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2005 DIGILAW 1418 (RAJ)

Surendra Kumar Agarwal v. Union of India

2005-05-12

DINESH MAHESHWARI

body2005
Judgment Rajesh Balia, J.-Heard learned Counsel for the parties. .2. One post was advertised by the respondents for Postal Assistant to be filled from the general category. Five candidates against one vacancy, were called for interview as well as for computer test. Out of the said five candidates, candidates at No. 2, 3 and 4 did not appear for the computer test as well as for the interview, ultimately, the petitioner as well as Shri Dhiraj Kumar Jhanwar were selected and empanelled in the select list. Shri Dhiraj Kumar who was at Serial No. 1 did not join. The petitioner made a representation that he may be allowed to join against the said post. The respondents did not offer the appointment to the petitioner. Hence, he approached the Central Administrative Tribunal, Jodhpur, by filing the original application being OA No. 22/2004, which has been dismissed by the Central Administrative Tribunal vide its impugned order dated 24.05.2004. .3. Hence, this writ petition. 4. The contention raised before the Tribunal was that since the candidate listed at Serial No. 1 did not join in pursuance of the order of appointment, the vacancy being available, appointment ought to have been offered to the petitioner whose name appeared at Serial No. 2 in select list. 5. The respondents in their reply stated that in view of the prevailing guidelines dated 01.07.2002 and from the Directorates letter only one vacancy was to be filled up and no waiting list was allowed as per the letter dated 01.07.2002. .6. Relying on the decision of the Supreme Court in Bihar State Electricity Board vs. Suresh Prakash, AIR 2004 SC 1724 , it was held that by the Tribunal that since, after Dhiraj Kumar failed to join in pursuance of appointment offered to him, fresh process for filling the vacancy was started, which was within the province of respondents, no relief can be granted to petitioner. .7. The petitioner has challenged in this writ petition the order of Tribunal dated 24.05.2004. 8. We have considered the rival contentions. The principle contention raised by learned Counsel for the petitioner is founded on the decision of the Supreme Court in Shankarsan Dash vs. Union of India, AIR 1991 SC 1612 wherein the Court has sustained filling of certain vacancies in the cadre of IPS, which remained unfilled because of non-joining of certain candidates, or for same other reason. 9. The principle contention raised by learned Counsel for the petitioner is founded on the decision of the Supreme Court in Shankarsan Dash vs. Union of India, AIR 1991 SC 1612 wherein the Court has sustained filling of certain vacancies in the cadre of IPS, which remained unfilled because of non-joining of certain candidates, or for same other reason. 9. A close reading of that Judgment indicates that it does not apply to the petitioners case in any manner. The factual background and the questions arose may be noticed in Courts own words:-“The appellant was selected in the combined Civil Services Examination held by the Union Public Service Commission for appointment to several services including the Indian Police Services (in short the IPS) and the Police Service Group B. The examination had been held in October, 1977 and the result was announced in May, 1978. A combined merit list for the IPS and the Police Services Group B was announced which included the name of the appellant. Out of the total number of 70 vacancies in the IPS announced to be filled up, 54 were of general category and the remaining 16 reserved for Scheduled Castes/Scheduled Tribes candidates. The position of the appellant in the merit list was not high enough to be included in the IPS and he was offered appointment to the Delhi Andaman and Nicobar Police Service (hereinafter referred to as the DANIP) in Police Service Group B not joining, the position of the appellant improved and ultimately he was on the top of the list. Vacancies arose in the IPS due to selected candidates not joining the service. Out the same, 11 were in the general category and 3 in the reserved category. Three vacancies in the reserved category were filled up by the candidates, who had been earlier appointed in DANIP Service, but no appointments were made to general category vacancies. The appellant, by a representation, prayed that these vacancies also should be filled up. The request was turned down, and the appellant moved the Delhi High Court by a writ application under Article 226 of the Constitution, which was dismissed in limine by the impugned order. The appellant, by a representation, prayed that these vacancies also should be filled up. The request was turned down, and the appellant moved the Delhi High Court by a writ application under Article 226 of the Constitution, which was dismissed in limine by the impugned order. The case of the appellant is that since ultimately several vacancies in the general category of the IPS remained unfilled, he was entitled to be appointed in one of them, and the authorities were not right in rejecting his representation. It has been contended that after calculating the number of vacancies in the IPS, it was announced that appointments would be made in 54 vacancies of general category, and steps for recruitment were accordingly taken. The appellant alongwith others appeared at the elaborate test held for the purpose and he was found qualified for the appointment. In that situation, the respondent could not refuse to fill up the vacancies and proceed to appoint the appellant in the Police Services Group B. Significantly the prayer was not granted.” 10. The Court in principle agreed that it cannot be said 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. 11. The Court cautioned that it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. 12. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. 12. The process of final selection has to be closed at some stage and when a decision in this regard is accordingly taken and the process for further appointment to any vacancy arising later is closed, it is not material if in pursuance of a decision already taken before closing the process of final selection, the formal appointments are concluded later. What is relevant is to see as to when the process of final selection is closed. Mere completing the formalities later cannot furnish any ground to the candidate, who is not selected to claim discrimination. 13. The matter has been referred to by the Division Bench of the Court finding that there is some difference of opinion between the two decisions of the Supreme Court namely; State of Haryana vs. Subhash Chander Marwaha, 1974 (1) SCR 165 = AIR 1973 SC 2216 , Miss Neelima Shangla vs. State of Haryana, 1986 (4) SCC 268 = AIR SC 169, Jitendra Kumar vs. State of Punjab, 1985 (1) SCR 899 = AIR 1984 SC 1850 . 14. The Court reiterated its view earlier stated in State of Haryana vs. Subas Chander Marwaha & Ors. The Court said:-“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 licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. 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 licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in State of Haryana vs. Subhash Chander Marwaha, 1974 (1) SCR 165 = AIR 1973 SC 2216 , Miss Neelima Shangla vs. State of Haryana, 1986 (4) SCC 268 = AIR SC 169, Jitendra Kumar vs. State of Punjab, 1985 (1) SCR 899 = AIR 1984 SC 1850 .” 15. It will be appropriate to notice the decision in Subhas Chandra Marwhah case (Supra). The Apex Court in Subhash Chander Marwahas case pointed out keeping in view the relevant service Rules before it that competitive examinations are hold for the purpose of showing that a particular candidate is eligible for consideration. Selection for appointment comes later. It is open then to the Government to decide how many appointments shall be made. The mere fact that the candidates name appear in the list does not entitle him to be appointment. The only restraint put on the power of the Government to make appointments of Subordinate Judges under Rule 10 is that the State Government shall not travel outside the list and that the Government shall not depart from the ranking given in the list. Thus, by appointing first seven persons out of 15 in the list as Subordinate Judges the Government did not infringe any requirements of the Rule by not giving appointment to persons below persons holding 7th merit, and no legitimate grievance can be made by remaining persons in the list that there still exists vacancies. The unfilled posts do not warrant issue of mandamus to an authority for releasing appointment. 16. The unfilled posts do not warrant issue of mandamus to an authority for releasing appointment. 16. Subhash Chandra Marwahas was a case in which an advertisement was published in the Government Gazette to the effect that the Haryana Public Service Commission will hold an examination for recruitment of candidates for 15 vacancies in the Haryana Civil Service (Judicial Branch). In response to the advertisement, a number of candidates appeared for the examination held. The result of the competitive examination was declared and published in the Haryana Government Gazette in 1971. The State Government which was the appointing authority made seven appointments in the serial order as per the list according to merit. Respondents, who ranked 8, 9 and 13 respectively in that list did not get an order of appointment although vacancies advertised were 15. 17. The writ petition filed by Respondents 1 to 3 for a mandamus for giving appointment to them was allowed by the High Court and mandamus was issued to the appellant to select Respondents 1 to 3 under Rule 10(ii) of Part-C of the Punjab Civil Service (Judicial Branch) Rules so that their names are brought on the High Court Register for appointment as Subordinate Judges in the Haryana State. The aforesaid rules had been adopted by the Haryana State after bifurcation of the State. 18. The reason for not making the appointments was stated to be that in the view of the State Government, which was the same as was of the High Court previously and intimated to the State Government, that candidates getting less than 55% marks in the examination should not be appointed as subordinate Judges in the interest of maintaining high standards of competence in judicial service. 19. On appeal, the Supreme Court reversed that decision of Punjab and Haryana Court as aforesaid. 20. For this very reason in Sankaran Dashs case (Supra) not offering appointment for the post of IPS to general candidates was justified by the Supreme Court. 21. In the case of Shankersan Dash (Supra) it was reiterated by the Court that even if number of vacancies are notified for appointment and even if adequate number of candidates are found fit, the successful candidates do not acquire any indefeasible right to be appointed against existing vacancies. 21. In the case of Shankersan Dash (Supra) it was reiterated by the Court that even if number of vacancies are notified for appointment and even if adequate number of candidates are found fit, the successful candidates do not acquire any indefeasible right to be appointed against existing vacancies. It was further held that the State is under no legal duty to fill up all or any of the vacancies unless the relevant recruitment rules indicate otherwise. 22. The ratio in fact militates against the contention raised by the petitioner and does not support its contents. 23. It was unequivocally held that the candidate could not, as of right, claim that he should have been appointed on Group B post of IPS selected, when his name could not be included before the process of final selection was closed. But the Apex Court found substance in the case of Union in treating the reserved vacancies differently for sustaining validity of appointment given to said candidate, who was belonging to reserved quota and vacancy of reserve quota remained unfilled to be carried forward. 9.24. The decision to adopt a different policy with respect to filling up of the reserved vacancies was justified on account of the special circumstances inasmuch as the decision to depart from the confirmed policy was taken after a consideration by the authorities of the position in regard to unavailability of qualified candidates from year to year, adversely affected in desired strength of the reserved candidates in the services and cannot be condemned on the grounds of arbitrariness and illegal discrimination. 25. In the Bihar State Electricity Board case the AIR 2004 SC 1724 the facts noticed by the Court were as under:-“100 posts of Operators and 70 posts of Asst. Operators were notified for appointment. Written test and interviews were held. The advertisement was challenged in Court and the matter remained pending. The Government issued a fresh advertisement notifying 50 posts of Operators. By this the earlier advertisement was cancelled. The fresh advertisement was also challenged. The Court thereupon directed to fill 50% of posts from amongst candidates, who had applied as per earlier advertisement and 50% from candidates, who have applied pursuant to fresh advertisement. In the light of the above directions the appellant-Electricity Board notified the selection of 22 candidates pursuant to earlier advertisement and 25 candidates against fresh advertisement. The Court thereupon directed to fill 50% of posts from amongst candidates, who had applied as per earlier advertisement and 50% from candidates, who have applied pursuant to fresh advertisement. In the light of the above directions the appellant-Electricity Board notified the selection of 22 candidates pursuant to earlier advertisement and 25 candidates against fresh advertisement. However, out of 22 candidates selected for appointment vide earlier advertisement only four joined. Consequently 18 vacancies remained unfilled as candidates did not turn up.” 26. On appeal, the Supreme Court reversed the Judgment of Patna High Court relying on the observation of Supreme Court in Shankarsan Dash case, AIR 1991 SC 1612 , that even if number of vacancies are notified for appointment and even if adequate number of candidates are found fit and successful candidates do not acquire any indefeasible right to be appointed against existing vacancies, and that State is under no legal duty to fill up all or any of vacancies unless the relevant recruitment rules indicate. The Court noticed that no such rules were shown to exist. Referring to direction of the Court to fill 50% of vacancies and finding that none of the petitioner had found place in the merit upto 22 places, the number of vacancies required to be filled and that petitioner was placed below 22nd in order of merit, held it to be an additional ground to deny relief . The Court noticed that a panel of 22 candidates was prepared for appointment under earlier advertisement and respondents fell beyond the number of advertised vacancies. There were no recruitment rules which required the Board to prepare wait list in addition to the panel. 27. In the present case also only one vacancy was advertised. In the select panel first candidate in order of merit was offered appointment. The selection process came to an end with offering appointment to duly selected candidates as per his merit. On failure of any candidates to join, did not confer any right on the petitioner to be offered appointment against existing vacancy as a result of that selection. 28. Moreover when thereafter, fresh selection process for the vacancy had already been initiated. 29. In view of above principles, the petitioner is not entitled to mandamus for offering him appointment in the facts of present case as a matter of right. 28. Moreover when thereafter, fresh selection process for the vacancy had already been initiated. 29. In view of above principles, the petitioner is not entitled to mandamus for offering him appointment in the facts of present case as a matter of right. Hence, no interference in the order of Tribunal is called for. 30. This petition, therefore, fails and is hereby dismissed.