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Uttarakhand High Court · body

2017 DIGILAW 318 (UTT)

Vipin Parihar v. Bharat Sanchar Nigam Limited

2017-06-13

ALOK SINGH, K.M.JOSEPH

body2017
JUDGMENT : K.M. Joseph, J. Petitioner has approached this Court under Article 226 of the Constitution of India seeking to over-turn the judgment of the Central Administrative Tribunal, Nainital dated 07.11.2016. He further seeks a direction to the respondents to forthwith issue an offer of appointment to him in the vacancy of Telecom Technical Assistant under open category as notified by the advertisement dated 22.04.2013. 2. Briefly put, the case of the petitioner is as follows: On 22.04.2013, respondent no. 2 issued an advertisement for direct recruitment for the post of Telecom Technical Assistant (hereinafter referred to as TTA) in the Uttarakhand Telecom Circle, BSNL for recruitment year 2012. Petitioner applied. He came to figure in what is described as waitlist. He was at Serial No. 3 of the said waitlist. He did not secure employment. He approached the Tribunal. Before the Tribunal, he sought the following relief’s in the O.A.: “8. RELIEF SOUGHT: In view of the aforesaid facts, the original applicant prays for the following relief’s:- a. issue an appropriate order or direction holding and declaring that the non-grant of offer of appointment by the opposite parties to the applicant within one year of the declaration of Telecom Technical Assistant Examination result is arbitrary and illegal. b. issue an appropriate order or direction requiring the opposite parties, the opposite party no. 3 in particular, to forthwith issue the offer of appointment to the applicant to supply the unfilled vacancy of Telecom Technical Assistant under Open Category as notified by the advertisement dated 22.04.2013. c. issue any other appropriate order or direction which this Hon’ble Tribunal may deem fit and proper in the circumstances of the present case.” 3. The said OA came to be rejected and, hence, the petitioner is before us. 4. We heard Mr. (Dr) Kartikey Hari Gupta, learned counsel appearing on behalf of the petitioner and Mrs. Anjali Bhargawa, learned counsel appearing on behalf of the respondents. 5. Learned counsel for the petitioner would submit before us that the matter governing the issue of waitlist is contained in the Circular dated 19.09.2012, which reads as follows: “Bharat Sanchar Nigam Ltd. No. 250-18/2006-Pers-III (Part-2) Dated 19th September 2012 To, All Heads of the Telecom Circles, Bharat Sanchar Nigam Limited. 5. Learned counsel for the petitioner would submit before us that the matter governing the issue of waitlist is contained in the Circular dated 19.09.2012, which reads as follows: “Bharat Sanchar Nigam Ltd. No. 250-18/2006-Pers-III (Part-2) Dated 19th September 2012 To, All Heads of the Telecom Circles, Bharat Sanchar Nigam Limited. Sub: Direct Recruitment of TTA for the RY-2012- Guidelines regarding maintaining waiting list of the qualified candidates of DR-TTA Examination for the Recruitment Year 2012 on the following terms and conditions:- (i) The respective Recruitment Circle shall maintain two lists i.e. merit list and waiting list for each SSA. (ii) Waiting list will consist of all those candidates who have qualified the examination but do not find a place in the merit list of successful candidates. (iii) Waiting list shall remain valid for a period of one year from the date of declaration of result or the date of notifying the DR Examination for the next recruitment year, whichever is earlier. (iv) The list of successful candidates and the waiting list shall be shown in the websites of the respective Recruiting Circles. (v) Circles shall clearly indicate that the appearance of the candidate’s name in the waiting list does not confer any right on the candidate for claiming appointment in the Company. (vi) Circles shall issue offer letter to the successful candidates under registered post/speed post only. Such selected candidates should be clearly advised to send their willingness to take up the assignment as TTA in BSNL within 30 days of the issue of the offer letter. The notice for cancellation of candidature of successful candidate, in the event of their not turning up for training/joining as TTA, may be issued under receipt, through registered post/speed post giving 15 more days time before operating the waiting list. (vii) In the event of drop out/non availability of successful candidates who have been sent offer letter for appointment as TTA, the waiting list may be operated to fill up only the unfilled notified vacancies arising out of dropouts of successful candidates strictly in the order of merit in the waiting list, while cancelling candidature of earlier successful candidate. (viii) These guidelines will apply for the Recruitment year 2012 that is stated to be held in the year 2012-13. (viii) These guidelines will apply for the Recruitment year 2012 that is stated to be held in the year 2012-13. All the circle heads are requested to make all out efforts to ensure that the maintenance of the waiting list is transparent and foolproof from the angles. Sd/- (P.T. Nirmal Kumar) Asstt. General Manager (Pes III) Tel: 23310401 Fax: 23725255 Copy to :- 1. G.M. (Reett.) BSNL Co, New Delhi. 2. A.G.M. (Reett.) BSNL Co, New Delhi.” 6. It is further pointed out that the advertisement itself was issued to fill up two vacancies of Open Category and one vacancy of Scheduled Caste category. Petitioner is an Open Category candidate. One of the vacancies in the Open Category was filled up. However, the other vacancy in the Open Category was not filled up. It is, thereupon, that undisputedly offer was given by the respondents to the first waitlisted candidate, namely, Kumari Shreya Pandey. Kumari Shreya Pandey is the fifth respondent in this writ petition. The offer was made to her on 21.10.2014. She did not join. Thereafter, admittedly, notice was issued to Sri Himanshu Mainali, who was the second waitlisted candidate. This offer was made by letter dated 11.02.2015. He also did not turn up. It is here that the petitioner sought to build up his case. According to him, the provisions contained in the Circular, which we have extracted, contemplate that when the offer of appointment is made, the candidate in the waitlist, to whom the offer is made, has to be advised that he must join within a period of 30 days of the date of issue of the offer letter. It is, thereafter, according to the learned counsel for the petitioner Dr. Kartikey Hari Gupta that the Circular contemplates giving of 15 days further time in terms of what is provided in Clauses (vi) & (vii) of the Circular. After expiry of 45 days, in short, of the issue of the original offer of appointment, a right had accrued to the petitioner, who was the third waitlisted candidate to be given an offer of appointment. The life of the waitlist is one year. The Circular clearly provides that it will remain alive for a period of one year from the date of declaration of the result or the date of notifying the DR Examination for the next recruitment year, whichever is earlier. The life of the waitlist is one year. The Circular clearly provides that it will remain alive for a period of one year from the date of declaration of the result or the date of notifying the DR Examination for the next recruitment year, whichever is earlier. The result was declared, in this case, on 29.04.2014. According to Mrs. Anjali Bhargawa, learned counsel for the respondents, the result was declared on 16.04.2014. Therefore, the waitlist would have expired, according to the petitioner’s version, only on 28.04.2015 and even according to the version of the Department, it would have expired on 15.04.2015. Superimposing the Circular to the facts, the argument of the petitioner runs that therefore, after waiting for 45 days from 11.02.2015, the waitlist remained valid and there was still time available for the petitioner to be given an offer. In other words, the period of 30 days expired from the date of issue of the offer on 11.02.2015 to the second waitlisted candidate on 13.03.2015 and, thereafter, even granting 15 days’ time, after 28.03.2015, the respondents were duty bound to make offer to the petitioner being admittedly the third waitlisted candidate, in accordance with the procedure contemplated under the Circular. Admittedly, this was not done. This, therefore, gives a right to the petitioner to approach the Tribunal and the Tribunal ought to have allowed the petition and granted the relief’s sought for by the petitioner. Being State under Article 12 of the Constitution of India, it is their duty to act fairly, but they have not done so. 7. The case, which was set up and which has found acceptance by the Tribunal, can be gleaned from Paragraph 19 at Page 126 of the Paper Book, which reads as follows: “19. As per respondents demonstration it is clear that respondents first issued offer of appointment to the selected candidate Shri Brijesh Shanker Viswakarma, who initially accepted appointment and submitted all required documents in original, thereafter, pre-appointment formalities i.e. document verification and Police Verification report was received on 30.09.2014 and 28.10.2014. However, in the meanwhile, Shri Brijesh Shanker Viswkarma vide his letter dated 13.10.2014 intimated his selection in Prasar Bharti thereby declining offer of appointment of TTA. It was then offer of appointment given to the first waitlisted candidate Km. Shreya Pandey on 21.10.2014 thereafter reminder was also sent on 31.12.2014 and when despite of reminders, Km. However, in the meanwhile, Shri Brijesh Shanker Viswkarma vide his letter dated 13.10.2014 intimated his selection in Prasar Bharti thereby declining offer of appointment of TTA. It was then offer of appointment given to the first waitlisted candidate Km. Shreya Pandey on 21.10.2014 thereafter reminder was also sent on 31.12.2014 and when despite of reminders, Km. Shreya Pandey did not response then according to rules, 2nd waitlisted candidate Shri Himanshu Mainali was given offer vide letter dated 11.02.2015 as well as through reminder dated 22.5.2015 but no response was received from Shri Himanshu Mainali and in the meantime appointment life of the waitlisted was expired. This clearly shows that there was no inaction or deliberate delay on the part of the respondents in offering appointment duly selected candidate and thereafter waitlisted candidates. Undisputedly, the applicant was a waitlisted candidate at Sl. No. 3.” 8. We are also in this case faced with another dimension in the form of subsequent recruitment process, which has taken place. Pursuant to an advertisement, the Department has purported to take this vacancy also into reckoning and advertised the same. Certain persons have been selected and, according to the respondents, they have been sent for training and they will be joining. This aspect, we will consider a little later in the judgment. 9. Dr. Kartikey Hari Gupta, learned counsel for the petitioner would emphasize that the approach of the Tribunal would appear to be that there was no indefeasible right and having regard to what has transpired, as set up in paragraph 19 at Page 126 of the Paper Book, the action could not be faulted. He would draw into focus the actual terms of the Circular. He also sought to draw support from the judgment of the Hon’ble Apex Court in the case of State of Jammu and Kashmir and others vs. Sat Pal reported in (2013) 11 SCC 737 , which was in relation to recruitment of Junior Engineer (Civil), Grade-II. The respondent, therein, was included in the merit list. It is pertinent to note paragraph 4 of the judgment, which reads as follows: “4. Before the High Court, the respondent relied upon the prevalent rule, whereunder, a waiting list was valid for one year. The respondent, therein, was included in the merit list. It is pertinent to note paragraph 4 of the judgment, which reads as follows: “4. Before the High Court, the respondent relied upon the prevalent rule, whereunder, a waiting list was valid for one year. The fact that the prevalent rules envisaged that the merit list of candidates in continuation of those offered appointment would constitute the waiting list, and would be valid for a period of one year, was not disputed even before us.” 10. Learned counsel for the petitioner would draw our attention to Paragraphs 11 and 12 of the above judgment, which read as follows: “11. In view of the factual position noticed hereinabove, the reason indicated by the appellants in declining the claim of the respondent Sat Pal for appointment out of the waiting list is clearly unjustified. A waiting list would start to operate only after the posts for which the recruitment is conducted, have been completed. A waiting list would commence to operate when offers of appointment have been issued to those emerging on the top of the merit list. The existence of a waiting list allows room to the appointing authority to fill up vacancies which arise during the subsistence of the waiting list. A waiting list commences to operate after the vacancies for which the recruitment process has been conducted have been filled up. In the instant controversy the aforesaid situation for operating the waiting list had not arisen, because one of the posts of Junior Engineer (Civil), Grade II for which the recruitment process was conducted was actually never filled up. For the reason that Trilok Nath had not assumed charge, one of the posts for which the process of recruitment was conducted, had remained vacant. That apart, even if it is assumed for arguments sake, that all the posts for which the process of selection was conducted were duly filled up, it cannot be disputed that Trilok Nath who had participated in the same selection process as the respondent herein, was offered appointment against the post of Junior Engineer (Civil), Grade II on 22-4-2008. The aforesaid offer was made consequent upon his selection in the said process of recruitment. The validity of the waiting list, in the facts of this case, has to be determined with reference to 22-4-2008, because the vacancy was offered to Trilok Nath on 22-4-2008. The aforesaid offer was made consequent upon his selection in the said process of recruitment. The validity of the waiting list, in the facts of this case, has to be determined with reference to 22-4-2008, because the vacancy was offered to Trilok Nath on 22-4-2008. It is the said vacancy, for which the respondent had approached the High Court. As against the aforesaid, it is the acknowledged position recorded by the appellants in the impugned order dated 23-8-2011 (extracted above), that the waiting list was valid till May 2008. If Trilok Nath was found eligible for appointment against the vacancy in question out of the same waiting list, the respondent herein would be equally eligible for appointment against the said vacancy. This would be the unquestionable legal position, insofar as the present controversy is concerned. 12. The date of filing of the representation by the parties concerned and/or the date on which the competent authority chooses to fill up the vacancy in question, is of no consequence whatsoever. The only relevant date is the date of arising of the vacancy. It would be a different legal proposition, if the appointing authority decides not to fill up an available vacancy, despite the availability of candidates on the waiting list. The offer made to Trilok Nath on 22-4-2008 by itself leads to the inference that the vacancy under reference arose within the period of one year i.e. during the period of validity of the waiting list postulated by the rules. The offer of the vacancy to Trilok Nath negates the proposition posed above i.e. the desire of the employer not to fill up the vacancy. Herein, the appellants wished to fill up the vacancy under reference. Moreover, this is not a case where the respondent was seeking appointment against a vacancy over and above the pots for which the process of selection/recruitment was conducted. Based on the aforesaid inference, we have no hesitation in concluding that the appellants ought to have appointed the respondent Sat Pal against the vacancy which was offered to Trilok Nath.” 11. Moreover, this is not a case where the respondent was seeking appointment against a vacancy over and above the pots for which the process of selection/recruitment was conducted. Based on the aforesaid inference, we have no hesitation in concluding that the appellants ought to have appointed the respondent Sat Pal against the vacancy which was offered to Trilok Nath.” 11. He would, therefore, point out that in the Circular, immediately on expiry of 30 days from the date of issue of the offer of appointment, there was a duty to send a further letter purporting to cancel the earlier appointment and to issue a notice purporting to cancel the appointment unless and until the candidate joins within a further period of 15 days. This, according to him, is inevitable result of Clause 5. In this case, as noted by the Tribunal, when the first offer of appointment was made to the first waitlisted candidate, according to the petitioner, there was delay, but we would think that clearly the Department has been able to explain the reasons, why the offer was made on 22.10.2014. Thus, the earlier candidate in the merit list, who made all preparations to join, decided not to join at the last moment. From the conduct of the respondents, it would appear that they have not followed the Circular in the manner advocated by the petitioner. On 22.10.2014, when the letter was sent to the first waitlisted candidate, the period of 30 days would have expired on 21.11.2014. If the theory of the petitioner is accepted, then after expiry of thirty days from date of issue, immediately a duty was owed to the next candidate to give 15 days’ more time and, thereafter, operationalize the waitlist, but we notice, what is instead done was that a reminder was sent on 31.12.2014, but there was no response. It is, thereafter, that the second waitlisted candidate was made offer on 11.02.2015 and then what is stated is that a reminder was sent on 22.05.2015, but there was no response and, in the meantime, the life of the waitlist expired. The Tribunal has proceeded on the basis that there was no inaction or deliberate delay in the matter of appointment. 12. One way to look at the matter is, whether this is in strict compliance of the Circular relied on by the petitioner. The Tribunal has proceeded on the basis that there was no inaction or deliberate delay in the matter of appointment. 12. One way to look at the matter is, whether this is in strict compliance of the Circular relied on by the petitioner. Coming to the Clauses in the Circular, which we may no doubt remind ourselves is not a statutory Rule, but we will proceed on the basis that the matter, which is not governed by the Rules, can always be provided for in the form of an executive policy. 13. Clause (vi) of the Circular provides that Circles shall issue letter to the successful candidates, wherein they have to be clearly advised to send their willingness to take up the assignment within 30 days. The period of thirty days appears also to be clearly fixed, namely, it is fixed with respect to the date of issue of the offer letter. It is, thereafter, that Clause (vi) proceeds to say that the notice for cancellation of candidature of successful candidates, in the event of their not turning up for training/jointing, may be issued under receipt, through registered post/speed post giving 15 days more time before operating the waiting list. 14. Dr. Kartikey Hari Gupta, learned counsel for the petitioner would point out that the only reasonable meaning, which can be given to Clause (vi) is that the time starts ticking from the date of issue of the letter of appointment. The original period, within which, a candidate is to join, is 30 days. The period of 30 days is to commence from the date of issue of the letter and not even from the date of receipt of the letter (it is common knowledge that much time may be consumed in dispatch and there may a time lag between the issue and the receipt), but there is no such ambiguity as the Circular mandates that 30 days will expire from the date of issue. He would then emphasize the words “15 days more time”. He poses a question, how 15 days more time is to be computed unless and until it is understood as meaning that the total period is to be 45 days. He would then emphasize the words “15 days more time”. He poses a question, how 15 days more time is to be computed unless and until it is understood as meaning that the total period is to be 45 days. In other words, 30 days begin to run from the date of issue of the letter and, thereafter, before the cancellation takes place, the respondents have to give another opportunity and that opportunity would consist of giving 15 days more time. In other words, the words “15 days more time” mean over and above 30 days, which is given. Therefore, reading the Clause as a whole, the intention is that each waitlisted candidate could be given up to 45 days in the aggregate. If this had been followed in letter and spirit, and proceeding from the letter, which is issued to the second waitlisted candidate, as we have noticed, the period of 45 days would have expired on 28.03.2015. As already noted, if one goes by the petitioner’s version, the waitlist would have continued for a period of one year from the date of the result till 28.04.2015 and, according to the Department, the results were declared on 16.04.2014, it would have continued till 15.04.2015. Therefore, there was ample time. 15. Here, we are not interpreting a statutory rule as such. It is true that the State is expected to act fairly. There are, however, certain aspects, which we cannot entirely lose sight off in the facts of this case. We are considering the rights of a candidate figuring in the waitlist. At once, we notice the scope of the very Circular, which appears to declare that the candidate would not have an indefeasible right and we would appreciate it to be as follows: The inclusion of the name of a candidate in a select list, be it a merit list or a waitlist, does not confer a right to appointment, but as noted by the Hon’ble Apex Court, this does not allow an unchartered area of arbitrariness to the State. In other words, it is always open to the State to decide not to make appointment for valid reasons and no candidate can compel the State to appoint him, but if the State decides to proceed to make appointment, then this argument may not hold good in the same way. In other words, it is always open to the State to decide not to make appointment for valid reasons and no candidate can compel the State to appoint him, but if the State decides to proceed to make appointment, then this argument may not hold good in the same way. In this case, there was an intention to fill up the vacancy as is clear from the fact that the letters of appointment were given to the first and the second waitlisted candidate. Therefore, it is not a case, where the Government did not want to make appointment. The Government did want to make appointment. 16. In this case, we cannot convincingly hold that having regard to the point of time, which had been reached by the time the case of the petitioner could have been considered, this case calls for an interference. That is to say, it is not a case, where there is no offer made to the candidates in the waitlist; the offer was made to the first and the second waitlisted candidate. Coming in point of proximity to the case of the petitioner, the offer was made on 11.02.2015 to the second waitlisted candidate. 17. Even, according to the petitioner, such an offer was undoubtedly made. The case of the respondents appears to be that a reminder was issued in May, 2015. So they did act upon the waitlist, though not in the manner that the Circular purported to provide as such, according to the strict interpretation, which was placed by Dr. Kartikey Hari Gupta, learned counsel for the petitioner. Here, we may notice that while in Clause 6, in the first part, the word used is “shall”, but when it comes to the latter part, there is some ambiguity in the form of use of the word “may”. In other words, cancellation of the candidature of successful candidate, in the event of his not turning up is to be done by issuing a notice by registered post and the words used are “may be issued” and 15 days’ more time is to be granted. The procedure, which has been followed is that a further reminder letter has been given both in the case of the first waitlisted candidate (on 31.12.2014) and in the case of the second waitlisted candidate (on 22.05.2015). The procedure, which has been followed is that a further reminder letter has been given both in the case of the first waitlisted candidate (on 31.12.2014) and in the case of the second waitlisted candidate (on 22.05.2015). Admittedly, the period of one year of the waitlist has expired, even according to the petitioner, on 28.04.2015. We may at this stage notice the creation of the third party right in the case. The case of the respondents has been through out that as the vacancy could not be filled up in the said recruitment year, they have taken up that vacancy; they have proceeded to advertise that vacancy also; select list has been prepared; the candidates are on training, and they are likely to join at any time. 18. Here, the learned counsel for the petitioner Dr. Kartikey Hari Gupta persevered and contended that that vacancy did not relate to the post in question. He would point out that as far as the post of TTA is concerned, that is Circle Based Secondary Switching Area cadre and this vacancy arose in the year 2012 and the same could only be filled in terms of the 2001 Rules; whereas the subsequent selection relates to another cadre, namely, Junior Engineer and that is governed by the 2014 Rules. Therefore, it is contended that the respondents are attempting to misguide the Court. 19. A perusal of the 2014 Rules would show that the Rules are named as TTA Recruitment Rules Of 2014. It is very clear from perusal of Rule 1 of the Rules that the 2014 Rules are made in super-session of the 2001 Rules. Thus, after promulgation of the Rules on 25 August, 2014, there can be no manner of doubt that the earlier the Rules of 2001 cease to exist. This means that the post of TTA, which incidentally has now been re-designated as the post of Junior Engineer is one and the same. Apparently, respondents are doing all India recruitment under the new rules. This means that the post of TTA, which incidentally has now been re-designated as the post of Junior Engineer is one and the same. Apparently, respondents are doing all India recruitment under the new rules. It also appears that under the new Rules, candidates can be asked to serve in any part of India and subsequently, since a contention was raised that this vacancy is not included in the subsequent recruitment, an affidavit has been filed, wherein it has been stated that the vacancies of 2012-13 were carried forward to the next vacancies of erstwhile TTA by the Bharat Sanchar Nigam Limited (Recruiting Circle Only). Also a reference is made to the letter dated 05.06.2017, which reads as under: “BHARAT SANCHAR NIGAM LIMITED (A Government of India Enterprise) Office of the Chief General Manager Uttaranchal Telecom Circle, Windlass Complex Rajpur Road, Dehradun-248001 To, AGM (CFA) O/o GM ID Almora. NO. UKND/1-3/TTA DITTA/2012/78 Dated 05-06-2017 Sub: WPSB 64/2017 Vipin Parihar V/s BSNL. Ref: Your office letter no. I-1/GMTD/AMO/Vipin Parihar/2016-17/10 dated 02-06-2017 Reference above, it is intimated that the unfilled vacancy of TTA for the recruitment year 2012 for which the petitioner was a participant, has already been surrendered and the vacancy for a new recruitment in the cadre for recruitment year 2015 has already been notified vide notification dated 24-06-2016. The recruitment process against this notification is already over. This is issued with the approval of competent authority. Sd. Illegible 05-06-2017 AGM (Estt.) E-mails: bsnlrecttukd@gmail.com” 20. Thus, we would come to the following conclusion: The vacancy of the year 2012-13 with which we are concerned was not filled up. Even that vacancy is sought to be filled up in the Recruitment Year 2015, for which, the recruitment process was undertaken and the candidates have been selected. Though, the learned counsel for the petitioner was faced with this aspect, he sought to attack the carrying forward of the vacancy and also contended that the vacancies, which existed prior to the amendment, should be filled up in terms of the pre-amended rules. We do not see why we should be persuaded in going into this aspect at the instance of the petitioner, when there is absolutely no challenge to this recruitment. We do not see why we should be persuaded in going into this aspect at the instance of the petitioner, when there is absolutely no challenge to this recruitment. Therefore, even proceeding in every aspect in favour of the petitioner and holding that the petitioner should have been given an offer of appointment, what we notice is that we cannot close our eyes to the subsequent developments, which have overtaken the petitioner, the essence of which is that there has been a subsequent recruitment; candidates have been selected and they are not before this Court. There is no challenge to the subsequent recruitment and we would, therefore, be in reality asked to override all these things and give appointment to the petitioner. Assuming everything in favour of the petitioner, we would think that such a course may not be proper in exercise of judicial review of the order of the Tribunal, which itself was sitting in the judicial review. 21. In such circumstances, we decline jurisdiction and the writ petition stands dismissed. No order as to costs.