Central Administrative Tribunal - Delhi
Shri Jitendra Kumar vs Govt. Of Nct Of Delhi & Ors Through on 6 July, 2009
CENTRAL ADMINISTRTIVE TRIBUNAL PRINCIPAL BENCH : NEW DELHI O.A. NO. 366/2009 New Delhi, this the 6th day of July, 2009 HONBLE MR. SHANKER RAJU, MEMBER (J) HONBLE DR. VEENA CHHOTRAY, MEMBER (A) 1. Shri Jitendra Kumar, S/o Sh. Jaipal Singh, B-1115, Mangol Puri, Delhi 83 2. Shri Sunil Kumar, S/o Sh. Chhote Lal, 4802m Depty Gunj, MCD Dispensary, Sadar Bazar, Delhi-6 3. Sh. Kishor Kumar, S/o Late Lala Ram, BZ/320, Nand Nagari, Delhi-93 4. Sh. Pawan Kumar, S/o Sh. Om Prakash, A-61, Pocket-OO, (60 Mt) Sector-2, Rohini, Delhi-85 5. Sh. Ajay Kumar, S/o Shri Ashok Kumar, 355/IE, Gajju Katra, Shiv Mandir, Sahadra, Delhi-32 6. Sh. Urvashi, D/o Ved Pal, 42, Kilokari Village, Post Office Jungpura, Bhogal, New Delhi-14 7. Sh. Yogesh Kumar, S/o Sh. Balwan Singh, D-135, Gali No.17, Dashrathpuri, Palam, Dabari Road, New Delhi-45 8. Sh. Bharat Lal, S/o Sh. Asharam, I-2nd 172, Madangir, New Delhi-62 Applicants (By Advocate: Shri M.K. Bhardwaj) Versus Govt. of NCT of Delhi & Ors through: 1. The Secretary, Delhi Subordinate Service Selection Board, FC-18, Karkarduma, Institutional Area, Delhi 2. The Commissioner, Municipal Corporation of Delhi, Town Hall, Chandni Chowk, New Delhi .Respondents (By Advocate: Shri Vijay Pandita for Respondent 1 Shri Amit K. Paul, for Respondent 2) O R D E R By Dr. Veena Chhotray, Member (A):
MA No.267/2009 filed by the Applicants under Rule 4 (5) of CAT (Procedure) Rules, 1987 for joining together in a single application is allowed.
2. Applicants, 8 in number, belonging to the Scheduled Caste category are aspirants for appointment to the posts of Primary Teachers under the Municipal Corporation of Delhi (MCD). Having participated in the selection process for these posts in response to an advertisement in October, 2007, and a written examination conducted in June, 2008, the applicants are aggrieved at their non-appointment. The OA alleges illegal diversion of the vacancies meant for the SC category to the OBC category and discriminatory treatment in cut off marks. An allegation of illegally carrying forward the vacancies to the next year ignoring the eligible candidates is also made. The OA seeks the following reliefs:-
i) to direct the respondents to consider the claim of the applicants for appointment to the post of Teacher Primary with all consequential benefits;
ii) to declare the applicants as selected candidates for the post of Teacher (P) against the advertised vacancies for the year 2007 examination;
iii) to declare the act of the respondents in shifting the vacancies advertised in Oct. 2007 for next year recruitment as illegal;
to direct the respondents to fill up all the vacancies of Teacher (P) advertised vide Advertisement No.08/2007 in the same manner in which OBC category vacancies have been filled up by considering the claim of the applicants;
to declare the diversion of vacancies of SC category to OBC as illegal;
to allow the OA with costs;
to pass such other and further orders which their lordships of this Honble Tribunal deem fit and proper in the existing facts and circumstances of the case. Besides, by way of interim relief, a direction for keeping 8 vacancies pending the final adjudication of the OA has also been sought.
3.1 It is trite that for a claim to be enforceable judicially, the applicants must have a legal right. In the matter of selection for direct recruitment, the settled position of law is that the candidates, even if selected, do not have any legal right for appointment. Further, it is within the States legitimate domain to fill or not to fill the vacancies. The State is also under no obligation to make the appointments mandatorily against all the vacancies, as notified initially. The only ground for a very limited review in such matters stresses that the action of the State must be bonafide and fulfill the doctrine of reasonableness.
3.2 In support of the above propositions of law, the following dicta from some of the cases decided by the Apex Court are cited below:
In Jayamohan v. State of Kerala and Another [JT 1997 (5) SC 368] the Apex Court had observed as under:
It is settled legal position that merely because a candidate is selected and kept in the waiting list, he does not acquire any absolute right to appointment. It is open to Govt. to make the appointment a not. Even if there is any vacancy, it is not incumbent upon the government to fill up the same. But the appointing authority must give reasonable explanation for the same. In State of Madhya Pradesh vs. Sanjay Kumar Pathak, (2008) 1 SCC (L&S) 207, the apex court citing its judgment in Shankarsan Dash vs. Union of India [(1991) 3 SSC 47] had reiterated that it is well known that even selected candidates do not have a legal right for appointment.
Again in a resent judgment in S.S. Balu & Anr vs State of Kerala & Ors [(2009) 1 SCC (L&S) 388], the proposition of law as reiterated that there is no indefeasible right to appointment and Government is free to fill up or not to fill up vacancies. It was further stated that a candidate included in rank list cannot obtain mandamus unless arbitrariness or discrimination is established.
The respondents have also cited before us the view of the apex court in Union of Public Service Commission vs Gaurav Dwivedi and Ors [(1999) 5 SCC 180] where it was held that it was not incumbent on the Public Service Commission to make recruitment to the extent of vacancies initially notified.
4.1 In the OA separate counter affidavits have been filed on behalf of the DSSSB and the MCD, Respondents no. 1 and 2 respectively. We have heard the learned counsels for the applicants Shri M.K. Bhardwaj as well as for the Respondents Shri Vijay Pandita and Shri Amit K. Paul.
4.2 Briefly, the facts are that vide advertisement no. 08/07 published in the Employment News 6 12 October, 2007 by the Delhi Subordinate Services Selection Board (DSSSB), Respondent No.1, a number of advertisements for recruitment were made. This, inter alia, included an advertisement for appointment to the posts of Teachers (Primary) in MCD with the following specifications:-
Post code Name of the Post Total U/R OBC SC ST PH/OH PH/VH EXSM 165/07 TEACHER PRIMARY 4441 1649 883 758 1151 62 (UR-24, SC-12, ST-13, OBC-13) 80 (UR-38, SC-15, ST-14, OBC-13) 475 (UR-267, SC-82, ST-42, OBC-84 4.3 A bare reading of the text of the advertisement shows that the numbers indicated for the various categories were inclusive of the posts reserved for the Handicapped Persons and for the Ex-Servicemen. Excluding these posts, the number of vacancies earmarked for OBC and SC (the two categories relevant for the purpose of this OA) were respectively 773 and 649. The condition No.3 mentioned the number of vacancies as provisional and subject to change.
4.4 A written examination was held on 15.6.2008. This was for the posts of Primary Teachers under MCD under the Post Code 165/07 vide the advertisement No. 08/07 as well as for the posts of Assistant Teachers of the Directorate of Education advertised under the Post Code 164/07 vide advertisement No.07/07. Before the written examination, however, the vacancies pertaining to the Post Code No.165/07 were redistributed as per the request of the MCD. It is stated by the Respondents that the recruitment to both these posts code Nos. 164/07 and 165/07 have been closed. A comparative chart of the relevant vacancies under the MCD as per the initial advertisement, subsequent redistribution and the filled up posts, category-wise, is indicated below, on the basis of the information furnished before us by the Respondents:
POSTS OF PRIMARY TEACHERS UNDER THE MCD AS PER POST CODE 165/07:
Category No. advertised No. as per redistribution No. filled Remarks Total 4441 4441 3074 UR 1320 1025 988 OBC 773 944 917 The mention of 783 in Para 4 of C.A. by R-1 seems to be an arithmetical error SC 649 573 561 ST 1082 1059 501 PH 62 67 63 VH 80 66 19 EXSM 475 707 25 4.5 The applicants had obtained information under the RTI Act to know about their marks and those of the last selected candidates under the OBC/SC categories. It is not disputed that all the applicants have secured lower marks than those of the last selected candidate under SC category. Furnishing a tabular statement in Para 4.4 of the Counter Affidavit filed by Respondent No.1 (DSSSB), it is stated that whereas the last selected candidate had secured 91 out of 200 marks, the marks obtained by all the applicants herein were below this level.
4.6 The OA has averred arbitrariness in cut off marks. The learned counsel Shri M.K. Bhardwaj would tend to insinuate an element of arbitrariness in the higher cut offs for SC category as compared to the OBC. The details of the marks of the last selected candidates under different categories in both the Post Codes have been mentioned in Para-7 of the Counter Affidavit by the DSSSB as under:164/07 165/07
Category Marks Rank Marks Rank UR 128/200 1202 120/200 2112 OBC 105/200 4607 086/200 8305 SC 111/200 3448 091/200 7410 ST 106/200 4539 070/200 10293 4.7 The Respondents have rebutted this contention on behalf of the applicants and have maintained that the last selected candidates marks were as per the competitive merit. Para 4.5 of the Counter by DSSSB states that since as per redistribution of vacancies the number of vacancies in OBC category increased and there being a condition, for seeking benefit of reservation in OBC category, of submission of OBC certificate issued from the authorities of GNCT of Delhi, most of the OBC category candidates who have enclosed with their application OBC certificate issued from authorities other than of Delhi, were not considered for selection, resulting in dripping of the merit for OBC category.
We note that this contention is not confined under the post code 165/07 but is common to both. In any case, on the point of cut off marks, the general averment of arbitrariness is not found to be acceptable as in the present OA we are not dealing with a PIL.
6. The main objection in the OA is against redistribution in the number of vacancies. As the composite tabular statement incorporated in para 4.1 above would reveal that while retaining the total number of vacancies as the same, there had been changes in the number of vacancies in different categories. As per the Respondents, this redistribution was bonafide. The Counter Affidavits by both the Respondents reveal that the original requisition in this context was vide letter dated 5.12.2007 (Annexure R-1 annexed with the C.A. by the MCD). It states the need for a revised requisition on account of the back-log of OBC and Ex-Servicemen. It also mentions about the number of total vacancies for Ex-Servicemen being 707 and for Handicapped Persons as 137. Further, vide letter dated 7.2.2008 a horizontal bifurcation of these vacancies for Ex-Servicemen and Physical Handicapped had been given. The learned counsel Shri Amit K. Paul would also produce before us the relevant record to contend how there had been need for taking into account the back-log for OBC. At this point we would restrain ourselves from assuming an investigative mantle. We consider it suffice to take note that the MCD for administrative reasons had redistributed the number of vacancies before the written examination. Further we note that such a change was permissible as per the stipulations in the advertisement as also that the number of vacancies mentioned in the advertisement were purely provisional and subject to any subsequent change.
We would also at this point take note of the view taken by the Apex Court in Union of Public Service Commission vs. Gaurav Dwivedi and Ors. (supra) cited by the counsel for the Respondent No.2. In a case where while issuing notification for Civil services Examination, the vacancies tentatively indicated were 740 but after declaring results of written test for main examination, vacancies were reassessed as 470 and accordingly 940(=470 x 2) candidates had been called for interview/viva voce. The Apex Court had rejected the plea of the Respondents that 1480 (740 x 2) candidates should have been called for interview. It was also held that the Government is not bound to fill up vacancies even if selection had been made. The following observation of the Apex court is extracted:
6. Rule 3 of the Civil Services Examination Rules, 1998 states that the number of vacancies to be filled on the result of the examination will be specified in the notice issued by the Commission. In the notice which was issued it was stated, as already noted, that the number of vacancies was only an approximate number which was subject to change. There is no rule which has been brought to our notice which prohibits the change in the number of vacancies which are once noticed. Indeed it is not necessary or incumbent upon the Government to fill up all the vacancies which are notified even if candidates have been selected. xxxxx
7. Non-filling of all these vacancies has also been objected to in the OA. The Counter Affidavit by the DSSSB states the reasons for same in para 6 as under:
Keeping in view pending court cases, seeking clarification to order of Honble Division Bench of High Court of Delhi as regard determination of age limit, filed by over aged candidates and other cases challenging the selection process on various ground, recruitment in these post codes have been closed xxxxxxxx. Since the applicants before us belong to the SC category in which out of the total 573 number of vacancies, 561 have been filled, we do not find any huge gap therein raising a needle of suspicion. We also do not find any basis to link the vacancies under OBC and SC categories.
8. The OA has also objected to the alleged carrying forward of the vacancies from this selection process to the next year. As per the Respondents, according to the directions of the Division Bench of High Court, the vacancies of Teachers are needed to be notified and filled year to year basis. The Counter Affidavit states that requisition for selection of 1000 vacancies had been done for the vacancies likely to arise upto December 2008. We find the OA enclosing another advertisement dated 25th July 2008 in this respect.
9. To conclude, the applicants by virtue of being participants in a selection process for direct recruitment posts do not have any legally enforceable vested rights. Admittedly the applicants, who belong to the SC category, have not secured more marks than the last selected SC candidate. Their challenge to the selection process on the ground that the number of vacancies mentioned initially was subsequently revised is not found to be tenable since as per the advertisement itself these figures were provisional and could be changed by the Respondents. We also do not find any supportive basis of the contention that there was any arbitrariness in the action of the Respondents in redistribution of the vacancies. That the Respondents were within their legitimate domain to make such a change is clearly borne out by the view taken by the Apex Court in Union of Public Service Commission vs. Gaurav Dwivedi and Ors. (supra). Further, we also do not find any basis for arbitrariness either in the marks awarded to the last selected candidates of various categories or any alleged interchangeability between the OBC and the SC categories. As per the Respondents the process for the selection has already been closed and the action of the applicants is barred by estoppel.
10. In view of the foregoing, we find the OA as bereft of merit, which is hereby dismissed with no order as to costs.
(Veena Chhotray) (Shanker Raju)
Member (A) Member (J)
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