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Tuesday, August 13, 2013

service matter - 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).- 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. The appellants felt aggrieved by their non-recommendation, thereby denying them the appointment to the post of Section Officer’s Grade. = 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. 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.

                   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















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