Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) No.6589/ 2013
st
% 21 October, 2013
JUSTICE UDAI KRISHNA DHAON (RETD.) ..... Petitioner
Through: Mr. Shankar Raju, Advocate.
Versus
UNION OF INDIA AND ORS. …Respondents
Through: Mr. Sumeet Pushkarna, CGSC with
Ms. Sana, Advocate for UOI.
CORAM:
HON’BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. By this writ petition, the petitioner who is a retired Judge of the
Allahabad High Court (who was also subsequently appointed as Chairman
of the Railway Claims Tribunal), seeks the relief for being appointed as a
Member (Judicial) of National Consumer Disputes Redressal Commission
(NCDRC) on the ground that his name appears at serial no.5 in the select list
of candidates who were to be appointed.
2. I may at the outset itself note that even as per para 2.8 of the
writ petition, the select list of five candidates of which petitioner was placed
W.P.(C) No.6589/2013 Page 1 of 16
at serial no.5 was with respect to two vacancies of Member (Judicial) in
NCDRC pursuant to the notification dated 21.7.2011.
3. The case of the petitioner is that out of five candidates in the
select list, the first two candidates, namely, Justice J. M. Malik (Retd.) and
Justice K.S. Chaudhary (Retd.) joined. As per the petitioner, against a
subsequent vacancy, Justice Ajit Bharihoke (a retired Judge of this Court)
was asked to join inasmuch as the third person in the select list did not
accept the offer of appointment. Petitioner claims that validity of the panel
is one year in terms of the subject notification dated 21.7.2011 and para 8
whereof categorically states that the vacancy arising during the validity
period of the panel may be filled from among the panel. This para 8 reads as
under:-
“8. The panel of appointment recommended by the Selection
Committee will be valid for a period of one year from the date of the
final meeting of the Committee. Any vacancy arising during the
validity period may be filled from among the panel.”
4. The select list in this case was prepared as per the selection
committee meeting held on 13.2.2012 and petitioner claims that this panel
was operative till 13.2.2013 by virtue of aforesaid clause 8 and in this period
Justice R.C. Jain (Retd.) who was a Member (Judicial) in NCDRC retired in
December, 2012 and therefore petitioner has an entitlement to be appointed.
Petitioner claims that petitioner was asked for his consent for appointment
W.P.(C) No.6589/2013 Page 2 of 16
by the letter dated 24.8.2012 after the Appointment Committee of the
Cabinet (ACC) recommended his name, and the petitioner gave his consent
for appointment vide letter dated 27.8.2012. Petitioner impugns the
communication issued to him on 10.7.2013 stating that the petitioner cannot
be appointed as a Member (Judicial) in NCDRC as a decision has been taken
to advertise the vacancy which has arisen on the term of Justice R.C. Jain
(Retd.) coming to an end.
5. Before proceeding further, at this stage, I would seek to refer to
the relevant paras of the Full Bench judgment of this Court in the case of
Maninder Kaur Vs. Delhi High Court and Ors. (1995) 57 DLT 288 (FB) ,
and which paras hold that a select list/panel exhausts itself once the requisite
number of people who are asked to join, join their posts. The Full Bench of
this Court relied upon various judgments of the Supreme Court and which
held that a person in the waiting list has no right to be appointed on a future
vacancy (which arises subsequently) once the panel/select list exhausts itself
on the necessary number of persons joining. The relevant paras of
Maninder Kaur’s case read as under:-
“36. The office memorandum dated 8th February 1982 is Annexure
P.4 to the writ petition of Malkhan Singh. The said memorandum has
also been reproduced in the decision of the Supreme Court in Prem
Parkash's case. A perusal of the said memorandum shows that it is
applicable in a case where a person is declared successful according to
W.P.(C) No.6589/2013 Page 3 of 16
merit list of selected candidates which is based on the declared
number of vacancies. The responsibility vests on the appointing
authority to appoint such a person even if number of vacancies
undergo a change after his name has been included in the list of
selected candidates. It is thus evident that if a candidate has not been
selected against the declared number of vacancies no right flows to
him on the basis of the aforesaid Memorandum. Mr. Malkhan Singh
had applied against one post reserved for scheduled caste. For that
post Mr. Padam Singh was selected, recommended and ultimately
appointed. Likewise, the declared number of vacancies when Mr.
Sanjay Kaul applied were four which were reserved for scheduled
castes and scheduled tribes It was notified in the advertisement that
these vacancies shall be filled from general category candidates in the
event of suitable candidates from reserved category were not
available. Only one candidate Mr. L.D. Maul belonging to scheduled
castes community was found suitable. No other candidate from
reserve category was found suitable. The High Court, however,
prepared a panel of six candidates of general category. The name of
Respondent Nos. 9, 7 and 8 were at Serial No. 1,2 and 3 respectively
in the panel prepared in 1988. Mr. Sanjay Kaul was at Serial No. 6 on
the panel. There were also other advocates at Serial No.4 and 5 of that
panel. Against the four declared number of vacancies, one from
scheduled caste community and three from general category were
selected. Mr. Kaul cannot claim right to the appointment against a
future vacancy. In case the contention that the entire panel is to be
exhausted irrespective of the number of vacancies which may have
been notified for selection is accepted, it may lead to continuing the
panel in perpetuity which would be arbitrary and would infringe
Article 14 and 16 of the Constitution thereby depriving other eligible
candidates for being considered for public employment. In this regard
we may also notice a recent decision of the Supreme Court in the case
of Gujarat State Deputy Executive Engineers' Association Vs. The
State of Gujarat & Ors. (1995)ILLJ1047SC . The Apex Court has held
that a candidate from the waiting list has no right to claim
appointment to any future vacancy which may arise unless the
selection was held for it. The effect of making appointments of
candidates from the waiting list on candidates who become eligible
for competing for vacancies available in future, was expressed by
Supreme Court in the following words -
W.P.(C) No.6589/2013 Page 4 of 16
"Awaiting list prepared .in an examination conducted by the
Commission does not furnish a source of recruitment. It is
operative only for the contingency that if any of the selected
candidates does not join then the person from the waiting list may
be pushed up and be appointed in the vacancy so caused or if
there is some extreme exigency the Government may as a matter
of policy decision pick up persons in order of merit from the
waiting list. But the view taken by the High Court that since the
vacancies have not been worked out properly, Therefore, the
candidates from the waiting list were liable to be appointed does
not appear to be sound. This practice, may result in depriving
those candidates who become eligible for competing for the
vacancies available in future. If the waiting list in one
examination was to operate as an infinite stock for appointments,
there is a danger that the State Govern- ment may resort to the
device of not holding an examination for years together and pick
up candidates from the waiting list as arid when required. The
constitutional discipline requires that this Court should not permit
such improper exercise of power which may result in creating a
vested interest and perpetrate waiting list for the candidates of one
examination at the cost of entire set of fresh candidates either
from the open or even from service."
37. It is also well settled that empanelment gives no right of
appointment. The Supreme Court in the case of State of Bihar & Ors
Vs. The Secretariat Assistant Successful and Examinees Union 1986
& Ors. AIR1994SC736 has held -
"It is now well settled that a person who is selected does not, on
account of being empanelled alone, acquire any indefeasible right of
appointment. Empanelment is at the best a condition of eligibility for
purposes of appointment and by itself does not amount to selection
or create a vested right to be appointed unless relevant service rule
says to the contrary (See : Shankara and Dash V. (1992)IILLJ18SC
and Sabita Prasad & Ors. Vs .State of Bihar & Ors - AIR1992SC243
. We are, Therefore, of the opinion that the directions given by the
High- Court for appointment of the empanelled candidates according
to their position in the merit list against the vacancies till 1991 was
not proper and cannot be sustained. Since, no examination has been
held since 1987, persons who became eligible to compete for
W.P.(C) No.6589/2013 Page 5 of 16
appointments were denied the opportunity to take the examination
and the direction of the High Court would prejudicially effect them
for no fault of theirs. At the same time, due to the callousness of the
State in holding the examination in 1987 for the vacancies
advertised in 1985 and declaring the result almost three years later in
1990 has caused great hardship to the successful candidates. The
State was expected not to act in such a leisurely manner and treat the
matter of selection for appointment to services in such a casual
manner. We must record our unhappiness on this state of affairs.
There is no justification for holding the examination two years after
the publication of advertisement and declare the result almost three
years after the holding of the examination and not issuing any fresh
advertisement between 1985 and 1991 or holding examination for
making selections. We expect the State Government to act in a better
manner, atleast hereinafter and since Mr. Rao, the learned senior
counsel has shared our concern and assured us of advising the State
Govern- ment accordingly, we say no more on that aspect at this
stage."
38. The decision of the Division Bench in Bhasin's case directing
adjustment against future vacancies results in depriving other eligible
candidates for being considered for the said vacancies. In our view the
ratio of Prem Prakash's case was not correctly applied by the Division
Bench. We may also notice that the Division Bench after rightly
noticing in Para 89 of the aforesaid report that the principle laid down
in Prem Prakash's case will not be attracted seems to have erred in
the later portion of the judgment (Para 106) in directing on
strength of Prem Parkash's case that candidates once selector and
empanelled must be accommodated in future vacancy which came
into existence during the pendency of the writ petition. There are
reasons for preparing larger panel than the number of vacancies.
It is possible that a recommended candidate may not come forth
to join the Service or even after selection and recommendation
there may be hurdles in his appointment like medical clearance
etc. In order to avoid delay in the recruitment, a larger panel is
prepared so that person next on the panel can be recommended
for appointment. This, however, would not mean that in case the
number of selected and recommended candidates to the extent of
the existing vacancies join, the other candidates on panel are
required to be adjusted against future vacancies. As held
W.P.(C) No.6589/2013 Page 6 of 16
hereinbefore, this would lead to continuing the panel in perpetuity
which is neither permissible in law nor in the interest of the
Service.
39. It is also to be borne in mind that there must be a judicially
enforceable right for the enforcement of which a mandamus lies. The
Supreme Court in State of Kerala Vs. A. Lakshmi katty and others,
[1987]1SCR136 has held that a person whose name has been
recommended for appointment as a District Judge by the High Count
under Article 233(1) has no legal right to the post nor was the
Governor bound to act on the advise of the High Court and, therefore
,he could not ask for mandamus. The existence of a right is the
foundation of the jurisdiction of a court to issue a writ of mandamus.
In this view too the law the petitioners have no right to ask for
mandamus for their appointment as ADJ.”
6. I may state that the view of the Full Bench of this Court is in
terms of the decisions of the Supreme Court and which judgments have been
referred to and relied upon in subsequent judgments of the Supreme Court
including the judgment in the case of Rakhi Ray and Ors. Vs. High Court
of Delhi and Ors. (2010) 2 SCC 637 relied upon by the petitioner. The
paras of this judgment holding that people in the waiting list have no right to
be appointed once the requisite number of people join are paras 8,9, 12, 13
and 24 and which read as under:-
“8. In Surinder Singh and Ors. v. State of Punjab and Ors. AIR
1998 SC 18, this Court held as under:
“14…….. ’9. A waiting list prepared in an examination conducted by
the Commission does not furnish a source of recruitment. It is
W.P.(C) No.6589/2013 Page 7 of 16
operative only for the contingency that if any of the selected candidates
does not join then the person from the waiting list may be pushed up
and be appointed in the vacancy so caused or if there is some extreme
exigency the Government may as a matter of policy decision pick up
persons in order of merit from the waiting list. But the view taken by
the High Court that since the vacancies have not been worked out
properly, therefore, the candidates from the waiting list were liable to
be appointed does not appear to be sound. This practice, may result in
depriving those candidates who become eligible for competing for the
vacancies available in future. If the waiting list in one examination was
to operate as an infinite stock for appointment, there is a danger that
the State Government may resort to the device of not holding an
examination for years together and pick up candidates from the waiting
list as and when required. The constitutional discipline requires that
this Court should not permit such improper exercise of power which
may result in creating a vested interest and perpetrate waiting list for
the candidates of one examination at the cost of entire set of fresh
candidates either from the open or even from service”
16. …. Exercise of such power has to be tested on the touch- stone of
reasonableness.... It is not a matter of course that the authority can fill
up more posts than advertised.”
9. Similar view has been re-iterated in Madan Lal v. State of J & K
and Ors. AIR 1995 SC 1088; Kamlesh Kumar Sharma v. Yogesh
Kumar Gupta and Ors. AIR 1998 SC 1021; Sri Kant Tripathi v.
State of U.P. and Ors. (2001) 10 SCC 237; State of J & K v.
Sanjeev Kumar and Ors. (2005) 4 SCC 148; State of U.P. v. Raj
Kumar Sharma and Ors. (2006) 3 SCC 330; and Ram Avtar
Patwari and Ors. v. State of Haryana and Ors. (AIR 2007 SC
3242).
12. In view of above, the law can be summarised to the effect
that any appointment made beyond the number of vacancies advertised
is without jurisdiction, being violative of Articles 14 and 16(1) of the
Constitution of India, thus, a nullity, inexecutable and unenforceable in
law. In case the vacancies notified stand filled up, process of selection
comes to an end. Waiting list etc. cannot be used as a reservoir, to fill
up the vacancy which comes into existence after the issuance of
W.P.(C) No.6589/2013 Page 8 of 16
notification/advertisement. The unexhausted select list/waiting list
becomes meaningless and cannot be pressed in service any more.
13. In the instant case, as 13 vacancies of the General Category
had been advertised and filled up, the selection process so far as the
General Category candidates is concerned, stood exhausted and the
unexhausted select list is meant only to be consigned to record room.
24. A person whose name appears in the select list does not
acquire any indefeasible right of appointment. Empanelment at the best
is a condition of eligibility for purpose of appointment and by itself
does not amount to selection or create a vested right to be appointed.
The vacancies have to be filled up as per the statutory rules and in
conformity with the constitutional mandate. In the instant case, once 13
notified vacancies were filled up, the selection process came to an end,
thus there could be no scope of any further appointment.”
7. On behalf of the petitioner, the following arguments are urged
before this Court:-
(i) Petitioner was in the select list of candidates whose validity was one
year in terms of para 8 of the notification dated 21.7.2011, and since within
one year of the panel being created as stated in the said para 8 of the
notification, the term of appointment of Justice R.C. Jain (Retd.) in NCDRC
came to an end, consequently the petitioner was entitled to be appointed
against that vacancy.
(ii) The aforesaid argument is buttressed by the argument that petitioner
was given an offer of appointment in terms of the letter dated 24.8.2012 and
which the petitioner accepted by his letter dated 27.8.2012. Petitioner
W.P.(C) No.6589/2013 Page 9 of 16
claims a conclusive right to be appointed in terms of the offer of
appointment which he accepted more so because according to the petitioner
his name was approved by ACC and the impugned communication gives no
reason for declining the appointment.
(iii) Petitioner claims a right to be appointed on account of his name
existing in the panel in terms of the judgment of the Division Bench of this
Court in the case of Bijender Singh Vs. Govt. of NCT 2012 (190) DLT 340.
8(i) On behalf of the petitioner, in support of the arguments reliance
for the purpose of point no.(i), is placed upon paragraph 7 of the Supreme
Court judgment in the case of Rakhi Ray and Ors. (supra) and which
reads as under:-
“7. It is a settled legal proposition that vacancies cannot be filled up
over and above the number of vacancies advertised as "the recruitment
of the candidates in excess of the notified vacancies is a denial and
deprivation of the constitutional right under Article 14 read with
Article 16(1) of the Constitution", of those persons who acquired
eligibility for the post in question in accordance with the statutory rules
subsequent to the date of notification of vacancies. Filling up the
vacancies over the notified vacancies is neither permissible nor
desirable, for the reason, that it amounts to "improper exercise of
power and only in a rare and exceptional circumstance and in emergent
situation, such a rule can be deviated and such a deviation is
permissible only after adopting policy decision based on some
rational", otherwise the exercise would be arbitrary. Filling up of
vacancies over the notified vacancies amounts to filling up of future
vacancies and thus, not permissible in law. (Vide Union of India and
Ors. v. Ishwar Singh Khatri and Ors. (1992) Supp 3 SCC 84;
Gujarat State Deputy Executive Engineers' Association v. State of
W.P.(C) No.6589/2013 Page 10 of 16
Gujarat and Ors. (1994) Supp 2 SCC 591; State of Bihar and Ors.
v. The Secretariat Assistant S.E. Union 1986 and Ors. AIR 1994
SC 736; Prem Singh and Ors. v. Haryana State Electricity Board
and Ors. (1996) 4 SCC 319; and Ashok Kumar and Ors. v.
Chairman, Banking Service Recruitment Board and Ors. AIR
1996 SC 976).”
(ii) On the basis of aforesaid para which is relied upon it is
contended that there is an exception to the normal rule of the select list
having exhausted once there are rare and exceptional circumstances and an
emergent situation existing and which is argued to exist in the present case.
9(i) In support of the argument of reasons having not been given for
declining the appointment, reliance is placed upon Union of India and Anr.
Vs. Bhaskarendu Datta Majumdar (2010) 9 SCC 38.
(ii) With respect to entitlement to be appointed on account of a
vacancy existing which can be offered to a selected candidate, reliance is
placed upon R.S. Mittal Vs. Union of India 1995 Supp (2) SCC 230.
10. In my opinion, none of the arguments urged on behalf of the
petitioner carry any merit and the writ petition being without merit is
dismissed for the reasons given hereinafter.
11. I have already reproduced the relevant paras of the Full Bench
judgment of this Court and which makes it categorically clear that a select
list exhausts itself on the necessary persons joining. In the present case,
W.P.(C) No.6589/2013 Page 11 of 16
admittedly the advertisement issued was with respect to two vacancies and
two persons joined. In fact, the third member, namely Justice Ajit
Bharihoke (Retd.) also joined, however, in this regard I do not say one way
or the other inasmuch as the appointment of Justice Ajit Bharihoke (Retd.) is
not challenged before me and the stand of the respondents in this regard is
not known. Therefore, once the vacancies stood filled up from the select
list, merely because subsequently a vacancy arises, the same cannot be filled
up from the wait listed candidates. In my opinion, it makes no difference
even if an offer was made to the candidates in the select list inasmuch as that
offer and its acceptance thereof would have no legal basis in view of the
consistent ratio of the Supreme Court in its judgments that wait listed
candidates cannot claim appointments once the requisite number of persons
joined the posts. In fact there was no contract of appointment as the
petitioner was only asked for his consent and no appointment letter was
issued. Also, the judgment in the case of R.S. Mittal (supra) relied on
behalf of the petitioner can have no application because that judgment dealt
with the situation where the denial of appointment was with respect to a
selected candidate for the vacancy against which that select candidate was to
be appointed. Also, the judgment in the case of Bhaskarendu Datta
Majumdar (supra) relied upon by the petitioner again has no application
W.P.(C) No.6589/2013 Page 12 of 16
because that judgment dealt with the aspect of ACC differing with the
recommendation/advice given by Public Enterprises Selection Board (PESB)
and in that context it was observed that when ACC differs with the
recommendations of PESB, then, reasons must be given by the ACC. In the
present case, the issue is not of ACC differing with the recommendations of
PESB and in fact ACC in the present case had originally approved the
selection of the petitioner, albeit which is bound to be in terms of the
petitioner having a legal right to be appointed against an advertised vacancy.
12. That takes us to the argument urged on behalf of the petitioner
by referring to para 7 of the judgment in the case of Rakhi Ray and Ors.
(supra) . No doubt, there are observations in para 7 in the case of Rakhi Ray
and Ors. (supra) that in rare and exceptional circumstances, and in an
emergent situation, the normal/general rule can be deviated from which
provides that select list exhausts itself after the necessary vacancies stand
filled in, however, this argument cannot help the petitioner for two reasons.
Firstly whether there exists a rare and exceptional circumstance or an
emergent situation would not be for the petitioner to decide but for the
appointing authority to decide. Secondly, I do not find that there is any rare
and exceptional circumstance or an emergent situation in the present case
merely on account of the fact that the petitioner was allegedly given an offer
W.P.(C) No.6589/2013 Page 13 of 16
of appointment which he accepted (in fact it was only for a consent) and a
vacancy has subsequently arisen on account of the term of Justice R.C. Jain
(Retd.) as a Member (Judicial) in NCDRC coming to an end. These are
normal circumstances and the same cannot be treated as a rare and
exceptional circumstance or an emergent situation as is sought to be argued
on behalf of the petitioner.
13. No doubt, para 8 of the notification dated 21.7.2011 states the
validity of the panel to be one year and vacancy arising during that period to
be filled in from among the panel, however, surely the letter issued by the
Government department cannot over write a settled law of the land as
consistently laid down by the Supreme Court that a select list exhausts itself
once the necessary appointments are made, and persons who are thereafter in
the waiting list can claim no right to be appointed against future vacancies.
The notification/letter dated 21.7.2011 being against the settled legal
position cannot create any vested right in favour of the petitioner and
therefore the Government was fully justified to direct that advertisement will
be issued for the vacancy which has arisen on account of term of Justice
R.C. Jain (Retd.) as a Member (Judicial) coming to an end. At the cost of
repetition, it may be stated that merely because ACC has declined the
proposal as stated in the letter dated 10.7.2013 addressed to the petitioner
W.P.(C) No.6589/2013 Page 14 of 16
cannot mean that ACC has acted illegally. As already stated above, the wait
listed persons have no legal right to be appointed on vacancies being filled
in.
14. Reliance placed upon by the petitioner in the case of Bijender
Singh (supra) also does not help him because that judgment nowhere states
that although the Supreme Court holds the select list to stand exhausted on
the requisite number of persons joining, yet in terms of a letter or
notification or administrative action there would be an entitlement of a wait
listed candidate to get appointed against a future vacancy. I do not think that
Division Bench holds, and as is argued on behalf of the petitioner that the
Division Bench has laid down a ratio which is against the consistent view of
the Supreme Court that the wait listed person has no right to be appointed
against a future vacancy.
15. In view of the above, I do not find any illegality in the action of
the Government in directing that post of Member (Judicial) in NCDRC
which has fallen vacant on the term of Justice R.C. Jain (Retd.) coming to an
end will be filled up in terms of the fresh selection process and on vacancy
being advertised. Of course, the petitioner if he thinks fit, can always in
accordance with law apply for appointment with respect to the said
advertised vacancy.
W.P.(C) No.6589/2013 Page 15 of 16
16. Writ petition is accordingly dismissed, leaving the parties to
bear their own costs.
OCTOBER 21, 2013 VALMIKI J. MEHTA, J.
Ne
W.P.(C) No.6589/2013 Page 16 of 16
+ W.P.(C) No.6589/ 2013
st
% 21 October, 2013
JUSTICE UDAI KRISHNA DHAON (RETD.) ..... Petitioner
Through: Mr. Shankar Raju, Advocate.
Versus
UNION OF INDIA AND ORS. …Respondents
Through: Mr. Sumeet Pushkarna, CGSC with
Ms. Sana, Advocate for UOI.
CORAM:
HON’BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. By this writ petition, the petitioner who is a retired Judge of the
Allahabad High Court (who was also subsequently appointed as Chairman
of the Railway Claims Tribunal), seeks the relief for being appointed as a
Member (Judicial) of National Consumer Disputes Redressal Commission
(NCDRC) on the ground that his name appears at serial no.5 in the select list
of candidates who were to be appointed.
2. I may at the outset itself note that even as per para 2.8 of the
writ petition, the select list of five candidates of which petitioner was placed
W.P.(C) No.6589/2013 Page 1 of 16
at serial no.5 was with respect to two vacancies of Member (Judicial) in
NCDRC pursuant to the notification dated 21.7.2011.
3. The case of the petitioner is that out of five candidates in the
select list, the first two candidates, namely, Justice J. M. Malik (Retd.) and
Justice K.S. Chaudhary (Retd.) joined. As per the petitioner, against a
subsequent vacancy, Justice Ajit Bharihoke (a retired Judge of this Court)
was asked to join inasmuch as the third person in the select list did not
accept the offer of appointment. Petitioner claims that validity of the panel
is one year in terms of the subject notification dated 21.7.2011 and para 8
whereof categorically states that the vacancy arising during the validity
period of the panel may be filled from among the panel. This para 8 reads as
under:-
“8. The panel of appointment recommended by the Selection
Committee will be valid for a period of one year from the date of the
final meeting of the Committee. Any vacancy arising during the
validity period may be filled from among the panel.”
4. The select list in this case was prepared as per the selection
committee meeting held on 13.2.2012 and petitioner claims that this panel
was operative till 13.2.2013 by virtue of aforesaid clause 8 and in this period
Justice R.C. Jain (Retd.) who was a Member (Judicial) in NCDRC retired in
December, 2012 and therefore petitioner has an entitlement to be appointed.
Petitioner claims that petitioner was asked for his consent for appointment
W.P.(C) No.6589/2013 Page 2 of 16
by the letter dated 24.8.2012 after the Appointment Committee of the
Cabinet (ACC) recommended his name, and the petitioner gave his consent
for appointment vide letter dated 27.8.2012. Petitioner impugns the
communication issued to him on 10.7.2013 stating that the petitioner cannot
be appointed as a Member (Judicial) in NCDRC as a decision has been taken
to advertise the vacancy which has arisen on the term of Justice R.C. Jain
(Retd.) coming to an end.
5. Before proceeding further, at this stage, I would seek to refer to
the relevant paras of the Full Bench judgment of this Court in the case of
Maninder Kaur Vs. Delhi High Court and Ors. (1995) 57 DLT 288 (FB) ,
and which paras hold that a select list/panel exhausts itself once the requisite
number of people who are asked to join, join their posts. The Full Bench of
this Court relied upon various judgments of the Supreme Court and which
held that a person in the waiting list has no right to be appointed on a future
vacancy (which arises subsequently) once the panel/select list exhausts itself
on the necessary number of persons joining. The relevant paras of
Maninder Kaur’s case read as under:-
“36. The office memorandum dated 8th February 1982 is Annexure
P.4 to the writ petition of Malkhan Singh. The said memorandum has
also been reproduced in the decision of the Supreme Court in Prem
Parkash's case. A perusal of the said memorandum shows that it is
applicable in a case where a person is declared successful according to
W.P.(C) No.6589/2013 Page 3 of 16
merit list of selected candidates which is based on the declared
number of vacancies. The responsibility vests on the appointing
authority to appoint such a person even if number of vacancies
undergo a change after his name has been included in the list of
selected candidates. It is thus evident that if a candidate has not been
selected against the declared number of vacancies no right flows to
him on the basis of the aforesaid Memorandum. Mr. Malkhan Singh
had applied against one post reserved for scheduled caste. For that
post Mr. Padam Singh was selected, recommended and ultimately
appointed. Likewise, the declared number of vacancies when Mr.
Sanjay Kaul applied were four which were reserved for scheduled
castes and scheduled tribes It was notified in the advertisement that
these vacancies shall be filled from general category candidates in the
event of suitable candidates from reserved category were not
available. Only one candidate Mr. L.D. Maul belonging to scheduled
castes community was found suitable. No other candidate from
reserve category was found suitable. The High Court, however,
prepared a panel of six candidates of general category. The name of
Respondent Nos. 9, 7 and 8 were at Serial No. 1,2 and 3 respectively
in the panel prepared in 1988. Mr. Sanjay Kaul was at Serial No. 6 on
the panel. There were also other advocates at Serial No.4 and 5 of that
panel. Against the four declared number of vacancies, one from
scheduled caste community and three from general category were
selected. Mr. Kaul cannot claim right to the appointment against a
future vacancy. In case the contention that the entire panel is to be
exhausted irrespective of the number of vacancies which may have
been notified for selection is accepted, it may lead to continuing the
panel in perpetuity which would be arbitrary and would infringe
Article 14 and 16 of the Constitution thereby depriving other eligible
candidates for being considered for public employment. In this regard
we may also notice a recent decision of the Supreme Court in the case
of Gujarat State Deputy Executive Engineers' Association Vs. The
State of Gujarat & Ors. (1995)ILLJ1047SC . The Apex Court has held
that a candidate from the waiting list has no right to claim
appointment to any future vacancy which may arise unless the
selection was held for it. The effect of making appointments of
candidates from the waiting list on candidates who become eligible
for competing for vacancies available in future, was expressed by
Supreme Court in the following words -
W.P.(C) No.6589/2013 Page 4 of 16
"Awaiting list prepared .in an examination conducted by the
Commission does not furnish a source of recruitment. It is
operative only for the contingency that if any of the selected
candidates does not join then the person from the waiting list may
be pushed up and be appointed in the vacancy so caused or if
there is some extreme exigency the Government may as a matter
of policy decision pick up persons in order of merit from the
waiting list. But the view taken by the High Court that since the
vacancies have not been worked out properly, Therefore, the
candidates from the waiting list were liable to be appointed does
not appear to be sound. This practice, may result in depriving
those candidates who become eligible for competing for the
vacancies available in future. If the waiting list in one
examination was to operate as an infinite stock for appointments,
there is a danger that the State Govern- ment may resort to the
device of not holding an examination for years together and pick
up candidates from the waiting list as arid when required. The
constitutional discipline requires that this Court should not permit
such improper exercise of power which may result in creating a
vested interest and perpetrate waiting list for the candidates of one
examination at the cost of entire set of fresh candidates either
from the open or even from service."
37. It is also well settled that empanelment gives no right of
appointment. The Supreme Court in the case of State of Bihar & Ors
Vs. The Secretariat Assistant Successful and Examinees Union 1986
& Ors. AIR1994SC736 has held -
"It is now well settled that a person who is selected does not, on
account of being empanelled alone, acquire any indefeasible right of
appointment. Empanelment is at the best a condition of eligibility for
purposes of appointment and by itself does not amount to selection
or create a vested right to be appointed unless relevant service rule
says to the contrary (See : Shankara and Dash V. (1992)IILLJ18SC
and Sabita Prasad & Ors. Vs .State of Bihar & Ors - AIR1992SC243
. We are, Therefore, of the opinion that the directions given by the
High- Court for appointment of the empanelled candidates according
to their position in the merit list against the vacancies till 1991 was
not proper and cannot be sustained. Since, no examination has been
held since 1987, persons who became eligible to compete for
W.P.(C) No.6589/2013 Page 5 of 16
appointments were denied the opportunity to take the examination
and the direction of the High Court would prejudicially effect them
for no fault of theirs. At the same time, due to the callousness of the
State in holding the examination in 1987 for the vacancies
advertised in 1985 and declaring the result almost three years later in
1990 has caused great hardship to the successful candidates. The
State was expected not to act in such a leisurely manner and treat the
matter of selection for appointment to services in such a casual
manner. We must record our unhappiness on this state of affairs.
There is no justification for holding the examination two years after
the publication of advertisement and declare the result almost three
years after the holding of the examination and not issuing any fresh
advertisement between 1985 and 1991 or holding examination for
making selections. We expect the State Government to act in a better
manner, atleast hereinafter and since Mr. Rao, the learned senior
counsel has shared our concern and assured us of advising the State
Govern- ment accordingly, we say no more on that aspect at this
stage."
38. The decision of the Division Bench in Bhasin's case directing
adjustment against future vacancies results in depriving other eligible
candidates for being considered for the said vacancies. In our view the
ratio of Prem Prakash's case was not correctly applied by the Division
Bench. We may also notice that the Division Bench after rightly
noticing in Para 89 of the aforesaid report that the principle laid down
in Prem Prakash's case will not be attracted seems to have erred in
the later portion of the judgment (Para 106) in directing on
strength of Prem Parkash's case that candidates once selector and
empanelled must be accommodated in future vacancy which came
into existence during the pendency of the writ petition. There are
reasons for preparing larger panel than the number of vacancies.
It is possible that a recommended candidate may not come forth
to join the Service or even after selection and recommendation
there may be hurdles in his appointment like medical clearance
etc. In order to avoid delay in the recruitment, a larger panel is
prepared so that person next on the panel can be recommended
for appointment. This, however, would not mean that in case the
number of selected and recommended candidates to the extent of
the existing vacancies join, the other candidates on panel are
required to be adjusted against future vacancies. As held
W.P.(C) No.6589/2013 Page 6 of 16
hereinbefore, this would lead to continuing the panel in perpetuity
which is neither permissible in law nor in the interest of the
Service.
39. It is also to be borne in mind that there must be a judicially
enforceable right for the enforcement of which a mandamus lies. The
Supreme Court in State of Kerala Vs. A. Lakshmi katty and others,
[1987]1SCR136 has held that a person whose name has been
recommended for appointment as a District Judge by the High Count
under Article 233(1) has no legal right to the post nor was the
Governor bound to act on the advise of the High Court and, therefore
,he could not ask for mandamus. The existence of a right is the
foundation of the jurisdiction of a court to issue a writ of mandamus.
In this view too the law the petitioners have no right to ask for
mandamus for their appointment as ADJ.”
6. I may state that the view of the Full Bench of this Court is in
terms of the decisions of the Supreme Court and which judgments have been
referred to and relied upon in subsequent judgments of the Supreme Court
including the judgment in the case of Rakhi Ray and Ors. Vs. High Court
of Delhi and Ors. (2010) 2 SCC 637 relied upon by the petitioner. The
paras of this judgment holding that people in the waiting list have no right to
be appointed once the requisite number of people join are paras 8,9, 12, 13
and 24 and which read as under:-
“8. In Surinder Singh and Ors. v. State of Punjab and Ors. AIR
1998 SC 18, this Court held as under:
“14…….. ’9. A waiting list prepared in an examination conducted by
the Commission does not furnish a source of recruitment. It is
W.P.(C) No.6589/2013 Page 7 of 16
operative only for the contingency that if any of the selected candidates
does not join then the person from the waiting list may be pushed up
and be appointed in the vacancy so caused or if there is some extreme
exigency the Government may as a matter of policy decision pick up
persons in order of merit from the waiting list. But the view taken by
the High Court that since the vacancies have not been worked out
properly, therefore, the candidates from the waiting list were liable to
be appointed does not appear to be sound. This practice, may result in
depriving those candidates who become eligible for competing for the
vacancies available in future. If the waiting list in one examination was
to operate as an infinite stock for appointment, there is a danger that
the State Government may resort to the device of not holding an
examination for years together and pick up candidates from the waiting
list as and when required. The constitutional discipline requires that
this Court should not permit such improper exercise of power which
may result in creating a vested interest and perpetrate waiting list for
the candidates of one examination at the cost of entire set of fresh
candidates either from the open or even from service”
16. …. Exercise of such power has to be tested on the touch- stone of
reasonableness.... It is not a matter of course that the authority can fill
up more posts than advertised.”
9. Similar view has been re-iterated in Madan Lal v. State of J & K
and Ors. AIR 1995 SC 1088; Kamlesh Kumar Sharma v. Yogesh
Kumar Gupta and Ors. AIR 1998 SC 1021; Sri Kant Tripathi v.
State of U.P. and Ors. (2001) 10 SCC 237; State of J & K v.
Sanjeev Kumar and Ors. (2005) 4 SCC 148; State of U.P. v. Raj
Kumar Sharma and Ors. (2006) 3 SCC 330; and Ram Avtar
Patwari and Ors. v. State of Haryana and Ors. (AIR 2007 SC
3242).
12. In view of above, the law can be summarised to the effect
that any appointment made beyond the number of vacancies advertised
is without jurisdiction, being violative of Articles 14 and 16(1) of the
Constitution of India, thus, a nullity, inexecutable and unenforceable in
law. In case the vacancies notified stand filled up, process of selection
comes to an end. Waiting list etc. cannot be used as a reservoir, to fill
up the vacancy which comes into existence after the issuance of
W.P.(C) No.6589/2013 Page 8 of 16
notification/advertisement. The unexhausted select list/waiting list
becomes meaningless and cannot be pressed in service any more.
13. In the instant case, as 13 vacancies of the General Category
had been advertised and filled up, the selection process so far as the
General Category candidates is concerned, stood exhausted and the
unexhausted select list is meant only to be consigned to record room.
24. A person whose name appears in the select list does not
acquire any indefeasible right of appointment. Empanelment at the best
is a condition of eligibility for purpose of appointment and by itself
does not amount to selection or create a vested right to be appointed.
The vacancies have to be filled up as per the statutory rules and in
conformity with the constitutional mandate. In the instant case, once 13
notified vacancies were filled up, the selection process came to an end,
thus there could be no scope of any further appointment.”
7. On behalf of the petitioner, the following arguments are urged
before this Court:-
(i) Petitioner was in the select list of candidates whose validity was one
year in terms of para 8 of the notification dated 21.7.2011, and since within
one year of the panel being created as stated in the said para 8 of the
notification, the term of appointment of Justice R.C. Jain (Retd.) in NCDRC
came to an end, consequently the petitioner was entitled to be appointed
against that vacancy.
(ii) The aforesaid argument is buttressed by the argument that petitioner
was given an offer of appointment in terms of the letter dated 24.8.2012 and
which the petitioner accepted by his letter dated 27.8.2012. Petitioner
W.P.(C) No.6589/2013 Page 9 of 16
claims a conclusive right to be appointed in terms of the offer of
appointment which he accepted more so because according to the petitioner
his name was approved by ACC and the impugned communication gives no
reason for declining the appointment.
(iii) Petitioner claims a right to be appointed on account of his name
existing in the panel in terms of the judgment of the Division Bench of this
Court in the case of Bijender Singh Vs. Govt. of NCT 2012 (190) DLT 340.
8(i) On behalf of the petitioner, in support of the arguments reliance
for the purpose of point no.(i), is placed upon paragraph 7 of the Supreme
Court judgment in the case of Rakhi Ray and Ors. (supra) and which
reads as under:-
“7. It is a settled legal proposition that vacancies cannot be filled up
over and above the number of vacancies advertised as "the recruitment
of the candidates in excess of the notified vacancies is a denial and
deprivation of the constitutional right under Article 14 read with
Article 16(1) of the Constitution", of those persons who acquired
eligibility for the post in question in accordance with the statutory rules
subsequent to the date of notification of vacancies. Filling up the
vacancies over the notified vacancies is neither permissible nor
desirable, for the reason, that it amounts to "improper exercise of
power and only in a rare and exceptional circumstance and in emergent
situation, such a rule can be deviated and such a deviation is
permissible only after adopting policy decision based on some
rational", otherwise the exercise would be arbitrary. Filling up of
vacancies over the notified vacancies amounts to filling up of future
vacancies and thus, not permissible in law. (Vide Union of India and
Ors. v. Ishwar Singh Khatri and Ors. (1992) Supp 3 SCC 84;
Gujarat State Deputy Executive Engineers' Association v. State of
W.P.(C) No.6589/2013 Page 10 of 16
Gujarat and Ors. (1994) Supp 2 SCC 591; State of Bihar and Ors.
v. The Secretariat Assistant S.E. Union 1986 and Ors. AIR 1994
SC 736; Prem Singh and Ors. v. Haryana State Electricity Board
and Ors. (1996) 4 SCC 319; and Ashok Kumar and Ors. v.
Chairman, Banking Service Recruitment Board and Ors. AIR
1996 SC 976).”
(ii) On the basis of aforesaid para which is relied upon it is
contended that there is an exception to the normal rule of the select list
having exhausted once there are rare and exceptional circumstances and an
emergent situation existing and which is argued to exist in the present case.
9(i) In support of the argument of reasons having not been given for
declining the appointment, reliance is placed upon Union of India and Anr.
Vs. Bhaskarendu Datta Majumdar (2010) 9 SCC 38.
(ii) With respect to entitlement to be appointed on account of a
vacancy existing which can be offered to a selected candidate, reliance is
placed upon R.S. Mittal Vs. Union of India 1995 Supp (2) SCC 230.
10. In my opinion, none of the arguments urged on behalf of the
petitioner carry any merit and the writ petition being without merit is
dismissed for the reasons given hereinafter.
11. I have already reproduced the relevant paras of the Full Bench
judgment of this Court and which makes it categorically clear that a select
list exhausts itself on the necessary persons joining. In the present case,
W.P.(C) No.6589/2013 Page 11 of 16
admittedly the advertisement issued was with respect to two vacancies and
two persons joined. In fact, the third member, namely Justice Ajit
Bharihoke (Retd.) also joined, however, in this regard I do not say one way
or the other inasmuch as the appointment of Justice Ajit Bharihoke (Retd.) is
not challenged before me and the stand of the respondents in this regard is
not known. Therefore, once the vacancies stood filled up from the select
list, merely because subsequently a vacancy arises, the same cannot be filled
up from the wait listed candidates. In my opinion, it makes no difference
even if an offer was made to the candidates in the select list inasmuch as that
offer and its acceptance thereof would have no legal basis in view of the
consistent ratio of the Supreme Court in its judgments that wait listed
candidates cannot claim appointments once the requisite number of persons
joined the posts. In fact there was no contract of appointment as the
petitioner was only asked for his consent and no appointment letter was
issued. Also, the judgment in the case of R.S. Mittal (supra) relied on
behalf of the petitioner can have no application because that judgment dealt
with the situation where the denial of appointment was with respect to a
selected candidate for the vacancy against which that select candidate was to
be appointed. Also, the judgment in the case of Bhaskarendu Datta
Majumdar (supra) relied upon by the petitioner again has no application
W.P.(C) No.6589/2013 Page 12 of 16
because that judgment dealt with the aspect of ACC differing with the
recommendation/advice given by Public Enterprises Selection Board (PESB)
and in that context it was observed that when ACC differs with the
recommendations of PESB, then, reasons must be given by the ACC. In the
present case, the issue is not of ACC differing with the recommendations of
PESB and in fact ACC in the present case had originally approved the
selection of the petitioner, albeit which is bound to be in terms of the
petitioner having a legal right to be appointed against an advertised vacancy.
12. That takes us to the argument urged on behalf of the petitioner
by referring to para 7 of the judgment in the case of Rakhi Ray and Ors.
(supra) . No doubt, there are observations in para 7 in the case of Rakhi Ray
and Ors. (supra) that in rare and exceptional circumstances, and in an
emergent situation, the normal/general rule can be deviated from which
provides that select list exhausts itself after the necessary vacancies stand
filled in, however, this argument cannot help the petitioner for two reasons.
Firstly whether there exists a rare and exceptional circumstance or an
emergent situation would not be for the petitioner to decide but for the
appointing authority to decide. Secondly, I do not find that there is any rare
and exceptional circumstance or an emergent situation in the present case
merely on account of the fact that the petitioner was allegedly given an offer
W.P.(C) No.6589/2013 Page 13 of 16
of appointment which he accepted (in fact it was only for a consent) and a
vacancy has subsequently arisen on account of the term of Justice R.C. Jain
(Retd.) as a Member (Judicial) in NCDRC coming to an end. These are
normal circumstances and the same cannot be treated as a rare and
exceptional circumstance or an emergent situation as is sought to be argued
on behalf of the petitioner.
13. No doubt, para 8 of the notification dated 21.7.2011 states the
validity of the panel to be one year and vacancy arising during that period to
be filled in from among the panel, however, surely the letter issued by the
Government department cannot over write a settled law of the land as
consistently laid down by the Supreme Court that a select list exhausts itself
once the necessary appointments are made, and persons who are thereafter in
the waiting list can claim no right to be appointed against future vacancies.
The notification/letter dated 21.7.2011 being against the settled legal
position cannot create any vested right in favour of the petitioner and
therefore the Government was fully justified to direct that advertisement will
be issued for the vacancy which has arisen on account of term of Justice
R.C. Jain (Retd.) as a Member (Judicial) coming to an end. At the cost of
repetition, it may be stated that merely because ACC has declined the
proposal as stated in the letter dated 10.7.2013 addressed to the petitioner
W.P.(C) No.6589/2013 Page 14 of 16
cannot mean that ACC has acted illegally. As already stated above, the wait
listed persons have no legal right to be appointed on vacancies being filled
in.
14. Reliance placed upon by the petitioner in the case of Bijender
Singh (supra) also does not help him because that judgment nowhere states
that although the Supreme Court holds the select list to stand exhausted on
the requisite number of persons joining, yet in terms of a letter or
notification or administrative action there would be an entitlement of a wait
listed candidate to get appointed against a future vacancy. I do not think that
Division Bench holds, and as is argued on behalf of the petitioner that the
Division Bench has laid down a ratio which is against the consistent view of
the Supreme Court that the wait listed person has no right to be appointed
against a future vacancy.
15. In view of the above, I do not find any illegality in the action of
the Government in directing that post of Member (Judicial) in NCDRC
which has fallen vacant on the term of Justice R.C. Jain (Retd.) coming to an
end will be filled up in terms of the fresh selection process and on vacancy
being advertised. Of course, the petitioner if he thinks fit, can always in
accordance with law apply for appointment with respect to the said
advertised vacancy.
W.P.(C) No.6589/2013 Page 15 of 16
16. Writ petition is accordingly dismissed, leaving the parties to
bear their own costs.
OCTOBER 21, 2013 VALMIKI J. MEHTA, J.
Ne
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