cannot be extended to future vacancies.
There is not a complete foreclosure for a deviation for filling vacancies exceeding the number advertised. The right of the State to make such appointments even exceeding the number of vacancies advertised has been recognized by the Apex Court. This, however, is only in very rare and exceptional circumstances and after taking a conscious policy decision on that behalf.
It has also been held to be within the legitimate domain of the Court while exercising this extra-ordinary jurisdiction to mould the relief so as to strike a just balance between the interests of the State and the interests of the persons seeking employment.
Finally the apex court has reiterated about each case depending upon its facts and circumstances.
In the given case of Surinder Singh, the Apex Court has taken a definite view that no exceptional or rare circumstances had existed to deviate from the principle of limiting the number of appointments to the number advertised.
8.3 The most recent judgment on the subject cited before us is the decision by the three Judges Bench of the Apex Court in Rakhi Rays case (supra) decided along with another SLP vide judgment dated February 1, 2010. Besides, there is also a recent judgment of the Apex Court in Rajkishore Nanda (supra).
In Rakhi Ray & Ors case, the issue pertained to filling up the vacancies in the cadre of District Judges in Delhi. The High Court of Delhi (on the advertising side) had issued an advertisement dated 19.5.2007 for filling up 20 vacancies including 13 from the general category candidates. The results for the same were declared on 3.1.2008. The 13 vacancies in the UR category had been filled up according to the merit list. The appellants who had found place in the merit list but much below, were agitating claims for appointment against the 13 vacancies that had come into existence between 29.2.2008 and 23.5.2008 i.e. during the pendency of the selection process. In support they were relying on the judgment of the Apex Court in Malik Mazhar Sultan (3) vs U.P. Public Service Commission {(2008) 17 SCC 703} in which the Apex Court while issuing a large number of directions had also directed the anticipated vacancies to be included while filling up vacancies in the Judicial Service.
On the facts of the case this proposition was not found to be sustainable by the Apex Court which had taken the view that even in Malik Mazhar Sultans case (supra) it had been laid down that vacancies had to be filled up according to the relevant statutory rules. Para-7 of this judgment had entertained serious reservations in filling up of vacancies over the notified vacancies. The relevant extracts are reproduced herein below:
7. xxxxxx. Filling up the vacancies over the notified vacancies is neither permissible nor desirable, for the reason, that it amounts to improper exercise of power and only in a rare and exceptional circumstances and in emergent situation, such a rule can be deviated from and such a deviation is permissible only after adopting policy decision based on some rationale, otherwise the exercise would be arbitrary. Filling up of vacancies over the notified vacancies amounts to filling up of future vacancies and thus, is not permissible in law. (emphasis supplied) Further relying upon the judgment in Surinder Singhs case (supra), the waiting list being operative only for contingencies that if any of the selected candidates not joining had been cited. Relying on the same judgment it had also been stated that exercise of such a power has to be tested on the touchstone of reasonableness and it is not as a matter of course that the authority can fill up more posts and advertised.
Sufficient it would be for us to note at this point that even in Rakhi Rays case (supra) the Apex Court has recognized that in certain rare and exceptional circumstances and based on a rational policy decision more vacancies than the number advertised may be filled up. This, of course, has been made subject to fulfilling the touchstone of reasonableness and is not to be done as a matter of cause.
8.4 The most recent judgment in the series is Rajkishore Nanda (supra). In this case the relevant rules had provided for determining the number of vacancies and holding competitive examinations ordinarily once in a year. Further it had been provided that the select list prepared so will be valid for one year. In the instant case 15 vacancies for the posts of Junior Clerk had been advertised with a clear stipulation that the number of vacancies may increase. The authorities had subsequently taken a decision to fill up 33 instead of 15 vacancies. The select list in this case was of 66 persons. The Apex Court had found from records that some more appointments over and above the 33 determined vacancies had been made.
The respondents, whose names had appeared in the merit list but had not been offered appointment being much below in rank, were agitating their claims for filling up the future vacancies from the entire panel. The Apex Court had taken the view that considering the rules and the circumstances, the selection process would come to an end automatically once 33 candidates had been appointed. Further it was held that if the Government had prepared a list double the number of vacancies determined that would not create any interest in favour of the respondents.
9.1 The detailed recounting of the facts in the aforesaid four decisions demonstrate the factual matrix in the present case being distinctly different from the ones in all these cases. This was a case in which the additional vacancies fell more in the category of anticipated vacancies rather than future vacancies, as distinguished in Surender Singhs case.
9.2 Again in Rajkishore Nandas case, the facts were distinctly different from those in the present OA. The Learned Senior Counsel, Shri G.D. Gupta would lay particular stress on the fact of the Statutory Provisions themselves providing yearly determination of vacancies and holding of Competitive Examinations; whereas in the present OA no such impediment by virtue of the Statutory Rules existed. Even the Clause regarding the possibility of an increase in the number of vacancies specified in the advertisements in both the cases deserves to be considered as per the respective contexts. In Rajkishore Nandas case, the State Government had subsequent to the advertisement in fact increased the number of 15 vacancies, as specified in the advertisement, to 33. It is significant to note that this increase had not been found objectionable by the Apex Court. However, even at the cost of repetition, it needs to be mentioned that the additional vacancies in the present case had arisen in an entirely different context. This was because of the peculiar circumstance having been created resultant to the condition of even an existing vacancy being filled up only after its clearance by the Screening Committee at the Government level. It is also pertinent that even the clearance of the Screening Committee which though received subsequently was still within the same recruitment year and was well within the scope stipulated by the Selection Committee in its recommendations. It was also in accordance with the settled law about the validity of a panel continuing ordinarily for one year. In Rajkishore Nandas case, the Respondents had filed their applications in the years 1997 to 1999 which was after the selection process had come to an end in 1995. However, in the present case the approval for the additional two vacancies of Laboratory Attendants had been accorded by the Governmental Screening Committee on 23.10.2008 and had been communicated to the Respondents within the same recruitment year as stipulated by the Selection Committee.
9.3 We are seized with special background under which the respondents had incorporated the enabling provision in the advertisement regarding the possibility of a variance in the number of vacancies specifically mentioned there. This was in the situation under which while filling up of two vacancies had been approved by the Government for the years 2001-02 to 2005-06 and the proposals for filling up the vacancies for the years 2006-07 and 2007-08 had been submitted for its consideration. This clause in the advertisement needs to be viewed against this special background. Even the Selection Committees recommendations are very clear and unambiguous as the extracted portion in Para 3.4 above would corroborate. Besides recommending the names of two candidates under UR and OBC categories for the posts already approved; a panel of 5 each under UR and OBC had been recommended for one year to fill up the future vacancies likely to occur during the current recruitment year. We see no arbitrariness in this; on the other hand what we take cognizance of is a well considered and conscious decision on the part of the Selection Committee in administrative exigencies.
Admittedly not only the Selection Committee, but also the respondent no.3 - the most critical of all - had themselves found a valid justification for filling up the two additional vacancies from the selection panel prepared on 29.7.2008. This is very clear from their communication to the applicants regarding compliance of pre-appointment procedural formalities (Annexure A/8) and their subsequent communications to the Respondent No.2 vide the letters dated 17.6.2009 (Annexure R/5) and dated 27.1.2009 (Annexure R/7). The negative view taken by the respondent no.2 in their initial communication of 17.6.2009 was on the ground of the DOP&T OM dated 13.6.2000 prescribing the reserve panel for utilization only in the event of vacancies occurring by non-joining of selected candidates within the stipulated time or contingencies such as resignation within one year, which in our view, is myopic and missing the basic point.
10. Bowing to the law laid down by the Apex Court on the subject, with due respect, we note that the Honble Apex Court in its various rulings has not completely foreclosed the possibility of a situation under which filling up of vacancies more than the number advertised may be tenable. We have no hesitation in arriving at the finding that the present case reveals one such situation, well deserved to evoke the little window left open in these rulings of the Honble Apex Court.
To conclude, after a detailed scrutiny of the factual matrix of the case and distinguishing them from the same involved in the judicial rulings on the subject; evoking the doctrine of circumstantial flexibility, we find the claims of the applicants deserving a serious consideration. As per the respondents, their final recommendations to the Director General Health Services vide their letter dated 27.10.2009 reiterating the case for filling up the posts of Lab. Attendants from the above mentioned panel has still not been replied. At this stage, we would refrain from stepping into the shoes of the administrative authorities and instead would limit ourselves to issuance of directions to the respondent no.2 to reconsider the case of the applicant against the post of Lab. Attendants in OBC category with a prospective effect by a speaking and reasoned order. Needless to say while doing so our observations in the body of the order would be duly kept in view. This is to be done within a period of three months from the date of passing of this order. There shall be no order as to costs.
(Veena Chhotray) (Shanker Raju) Member (A) Member (J) /pkr/