published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40630
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.6707/2013
(Arising out of Special Leave Petition (Civil) No.26967/2011)
Manoj Manu & Anr. ….Appellants
Vs.
Union of India & Ors. ….Respondents
J U D G M E N T
A.K. SIKRI, J.
1. Leave granted.
2. This appeal has been preferred by the present appellants
questioning the validity of the judgment and order dated May 16, 2011
passed by the High Court, in Writ Petition which was filed by the
appellants questioning the validity of the order dated 29th March
2011, of the Central Administrative Tribunal (hereinafter referred to
as the “Tribunal”), Principal Bench, New Delhi. The Tribunal had
dismissed the Original Application preferred by the appellants herein
under Section 19 of the Administrative Tribunal Act against their non-
appointment to the post of Section Officer’s Grade of the Central
Secretariat Service. The said O.A. was dismissed by the Tribunal vide
order dated 29th March 2011 which has been upheld by the High Court.
3. There is no dispute about the facts, which may be briefly
recapitulated to understand the controversy that has arisen in these
proceedings. The appellants were working as Assistants in the Central
Secretariat Service (CSS) and appeared in Limited Departmental
Competitive Examination for the next promotion to the post of Section
Officer’s Grade in that service. There are two channels of promotion:
one by way of seniority and other fast track in the form of Limited
Departmental Competitive Examination (LDCE). The appellants appeared
in the said LDCE 2005, which was conducted by the Union Public Service
Commission (UPSC) on the requisition sent to it for 184 general
category posts by the Department of Personnel and Training (DoP&T).
After holding the examination the UPSC had recommended 184 candidates
in two lots. First lot of 141 candidates who were found suitable
candidates for the said post whereas in the second lot 43 successful
candidates were recommended for appointment. Out of them 6 candidates
did not join.
The DoP&T thereafter vide its letter dated 20th November
2009 had requisitioned 6 general category vacancies.
However, the
UPSC recommended names of three candidates from out of reserve list
maintained by it.
These two appellants who were next in the merit
list had secured 305 marks, same as secured by one Rajesh Kumar Yadav
who was recommended by the UPSC in the supplementary list candidates.
4. The appellants felt aggrieved by their non-recommendation,
thereby denying them the appointment to the post of Section Officer’s
Grade. Under these circumstances, these appellants filed the O.A.
before the Tribunal alleging that the UPSC had acted in an arbitrary
and discriminatory manner in contravention of Article 14 and 16 of the
Constitution of India denying them the right to get the appointment to
the post to which they were not only selected but equally placed as
another candidate who was given the appointment.
5. The Tribunal dismissed the O.A. primarily on the ground that
ACR’s are also seen for determining merit position inter-se candidates
who had secured same marks in written test and it was because of this
reason that these two appellants were not placed before Shri Rajesh
Kumar Yadav.
6. Before the High Court, the appellants submitted that they were
not questioning the aforesaid reason given by the Tribunal determining
inter-se merit position of the candidates who qualified the written
test. Instead their argument was that the Tribunal lost sight of the
actual plea taken viz. when there were sufficient vacancies available
and even as per the letter sent by the DoP&T vide its letter dated
20th November 2009 names of 6 candidates were requisitioned, there was
no reason not to forward the names of the appellants for the
appointment. The appellants relied upon Clause 4(c) of the Office
Memorandum dated 14th July 1967 in support of their aforesaid
contention. This Clause is reproduced hereinbelow:
“4(c) Once the results are published, additional persons should
not normally be taken till the next examination. Nor should
vacancies reported before declaration of the results, be
ordinarily withdrawn after declaration of the results. If,
however, some of the candidates recommended/allotted for
appointment against the specific number of vacancies reported in
respect of a particular examination do not become available for
one reason or another, the Commission may be approached, within
a reasonable time, with request for replacements from reserved,
if available. When replacements may not be available, the
vacancies that may remain unfilled should be reported to the
Commission for being filled through the next examination.”
(Emphasis supplied)
7. The submission of the appellants before the High Court was that
the aforequoted Clause specifically provides that the vacancies which
are reported have not to be ordinarily withdrawn after the declaration
of results. Therefore, when there were vacancies, and the appellants
who had passed the LDCE were available, their names should have been
recommended by the UPSC for appointment to ensure that vacancies do
not go unfilled. It was also submitted that from the
recommended/allotted candidates by the UPSC in case some of them are
not available for whatever reason; the concerned department could
approach the Commission, within a reasonable time with request for
placement from reserved, if available. It was, thus, stressed that in
the instant case when some of the persons did not join with the result
that some vacancies were still available out of the vacancies reported
and even requisition was made, the UPSC should have forwarded the
names of 6 persons thereby including the appellants.
8. The stand of the UPSC, on the other hand, was that whether or
not UPSC should accept the said requisition was not the subject matter
of the aforesaid Office Memorandum. The UPSC pleaded that it was the
convention, followed throughout as a policy decision, that
supplementary list is not to be issued except in two categories of
cases, namely, “repeat” or “common” candidates. Repeat candidates are
those candidates, who have participated in the same category in two
LDCE and are successful in the first examination and results have not
declared when the second Departmental Competitive Examination was
held. Common candidates are those candidates, who get selected in
more than one category in the LDCE.
9. The High Court accepted the aforesaid contention of the UPSC
with the observation that taking a different view would upset the
policy or convention followed by UPSC and will create ambiguity which
may also lead to confusion. The High Court observed that the
examination in question was held for 196 vacancies as intimated by
DoP&T and UPSC had nominated 184 candidates in two lots. 12 SC
vacancies remained unfilled for want of suitable candidates. A
supplementary list of three persons was also issued as three selected
candidates were “common/repeat” candidates.
10. We are unable to agree with the approach of the High Court in
the facts of the present case. It will be useful to point out that
reason for sending the requisition by DoP&T for forwarding the names
of persons in the reserve list was that some of the candidates whose
names had been forwarded by the UPSC did not join the post for one or
other reason. The DoP&T in its communication dated 20th November 2009
had itself stated so, giving the following reasons:
S. Roll Name Category Reasons for the
No. No. (S/Shri) vacancies to
arise
1. 001147 Sanjay Bora General Already appointed as
PS vide OM No.5/2/
2009-SC.II dt.16.3.09
2. 000713 Ms.Kitty General Already appointed as
PS vide OM No.5/2/
2009-CS.II dt.16.3.09
3. 001823 Devjyoti General Technically resigned
Chakravarty on 17th August 2007
i.e.prior to the
declaration of the
result.His lien is over
on 17th August 2009.
4. 001604 Sanjeev Jain General He has opted for
appointment against
seniority quota, 2005
instead of LDCE 2005.
5. 001376 Vishwajit Kalynai General He has given his
undertaking to remain as
Personal Secretary.
6. 001711 Jai Kishore SC Qualified in LDCE 2005
Exam.,however pursuant to
a court direction, he has
been adjusted against SL
2000 (LDCE)
-----------------------------------------------------------------------
---------------------
In respect of each of the aforesaid six candidates DoP&T had given the
reasons as to why those six persons opted not to join the post of
Section Officer’s grade.
11. It can be clearly inferred from the reading of the aforesaid
that it is not the case where any of these persons initially joined as
Section Officer and thereafter resigned/left/promoted etc. thereby
creating the vacancies again. Had that been the situation viz. after
the vacancy had been filled up, and caused again because of some
subsequent event, position would have been different. In that
eventuality the UPSC would be right in not forwarding the names from
the list as there is culmination of the process with the exhaustion of
the notified vacancies and vacancies arising thereafter have to be
filled up by fresh examination. However, in the instant case, out of
184 persons recommended, six persons did not join at all. In these
circumstances when the candidates in reserved list on the basis of
examination already held, were available and DoP&T had approached UPSC
“within a reasonable time” to send the names, we do not see any reason
or justification on the part of the UPSC not to send the names.
12. We are conscious of the legal position that merely because the
name of a candidate finds place in the select list, it would not give
him/her indefeasible right to get appointment as well. It is always
open to the Government not to fill up all vacancies. However, there
has to be a valid reason for adopting such a course of action. This
legal position has been narrated by this Court in Ms.Neelima Shangla
vs. State of Haryana (1986) 3 SCR 785. In that case:
The appellant was the candidate for appointment to the post of
Subordinate Judge in Haryana. Under the scheme of the Rules, the
Public Service Commission was required to hold first a written
test in subjects chosen by the High Court and next a viva voce
test. Unless a candidate secures 45% of the marks in the written
papers and 33% in the language paper, he will not be called for
the viva voce test. All candidates securing 55% of the marks in
the aggregate in the written and viva voce tests are considered
as qualified for appointment. The appellant though secured 55%
of the marks was not appointed as her name was not sent by the
Public Service Commission to the Govt. The Supreme Court in such
fact situation found that the Public Service Commission is not
required to make any further selection from the qualified
candidates and is, therefore, not expected to withhold the name
of any qualified candidate. The duty of the Public Service
Commission is to make available to the Govt., a complete list of
qualified candidates arranged in order of merit. How should
Govt., act is stated by the Supreme Court in the following
words:
“Thereafter the Government is to make the selection strictly in
the order in which they have been placed by the Commission as a
result of the examination. The names of the selected candidates
are then to be entered in the Register maintained by the High
Court strictly in that order and appointments made from the
names entered in that Register also strictly in the same order.
It is, of course, open to the Government not to fill up all the
vacancies for a valid reason. The Government and the High Court
may, for example, decide that, though 55 per cent is the minimum
qualifying mark, in the interests of higher standards, they
would not appoint anyone who has obtained less than 60 per cent
of the marks.”
(Emphasis supplied)
13. The Court after making reference to the decision of the Supreme
Court in the case of State of Haryana vs. Subhash Chander Marwah
reported in (1972) IILLJ266 SC further observed as under:
“However, as we said, the selection cannot
arbitrarily be restricted to a few candidates, notwithstanding
the number of vacancies and the availability of qualified
candidates. There must be a conscious application of the mind of
the Govt., and the High Court before the number of persons
selected for appointment is restricted. Any other interpretation
would make Rule 8 of Part D meaningless.”
(Emphasis supplied)
14. It is, thus, manifest that though a person whose name is
included in the select list, does not acquire any right to be
appointed. The Government may decide not to fill up all the vacancies
for valid reasons. Such a decision on the part of the Government not
to fill up the required/advertised vacancies should not be arbitrary
or unreasonable but must be based on sound, rational and conscious
application of mind. Once, it is found that the decision of the
Government is based on some valid reason, the Court would not issue
any Mandamus to Government to fill up the vacancies.
15. In the present case, however, we find that after the UPSC sent
the list of 184 persons/recommended by it, to the Government for
appointment six persons out of the said list did not join. It is not
a case where the Government decided not to fill up further vacancies.
On the contrary DoP&T sent requisition to the UPSC to send six names
so that the remaining vacancies are also filled up. This shows that
in so far as Government is concerned, it wanted to fill up all the
notified vacancies. The requisition dated 20th November 2009 in this
behalf was in consonance with its Clause 4(c) of O.M. dated 14th July
1967. Even when the Government wanted to fill up the post, the UPSC
chose to forward names of three candidates.
16. There is a sound logic, predicated on public interest, behind
O.M. dated 14th July 1967. The intention is not to hold further
selection for the post already advertised so as to save unnecessary
public expenditure. At the same time, this very O.M. also stipulates
that the Government should not fill up more vacancies than the
vacancies which were advertised. The purpose behind this provision is
to give chance to those who would have become eligible in the
meantime. Thus, this OM dated 14th July 1967 strikes a proper balance
between the interests of two groups of persons. In the present case
since the requisition of the DoP&T contained in communication dated
20th November 2009 was within the permissible notified vacancies, the
UPSC should have sent the names of six candidates instead of three.
17. This Court in Sandeep Singh vs. State of Haryana & Anr. (2002)
10 SCC 549 commended that the vacancies available should be filled up
unless there is any statutory embargo for the same. In Virender
S.Hooda & Ors. Vs. State of Haryana & Anr. AIR 1999 SC 1701, 12 posts
for direct recruitment were available when the advertisement for
recruitment was made which was held in the year 1991. Some of the
selected candidates did not join in this batch almost similar to the
present case, the Court held that the appellant’s case ought to have
been considered when some of the candidates for reasons of the non-
appointment of some of the candidates and they ought to have been
appointed if they come within the range of selection.
18. It is not the case of the UPSC that under no circumstances the
names are sent by way of supplementary list, after sending the names
of the candidates equal to the vacancies.
As per the UPSC itself,
names of “repeat/common” candidates are sent and in the present case
itself, three names belonging to such category were sent. However,
exclusion of the persons like the appellants has clearly resulted in
discrimination as one of those three candidates Rajesh Kumar Yadav had
also secured 305 marks and once he was appointed to the post in
question, the appellants with same marks have been left out even when
the vacancies were available.
19. We are, therefore, of the opinion in the facts of the present
case, the decision of UPSC in forwarding three names against
requisition of DoP&T for six vacancies was inappropriate. We,
accordingly, allow the present appeal; set aside the order of the High
Court as well as Tribunal and issue Mandamus to the UPSC to forward
the names of the next three candidates to the DoP&T for appointment to
the post of Section Officer’s Grade. They shall get the seniority
from the date when Rajesh Kumar Yadav was appointed to the said post.
Their pay shall notionally be fixed, without any arrears of the pay
and other allowances.
20. No costs.
………………………………J.
[Anil R. Dave]
………………………………J.
[A.K.Sikri]
New Delhi,
August 12, 2013
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.6707/2013
(Arising out of Special Leave Petition (Civil) No.26967/2011)
Manoj Manu & Anr. ….Appellants
Vs.
Union of India & Ors. ….Respondents
J U D G M E N T
A.K. SIKRI, J.
1. Leave granted.
2. This appeal has been preferred by the present appellants
questioning the validity of the judgment and order dated May 16, 2011
passed by the High Court, in Writ Petition which was filed by the
appellants questioning the validity of the order dated 29th March
2011, of the Central Administrative Tribunal (hereinafter referred to
as the “Tribunal”), Principal Bench, New Delhi. The Tribunal had
dismissed the Original Application preferred by the appellants herein
under Section 19 of the Administrative Tribunal Act against their non-
appointment to the post of Section Officer’s Grade of the Central
Secretariat Service. The said O.A. was dismissed by the Tribunal vide
order dated 29th March 2011 which has been upheld by the High Court.
3. There is no dispute about the facts, which may be briefly
recapitulated to understand the controversy that has arisen in these
proceedings. The appellants were working as Assistants in the Central
Secretariat Service (CSS) and appeared in Limited Departmental
Competitive Examination for the next promotion to the post of Section
Officer’s Grade in that service. There are two channels of promotion:
one by way of seniority and other fast track in the form of Limited
Departmental Competitive Examination (LDCE). The appellants appeared
in the said LDCE 2005, which was conducted by the Union Public Service
Commission (UPSC) on the requisition sent to it for 184 general
category posts by the Department of Personnel and Training (DoP&T).
After holding the examination the UPSC had recommended 184 candidates
in two lots. First lot of 141 candidates who were found suitable
candidates for the said post whereas in the second lot 43 successful
candidates were recommended for appointment. Out of them 6 candidates
did not join.
The DoP&T thereafter vide its letter dated 20th November
2009 had requisitioned 6 general category vacancies.
However, the
UPSC recommended names of three candidates from out of reserve list
maintained by it.
These two appellants who were next in the merit
list had secured 305 marks, same as secured by one Rajesh Kumar Yadav
who was recommended by the UPSC in the supplementary list candidates.
4. The appellants felt aggrieved by their non-recommendation,
thereby denying them the appointment to the post of Section Officer’s
Grade. Under these circumstances, these appellants filed the O.A.
before the Tribunal alleging that the UPSC had acted in an arbitrary
and discriminatory manner in contravention of Article 14 and 16 of the
Constitution of India denying them the right to get the appointment to
the post to which they were not only selected but equally placed as
another candidate who was given the appointment.
5. The Tribunal dismissed the O.A. primarily on the ground that
ACR’s are also seen for determining merit position inter-se candidates
who had secured same marks in written test and it was because of this
reason that these two appellants were not placed before Shri Rajesh
Kumar Yadav.
6. Before the High Court, the appellants submitted that they were
not questioning the aforesaid reason given by the Tribunal determining
inter-se merit position of the candidates who qualified the written
test. Instead their argument was that the Tribunal lost sight of the
actual plea taken viz. when there were sufficient vacancies available
and even as per the letter sent by the DoP&T vide its letter dated
20th November 2009 names of 6 candidates were requisitioned, there was
no reason not to forward the names of the appellants for the
appointment. The appellants relied upon Clause 4(c) of the Office
Memorandum dated 14th July 1967 in support of their aforesaid
contention. This Clause is reproduced hereinbelow:
“4(c) Once the results are published, additional persons should
not normally be taken till the next examination. Nor should
vacancies reported before declaration of the results, be
ordinarily withdrawn after declaration of the results. If,
however, some of the candidates recommended/allotted for
appointment against the specific number of vacancies reported in
respect of a particular examination do not become available for
one reason or another, the Commission may be approached, within
a reasonable time, with request for replacements from reserved,
if available. When replacements may not be available, the
vacancies that may remain unfilled should be reported to the
Commission for being filled through the next examination.”
(Emphasis supplied)
7. The submission of the appellants before the High Court was that
the aforequoted Clause specifically provides that the vacancies which
are reported have not to be ordinarily withdrawn after the declaration
of results. Therefore, when there were vacancies, and the appellants
who had passed the LDCE were available, their names should have been
recommended by the UPSC for appointment to ensure that vacancies do
not go unfilled. It was also submitted that from the
recommended/allotted candidates by the UPSC in case some of them are
not available for whatever reason; the concerned department could
approach the Commission, within a reasonable time with request for
placement from reserved, if available. It was, thus, stressed that in
the instant case when some of the persons did not join with the result
that some vacancies were still available out of the vacancies reported
and even requisition was made, the UPSC should have forwarded the
names of 6 persons thereby including the appellants.
8. The stand of the UPSC, on the other hand, was that whether or
not UPSC should accept the said requisition was not the subject matter
of the aforesaid Office Memorandum. The UPSC pleaded that it was the
convention, followed throughout as a policy decision, that
supplementary list is not to be issued except in two categories of
cases, namely, “repeat” or “common” candidates. Repeat candidates are
those candidates, who have participated in the same category in two
LDCE and are successful in the first examination and results have not
declared when the second Departmental Competitive Examination was
held. Common candidates are those candidates, who get selected in
more than one category in the LDCE.
9. The High Court accepted the aforesaid contention of the UPSC
with the observation that taking a different view would upset the
policy or convention followed by UPSC and will create ambiguity which
may also lead to confusion. The High Court observed that the
examination in question was held for 196 vacancies as intimated by
DoP&T and UPSC had nominated 184 candidates in two lots. 12 SC
vacancies remained unfilled for want of suitable candidates. A
supplementary list of three persons was also issued as three selected
candidates were “common/repeat” candidates.
10. We are unable to agree with the approach of the High Court in
the facts of the present case. It will be useful to point out that
reason for sending the requisition by DoP&T for forwarding the names
of persons in the reserve list was that some of the candidates whose
names had been forwarded by the UPSC did not join the post for one or
other reason. The DoP&T in its communication dated 20th November 2009
had itself stated so, giving the following reasons:
S. Roll Name Category Reasons for the
No. No. (S/Shri) vacancies to
arise
1. 001147 Sanjay Bora General Already appointed as
PS vide OM No.5/2/
2009-SC.II dt.16.3.09
2. 000713 Ms.Kitty General Already appointed as
PS vide OM No.5/2/
2009-CS.II dt.16.3.09
3. 001823 Devjyoti General Technically resigned
Chakravarty on 17th August 2007
i.e.prior to the
declaration of the
result.His lien is over
on 17th August 2009.
4. 001604 Sanjeev Jain General He has opted for
appointment against
seniority quota, 2005
instead of LDCE 2005.
5. 001376 Vishwajit Kalynai General He has given his
undertaking to remain as
Personal Secretary.
6. 001711 Jai Kishore SC Qualified in LDCE 2005
Exam.,however pursuant to
a court direction, he has
been adjusted against SL
2000 (LDCE)
-----------------------------------------------------------------------
---------------------
In respect of each of the aforesaid six candidates DoP&T had given the
reasons as to why those six persons opted not to join the post of
Section Officer’s grade.
11. It can be clearly inferred from the reading of the aforesaid
that it is not the case where any of these persons initially joined as
Section Officer and thereafter resigned/left/promoted etc. thereby
creating the vacancies again. Had that been the situation viz. after
the vacancy had been filled up, and caused again because of some
subsequent event, position would have been different. In that
eventuality the UPSC would be right in not forwarding the names from
the list as there is culmination of the process with the exhaustion of
the notified vacancies and vacancies arising thereafter have to be
filled up by fresh examination. However, in the instant case, out of
184 persons recommended, six persons did not join at all. In these
circumstances when the candidates in reserved list on the basis of
examination already held, were available and DoP&T had approached UPSC
“within a reasonable time” to send the names, we do not see any reason
or justification on the part of the UPSC not to send the names.
12. We are conscious of the legal position that merely because the
name of a candidate finds place in the select list, it would not give
him/her indefeasible right to get appointment as well. It is always
open to the Government not to fill up all vacancies. However, there
has to be a valid reason for adopting such a course of action. This
legal position has been narrated by this Court in Ms.Neelima Shangla
vs. State of Haryana (1986) 3 SCR 785. In that case:
The appellant was the candidate for appointment to the post of
Subordinate Judge in Haryana. Under the scheme of the Rules, the
Public Service Commission was required to hold first a written
test in subjects chosen by the High Court and next a viva voce
test. Unless a candidate secures 45% of the marks in the written
papers and 33% in the language paper, he will not be called for
the viva voce test. All candidates securing 55% of the marks in
the aggregate in the written and viva voce tests are considered
as qualified for appointment. The appellant though secured 55%
of the marks was not appointed as her name was not sent by the
Public Service Commission to the Govt. The Supreme Court in such
fact situation found that the Public Service Commission is not
required to make any further selection from the qualified
candidates and is, therefore, not expected to withhold the name
of any qualified candidate. The duty of the Public Service
Commission is to make available to the Govt., a complete list of
qualified candidates arranged in order of merit. How should
Govt., act is stated by the Supreme Court in the following
words:
“Thereafter the Government is to make the selection strictly in
the order in which they have been placed by the Commission as a
result of the examination. The names of the selected candidates
are then to be entered in the Register maintained by the High
Court strictly in that order and appointments made from the
names entered in that Register also strictly in the same order.
It is, of course, open to the Government not to fill up all the
vacancies for a valid reason. The Government and the High Court
may, for example, decide that, though 55 per cent is the minimum
qualifying mark, in the interests of higher standards, they
would not appoint anyone who has obtained less than 60 per cent
of the marks.”
(Emphasis supplied)
13. The Court after making reference to the decision of the Supreme
Court in the case of State of Haryana vs. Subhash Chander Marwah
reported in (1972) IILLJ266 SC further observed as under:
“However, as we said, the selection cannot
arbitrarily be restricted to a few candidates, notwithstanding
the number of vacancies and the availability of qualified
candidates. There must be a conscious application of the mind of
the Govt., and the High Court before the number of persons
selected for appointment is restricted. Any other interpretation
would make Rule 8 of Part D meaningless.”
(Emphasis supplied)
14. It is, thus, manifest that though a person whose name is
included in the select list, does not acquire any right to be
appointed. The Government may decide not to fill up all the vacancies
for valid reasons. Such a decision on the part of the Government not
to fill up the required/advertised vacancies should not be arbitrary
or unreasonable but must be based on sound, rational and conscious
application of mind. Once, it is found that the decision of the
Government is based on some valid reason, the Court would not issue
any Mandamus to Government to fill up the vacancies.
15. In the present case, however, we find that after the UPSC sent
the list of 184 persons/recommended by it, to the Government for
appointment six persons out of the said list did not join. It is not
a case where the Government decided not to fill up further vacancies.
On the contrary DoP&T sent requisition to the UPSC to send six names
so that the remaining vacancies are also filled up. This shows that
in so far as Government is concerned, it wanted to fill up all the
notified vacancies. The requisition dated 20th November 2009 in this
behalf was in consonance with its Clause 4(c) of O.M. dated 14th July
1967. Even when the Government wanted to fill up the post, the UPSC
chose to forward names of three candidates.
16. There is a sound logic, predicated on public interest, behind
O.M. dated 14th July 1967. The intention is not to hold further
selection for the post already advertised so as to save unnecessary
public expenditure. At the same time, this very O.M. also stipulates
that the Government should not fill up more vacancies than the
vacancies which were advertised. The purpose behind this provision is
to give chance to those who would have become eligible in the
meantime. Thus, this OM dated 14th July 1967 strikes a proper balance
between the interests of two groups of persons. In the present case
since the requisition of the DoP&T contained in communication dated
20th November 2009 was within the permissible notified vacancies, the
UPSC should have sent the names of six candidates instead of three.
17. This Court in Sandeep Singh vs. State of Haryana & Anr. (2002)
10 SCC 549 commended that the vacancies available should be filled up
unless there is any statutory embargo for the same. In Virender
S.Hooda & Ors. Vs. State of Haryana & Anr. AIR 1999 SC 1701, 12 posts
for direct recruitment were available when the advertisement for
recruitment was made which was held in the year 1991. Some of the
selected candidates did not join in this batch almost similar to the
present case, the Court held that the appellant’s case ought to have
been considered when some of the candidates for reasons of the non-
appointment of some of the candidates and they ought to have been
appointed if they come within the range of selection.
18. It is not the case of the UPSC that under no circumstances the
names are sent by way of supplementary list, after sending the names
of the candidates equal to the vacancies.
As per the UPSC itself,
names of “repeat/common” candidates are sent and in the present case
itself, three names belonging to such category were sent. However,
exclusion of the persons like the appellants has clearly resulted in
discrimination as one of those three candidates Rajesh Kumar Yadav had
also secured 305 marks and once he was appointed to the post in
question, the appellants with same marks have been left out even when
the vacancies were available.
19. We are, therefore, of the opinion in the facts of the present
case, the decision of UPSC in forwarding three names against
requisition of DoP&T for six vacancies was inappropriate. We,
accordingly, allow the present appeal; set aside the order of the High
Court as well as Tribunal and issue Mandamus to the UPSC to forward
the names of the next three candidates to the DoP&T for appointment to
the post of Section Officer’s Grade. They shall get the seniority
from the date when Rajesh Kumar Yadav was appointed to the said post.
Their pay shall notionally be fixed, without any arrears of the pay
and other allowances.
20. No costs.
………………………………J.
[Anil R. Dave]
………………………………J.
[A.K.Sikri]
New Delhi,
August 12, 2013
