Sujit Singh v. The Union Of India And ORS

IN THE HIGH COURT AT CALCUTTA

[ CIRCUIT BENCH AT PORT BLAIR ] *** WP.CT/75/2023 Sujit Singh Vs.

The Union of India and others Mrs. Anjili Nag ... for the petitioner Mr. Shatadru Chakraborty Mr. Dibesh Dwivedi ... for the respondents January 15, 2024 [Manoj] Item No.12 1.

This application has been filed, challenging the order dated November 28, 2023 passed by the learned Central Administrative Tribunal, Kolkata Bench, Circuit at Port Blair, in OA/351/00671/2020/AN. The applicant had approached the tribunal under Section 19 of the Administrative Tribunal Act, 1985, for certain reliefs. They are summed up hereunder:- a) Order / orders quashing the impugned order dated 25.02.2020 passed by the respondent no. 6 whereby the respondent no. 6 rejected the candidature of the applicant for the post of Assistant Chargeman. b) An order directing the respondent authorities to appoint the applicant in the post of Assistant Chargeman as per the panel list prepared by the authorities.

c) An order directing the respondent authorities to grant all consequential and monetary benefits to the applicant, after appointing him in the post of Assistant Chargeman.

d) An order directing the respondent authorities to act in accordance with law.

e) An order directing the respondents to produce the records of the case before the Tribunal, so that conscionable Justice can be done.

f) Such other or further order direction or directions. 2.

The said application was rejected by the learned Tribunal on the ground that as per the settled principles of law, once the clear and anticipated vacancies had been advertised, appointments could only be made for those vacancies. Vacancies which could not be anticipated before the date of advertisement or the vacancy which did not exist at the time of the advertisement, should be kept for future selection. To put forth the claim against vacancies which could arise later, would lead to a serious constitutional infraction. Candidates who may have become eligible for appointment against the said vacancies due to passage of time, would be deprived, if the wait listed candidates were accommodated against such future vacancies. Such a course of action would be contrary to Articles 14 and 16 of the Constitution of India.

3.

The learned Tribunal held that the petitioner, who was second in the wait list in respect of a selection process arising out of the vacancy notification dated May 10, 2013, did not have any vested right to claim appointment from the said wait list. The selection process was concluded and the successful candidates had joined the post so advertised in the said vacancy notice, Those persons had continued to work, beyond the life of the said wait list.

4.

Miss. Nag, learned advocate appearing for the petitioner submits that the vacancy notice which is annexure P-3 to

the application, clearly stated that the number of vacancies mentioned in serial number 1, against each post, could vary, subject to availability of such vacant post, due to superannuation, death and voluntary retirement or for any reason. The petitioner applied for the post of Assistant Chargeman. The number of vacancy advertised in the general category was 1. The selection process progressed to a certain extent, but thereafter was cancelled. The subsequent vacancy which arose could easily be added to the advertised vacancy in the said post and the petitioner who was wait listed could be pushed up against such vacancies. The vacancy notification had made a provision for such adjustment and variation in the number of notified vacancies.

5.

Learned Advocate next submits that the learned tribunal overlooked the office memorandum dated June 26, 1992, which was operating in the field. On the strength of such memorandum, vacancies occurring in future, could be filled up from the reserve panel/ wait list. The opinion of the learned tribunal that the candidates who were wait listed, could not be adjusted or accommodated against future vacancies which did not form a part of the selection process, was contrary to the purport and meaning of the policy which finds its expression in the office memorandum of 1992.

6.

The memorandum of 1992, should have been applied in this case as the selection process was not complete when the future vacancies arose. In terms of the vacancy notice, the advertised post of Assistant Chargeman could be varied and the vacancies which arose due to promotion

and death, could be taken into account, thereby, varying the vacancy position in the vacancy notice.

7.

Ms Nag, places reliance on departmental notes and communications as also recommendations which indicated that the authorities were agreeable to appoint the two persons from the wait list (one of whom was the petitioner), against the two vacancies which occurred after the advertisement was published.

The said vacancies had occurred within a year from publication of the vacancy notice.

When the Assistant Director (Administration) had already opined that the two vacancies which occurred during the pendency of the selection process could be filled up by the wait listed candidates i.e. the petitioner herein and Deepankar Chowdhury, the authority could not turn around and deny the claim of the petitioner by retracting from such opinion and decision.

8.

The observation of the tribunal that the department had taken a decision to vary the number of vacancies of the Assistant Chargeman only in May, 2019, was incorrect. Such decision had been taken long before, that is, on December 22, 2017. The wait list was alive at the relevant point of time. The Assistant Director (Administration) projected the two vacancies to the department and opined that the same could be filled up by the petitioner and the another candidate namely; Deepankar Chowdhury, both of whose names had appeared in the wait list. According to Ms. Nag, the tribunal erred in holding that the wait list was prepared pursuant to the selection process arising out of the notification dated May 10, 2013 and could not be used against future vacancies. During the selection

process itself and before conclusion thereof, two posts fell vacant. The list was prepared on April 17, 2017 and was operative upto April 17, 2018.

9.

Mr. Chakraborty supports the order of the learned Tribunal and submits that the order does not call for interference as the principles of law settled by the Hon'ble Apex court, do not permit appointment of waitlisted candidates against future vacancies.

10.

For proper appreciation of the issues involved, a narration of the brief facts will be essential.

a) A vacancy notice, for filling up of one post of Assistant Chargeman, one post of Senior Mechanic and two posts of Mechanic, by way of direct recruitment was published by the Directorate of Agriculture on May 10, 2013 in the Daily Telegrams.

b) In response to the said vacancy notice, the petitioner applied along with others for all the posts.

c) The petitioner received a call letter to participate in the trade test which was scheduled to be held on October 28, 2013 and October 31, 2013.

d) The petitioner participated in the said trade test and subsequently, the respondents published the merit list, on November 2, 2013.

e) Based on the marks obtained in the trade test, the respondent directed all the six successful candidates, including the petitioner, to appear for the viva voce for the post of Assistant Chargeman and Senior Mechanic. f) The viva voce test was postponed. Such postponement was notified in the official gazette and by a public notice in the Daily Telegram.

g) Thereafter, the authorities decided to cancel the recruitment process. A press note to that effect, was published on January 6, 2014. It was also notified that the fresh vacancy notice would be published soon after amendment of the recruitment rules.

h) In the meantime, the post of Assistant Chargeman and the Senior Mechanic merged under the designation of 'Assistant Chargeman' vide office order dated October 28, 2014.

i) The petitioner and some others filed OA 351/00012/2014, praying for setting aside of the order dated January 6, 2014 by which the recruitment process was cancelled.

j) The original application was dismissed by the tribunal, by an order dated December 12, 2015.

k) The petitioner and others filed WPCT/206/2016 before the High Court at Calcutta, Circuit Bench at Port Blair. By order dated September 9, 2016, the High Court set aside the order of the tribunal and further directed that the selection process must be continued. l) Upon merger, the vacancy notice of May 10, 2013 was varied and two posts of Assistant Chargeman were notified.

m) The review petition filed by the Administration against the said order, was also dismissed by the High Court. n) Thereafter, the respondents continued with the selection process and conducted the viva voce test for six candidates including the petitioner, who had already passed the trade test as per the list published on October 13, 2013.

o) On recommendation of the Selection Committee, as per the meeting held on April 15, 2017, two successful candidates were appointed to the post of Assistant Chargeman namely; P. Zamul Abid and Shri P Senthil Kumar.

p) Four candidates were kept in the reserve list. The name of the petitioner appeared in serial number 2 in the said wait list/reserve list.

q) After publication of reserve list dated April 17, 2017, the petitioner submitted a representation on February 5, 2018 before the Secretary (Agriculture), Andaman and Nicobar Administration for consideration of his candidature against one of the two posts which fell vacant in the department.

r) Petitioner relied on the recruitment rules which stated that although 33.1/3% was to be filled by transfer, due to unavailability, the post within the said quota could be filled by direct recruitment. When there were no candidates available on transfer for the purpose of filling up the said vacant posts under 33-1/3%, quota, the petitioner who was wait listed in the direct recruitment process, should be accommodated against one of the said promotional posts. The recruitment rules provided that 33-1/3% of the posts could be filled by direct recruitment in case of non-availability of the candidates in the said quota.

s) The two posts had fallen vacant prior to the expiry of the wait list. As the representation was not considered, the petitioner filed Original Application No.

351/353/2018/AN before the learned tribunal,

seeking appointment in one of the two posts of Assistant Chargeman, which had fallen vacant. t) The original application was dismissed. The petitioner moved the High Court by filing WPCT/113/2018. The High Court directed the learned tribunal to rehear the matter.

u) Pursuant to such direction, the learned tribunal heard the matter and directed that the respondents should take a decision by granting appropriate benefit to the petitioner as already noted in the file, if nothing stood in the way and to pass a reasoned and speaking order within a stipulated time, to such effect.

The respondents were also directed not to fill up the vacancies. It was directed that no appointment letter should be issued in favour of any other person, until the decision was taken.

v) In the said order, the learned tribunal observed that two posts had fallen vacant, as One Mr. K.

Muthukannu expired in 2013 and Shri Santosh Kumar was promoted to the post of Chargeman in the year 2014. Approval was already sought for by the Assistant Director (Administration) for filing up the post from the wait list as no candidate on transfer or mechanics was available.

w) In the light of the above direction of the tribunal dated June 6, 2019, the respondents re-examined the case of the petitioner and by an order dated February 20, 2020, rejected the claim. Such order was impugned in OA 351/00671/2020/AN.

x) The learned tribunal considered the submissions of the respective parties and the laws applicable and

rejected the original application, with reasons. The legality of the said order has been challenged before us.

11.

The first contention of Ms. Nag is that the office memorandum of June 6, 1992 had not been considered by the learned tribunal. The office memorandum dated June 6, 1992 deals with preparation of panel. The said office memorandum is based on the instructions given by the Government of India. It says that the validity of a panel prepared against promotional quota, should be limited to one year. Although there was no fixed life of a panel prepared against a post for direct recruitment, according to the Government of India's instructions, a panel prepared for direct recruitment should not be unduly inflated and should take care of immediate vacancy and those which were likely to occur in the near future. A maximum of 10% additional persons could be kept on the panel against the existing vacancy or the vacancy likely to occur in the near future.

12.

It was observed that the instruction of the Government was not being followed by the departments under the Andaman and Nicobar Administration. It was brought to the notice of all that the future panel for promotion as well as direct recruitment against the various posts, should be prepared strictly in accordance with the instructions issued by the Government of India from time to time. In our view, this office memorandum was in the nature of an instruction to as how a panel should be prepared and the panel should not unnecessarily be inflated. A maximum of additional 10%, against each vacancy, could be wait listed for filling up of the post

immediately or in future. Only because the said instruction mentions that the panel could be utilized for vacancies likely to occur in the near future, it does not become an administrative decision which could operate as a direction to fill up future vacancies from the wait list. The petitioner does not acquire any vested right to be appointed against those vacancies which arose in the midst of the selection process in terms of vacancy notice dated May 10, 2013. Although vacancy notice dated May 10, 2013 mentions that the vacancy position could be varied, no such advertisement was published by increasing the number of the said vacancies, and by incorporating the vacancies, upon conversion of the same to posts to be filled up by direct recruitment. 13.

In this case, the trade test had been completed. Thereafter, the authorities had cancelled the entire recruitment process. The same was resumed as per the direction of the Court. The process was resumed from the stage of viva voce test, which was the last limb of the selection process. As the post of Chargeman and Senior Mechanic merged in the meantime, the vacancy notice was varied by increasing the vacancy of Assistant Chargeman to two posts, The vacancy notice notified one vacancy for Assistant Chargeman and one vacancy for Senior Mechanic. After the viva voce test, two persons were selected. They joined and started working. 14.

The memorandum of 1992, does not create any right of appointment. It is a departmental communication by the Secretary (Personnel), A & N Administration, Secretariat to all the Secretaries and Heads of various departments

as to how to prepare the wait list and follow the instructions of the Government of India.

15.

The procedure for appointment of the Assistant Chargeman has been described in Schedule II of Andaman and Nicobar (Group 'C' posts of Department of Agriculture) Recruitment Rules, 2010. In the said rules, it has been stipulated that - " (i) 33-1/3rd % of posts were to be filled by "Transfer" from amongst the Mechanics of the department in the pay scale of PB-I Rs.5200-20200/- G.P. - Rs.1900/- having regular service in the grade and who possess ITI certificate in the field subject ot quality in the departmental trade test failing which by direct recruitment.

AND (ii) 66-2/3rd % of the post by way of Direct Recruitment." 16.

The petitioner participated in the selection process against the vacancy which fell within the 66-2/3% of the posts, to be filled up by the direct recruitment as per the rules.

Upon scrutiny of the application, eligible candidates were called for the trade test. After completion of the trade test, the merit list was published. Names of six successful candidates were notified and they were called for viva voce. Due to various complications and complaints, the authorities cancelled the process. 17.

After cancellation of the recruitment process, upon implementation of the 6th CPC, three posts of the Assistant Chargeman and five posts of Senior Mechanic merged and a common cadre of Assistant Chargeman was created. After such merger on October 28, 2015, the total

sanctioned post for the post of Assistant Chargeman became eight. It is pertinent to note that after the publication of vacancy notice dated May 10, 2013 and preparation of the list of successful candidates at the trade test and at the stage of conducting viva voce test for direct recruitment, two vacancies opened up in the 331/3%, to be filled by transfer from amongst Mechanics having Grade pay of Rs.1900/-. Upon the death of Shri. K. Muthukannu on February 9, 2014 and promotion of Shri C. Santhos Kumar on May 29, 2014, these two posts had fallen vacant. The said recruitment process for direct recruitment which was cancelled, revived on an order of Court and was reached to its logical conclusion by which two successful candidates joined and continued to work. 18.

Only because there was a proposal and an administrative notice that the petitioner (who had qualified for appointment as a Assistant Chargeman and) Dipankar Chowdhury could be appointed against the subsequent posts which fell vacant, as no promotional candidates (candidates by transfer from mechanic) were available, it would not create any right in favour the petitioner to be appointed from the wait list which was prepared in respect of the selection process for direct recruitment. All the notified vacancies had been filled up.

19.

The recruitment rules provide that in the absence of candidates by transfer within the 33 -1/3% quota, the post could be filed up by direct recruitment. In our opinion, there has to be an office order/decision for such conversion and an advertisement to such effect. A publication/notification by open invitation to the eligible candidates to apply for such posts should have been to be

made. Here, no such decision was taken. Moreover mere notings in the file would not create a right in favour of the petitioner, as no decision to that effect had been communicated to the petitioner. A nod from the competent authority was awaited.

20.

In Mahadeo & others vs. Smt. Sovan Devi and others. 2022 LiveLaw (SC) 730, it was held that - "15. This Court in Municipal Committee v. Jai Narayan & Co.7 held that a noting recorded in the file is merely a noting simpliciter and nothing more. It merely represents expression of an opinion by the particular individual. It was held as under:

16. This Court in a judgment reported as State of Uttaranchal v. Sunil Kumar Vaish, (2011) 8 SCC 670 held that a noting recorded in the file is merely a noting simpliciter and nothing more. It merely represents expression of opinion by the particular individual. By no stretch of imagination, such noting can be treated as a decision of the Government. It was held as under: "24. A noting recorded in the file is merely a noting simpliciter and nothing more. It merely represents expression of opinion by the particular individual. By no stretch of imagination, such noting can be treated as a decision of the Government.

Even if the competent authority records its opinion in the file on the merits of the matter under consideration, the same cannot be termed as a decision of the Government unless it is sanctified and acted upon by issuing an order in accordance with Articles 77(1) and (2) or Articles 166(1) and (2). The noting in the file or even a decision gets culminated into an order affecting right of the parties only when it is expressed in the name of the President or the Governor, as the case may be, and authenticated in the manner provided in Article 77(2) or Article 166(2). A noting or even a decision recorded in the file can always be reviewed/reversed/overruled or overturned and the court cannot take cognizance of the earlier noting or decision for exercise of the power of judicial review. (See State of Punjab v.

Sodhi Sukhdev Singh AIR 1961 SC 493, Bachhittar Singh v. State of Punjab, AIR 1963 SC 395, State of Bihar v. Kripalu Shankar (1987) 3 SCC 34, Rajasthan Housing Board v.

Shri Kishan (1993) 2 SCC 84, Sethi Auto Service Station v. DDA (2009) 1 SCC 180 and Shanti Sports Club v. Union of India (2009) 15 SCC 705)." 17. Thus, the letter seeking approval of the State Government by the Deputy Commissioner is not the approval granted by him, which could be enforced by the plaintiff in the court of law.

16. The basis of the claim of the writ petitioner is a letter written by the Secretary of the Soldier Welfare Department to the District Collector, Udaipur on 19.03.1971 for allotment of land. The Rules contemplate that if the possession is not taken within 6 months, the allotment shall be deemed to have been cancelled. Firstly, the inter-departmental communication dated 19.03.1971 cannot be treated to be a letter of allotment. Alternatively, even if it is considered to be a letter of allotment, the writ petitioner could not claim possession on the basis of such communication after more than 30 years in terms of the Rules applicable for allotment of land to the disabled exservicemen." 21.

In Union Territory of Ladakh and others vs. Jammu and Kashmir National Conference and another, Civil Appeal No. 5707 of 2023 (SLP (Civil) No. 18727 of 2023), it was held that - "... The Legal Opinion by the Law Department remains internal advice, and advice alone, and as such, the learned ASG was correct in contending that the same would not create/confer any right in favour of R1. In Mahadeo v Sovan Devi, 2022 SCC OnLine SC 1118 (where one of us, Vikram Nath, J. was part of the coram), the Court, after considering various case-laws, held that "It is well settled that interdepartmental communications are in the process of consideration for appropriate decision and cannot be relied upon as a basis to claim any right. ..."

22.

The contentions of Ms. Nag that a combined reading of the office memorandum of 1992 and the recruitment rules, would necessarily mean that the wait listed candidate could be accommodated against the two future

vacancies, cannot be accepted. Accepting this proposition would mean denial of equal opportunity to all, in matters of appointment to public posts.

23.

The service Rule and the office memorandum cannot be held to mean that the wait list which had been prepared in a particular selection process could be used as a source of appointment future vacancies which opened up in the promotional category. Such argument would be in complete violation of the constitutional mandate. The vacancy in the promotional post (transfer) which occurred due to death and promotion of two Assistant Chargeman could not be included in the selection process for direct recruitment, mid way.

24.

The learned tribunal meticulously considered the facts, dealt with the same and applied the law. The tribunal considered the memorandum of 1992 and observed that the vacancy which occurred subsequently, were not part of the vacancy notice dated May 10, 2013. The vacancy arose after the selection process for direct recruitment had progressed to a considerable extent. Only because the vacancy arose during the subsistence of the waiting list prepared for another selection process, the said waiting list could not be used as a reservoir for appointment. The waiting list was only applicable to the notified vacancies. In the event those were either not filled up or the selected candidates did not join, the petitioner could be appointed.

25.

The settled principles of service jurisprudence were considered by the tribunal. When vacancies were notified for conducting a selection process, for appointment to a public posts, the number of appointments could not

exceed the vacancies which were notified. Appointment could not be made over and above the vacancies advertised. Such proposition of law was applied for the simple reason that by the time the two vacancies in the 33 - 1/3% quota had opened up, even assuming that candidates by transfer from mechanics (promotion) were not available, the said vacancies could not have been filled up by direct recruitment from the wait list. The candidates who were not eligible when the vacancy notification dated May 10, 2013 was published may have acquired the eligibility within the period when the vacancies arose and by the time the wait list was prepared in 2017.Such candidate would then be deprived from competing for the posts.

26.

The waiting list prepared, was linked to the selection process for which it was prepared. The petitioner would have had a claim, if the selected candidates did not join the advertised posts. Once the selected candidates joined the posts there were no vacancies remaining for the posts advertised and the waiting list had become non operational. Wait listed candidates did not have any right to be selected against future vacancies.

27.

If the waiting list in the recruitment process initiated on the vacancy notice of May 10, 2013, was to operate as a list of eligible candidates for filling up vacancies which arose in the promotional posts, the same would be contrary to the constitutional discipline. The same may also result in improper use of power. A right would be created in favour of the wait listed candidates of one examination, at the cost of depriving an entire set of fresh candidates.

28.

Ms Nag contends that after the learned tribunal had directed in OA No. 351/353/2018 that the respondents should consider to fill up the posts from the wait list, was also accepted by the department, as indicated in the department's note appear at page 208.

29.

We find that the learned tribunal had observed in the order, how the authority should consider the issue of appointment of the candidates and had directed the authorities to consider the candidature in the light of such observations. There was no mandatory direction upon the respondents. The tribunal has also observed that the appointment should be given from the wait list, provided nothing stood in the way.

Paragraph 5 of the order is quoted below:- "Since the Assistant Director (Admn), as evident from the note extracted supra, felt that the two vacant posts of Assistant Chargeman may be filled up by issuing appropriate posting order to Shri Sujit Singh, applicant herein and Shri Deepankar Choudhury who figured in the waiting list but a nod from the competent authority is awaited, let a decision to that effect be taken by the competent authority, by granting appropriate benefits to the applicant and the other wait listed candidate namely Shri Deepankar Choudhury, if nothing stands in their way.

30.

Based on the said direction, the authority passed the order and assigned reasons for rejecting the claim of the petitioner. In any event, we have already discussed the legal effect of a departmental note.

31.

Ms. Nag refers to the decision in Virender S. Hooda vs. State of Haryana reported in 1993 (3) SCC 696. The Hon'ble Apex Court held that when a policy had been declared by the state as to the manner of filling up of

posts and the policy was declared in terms of rules and instructions, the respondents were bound to follow the same. The said decision will not apply in the instant case. The office memorandum of the 1992 cannot be treated as a policy which had declared that all future vacancies which arose should be filled up from the waiting list prepared in respect of another recruitment process, provided the waiting list was still operative. 32.

The decision referred to by Ms. Nag in the case of Prabir Sinha Roy vs. The Hon'ble the Chief Justice, High Court, Calcutta reported in 1996 (2) Cal. H.C.N. 497, shall also not be applicable in this case, in view of the law laid down by the Hon'ble Apex Court.

33.

In Surinder Singh & Ors. vs. State of Punjab & Ors. AIR 1998 SC Page 18, it was held that a waiting list prepared in an examination conducted by the Commission did not furnish as a source of recruitment. It was operative only for the contingency that if any of the selected candidates did not join, then the persons from the waiting list may be pushed up and be appointed. Thus, the purpose of the waiting list was only to provide a candidate to fill the vacancy on the non-joining of the selected candidate. 34.

In State of Punjab vs. Raghbir Chand Sharma & Anr. AIR 2001 SC 2900, only one post was advertised and the candidate whose name appeared at serial No. 1 in the select list joined the post, but subsequently resigned. The Court held that the post could not be filled up by offering appointment to the next candidate in the select list. It was held that select list prepared, ceased to exist as soon as one of the selected candidates joined and the vacancy

arising on account of the resignation of the appointed candidate, could not be filled up from the select panel. 35.

A similar view was expressed by the Supreme Court in Manoj Manu & Anr. vs. Union of India & Ors. (2013) 12 SCC 171. In the said case, the court observed that there were two situations, Situation A- where the candidate who had initially joined but subsequently resigned/quit, thus resulting in creation of vacancies again and Situation-B- where out of the recommended candidates, some candidates did not join at all. In Situation-A, when the selected candidate joined and subsequently resigned, the vacancy notified got exhausted and the vacancies arising thereafter had to be filled up by fresh examination.

36.

In Mukul Saikia vs. State of Assam AIR 2009 SC 747, the court held that appointment could not be made of more than the number of posts advertised.

Once the appointments were made against the advertised posts, the select list got exhausted and those who were placed below the last selected and appointed candidate, could not claim appointment against the post which subsequently became available.

37.

That apart, it was settled by the Hon'ble Five Judges Constitutional Bench of the Supreme Court in Shankarsan Dash vs. Union of India & Ors. (1991) 3 SCC 47, that the candidates included in the merit list has no indefeasible right to appointment, even if a vacancy existed. When the selected candidate has no indefeasible right for appointment, there was hardly any chance for the wait listed candidate to seek appointment as of right

in the event of opening up of existence of a vacancy in future.

38.

In Raj Rishi Mehra & Ors. vs. State of Punjab & Ors. AIR 2013 SC 3580, it was observed that the question whether the candidates whose names were included in the waiting list were entitled to be appointed against the unfilled post as of right, must be answered in the negative in view of various earlier precedents of the Supreme Court. 39.

Accordingly, the application is dismissed.

40.

Parties are directed to act on the server copy of this order. ( Shampa Sarkar, J. ) (Tirthankar Ghosh, J.)