Pramod Kumar And Anr. vs District And Sessions Judge, ...
1996 Latest Caselaw 41 Del

JUDGMENT

Y.K. Sabharwal, J.

 (1) There were 99 temporary vacancies of Lower Division Clerks (LDC's) in the office of District & Sessions Judge, Delhi, as on 30th April 1993 comprising of:-    (a) General Category 66 (b) Scheduled Tribe category 22 (c) Scheduled Caste category 11 Total: 99   

 (2) By letter dated 5th May 1993 these 99 vacancies were notified to Sub Regional Employment Exchange. In pursuance thereof names of about 2000 candidates were sponsored by the Employment Exchange. The selection procedure provided for a written test and a minimum typewriting speed of 30 w.p.m. for candidates who qualify in the written test. After these tests two separate merit lists of the candidates were prepared as under:-    (A)General category : 195 (b) SC/ST category :48   

(3) These two lists were notified/displayed on notice board on or about 29th October 1993. A note was appended to the lists, inter-alia, to the effect that offer of appointment is being despatched to the candidates mentioned at Serial No. 1 to 103 of the list of General category candidates and to the candidates mentioned at Serial No. 1 to 37 in the list of SC/ St candidates. According to the affidavit of the District Judge, soon after the list was displayed it was realised that under the provisions of Sub-section (1) of Section 4 of Employment Exchange (Compulsory Notification of Vacancies)Act, 1954, (for short 'the Act" it was necessary to notify the vacancies to the Employment Exchange and as such before making further appointments immediately a notice was displayed notifying on or about 1st November, 1993 that certain formalities/approvals to fill up further vacancies beyond Serial No. 66 in the case of General category and beyond Serial No. 33 in the case of SC/ST candidates have to be undergone and, therefore, in partial modification of the earlier order issuing of offer of appointment to candidates from Serial Nos. 67 to 103 (General) and Serial Nos. 34 to 37 (in case of Sc candidates) has been deferred for the time being. In due course appointment letters were sent to 66 candidates of General category and 33 candidates of SC/ST category. Letters of appointments were not sent to the petitioners. The name of the petitioner No. 1 is at Serial No. 92 in the merit list of general category candidates and that of petitioner No. 2 is at Serial No. 83.

(4) The District & Sessions Judge vide his letter dated 2nd November, 1993 addressed to Registrar of this Court sought administrative approval of this Court to fill up the additional vacancies of LDCs. It was explained in the letter that the first test to recruit the LDCs was held in 1992 and 161 candidates qualified. It was ' followed by another test between 1992 and March 1993 and 96 candidates qualified. Still it left 99 vacancies i.e. 66 General and 33 SC/ST category. It was also stated that for each time test is held an expenditure of Rs. 10,000.00 approximately has to be incurred. It was stated that in the written test held on 1st August, 1993, 474 candidates qualified and they were called for typing test on 3rd October, 1993. The results were declared on 29th October, 1993. In all, 195 General candidates and 48 Sc candidates qualified. The letter explained that during this period when the names were sponsored by Employment Exchange and test held, 41 vacancies of LDCs arose as a result of resignation and promotion of LDCs etc. and thus it was' decided that in addition to 99 posts earlier notified to Employment Exchange, further posts of 41 LDCs from the qualified candidates be filled. Reference was also made in the letter to the provisions of the Act under which it was necessary to notify the vacancies to the Employment Exchange. It was stated that though sufficient number of persons have qualified they may be appointed to fill up the total vacancies which will ease the staff position and would save time, energy and unnecessary expenditure. The District Judge,therefore, requested that administrative approval may be granted to fill up 41 vacancies of LDCs from the list. This Court -was informed that till the approval is received the District Judge had deferred issuance of offer of appointment to candidates beyond Serial No. 66 in case of General candidates and 33 in case of SC/ST candidates. In a subsequent letter dated 29th March, 1994 the District Judge stated that the appointment from the list of successful candidates beyond the notified number of vacancies would be a slight departure from earlier notified posts and accordingly in accordance with Rule 5, Delhi High Court Rules and Orders Vol.I, Chapter XVIII-A, it is necessary to report the matter to High Court for confirmation. The District Judge was informed by let dated 5th August 1994 sent by the Registrar of this Court that on consideration the entire facts of the case the High Court does not approve of the action suggested in the letter of the District Judge and the Chief Justice had ordered that a fresh test be held by the District & Sessions Judge, Delhi, for filling up 41 vacancies of LDCs on the establishment of District Courts in accordance with the Rules and in conformity with the provisions of the Act. It appears that before filing of these writ petitions these 41 vacancies were filled.

(5) Since the petitioners were not given offer / letters of appointment, they have filed this petition and connected writ petitions, inter-alia, praying that a writ of mandamus be issued directing the respondents to appoint them as LDCs in the office of District & Sessions Judge. Learned Counsel for the petitioners contends that after the list was notified on 29th October, 1993, the petitioners were entitled to be appointed as LDCs. It is contended that before the preparation of the list 41 vacancies had admittedly arisen which were taken into consideration while preparing the select penal and that is why the list notified on 29th October 1993 stated that offer of appointment was being despatched to the candidates mentioned at Serial Nos. 1 to 103 of the list of general candidates and to the candidates mentioned at Serial Nos. 1 to 37 in the list of SC/ST candidates. It is further contended that even the notice dated 1st November 1993 only stipulated completion of certain formalities and obtaining of certain approvals beyond Serial No. 66 in the case of General category and 33 in the case of SC/ST candidates. It is contended that the petitioners being on select panel were entitled to be appointed , as LDCs since admittedly they have passed the written test and have also qualified in the typing test and appointment cannot be denied to them simply on the ground that the vacancies notified to Employment Exchange were 99 and not 140, particularly, when the 41 vacancies have been taken into consideration while preparing the select panel.

(6) In support of the aforesaid contentions, reliance has been placed on behalf of the petitioners on the Office Memorandum dated 8th February, 1982 issued by the Government of India and also on the decision of the Supreme Court in the case of Prem Prakash v. Union of India, and Union of India v. Ishwar Singh Khatri, 1992 Supplement Scc Page 84.

(7) Before we consider this office memorandum and the decisions, it may be stated that in the present case, no select panel as such was prepared. What was displayed on Notice Board was only a list of all those who had qualified in the written test and typing test with note as aforesaid which was withdrawn after about two days when it was realised that under the provisions of the Act, it was necessary to notify vacancies to the Employment Exchange.

(8) The Office Memorandum which has been reproduced in the decision of Prem Prakash (Supra) shows that the responsibility of the appointing authority to appoint a person on the select panel arises when a person is declared successful according to the merit list of selected candidates which is based on declared number of vacancies. The Supreme Court has laid down that the notification shows that there should be no limit on the period of validity of the list of selected candidates prepared to the extent of declared vacancies. Admittedly, in the present case the vacancies notified to the Employment exchange were 99. These 99 vacancies would have to be taken as declared vacancies. The petitioners admittedly did not fall, according to the merit, within the zone of the said declared vacancies. Further, no select panel was prepared. The list notified on 29th October, 1993 was only the list of those who had qualified in the typing test after having passed the written test. The list consisted of 195 General and 48 SC/ST candidates. The note that offer of appointment was being sent to candidates on list from Serial 1 to 137 of general category and 1 to 37 of SC/ST category was withdrawn immediately when it was realised that there was a mistake and on 1st November, 1993 another notice, as stated hereinbefore, was displayed. The note in the list displayed on 29th October, 1993 by itself does not create any right in favour of the petitioners.

(9) Learned Counsel for the petitioners placed strong reliance on the case of Ishwar Singh Khatri (Supra). In our view the said decision also does not advance the case of the petioners any further. In that case the order of the Central Administrative Tribunal, was upheld by Supreme Court on peculiar facts and circumstances of the case, where a select panel of 1492 was prepared against the notified vacancies of 654 but it was not laid down as a proposition of law that vacancies beyond notified number should be filled. On the other hand, the Supreme Court held that selected candidates ordinarily will have a right to appointment against vacancies notified or available till the select list is prepared. The present is not the case of preparation of any select list. Here, no select list was prepared but only a list of candidates who qualified in the tests was displayed.

(10) The Supreme Court in a recent decision in Ashok Kumar & Ors.v.Chairman, Banking Service Recruitment Board & Ors., , has held that the recruitment of the candidates in excess of the notified vacancies is denial and deprivation of the constitutional rights under Article 14 read with Article 16(1) of the Constitution. The Supreme Court says that vacant posts arising or expected should be notified inviting applications from all eligible candidates to be considered for their selection in accordance with their merit. Article 14 read with Article 16(1) of the Constitution enshrined fundamental right to every citizen to claim consideration for appointment to a post under the State. In view of this clear pronouncement we do not think that the petitioners have any right to claim appointment to the post beyond the notified number of vacancies. It may also be noticed that if 140 vacancies had been notified to the Employment Exchange, the names of about 2800 candidates would have been sponsored by the Employment Exchange according to Para 9.16 of National Employment Service Manual Volume 1.

(11) A person who is selected does not, on account of being empanelled alone, acquire any indefeasible right of appointment. The appointment is at 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 rules says to the contrary (See: State of Bihar and Ors. v .Secretariat Assistant Successful and Examinees Union, 1986 & Ors., ).

(12) Reference may also be made to a Full Bench decision of this Court of which one of us (Y.K. Sabharwal, J.) was a member in the case of Mrs. Maninder Kaur v. Delhi High Court and Others, 1994 (4) Delhi Lawyer 290 (FB)=57 (1995) Dlt 288. In the said decision it was held that the question of consideration of a candidate on select panel for being recommended for appointment would arise only when the candidate has been selected against the declared vacancies or in case of some extreme urgency and a candidate on the select list will have no right for appointment against a future vacancy. It was further held that in case the contention that the entire panel is to be exhausted irrespective of the number of vacancies which may have been otified 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.

(13) In Madanlal & Ors. v. State of Jammu & Kashmir & Ors., , the Supreme Court while holding that if requisition is made by the Government for 11 posts the Public Service Commission may send merit list of suitable candidates which may exceed 11 and that by itself may not be bad, has further held that at the time of giving actual appointments the merit list has to be so operated that only 11 vacancies are filled up, because the requisition being for 11 vacancies, the consequent advertisement and recruitment could also be for 11 vacancies and no more. It was further held that actual appointment to the post have to be confined to the post for recruitment to which requisition is sent by the Government. :

(14) In the present case, as already noticed above, in fact, no select panel was prepared. Only a list of those who qualified in the written and type test was displayed. The note appended in the list displayed on or about 29th October, 1993 under a mistaken belief was immediately withdrawn on 1st November, 1993. In our view, on the facts and circumstances of the present case, the petitioners have no right to seek appointments to the post of LDCs. The principles laid down in the decisions noticed hereinbefore would also apply even to cases where requisition is required to be made to the Employment Exchange In case 140 vacancies had been notified to the employment exchange, it would have sent the names of 2800 candidates but names of 2000 candidates were sent as only 99 vacancies were notified. In this manner the grant of relief to the petitioners would, in a way deprive 800 candidates of opportunity to be considered for the post of LDC's. For the aforesaid reasons, the writ petition is dismissed leaving the parties to bear their own costs.