Manoj Manu & Anr. vs Union Of India & Ors
2011 Latest Caselaw 2624 Del

41.
*IN THE HIGH COURT OF DELHI AT NEW DELHI

+       WRIT PETITION (CIVIL) NO. 3297/2011

                                           Date of order: 16th May, 2011

MANOJ MANU & ANR.                   ..... Petitioners
                 Through Ms. Jyoti Singh, Sr. Adv. with
                 Mr. Padma Kumar S., Advocate.

                         versus

UNION OF INDIA & ORS                ..... Respondent
                   Through Mr. Jai Shri Raj with Mr. D.S.
                   Mahendru, Advocates for respondent
                   Nos. 1, 3 & 4.
                   Mr. Naresh Kaushik and Ms. Joymoti
                   Mize, Advocates for UPSC.
    CORAM:
    HON'BLE THE CHIEF JUSTICE
    HON'BLE MR. JUSTICE SANJIV KHANNA

1. Whether Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporter or not ?
3. Whether the judgment should be reported in the Digest ?

SANJIV KHANNA, J.:

        By the impugned order dated 29th March, 2011, the

Central Administrative Tribunal, Principal Bench (tribunal, for

short) has dismissed the Original Application of the petitioners.

2.      The writ petitioners, who were working as Assistant in

Central       Secretariat     Service,    had    appeared       in    Limited

Departmental Competitive Examination, 2005, conducted by

UPSC for appointment to the post of Section Officer's Grade of

W.P. (C) No. 3297/2011                                          Page 1 of 6
 the Central Secretariat Service.    On the basis of information

made available to them under the Right to Information Act, 2005,

they had filed Original Application No. 3511/2010 claiming, inter

alia, that DOP&T by their letter dated 20th November, 2009 had

requisitioned UPSC for five general category vacancies but the

UPSC had recommended names for three vacancies. Thus, the

petitioners have been denied promotion. It is submitted that the

petitioners       had secured marks equivalent    to the three

recommended candidates and, therefore, UPSC has acted in an

arbitrary and discriminatory manner in contravention of the

Fundamental Rights under Articles 14 and 16 of the Constitution

of India.

3.       The petitioners had secured 305 marks, same as secured

by Rajesh Kumar Yadav, who was recommended by UPSC in

the supplementary list of three candidates. However, the tribunal

after examining the scheme of examination has held that ACRs

are seen for determining merit position inter se candidates, who

have secured the some qualifying written test marks. To this

extent, learned counsel for the petitioners has not questioned

the decision of the tribunal.

4.      Learned counsel for the petitioners has, however, relied

W.P. (C) No. 3297/2011                               Page 2 of 6
 upon Clause 4(c) of the Office Memorandum dated 14th July,

1967, which for the sake of convenience is reproduced below:

                "4.(c) Once the results are published,
                additional persons should not normally be
                taken till the next examination. Nor should
                vacancies reported before declaration of the
                results, be ordinarily withdrawn after
                declaration of the results. If, however, some
                of the candidates recommended/allotted for
                appointment against the specific number of
                vacancies reported in respect of a particular
                examination do not become available for one
                reason or another, the Commission may be
                approached, within a reasonable time, with
                request for replacements from reserved, if
                available. When replacements may not be
                available, the vacancies that may remain
                unfilled should be reported to the
                Commission for being filled through the next
                examination."


5.      It is submitted by the counsel for the petitioners that once

requisition is made, it is mandatory for UPSC to issue

supplementary list and recommend the name of the next

candidate on merits. Only when the replacements are not

available and that vacancies go unfilled, they can be made

subject matter of subsequent examination. It is submitted that

the UPSC cannot have a policy contrary to the Office

Memorandum and if there is a conflict between the two, the

Office Memorandum must prevail. Accordingly, it is submitted

W.P. (C) No. 3297/2011                                   Page 3 of 6
 that the tribunal has erred in holding that the policy decision of

UPSC not to issue supplementary list except in cases of "repeat"

or "common" candidates deserves interference and should be

set aside.

6.      We have examined Clause 4(c) of the Office Memorandum

dated 14th July, 1967 but are unable to agree with the

interpretation given by the learned counsel for the petitioners.

The aforesaid clause neither mandates nor gives any direction

to UPSC that they must or should issue a supplementary list if a

department approaches the UPSC within a reasonable time for

replacement from the reserves. The aforesaid clause merely

states that a department can approach UPSC within a

reasonable time for replacement from the reserves but whether

or not UPSC should accept the said request is not a subject

matter of the said Office Memorandum. Accepting the contention

of the petitioners, will be reading or adding words to Clause 4(c),

which are not there. The stand of UPSC has been that

throughout and as a convention, in terms of the policy decision,

they do not issue supplementary list except in two category of

cases, namely, "repeat" or "common" candidates. Repeat

candidates are those candidates, who have participated in same

W.P. (C) No. 3297/2011                                Page 4 of 6
 category in two limited Departmental Competitive Examination

and are successful in the first exam but their results had not

been declared when the second Departmental Competitive

Examination was held. Thus, these candidates are successful in

two limited Departmental Competitive Examinations. Result in

the second limited Departmental Competitive Examination is not

counted and benefit is given to the next candidate on merits.

Common candidates are those candidates, who get selected in

more than one category in the limited Departmental Competitive

Examination. Taking a different view would upset the policy or

convention followed by UPSC for a long time and will create

ambiguity and will lead to confusion. Learned counsel for the

petitioners has not been able to point out any instance when the

said policy has not been acted upon and applied. There is also

logic and reason behind the said policy as Limited Departmental

Competitive Examinations are held periodically and no waiting

list as such is prepared. Limited Departmental Competitive

Examination is held for clear and anticipated vacancies and not

for future vacancies.

7.      For the examination in question, limited Departmental

Competitive Examination was held for 196 vacancies (General

W.P. (C) No. 3297/2011                              Page 5 of 6
 160, SC 17 and ST 19) as intimated by DOP&T.                UPSC

nominated 184 candidates in two lots. Twelve SC vacancies

remained unfilled for want of recommendations regarding

suitable candidates. A supplementary list of three persons was

issued as three selected candidates were "common/repeat"

candidates. It is well settled that a selectee has only right to

consideration but no legally indefeasible right to appointment.

(See Shankarsan Dash versus Union of India, (1991) 3 SCC

47).

8.      In view of the aforesaid, we do not find any merit in the

present petition and the same is dismissed.



                                         SANJIV KHANNA, J.

CHIEF JUSTICE

MAY 16, 2011 VKR