Aman Mudgal & Ors. vs Union Of India & Anr.

Per Mr. Mohd. Jamshed, Member (A)

This MA has been filed by the applicants seeking leave to join as applicants in a single O.A. For the reasons stated therein, the MA is allowed and the applicants are permitted to join in a single OA.

The present O.A. has been filed by the applicants feeling aggrieved by the conduct of the respondents in not filling up the vacancies of the post of Scientific/Technical Assistant-„A‟ from the Panel of wait-listed candidates. The applicants also figure in the Panel of wait-listed candidates.

The second respondent issued Advertisement No. NIELIT/NIC/2020/1 for recruitment to the post of Scientific/ Technical Assistant-„A‟ for 207 posts in different categories, including UR, SC, ST, OBC, EWS and PWDs. The applicants participated in the written examination as UR candidates held on 23.11.2020. The result of the same was declared on 19.03.2021 through a list of provisionally selected candidates and a list of provisionally wait-listed candidates (category-wise) was uploaded on the website of National Informatics Centre (NIC) on 07.12.2021. The applicants were on the said waiting-list at Sl.Nos. 39, 33, 43, 41 and 47. It is further submitted that the candidates upto Sl.No.30 of the waiting-list were called for document verification in UR category from 11.05.2022 to 31.05.2022 and further from 20.06.2022 to 05.08.2022. It is submitted that despite large number of vacancies still remaining vacant due to resignation and non-joining of the selected candidates, the applicants and remaining candidates of the waiting list beyond Sl.No.30 were not called for document verification. The applicants further submit that they sought information under RTI and vide reply to their RTI query dated 26.09.2022, the respondents categorically mentioned that there are still 26 vacancies to be filled up under UR category. However, no action was taken by the respondents in this regard.

The applicants have filed the present O.A. seeking the following relief(s):

The applicants, who are wait-listed candidates, are seeking directions to the respondents to fill up vacancies of the post of Scientific/Technical Assistant-„A‟ of Advertisement No. NIELIT/NIC/2020/1 of UR category from the wait-list panel and appoint them to the post, with all consequential benefits.

This Tribunal vide order dated 07.02.2023 by way of interim relief directed the respondents not to carry forward the vacancies, if any, under UR category pursuant to the subject recruitment process.

It is the contention of the applicants, who are placed on the waiting list at Sl.Nos. 39, 33, 43, 41 and 47, that despite number of vacancies still existing, as confirmed by the respondents through the information sought under RTI, the applicants have not been called for document verification and for their selection to the post of Scientific/Technical Assistant-„A‟. They have relied upon the DoP&T O.M. dated 08.02.1982 and the Hon‟ble Supreme Court judgments in Civil Appeal Nos. 11360-11363 of 2018 in Dinesh Kumar Kashyap & Ors. vs. South East Central Railways & Ors. and in Gagandeep Singh vs. State of Punjab & Ors., (2019) 11 SCC 771, the judgment of Hon‟ble High Court of Madhya Pradesh at Jabalpur in Shailesh Kumar Sonwane vs. State of M.P. & Ors. in WP No. 4792/2020 and batch dated 09.09.2021, Hon‟ble High Court of Delhi judgment in Govt. of NCT of Delhi & Ors. vs. Sibi Thomas in WP(C) No. 5083/2020 dated 07.08.2020 and Hon‟ble High Court of Orissa at Cuttack judgment in Rajalaxmi Beura vs. Vice Chancellor, OUAT and Ors. in WP(C) No. 11236 of 2010 dated 08.08.2017.

The respondents have filed a counter affidavit opposing the O.A. It is submitted that written examination for the post of Scientific/Technical Assistant-„A‟ was conducted on 23.11.2020 and selection list containing 207 candidates was declared in March, 2021. Subsequently, the selected candidates were advised to appear for document verification and candidates from waiting list as per the vacancies were also called. Finally, offers of appointment were issued to 214 candidates (170 from select list and 44 from waiting list). It is further submitted that having taken care of all the vacancies by posting people from even the waiting list, the said selection is concluded and the new recruitment process has been started taking into account vacancies that occurred during 2021 and 2022 due to retirement/resignation/VRS/Death and anticipated vacancies upto 31.12.2023. In support of their case, the respondents have also relied upon the judgment of the Hon‟ble Apex Court in Surinder Singh and Ors. vs. State of Punjab and Anr. in Civil Appeal No. 5807 of 1997, dated 27.08.1997.

Heard Ms. Esha Mazumdar, learned counsel for the applicants and Mr. R.S. Rana, learned counsel for the respondents and perused the relied upon judgments and the documents on record.

The National Informatics Centre (NIC) under the Ministry of Electronics and Information Technology, Govt. of India reported 207 posts of Scientific/Technical Assistant-„A‟ to NIELIT, which is designated recruiting agency for conducting recruitment process for filling up S&T posts in the NIC. NIELIT published the recruitment vacancy Advertisement on 26.02.2020 for 207 posts including 86 UR, 31 SC, 15 ST, 55 OBC, 20 EWS and 9 PWDs. The posts of 9 PWDs were under Horizontal Reservation. A written examination was conducted on 23.11.2020 and a list of 207 selected candidates was declared in the month of March, 2021. Out of 207 candidates of the select list, who were required to appear for document verification, only 197 candidates appeared in the first instance and were issued offers of appointment. Subsequently, 59 candidates were also issued provisional offers of appointment from the waiting list after completion of document verification. This consisted of candidates from different categories who featured in the waiting list. Thus a total of 256 (197 from the select list and 59 from the waiting list) offers of appointment were issued by the respondents. It is submitted that 214 candidates (170 from the select list and 44 from waiting list) joined NIC as Scientific/Technical Assistant-„A‟ till 25.11.2022. As per the information furnished in the counter affidavit, it is stated that in UR category, 73 candidates were appointed from the select list and 6 from PwD under Horizontal Reservation. Further, 13 candidates were selected from waiting list and 2 from PwD under Horizontal Reservation.

After filling up these vacancies, the respondents on 25.11.2022 decided to report the vacancies of Scientific/Technical Assistant-„A‟, which occurred in the years 2021 and 2022 due to retirement/resignation/VRS/Death and anticipated vacancies upto 31.12.2023 to the recruitment agency to initiate fresh recruitment process for filling up of 327 vacancies.

The applicants have sought information under the RTI regarding the vacancies having been filled up from the waiting panel and the existing vacancies as on date. Although the figures vary in these replies, it is vehemently argued that a number of vacancies still exist and the waiting panel has not been exhausted. The applicants have also relied upon various judgments which are in connection with the provision of waiting list, its duration and operation and the claim of the candidates in the wait-list etc. Although the facts of the relied upon judgments are not applicable to the facts of the present case, the ratio of those judgments is clearly about the recruitment agencies providing for a waiting list from which candidates should be appointed during the validity of the panel against vacancies occurring out of the candidates of the same recruitment, who either do not join or resign or are not found eligible after further scrutiny and document verification etc.

The respondent No.2, i.e. NIC, asked the designated recruiting agency, i.e. NIELIT, for conducting recruitment process for filling up vacancies of Scientific/Technical Assistant-„A‟, Group „B‟ S&T in different categories. The total posts identified for this recruitment were 207, out of which 86 were UR, 31 SC, 15 ST, 55 OBC, 20 EWS and 9 PwDs. The applicants herein are all from UR category. It is evident that in the Advertisement No. NIELIT/NIC/2020/1, it is nowhere mentioned that there will be a wait-list or reserve panel and that the same shall be valid for what duration. Despite not having the provision for a reserve panel or wait-list, the result of the selected candidates was uploaded on 19.03.2021 on the NIC website and subsequently a list of provisionally wait-listed candidates was also uploaded on the NIC website on 07.12.2021. It is also seen from these lists, which are annexed as Annexure A-3 (colly.), that the waiting list was made category-wise and a sizeable number of candidates were wait-listed in each category. For example, against the advertised vacancies of 86 in UR category, a wait-list panel of 52 candidates has been provided. Similarly, for other categories also, sizeable waiting list panels have been provided, e.g., against 55 vacancies of OBC candidates, wait-list panel of 22 candidates has been provided. We have also observed that the validity of this waiting list has also not been indicated anywhere. Thus, it is obvious that the Advertisement did not mention any waiting list, however, the respondents declared a waiting list and the number of candidates put on the waiting list was also sizeable against the normal percentage worked out by the Departments for waiting list. Also that there was no validity period given for this waiting list.

It is an established fact that waiting lists for various recruitments have a specific timeframe, sometime generally varying from one year to two years. In this case, both the applicants and respondents are taking 25.11.2022 as the period of validity for the waiting list, which is approximately 18 months from the declaration of the result.

We have also observed that the respondents have issued letters for document verification to all the selected 207 candidates and in view of many candidates, who were not found eligible during document verification or who did not appear for the same, it was decided to issue provisional offers of appointment to 59 candidates from the category-wise waiting list. The respondents contended that out of 59 candidates, who were issued offers of appointment from the waiting list, 44 joined till 25.11.2022. The respondents have vehemently argued that the process of filling up of vacancies from the waiting list cannot be an open ended one and that all the 207 vacancies had been filled up by issuing offers of appointment, not only from the main select list but also from the waiting panel. Per contra, the applicants reiterate that vacancies in the UR category still exist and the waiting list in UR category has only been operated upto Sl.No.30, which is arbitrary and discriminatory.

An additional affidavit has been filed by the respondents in terms of the queries made by the Tribunal during the hearing. It is categorically stated that 94 candidates under UR category were selected and had joined the post of Scientific/Technical Assistant-„A‟. It is further mentioned that 61 candidates out of 94 candidates were working under UR category as on 25.11.2022. In the additional affidavit, which is submitted on 02.03.2023, the complete list of selected candidates who joined under the UR category is provided as Annexure R-1. The contention of the respondents is that the vacancies created by those, who had joined from the select list and resigned subsequently, cannot be filled from the waiting list panel as these are treated as fresh vacancies for the next year, for which new recruitment shall take place. The list provided by the respondents, however, makes it evident that 94 candidates in all were appointed under UR category, including some PwDs and others. 34 out of these have resigned on different dates starting from 02.03.2022 to 20.01.2023. This list, annexed as Annexure R-1 of the additional affidavit, also provides information about the candidates who have joined from the waiting list. These are 15 in all. This list also indicates that 61 out of these are working as on 25.11.2022. Out of 30 wait-listed candidates in UR category who were given offers of appointment, only 15 have finally joined.

It is also a fact that except one candidate who resigned on 20.01.2023, other 33 candidates had resigned prior to 25.11.2022. As the respondents had already issued a waiting list (category-wise) and also operated the same for filling up the vacancies to a large extent, by operating the waiting list panel in UR category upto 30 candidates, it is not understandable as to why this exercise has not been continued by issuing offers of appointment to other remaining candidates in the wait-list under UR category after Sl.No.30, who fulfill the eligibility and other conditions. Date of 25.11.2022, although not mentioned as the validity period of the waiting list in the Notice, has been accepted by both the applicants and the respondents. However, despite resignations by 34 candidates, the decision of the respondents not to fill up these vacancies from the wait-list panel, could well be called arbitrary and discriminatory.

We find that the justification given by the respondents that those posts which are falling vacant in view of the resignations during the validity of the wait-list cannot be filled from the wait-list panel, is simply not tenable. In view of the above mentioned, we dispose of this O.A. by directing the respondent No.2 to extend offers of appointments to the wait-listed candidates in each category against the vacancies caused due to resignations and on other accounts that took place before 25.11.2022.

In the category of UR candidates, the respondents have confirmed that 34 candidates, who had joined, have subsequently resigned. Out of these, 33 have resigned before 25.11.2022 and, thus, offers of appointments shall be issued to the remaining candidates from the wait-list in UR category, if found otherwise eligible. This exercise shall be completed within a period of two months from the date of receipt of a copy of this order.

There shall be no order as to costs.