A. Sendilkumar & Anr. vs Union Of India

In the instant OA, the applicants are seeking the following relief:

Brief facts of the case as submitted by the applicants are as follows: The Original Application has been filed seeking appointment to the post of Upper Division Clerk under the Scheduled Caste category, along with all consequential reliefs. The Respondent issued a notification dated 11.08.2015 inviting applications for filling up 503 vacancies to the post of Upper Division Clerk. Out of the said vacancies, 80 posts were earmarked for Scheduled Caste candidates in accordance with the prescribed 16% reservation. Pursuant to the selection process, the Respondent published the select list as well as the waiting list comprising 181 candidates. The Applicants were placed at Sl. Nos. 24 and 25 respectively in the waiting list under the Scheduled Caste category. Out of the 80 candidates initially selected under the merit list, 13 candidates did not join duty. Consequently, the Respondent operated the waiting list and issued appointment orders to candidates therefrom. In all, appointment orders were issued to 97 candidates, thereby indicating the availability of further vacancies under the relevant category. The Respondent operated the waiting list up to the 23rd candidate in the Scheduled Caste category; however, the Applicants, who are the next candidates in the said waiting list at Sl. Nos. 24 and 25, were not issued appointment orders. Hence, the Applicants were constrained to approach this Hon'ble Tribunal by filing the present Original Application.

When the matter was taken up for hearing, the Applicants submitted that they are legally entitled to appointment to the post of Upper Division Clerk under the Scheduled Caste category and that the denial of appointment to them is arbitrary, discriminatory and contrary to the applicable reservation rules. The Applicants submitted that, in all, 600 vacancies have been filled up from the select list and the waiting list. Out of the said 600 appointments, only 81 candidates belonging to the Scheduled Caste category have been appointed. In terms of the prescribed 16% reservation, 96 posts ought to have been filled by Scheduled Caste candidates against 600 appointments. Thus, there is a clear shortfall in the number of Scheduled Caste candidates appointed.

It was further submitted that the total number of candidates selected under the Scheduled Caste category, including those in the merit list and the waiting list, is 106. Against the requirement of 96 ^{appointments under the 16% reservation quota, only 81 Scheduled}Central Administrative Tribunal Caste candidates have ultimately been appointed. Further, out of the candidates recommended for appointment, 13 candidates did not join for various reasons, including non-production of valid community certificates. Consequently, vacancies continued to remain available under the Scheduled Caste quota. The Applicants, being the next eligible candidates in the Scheduled Caste waiting list, are therefore entitled to be considered for appointment against the available vacancies.

The Applicants further submitted that the Respondent is legally bound to implement the rule of reservation in its true letter and spirit, in accordance with the applicable statutory rules and the principles laid down by the Hon'ble Supreme Court in a catena of decisions. Failure to fill the requisite number of posts earmarked for Scheduled Caste candidates amounts to a violation of the reservation policy and results in unjust and discriminatory treatment of the Applicants. The Applicants also submitted that the Respondent had, in fact, operated the waiting list and continued to issue appointment orders to candidates included therein up to February 2018. Having chosen to operate the waiting list and make appointments therefrom, the Respondent cannot arbitrarily deny appointment to the Applicants, who are the immediate next eligible candidates in the Scheduled Caste waiting list, particularly when vacancies under the said category were available.

In these circumstances, the Applicants submit that they are entitled to appointment to the post of Upper Division Clerk under the Scheduled Caste category, with all consequential benefits. The continued denial of appointment to the Applicants is arbitrary, discriminatory and contrary to the applicable reservation rules and settled principles of law. The Applicants therefore pray that this Tribunal may be pleased to allow the Original Application and grant the reliefs sought therein

In contrast, the learned counsel appearing for the Respondent, placing reliance upon the reply statement filed on behalf of the Respondent, submitted that the Department has scrupulously followed the guidelines and instructions issued by the Ministry of Personnel, Public Grievances and Pensions and the Department of Personnel and Training, Government of India, both in letter and spirit, while conducting the recruitment process and issuing appointment orders to eligible candidates under the various reserved and unreserved categories. The learned counsel specifically relied upon the guidelines issued by the Department of Personnel and Training, Government of India, vide O.M. No. 36012/13/88-Estt. (SCT), dated 22.05.1989 (R-7), and O.M. No. 36011/1/98-Estt. (Res), dated 01.07.1998 (R-8), and submitted that the selection and allocation of candidates have been made strictly in accordance with the said instructions.

It was further submitted that, in accordance with the aforesaid guidelines, the select list was duly prepared and published. The learned counsel contended that Scheduled Caste candidates who secured marks higher than those obtained by candidates selected against the unreserved category, but who had availed themselves of the permissible age relaxation/concession applicable to their reserved category, were rightly adjusted against the Scheduled Caste quota, irrespective of the marks secured by them. Such candidates could not have participated in the recruitment process but for the age concession extended to them under the applicable rules. Therefore, their placement against the Scheduled Caste quota was in accordance with the instructions issued by the Department of Personnel and Training. The same principle was applied to candidates belonging to OBC/MBC/BCM/EBC and other reserved categories, wherever applicable. Thus, there was neither any deviation from the prescribed procedure nor any violation of the reservation rules or recruitment norms on the part of the Respondent Department.

The learned counsel further submitted that, as on the relevant date, 494 incumbents were officiating as Upper Division Clerks in various Departments and Offices situated in the four regions of the Union Territory of Puducherry, namely Puducherry, Karaikal, Mahe and Yanam. The said 494 candidates were appointed from the select list and waiting list and the total number of appointments remained within the 503 vacancies notified pursuant to the recruitment notification dated 11.08.2015. It was submitted that, out of the 503 notified vacancies, the remaining vacancies could not be filled for the reasons stated in the reply statement. In particular, three posts were kept vacant pursuant to the interim directions issued by this Hon'ble Tribunal in three pending Original Applications. The Respondent therefore disputed the Applicants' contention that as many as 600 candidates had been appointed from the merit list and waiting list. According to the Respondent, the Applicants' calculation that 600 candidates had been appointed is factually incorrect, unsupported by the official records and based merely upon their own assumptions and presumptions. The actual number of appointments made pursuant to the recruitment notification was only 494, which was well within the notified strength of 503 posts.

The learned counsel further submitted that the Government had taken a conscious decision on 03.12.2017 to discontinue further operation of the waiting list, since more than two years had elapsed from the date on which the result of the recruitment examination was published, i.e., 28.10.2015. In view of the said decision, the waiting list could not thereafter be operated for making any further appointments. It was therefore contended that the Applicants, merely by being placed in the waiting list, did not acquire any vested or indefeasible right to appointment, particularly after the competent authority had taken a decision to discontinue operation of the waiting list in accordance with the applicable instructions. Consequently, no further appointment could be made against the remaining vacancies after the waiting list had ceased to operate.

The learned counsel further submitted that the remaining vacancies included posts which were required to be kept vacant pursuant to the interim orders passed by this Tribunal in the pending Original Applications. Therefore, the Applicants could not claim appointment against such vacancies as a matter of right. In the circumstances, it was submitted that the recruitment process had been conducted strictly in accordance with the applicable Government of India instructions and reservation norms; that the Applicants had no vested right to claim appointment merely on the basis of their position in the waiting list; and that the decision to discontinue operation of the waiting list was valid and binding. The learned counsel accordingly submitted that the Original Application is devoid of merit, both on facts and in law, and prayed that the same be dismissed.

Heard the parties, perused the pleadings and the materials available on record.

The principal question that arises for consideration in the present Original Application is whether the Applicants, merely by virtue of their placement in the waiting list, have acquired an indefeasible or enforceable right to seek appointment against the vacancies remaining unfilled.

To appreciate the above issue, it would be appropriate to examine the principles laid down by the Hon'ble Supreme Court in various decisions concerning the rights of candidates included in a select list or waiting list. The Constitution Bench of the Hon'ble Supreme Court, in Tej Prakash Pathak & Others v. Rajasthan High Court & Others, in Civil Appeal Nos. 2634-2636 of 2013, decided on 07.11.2024, has reiterated the settled principle that mere inclusion of a candidate in a select list does not confer an indefeasible right to appointment. The State or its instrumentalities, for bona fide and valid reasons, may decide not to fill up ^{all or some of the notified vacancies. Thus, even where vacancies are}Central Administrative Tribunal available, a candidate whose name finds place in the select list cannot, merely on that basis, claim appointment as a matter of right. The aforesaid principle assumes greater significance in the case of candidates placed in a waiting list, whose position is necessarily subordinate to that of candidates included in the select list. Inclusion in a waiting list, by itself, does not create an absolute or indefeasible right to appointment. The right of a waitlisted candidate would depend upon the applicable recruitment rules, the terms and conditions of the notification, the manner in which the waiting list is required to be operated, and the decision of the competent authority taken in accordance with law.

A similar principle was considered by the Hon'ble Supreme Court in State of Karnataka & Others v. Smt. Bharathi S, Civil Appeal No. 3062 of 2023, decided on 19.05.2023 and reported as 2023 INSC 573. In the said case, the Hon'ble Supreme Court held that the obligation to fill vacancies from an additional list or waiting list would arise only where such obligation is traceable to a mandatory statutory rule or applicable provision governing the recruitment process. In the absence of any such mandatory requirement, the question whether the remaining vacancies should be filled from the additional/waiting list is a matter within the ^discretionCentral Administrative Tribunal ^{of the competent authority, subject, of course, to the} requirement that such discretion must be exercised in accordance with law and not arbitrarily. The relevant portion of the judgment is extracted below:

A similar issue came up for consideration before the Hon'ble Supreme Court in The State of Uttar Pradesh v. Karunesh Kumar & Others, Civil Appeal Nos. 8822-8823 of 2022, decided on 12.12.2022. The Hon'ble Supreme Court, while considering the scope of judicial interference in matters relating to selection and appointment, observed that an employer is entitled to exercise an appropriate degree of discretion and flexibility in the matter of selection and appointment, and that interference by the Court is warranted only where the decision is found to be arbitrary or contrary to law. The Hon'ble Supreme Court did not find any such arbitrariness or illegality in the matter before it.

The aforesaid decision, read with the other judgments referred to above, makes the legal position clear that mere inclusion of a candidate in a waiting list does not confer an indefeasible or enforceable right to appointment. The mere existence of vacancies also does not, by itself, impose an obligation upon the employer to fill up such vacancies from the waiting list. Unless the applicable statutory rules, recruitment rules, or the terms governing the selection process impose a mandatory obligation upon the appointing authority to operate the waiting list and make appointments therefrom, the question whether the remaining vacancies should be filled ^isCentral Administrative Tribunal ^{within the discretion of the competent authority, subject to such} discretion being exercised bona fide and in accordance with law.

The decisions relied upon by the Applicants do not lay down any proposition contrary to the aforesaid settled principle. On the contrary, the judgments referred to above consistently recognize that a candidate included in a select list or waiting list does not acquire an indefeasible right to appointment merely by reason of such inclusion. The extent of any right claimed by a waitlisted candidate has necessarily to be determined with reference to the applicable recruitment rules, the terms of the notification and the provisions governing the operation and validity of the waiting list.

In the present case, it is evident from the records that the result of the recruitment process was notified on 28.10.2015 pursuant to the notification dated 11.08.2015. The Government thereafter took a conscious decision on 03.12.2017 to discontinue further operation of the waiting list, taking into consideration the fact that more than two years had elapsed from the date of publication of the result. The said decision was taken by the competent authority in respect of the recruitment in question and there is nothing on record to establish that the decision was actuated by mala fides, arbitrariness or any extraneous consideration.

It is also borne out from the records that, out of the 503 vacancies notified pursuant to the notification dated 11.08.2015, five vacancies remained unfilled after completion of the recruitment process. In respect of three other posts, the same were required to be kept vacant pursuant to the interim orders passed by this Tribunal in the pending Original Applications. Therefore, the mere fact that certain vacancies remained unfilled cannot, in the absence of a mandatory provision requiring operation of the waiting list, confer an enforceable right of appointment upon the Applicants.

We have also taken note of the fact that the Applicants are placed at Sl. Nos. 24 and 25 respectively in the waiting list under the Scheduled Caste category. The waiting list having ceased to operate pursuant to the decision dated 03.12.2017, and there being no statutory or other mandatory provision brought to our notice requiring the Respondent to continue operating the waiting list beyond the prescribed period, the Applicants cannot claim appointment as a matter of right merely on the basis of their position in the waiting list.

In the light of the settled legal position and the facts available on record, we are of the considered view that the Applicants have not acquired any indefeasible right to appointment to the post of Upper Division Clerk merely by virtue of their inclusion in the waiting list. The decision of the Respondent to discontinue operation of the waiting list cannot, in the facts and circumstances of the present case, be said to be arbitrary, illegal or contrary to the applicable rules. Accordingly, the claim of the Applicants for appointment to the post of Upper Division Clerk under the Scheduled Caste category cannot be sustained.

In view of the foregoing discussion and findings, the Original Application is liable to be dismissed and it is accordingly dismissed. There shall be no order as to costs.