* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 01.04.2013
+ W.P.(C) 348/2013
SH. ARVIND PRATAP SINGH ......Petitioner
Through: Sh. K.K. Jha, Advocate.
Versus
UNION OF INDIA AND ANR. ..... Respondents
Through: Sh. Rajan Sabharwal with Ms. Seema Singh, Advocates.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA
MR. JUSTICE S. RAVINDRA BHAT (OPEN COURT)
% C.M. NO. 722/2013 (for exemption) Allowed, subject to just exceptions.
W.P.(C) 348/2013 & C.M. NO. 721/2013 (for directions)
1. In the present writ proceeding, the petitioner seeks directions to the respondent Railway Protection Force (hereafter referred to as "RPF") to process the selection process and fill six vacancies notified for the post of Inspector (Prosecution) and Sub-Inspector (Prosecution) earmarked for Ex-servicemen.
2. The brief facts are that applications were invited through
W.P.(C) 348/2013 Page 1 advertisement, from the eligible male and female candidates for filling up the Post of Inspector (Prosecution) and Sub-Inspector (Prosecution) in the RPF, by Employment Notification No. 1/2009 dated 14.11.2009 published in the Employment News for the week starting 14th to 20th November, 2009. Standing Order No.89 dated 12.06.2009 had been issued with respect to recruitment for the post of Inspector (Prosecution) and Sub-Inspector (Prosecution).
3. The advertisement indicated 58 vacancies for the posts of Inspector (Prosecution). Of the 58 vacancies, the candidates were to be selected from the different categories in the following manner:
UR OBC SC ST Total Male 20 14 05 07 46 Female 02 02 01 01 06 Ex- 06 Serviceme n Grand 58 Total
4. The Petitioners, after coming to know about the vacancies for the posts of Inspector (Prosecution) in the Railway Protection Force, applied for the post under the unreserved (UR) category (male) and were allotted Roll Nos. 300002, 101027, 300017, 101345 & 101217 respectively. On 30.01.2011, all of them appeared for the written examination, after qualifying the physical tests, and were declared successful. During 18th-22nd August, 2011, the viva voice for the recruitment was held and in October-November, 2011 results were declared. As per the result sheet, 49 male and 2 female candidates were selected against the vacancies of 58 posts. The petitioners' Roll
W.P.(C) 348/2013 Page 2 numbers did not find a mention in the list of final selected candidates.
5. The petitioners allege that they tried to seek information about their marks through applications under Right to Information Act to the respondents and also about the supplementary list prepared by the latter, in terms of provisions contained in Clause 12 of the Standing Order (of 12.06.2009). They were given information about the marks they obtained in the examination and cut-off marks for the UR categories but no satisfactory answer was given regarding the supplementary list and other material questions asked by the petitioners. In these circumstances, they have approached this Court for relief.
6. The Petitioners contend that the respondents have not followed the procedure laid down in clause 6(iv) of the Standing Order uniformly. The respondents arbitrarily and illegally refrained from filling up the posts of Inspector (Prosecution) reserved for Ex- servicemen from amongst male candidates of the unreserved category, whereas one male candidate, namely, Sh. Anup Kumar Pandey from that category was selected in place of Ex-servicemen for the post of Sub-Inspector (Prosecution).
7. It is alleged that the respondents failed to publish the Approved List - i.e. the Select List and the Supplementary List, till date even though it was made mandatory by Clause 12(viii) of the Standing Order. It is alleged that the petitioners fared well, securing between 135/200 to 137/200 marks. The cut-off marks were 137.50. It is alleged that the advertisement in question declared 20 unreserved and 6 ex-servicemen vacancies. The latter was not to be subject to any
W.P.(C) 348/2013 Page 3 reservation (i.e SC/ST/OBC etc). The failure of the respondents to notify a single ex-serviceman's name in the selection list, violated the terms of the recruitment advertisement and has resulted in arbitrariness.
8. The respondents submitted that the vacancy positions were provisional and could be changed at the time of recruitment depending upon the requirement of the Railway Administration. It was, in fact, modified due to advice of the EDE (Executive Director Establishment) Reservation vide his noting dated 23.02.2010 in respect of the post of Inspector (Prosecution) under the category of Unreserved (Male) [UR (Male)]. The modification was carried out since some discrepancies were found in the vacancies advertised by Employment Notification No.1/2009 dated 14.11.2009. Accordingly, the panel for male category for the post of Inspector (Prosecution) consisting of 52 candidates including Ex-servicemen out of which category-wise breakup (revised breakup) was made as under:
Male Vacancies UR 22 OBC 16 SC 06 ST 08 Total 52
9. It was stated further that out of above said 52 vacancies earmarked for male candidates, 6 vacancies were reserved for Ex- servicemen. Hence, the post of Ex-serviceman was considered prior to other categories and since no Ex-servicemen could qualify, as such all
W.P.(C) 348/2013 Page 4 vacancies for UR (Male) category including Ex-serviceman was filled up on merit. Therefore, no particular name could be given who were appointed in respect of 6 notified vacancies for Ex-servicemen. The respondents submit that all the vacancies for the post of Inspector (Prosecution) (Male) were filled up on merit. Consequently, the respondents submitted that no grievance could be made out by the petitioners. The panel, argued RPF, had expired on 02.12.2012 whereas the petition was filed in January 2013.
10. The public advertisement had indicated that 58 vacancies would be filled; 6 of those were earmarked for women ("female") and 20 were for unreserved category and 6 were for ex-servicemen. The others were earmarked for OBCs, SCs and STs. Before embarking upon an analysis of the rival contentions, it would be material to notice some of the terms of the advertisement and the Standing Order which governs it. Clause 12 of the Standing Order (of 2009) reads as follows:
"12. Preparation and approval of broad sheet and merit list:
(i) a broad sheet for each category (in ascending order of Roll Numbers) indicating the Roll No., Name of candidate, Father's name, Category, Date of Birth, Height, Chest (unexpanded and expanded), Marks obtained (in written test, viva-voice and bonus marks, if any and total marks) shall be prepared by the nominated Committee;
(ii) Thereafter a select list based on the total marks obtained shall be made for each category limited to the number of vacancies. A supplementary list of 20% of the vacancies in each category will also be prepared by the
W.P.(C) 348/2013 Page 5 committee. The supplementary list will be a list of candidates on standby who will be considered for empanelment only if there is shortfall in empanelment from the main panel. For inclusion in the merit list, 60/100 shall be qualifying marks for the General/OBC categories and 50/100 for the SC as well as ST categories.
(iii) The Committee shall draw up the proceedings of the recruitment process/procedure adopted.
(iv) The proceedings along with list of empanelled candidates and the supplementary list shall be submitted by the Committee for the consideration and approval of DG/RPF.
(v) All pages of the proceedings, broad sheets, merit lists and the supplementary lists must be signed by all members of the Committee.
(vi) Candidates from SC, ST and OBC categories selected purely on merit without availing any relaxation in age, physical measurements and Qualifying Marks in written test shall not be counted against vacancies reserved for such categories.
(vii) If more than one candidate have obtained the same total marks, they should be arranged in the order of their dates of birth in descending order i.e. the older in age being placed above those younger in age in the merit list. In case the dates of birth also happen to be the same, they may be placed in order of the marks obtained by them in the written examination. However, if marks obtained in the written examination are also the same, they may be placed in the merit list in the order of marks obtained in viva-voce and if marks obtained in viva-voce also happen to be the same, they may be place in the merit list in the order of bonus marks obtained.
W.P.(C) 348/2013 Page 6
(viii) The panel once approved shall be immediately released and placed on the Indian Railway's official website, published in the leading newspapers and Employment News/Rozgar Samachar.
(ix) DG/RPF will allot the empanelled candidates different Zones depending upon the staff requirements for their appointment on probation for two years subject to verification of character and antecedents and medical examination. The appointment shall be made in accordance with RPF Act & Rules.
XXXXXX XXXXXX XXXXXX"
Clauses 6(iv) and 6(v) of the said Standing Order are extracted below:
"XXXXXX XXXXXX XXXXXX
(iv) Reservation for ex-servicemen will be 10% of the vacancies. Further category-wise breakup of vacancies (SC/ST/OBC) reserved for ex. servicemen shall not be done. In case suitable ex-servicemen are not available, the vacancies may be filled up by the male candidates of UR category.
(v) The notification must mention that the vacancies are provisional and may increase or decrease or even become nil, depending upon the requirement of the railway administration. The Administration also reserves the right to cancel or modify the notified vacancies at its discretion and such decision shall be binding on all concerned. In the event of cancellation of notified vacancies, the examination fee will not be refunded.
XXXXXX XXXXXX XXXXXX"
11. Clause 6(v) of the Standing Order authorized the Respondents to alter the vacancies at the time of recruitment, in tune with its
W.P.(C) 348/2013 Page 7 requirements. A right to modify the vacancy position was notified vide Notification No.1/2009. Clause 12 deals with the methodology for preparation of the select list or panel.
12. The counter-affidavit of the respondents, as well as the relevant file notings (which were shown to the Court at the time of hearing, pursuant to directions to produce the records) reveal that discrepancies in the number of vacancies were noticed after the advertisement had been issued. This resulted in alteration in the total number of vacancies; instead of 14 OBCs, the tally of vacancies of that category went up to 16; the tally in respect of SCs went up by one (from 5 to
6); likewise the tally for STs too went up by one (from 7 to 8 vacancies). Consequently, two more vacancies were added to the unreserved category (whose tally went up to 22 from 20). These changes had to be reflected in the final selection list. This change was necessitated, because the reporting from various zones had not been made accurately; the discrepancies were noticed by the EDE's office - as seen in the detailed note of 23.02.2010.
13. In the present case, the tenuous nature of the ex-servicemen's claim for the 10% quota may be seen from the fact that (i) no further reservation was indicated for them; more importantly, Clause 6 (iv) stated among others, that if "suitable ex-servicemen are not available, the vacancies may be filled up by the male candidates of UR category."
14. The other significant aspect is that Clause 6(v) of the Standing Order directed the Force to mandatorily state in each recruitment process that the vacancies notified were always provisional and could
W.P.(C) 348/2013 Page 8 increase or decrease, depending upon the employer's requirement. This was concededly done in the present case. Employment Notification No 1/2009 dated 14.11.2009 published in the Employment News (14-20 November, 2009) by Clause 2 (B) expressly stated that "The vacancies indicated above are provisional and may increase or decrease at the time of recruitment depending upon the requirement of the Railway Administration......." All these indicate that the petitioners had no vested right to claim appointment for the post of Inspector (Prosecution). To cap it all, the materials on record suggested that none of the petitioners were able to secure or obtain marks to qualify within the performance indicator of the last unreserved category candidate, i.e. the cut off marks of 137.50. It is well known by now that at the stage of appointment, a policy decision to appoint or not to appoint is entirely a matter of choice by the recruiting or appointing body; the individual, even if included in a select list pursuant to a public recruitment process, has no vested right to appointment (Shankarsan Dash v. Union of India 1991 (3) SCC
47). The Court's area of scrutiny is to examine the matter to see whether the reason for not appointing the candidate indicates unfairness (in the process of selection), arbitrariness, discrimination, or mala fides. If none of these are discerned, the court would desist from judicially reviewing the selection process.
15. Having regard to the above settled principles and applying them to the facts and circumstances at hand, this Court is satisfied that there are no elements of unfairness, arbitrariness or discrimination vitiating the selection process; mala fides has not been either urged nor proved.
W.P.(C) 348/2013 Page 9 Resultantly, it is held that the writ petition is without merit and has to fail. It is, therefore, dismissed with no order as to costs.
S. RAVINDRA BHAT (JUDGE)
SUDERSHAN KUMAR MISRA (JUDGE) APRIL 1, 2013
W.P.(C) 348/2013 Page 10
