Bhagwan Dass vs Chairman-Cum-Managing ...
1996 Latest Caselaw 912 Del

JUDGMENT

Devinder Gupta, J.

(1) Petitioner has sought direction against the respondents commanding them to appoint him to the post of Assistant Civil Engineer in the pay scale of Rs.2285-3396 against the vacancy reserved for Scheduled Caste candidate with retrospective effect, namely, the date on which the select panel was approved by the Chairman-cum-Managing Director, Indian Airlines.

(2) It is alleged that on 25.7.1981 an advertisement was issued by the Personnel Department of Indian Airlines inviting applications from serving employees for various posts, including one post of Assistant Civil Engineer in pay scale of Rs.2285-3395, which vacancy was reserved for Scheduled Caste candidate. Petitioner duly applied and through letter dated 11.2.1992 was called for written test, which was scheduled to be held on 23.2.1992. Having successfully qualified the written test, through letter dated 5.6.1992 he was called for interview scheduled to be held on 30.6.1992. As a result of the written test and oral interview he was duly selected and on 2.12.1992 the proceedings of the Selection Board were duly approved by the competent authority, namely, the Chairman-cum-Managing Director.

(3) Writ petition was instituted on 24.11.1993 alleging that though the petitioner had been duly selected and proceedings of duly constituted Board were duly approved by the Chairman, the respondent denied appointment to the petitioner against the said post. It is alleged that a complaint was got fabricated against the petitioner, which was received by the Department on 11.10.1993 in which it was stated that the petitioner had committed an irregularity by selling the flat, which had been purchased by him with the loan advanced to him by the department and, thus, there has been misutilisation of the amount of loan. The petitioner's case is that neither on the date of issuance of advertisement for the post in question, nor on the dates when selection was made and panel was approved by the competent authority, any complaint was pending. On approval of the panel he was entitled to be appointed to the post in question, which appointment had been denied to him by the respondents illegally and arbitrarily. It is also the petitioner's case that since no complaint was pending on the aforementioned relevant dates direction, as prayed, deserves to be issued against the respondents to appoint him with retrospective effect of selection/approval of the panel.

(4) Respondents filed their reply on the affidavit of S. Vinoo Kashyap, Director (Corporate Affairs) of respondent Airlines stating that the petitioner was selected for the post of Assistant Civil Engineer. Though in the advertisement dated 25.7.1991 pay scale of Assistant Civil Engineer was mentioned as Rs.2285-3395 but later through a telex message dated 14.8.1991 it was communicated to all personnel managers of all the regions that the post of Assistant Civil Engineer carries the pay scale of Rs.2005-2965. It was against this post that selection process was started and the petitioner was selected. The proceedings of the selection board were duly approved by the competent authority on 2.12.1994. Validity of the penal, after extension expired on 15.7.1994. It is also stated that prior to formation of the panel eight overseers, senior to the petitioner, had been appointed to the posts of Civil Engineer as a part of one time exercise, as per the agreement reached between Air Corporations Employees Union and the respondents. This one time exercise overlapped with the selection exercise of the petitioner and led to adjustment of two scheduled caste vacancies in the roster. The two scheduled cast candidates were also senior to the petitioner. The matter was thereafter examined by the respondents and it was found that the petitioner would have been appointed against the scheduled caste vacancy but for one time exercise, which was carried out to remove stagnation amongst senior Overseers. Accordingly the Chairman and Managing Director of the respondent on 2.11.1993 released one vacancy to be filled by appointing the petitioner against the post of Assistant Civil Engineer in the pay scale of Rs.2005-2965.

(5) It is further stated in the reply affidavit that the requirement of the Indian Airlines Rules, prevalent at the relevant time, when an appointment of an employee to a higher post was to be made was that the employee to be appointed/promoted should not have any disciplinary or vigilance case pending against him. In the case of the petitioner, who was to be appointed to the post of Assistant Civil Engineer, a disciplinary/vigilance clearance was sought from Director (Vigilance), who on 20.10.1993 intimated that a complaint had been received against the petitioner alleging mis-use of house loan sanctioned to him. Reply affidavit states that the complaint was under investigation. Director (Vigilance) had written to Deputy C.E.(Civil), Headquarter on 12.1.1994 that the petitioner be advised to report to the Director (Vigilance) on 4.1.1994 in connection with the invistigation. Director (Vigilance) had further reported that the petitioner had intentionally and deliberately been stalling the progress of the enquiry. In the light of these averments in the reply affidavit, it was stated that the petitioner could not be appointed to the post of Assistant Civil Engineer for want of clearance from the Vigilance department.

(6) In addition to the initial pleadings the parties filed further and additional affidavits. In view of the additional pleadings, which were exchanged the position which now emerge is that presently disciplinary proceedings are pending and are in progress against the petitioner with respect to the misutilisation of the housing loan. The same are stated to be at an advanced stage.

(7) We have heard counsel for the parties and been taken through the entire record.

(8) In view of the affidavits and reply that it was due to an inadvertent mistake that in the advertisement pay scale for the post of Assistant Civil Engineer, was mentioned as Rs.2285-3395, we have to proceed on the assumption that the correct pay scale for the post of Assistant Civil Engineer carries the pay scale of Rs.2005-2965. Learned counsel for the petitioner has also not tried to controvert this position. Other relevant facts not having been disputed, the short question which calls for consideration would be as to whether, irrespective of pendency of the disciplinary proceedings, relief can or cannot be granted to the petitioner by directing the respondents to appoint him to the post in question.

(9) Learned counsel for the petitioner has placed reliance upon the decision of the Supreme Court in Union of India and others v. K.V. Jankiraman and others, , on the proposition that if on the date of selection of a candidate by competent authority no charge sheet or departmental enquiry is pending, such an employee would be entitled for promotion. Reliance has also been placed on four other decisions reiterating the same proposition, namely, Union of India v. Tejinder Singh, , Delhi Development Authority v. H.C. Khurana, , Union of India v. Kewal Kumar, ; and State of Madhya Pradesh and another v. Syed Naseem Zahir and others, 1993 Supp.(2) Scc 225.

(10) To the settled proposition of law laid down in the aforementioned decision there is no challenge made by the learned counsel for the respondents. But it has been contended that it is not a case of promotion of an employee to a higher post to which the ratio of the aforementioned decisions will apply. It is a case of apointment of an in-service candidate to a post which was advertised. Even if the petitioner had been selected, he cannot seek a direction to appoint him to the post.

(11) The facts are not in dispute that pursuant to the advertisement the petitioner, in the selection process was duly selected and the select list was duly approved by the Chairman-cum-Managing Director. Before effect could be given thereto a few developments, which in the meanwhile took place, came to the notice of the respondents.

(12) Prior to the formation of panel the respondent had already, as a part of one time exercise, appointed eight Overseers to the posts of Civil Engineers, which also led to the adjustment of two scheduled caste vacancies. All were senior to the petitioner. No person junior to the petitioner was appointed to the post of Assistant Civil Engineer. Considering the development, which had taken place, Chairman and Managing Director of the respondents on 2.11.1993 released one vacancy to be filled by appointment of the petitioner. As per the requirement of the recruitment regulations of respondent Airlines it was necessary to have obtained clearance from the Vigilance Department that no disciplinary or vigilance case was pending against the petitioner. It was noticed that a vigilance case was pending against the petitioner, on the basis of a complaint recorded received misutilisation of housing loan. The respondent felt that in the absence of clearance from vigilance, it may not be possible to appoint the petitioner since it would be contrary to the service regulations.

(13) To the facts and circumstances of the case as noticed above the ratio of the aforementioned decisions cannot be made applicable. It is not a case of promotion of an employee, but is a case of appointment of an in-service candidate to a higher post. Had it been a case of promotion, the ratio of the aforementioned decision would squarely apply. It is a case of an in-service candidate who has been duly selected seeking direction to appoint him. The law on the right of a candidate, who is duly selected in the selection process to seek direction for being appointed on the post is well settled. The Constitution Bench in Shankarsan Dash v. Union of India, , reiterated the position saying that it cannot be said that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed, which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. The decision not to fill up the vacancies has to be taken bonafide for appropriate reasons. and if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates.

(14) On the application of the ratio of the decision of the Constitution Bench, it will not be permissible, in exercise of our writ jurisdiction to direct the respondents to offer appointment to the petitioner to the post in question unless it is found that the decision not to offer the appointment was takenmalafide. The reason assigned by the respondents not to offer the appointment is that it was due to pendency of the vigilance case against the petitioner, after receipt of complaint by the respondents, regarding mis- utilization of housing loan. Prior to the preparation and approval of penal by the Chairman-cum-Managing Director, as a one time exercise, pursuant to the set tlement, which had been arrived at with the Association, promotions had been made of persons senior to the petitioner. The Chairman thereafter released one post for being filled up by the petitioner. At that stage a complaint was received and now disciplinary proceedings are under process. It is not a case of promotion but of appointment. The respondents cannot be said to have acted illegally or arbitrarily in getting a clearance from the Vigilance Department before offering appointment to the petitioner. It was at that stage that it was noticed that the petitioner could not be appointed to the post till vigilance gives a clearance. No person junior to the petitioner has been appointed.

(15) Consequently, direction can not be issued against the respondents as prayed for and the writ petition deserves to be dismissed. Ordered accordingly. It is, however, made clear that the dismissal of the writ petition will not prevent the respondents in issuing order of appointment to petitioner in accordance with law on finalization of the disciplinary proceedings and in case any person junior to the petitioner is appointed, the appointment of petitioner will relate back to the date on which his junior is appointed to the post in question.