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Judgment
BY HON’BLE DR. ANAND S KHATI, MEMBER (A):
The present Original Application has been filed by the applicant seeking the following reliefs:-
“a. Quash and set aside the order/notice dated 05.10.2017, bearing no.ASP/1st - GDS Rectt./2014-15 (Annexure A-1) issued by Respondent no.2; and
b. Direct the Respondents to allow the Applicant join the post of GDS Mail Carrier, Mandi BO, New Delhi-110047.
c. Pass such further order/orders as deems fit and necessary in the facts and circumstances of the case.”
Briefly stated, the case of the applicant is that the engagement process for the post of GDS Mail Carrier, Mandi BO, New Delhi-110047 was initiated pursuant to Advertisement No. ASP-1/Engagement/GDS MD/MC/Mandi/2014 dated 18.11.2014. The applicant participated in the selection process and, having secured 81.5% marks, was selected against the SC vacancy. An engagement letter dated 16.07.2015 was thereafter issued in his favour, pursuant to which he furnished the requisite security of Rs.10,000/- by way of pledged NSC. The applicant was subsequently referred for medical examination vide letter dated 28.07.2015 and was declared medically fit.
It is the case of the applicant that despite his selection and completion of the requisite formalities, no joining order was issued to him. He consequently sought information under the Right to Information Act, 2005 regarding the status of his recruitment. Vide reply dated 14.10.2016, the applicant was informed that his recruitment file had been sent to the Vigilance Branch, Circle Office and was pending there. Subsequently, vide reply dated 11.07.2017, he was informed that the post in question was still lying vacant and that his recruitment file was pending with Respondent No.2.
Thereafter, the recruitment/engagement process was cancelled vide order dated 05.10.2017. The applicant contends that no prior notice, show-cause notice or opportunity of hearing was afforded to him before passing the said order. He thereafter submitted a representation seeking reconsideration of the cancellation and permission to join the post in question. As the grievance remained unresolved, the present Original Application has been filed.
Learned counsel for the applicant submitted that the applicant had successfully completed the selection process, secured 81.5% marks, was selected against the SC vacancy, furnished the requisite security and was declared medically fit. It was contended that after completion of these formalities, the respondents ought to have issued the joining order and could not have kept his case pending for an indefinite period.
Learned counsel further submitted that the RTI replies dated 14.10.2016 and 11.07.2017 demonstrated that the recruitment file of the applicant was pending before the concerned authorities and that the post continued to remain vacant. It was argued that having permitted the applicant to complete the selection process and having issued the engagement letter, the respondents could not subsequently cancel the recruitment process without affording him an opportunity of hearing.
Learned counsel for the applicant relied upon the decision rendered in SLP (Civil) Diary No.21319/2022 titled Union of India vs. Uzair Imran & Ors. passed by the Hon’ble Supreme Court of India. Paras 15 and 16 reads as under:-
“15.Notwithstanding this settled legal position, the stage when ineligibility is cited for not offering employment also assumes importance. It is indeed indisputable that none has any legal right to claim public employment. In terms of Article 16 of the Constitution, a candidate has only a right to be considered therefor. Once a candidate is declared ineligible to participate in the selection process at the threshold and if he still wishes to participate in the process perceiving that his candidature has been arbitrarily rejected, it is for him to work out his remedy in accordance with law. However, if the candidature is not rejected at the threshold and the candidate is allowed to participate in the process and ultimately his name figures in the merit list – though such candidate has no indefeasible right to claim appointment – he does have a limited right of being accorded fair and non-discriminatory treatment. Given the stages of the process that the candidate has successfully crossed, he may not have a vested right of appointment but a reasonable expectation of being appointed having regard to his position in the merit list could arise. The employer, if it is a State within the meaning of Article 12 of the Constitution, would have no authority to act in an arbitrary manner and throw the candidate out from the range of appointment, as distinguished from the zone of consideration, without rhyme or reason. The employer-State being bound by Article 14 of the Constitution, the law places an obligation, nay duty, on such an employer to provide some justification by way of reason. If plausible justification is provided, the courts would be loath to question the justification but the justification must be such that it is rational and justifiable, and not whimsical or capricious, warranting non-interference.
16.In the facts of the present case, the stage of declaration of ineligibility seems to us to turn the tide in favour of the third respondent. If the appellant had declared the third respondent as ineligible based on the appellant’s appreciation of the educational qualification of the third respondent at the threshold, the situation would have entirely been different. However, it was not at the threshold that the third respondent was considered ineligible. As the factual narrative would reveal, the appellant had considered the third respondent eligible, allowed him to take part in the various tests in connection with the selection process, interviewed him, placed his name quite high in the merit list, and thereafter sent him for 15 days’ pre-induction training starting from 15th March, 1996. It was after a week that the letter dated 22nd March, 1996 was issued which resulted in ouster of the third respondent from the range of appointment.”
Learned counsel for the applicant also relied upon the decision rendered in Writ Petition (C) No.11973/2016 titled Sonu Kumar, BPM & Ors. Vs. Union of India & Ors. passed by the Hon’ble High Court of Delhi. Paras 12 and 13 read as under:-
“12.It is seen that in terms of Rule 4(3) of the GDS (Conduct and Engagement) Rules, 2001 power was conferred upon an authority superior to the appointing authority either on its own motion or otherwise to call for the records relating to appointment of GDS and if the superior authority found that the appointing authority has exercised jurisdiction not vested in it or has failed to exercise jurisdiction so vested or has acted in exercise of jurisdiction illegally or without material irregularity „it may make such order as it thinks fit.‟ The above Rule 4 has been reiterated in the 2011 Rules which replaced 2001 Rules. Rule 4 of the 2001 Rules reads as under:
"Rule-4 Appointing Authority
(1)The Appointing Authority in respect of each category of Sevak shall be as shown in the Schedule annexed to these rules.
(2)If any doubt arises as to who is the appropriate Appointing Authority in any case, the matter shall be referred to the Government, whose decision thereon shall be final.
(3)Notwithstanding anything contained in these rules, any authority superior to the Appointing Authority as shown in the Schedule, may, at any time, either on its own motion or otherwise call for the records relating to the appointment of Gramin Dak Sevaks made by the Appointing Authority, and if such Appointing Authority appears-
(a)to have exercised a jurisdiction not vested in it by any law or rules time being in force; or
(b)to have failed to exercise a jurisdiction so vested; Or
(c)to have acted in the exercise of its jurisdiction illegally or with material irregularity, such superior authority may, after giving an opportunity of being heard, make such order as it thinks fit."
13.Rule 4 of the 2011 Rules reads as under:
"Rule-4 Recruiting Authority
(1)The Recruiting Authority in respect of each category of Sevak shall be as shown in the Schedule annexed to these rules.
(2)If any doubt arises as to who is the appropriate Authority in any case, the matter shall be referred to the Government, whose decision thereon shall be final.
(3)Notwithstanding anything contained in these rules, any authority superior to the Recruiting Authority as shown in the Schedule, may, at any time, either on its own motion or otherwise call for the records relating to the engagement of Gramin Dak Sevaks made by the Recruiting Authority, and if such Recruiting Authority appears-
a)to have exercised a jurisdiction not vested in it by any law or rules time being in force; or
(b)to have failed to exercise a jurisdiction so vested; or
(c)to have acted in the exercise of its jurisdiction illegally or with material irregularity, such superior authority may, after giving an opportunity of being heard, make such order as it thinks fit."
Per contra, learned counsel for the respondents submitted that the applicant's selection and the letter dated 16.07.2015 did not confer any vested or indefeasible right of appointment upon him. It was submitted that the said letter constituted only an offer of engagement subject to completion of the prescribed verification and other formalities.
Learned counsel for the respondents submitted that the recruitment process was subsequently scrutinized by the competent authority at the Circle Office of the Chief Postmaster General, Delhi Circle, and certain irregularities were noticed, including failure to give wide publicity to the notification, non-consideration of preference to part-time workers and improper award of marks relating to educational qualification in respect of a candidate in the waiting list.
It was further submitted that in view of the aforesaid irregularities, the competent authority directed cancellation of the recruitment process vide communication dated 07.09.2017, pursuant to which the recruitment process for the post of GDS Mail Carrier, Mandi BO was cancelled vide order dated 05.10.2017.
Learned counsel for the respondents submitted that a copy of the cancellation order was sent to the applicant by Registered Post on 05.10.2017 and was again furnished to him on 10.01.2018. It was further submitted that the applicant's representation dated 12.06.2018 was considered and replied to by the competent recruiting authority vide communication dated 17.07.2018.
Learned counsel for the respondents also contended that paragraphs 20 and 21 of the notification dated 18.11.2014 reserved the right of the Department to cancel the engagement process and provided that the decision of the appointing authority during the engagement process would be final.
It was further submitted that the applicant had never been formally engaged as a GDS and had not joined the post. Therefore, according to the respondents, Rule 4(3) of the Gramin Dak Sevak (Conduct and Engagement) Rules, 2011, relating to opportunity of hearing, was not attracted in the facts of the present case. It was submitted that the impugned action was not termination of an existing engagement but cancellation of the recruitment process itself on account of irregularities found during review. It was also submitted that the security deposit furnished by the applicant had subsequently been released.
Learned counsel for the respondents drew attention to the letter dated 18.12.2014 at page 7 of the compilation of record passed by the Assistant Superintendent (Posts), New Delhi, South West, which reads as under:-
“Department of Posts O/o the Assistant Superintendent (Posts), New Delhi South West 1st Sub Division R.K. Puram (Main) PO, New Delhi-110066.
To District Employment Officer (DEO) District Employment Exchange (South West) 1st Floor Kirby Place, Delhi Cantt New Delhi -110010.
No.: ASP/Rectt/GDS MC/Mandi BO/2014 18.12.2014
Sub: Sponsorship of candidates for the post of Gramin Dak Sevak Mail Carrier at Mandi Branch Post Office New Delhi-110047.
In this context you are requested to sponsor the names of eligible candidates for one reserved post of SC category, of Gramin Dak Sevak Mail Carrier at Mandi Branch Post Office New Delhi-110047. The online registration has been made by this office under Request ID 2014001720 Dated 18.12.2014 (copy enclosed for reference). Hence it is requested to furnish a list of eligible candidates (Minimum three and maximum one hundred candidates), having prescribed qualifications as mentioned in the requisition form (enclosed). The nomination of sponsored candidates for the above post, should reach to the undersigned at the earliest please.
Encls:
Requisition form Online registration Form request ID no.2014001720
Asstt. Supdt. (Posts) New Delhi South West 1st Sub Dn. R.K Puram (Main) PO, ND-110066.”
Learned counsel for the respondents also drew attention to the letter dated 02.03.2016 at page 34 of the compilation of record passed by the Office of the Chief Postmaster General, New Delhi, which reads as under:-
“DEPARTMENT OF POSTS OFFICE OF THE CHIEF POSTMASTER GENERAL, DELHI CIRCLE, MEGHDOOT BHAWAN, LINK ROAD, NEW DELHI-110001
To, Sh. Satyawan, IPC, 2nd Sub Division, New Delhi South West Division, New Delhi-110021
No: AD(S)/CON/GDS/SW/02/2015 Dated: 2.03.2016
Sub: Alleged irregularities committed in the Recruitment of GDS. While working as IPOs, 2nd Sub Division, New Delhi South West Division during the period from 25.03.2013 to till date you have made recruitment to the following post of GDS other than BPM: -
(i)GDS MD-Mahipalpur BO
(ii)GDS MD-Mahipalpur. BO
(iii)GDS MD- Mahipalpur BO
(iv)GDS MD Kapasahera BO
(v)GDS MD-Kapasahera BO
(vi)GDS MD Kapasahera BO
(vii)GDS MD Kapasahera BO
2.During the process of review, the following irregularities were noticed in the recruitment in of above GDS other than BPM:-
i)Preference has not been given to casual labourers in the recruitment of all the above GDS Posts which is in violation of DG Posts letter no. 17-141/88-EDC &Trg. dated 06.06.1988.
ii) It has been noticed in the recruitment of two posts of GDS MD Mahipalbur notified on 19.12.2012 that list of candidates sponsored by Employment Exchange is not available on record against the Request Id 2012001494. However, notifications have been sent to 113 candidates in two phases (100 in 1st phase & 13 in 2nd phase). The notification has been sent to only 100 candidates in case of all other recruitments made by you. Only in this case 13 notifications have been sent out at a latter date. The selected candidate in both the cases happens to be out of the 13 candidates addressed in the second phase. In case of additional 13 candidates reported above, even the last date was accordingly extended by another 15 days. The 100 candidates were given time till 19.02.2013, while the additional 13 candidates were given time till 05.03.2013.
3.You are therefore, directed to submit your explanation for the above alleged irregularities in the recruitment of GDS within 15 days positively to the undersigned. Please also explain as to why action should not be taken against you for these irregularities.
(Abhishek Singh) Director Postal Services (Operations & HQ)”
Learned counsel for the respondents further drew attention to the letter dated 04.07.2017 at page 52 of the compilation of record passed by the Office of the Sr. Supdt. of Post Offices, New Delhi South West Division, New Delhi, which reads as under:-
“DEPARTMENT OF POSTS O/O THE SR. SUPDT. OF POST OFFICES, NEW DELHI SOUTH WEST DIVISION NEW DELHI-110021
To The Asstt. Director (V &1) O/O CPMG. Delhi Circle New Delhi-110001
No:- A--BO/Misc-II dated at New Delhi-110021 the 04-07-2017
Sub:- Regarding return of GDS recruitment files/record.
Kindly refer to your office letter no. GDS/Rectt/Files/Records dated 17.05.2017 vide which the following recruitment files/records of GDS posts other than BPM Imade by the then ASP (1st) Sub Division R.K.Puran (M) P.O. New Delhi-110066) were returned without any further directions to this office:-
1.GDS MD cum MC Ghitorni B.O.
2.GDS MD cum MC Sanjay Colony Bhali Mines B.O.
3.GDS MD Arjun Garh P.O.
4.GDS MD cum MC Arjun Garh P.O.
5.GDS MC Mandi B.O.
2.It is to further inform that the recruitment pertaining to serial no. 1 & 2 above has already been cancelled by the ASP (1) Sub Dn R.K.Puram ND-110066 vide his office memo no. ASP/1-GDS Rectt/2014-15 dated 27.03.2015 and the recruitment process of rest of the GDS Posts at serial no. 3 to 5 above is still not completed due to review made by Circle Office, However, selection letter was issued to the selected candidates by the concerned recruiting authority as per the available records.
3.As per the documents (note sheets & review reports etc.) available in review file received from AD (Staff). Delhi Circle through file no. AD(S)/CON/GDS/SW/2/2015. disciplinary action is to be initiated against the then recruiting authority (Shri S.K.Tiwari) in respect of GDS Posts above at serial no. 1& 2 on the basis of investigation made by the competent authority at Circle Office. (Copy enclosed for ready reference).
4.Although the details of irregularities have been mentioned as per the check list enclosed in the said file received from AD (Staff) in respect of GDS Posts at serial no. 3, 4 & 5 above but no other details of further course of action to be taken at this end has been mentioned therein whereas the entire review process was carried out by the competent authority at Circle Level.
Hence, it is requested to kindly issue necessary guidelines as to what action is to be taken on the basis of review carried by Circle Office in respect of recruitment of GDS Posts at serial 3, 4 & 5 above.
DA-as above Sr.Supdt. of Post Offices New Delhi South West Divn. New Delhi-110021”
Learned counsel for the respondents also drew attention to the letter dated 07.09.2017 at page 53 of the compilation of record passed by the Office of the Chief Postmaster General, Delhi Circle, New Delhi, which reads as under:-
“DEPARTMENT OF POSTS OFFICE OF THE CHIEF POSTMASTER GENERAL DELHI CIRCLE, NEW DELHI-110001
To The SSPOs New Delhi South-West Division New Delhi-110021
No: VIg/CVC-A-1/2015 Dated: 07.09.2017
Sub: Regarding cancellation of process of recruitment of GDS.
Kindly refer to your office letter no. A-BO/Misc-II dated 04.07.2017. In this regard, I have been directed by the competent authority to Issue orders for cancellation of recruitment process for the posts of GDS MD-cum-MC Arjungarh P.O., GDSMD Arjungarh P.O. and GDS MC Mandi GDSBO.
As far as action against Sh. S.K.Tiwari, ASP Is concerned, you are requested to send the case along with the draft charge sheet to this office, after obtaining the explanation of the officer for taking further action.
Assistant Director (V&I) O/o the CPMG, Delhi Circle, New Delhi-110001”
We have heard the learned counsel for the parties and have carefully perused the pleadings and the documents available on record.
From the material placed before us, it is not in dispute that the applicant participated in the recruitment process pursuant to the advertisement dated 18.11.2014, secured 81.5% marks and was selected against the SC vacancy. It is also not in dispute that an engagement letter dated 16.07.2015 was issued in his favour, that he furnished the requisite security of Rs.10,000/- and that he was declared medically fit.
At the same time, the applicant admittedly did not join the post and was never formally engaged as a GDS. The engagement letter issued in his favour, therefore, did not by itself confer an indefeasible right of appointment. The applicant undoubtedly had a legitimate interest in the recruitment process and was entitled to fair and non-discriminatory treatment; however, that interest has to be examined in the context of the subsequent cancellation of the recruitment process itself.
The record shows that the recruitment process was subjected to review at Circle level. The communication dated 02.03.2016, though not an order relating specifically to cancellation of the Mandi BO recruitment, is relevant background material showing that irregularities had been noticed in GDS recruitments made by the concerned authority and that explanation of the recruiting authority was sought.
More importantly, the communication dated 04.07.2017 specifically includes GDS MC Mandi BO amongst the recruitment records under review and records that the recruitment process in respect of the posts mentioned therein was not completed due to review by the Circle Office. It further refers to the review file, note sheets and review reports received from the Circle Office and seeks directions regarding the further course of action.
Thereafter, the competent authority, vide communication dated 07.09.2017, specifically directed cancellation of the recruitment process for GDS MC Mandi BO. The impugned order dated 05.10.2017 was passed pursuant to the said direction.
Thus, the impugned order was not an isolated action taken against the applicant. The material on record discloses a sequence of administrative scrutiny, review of the recruitment records, consideration at Circle level and a subsequent decision of the competent authority to cancel the recruitment process.
We have considered the submission of learned counsel for the applicant that the impugned order was passed without prior notice or show-cause notice. We have also considered the reliance placed upon Rule 4(3) of the Gramin Dak Sevak (Conduct and Engagement) Rules, 2011 and the judgment in Sonu Kumar.
There can be no quarrel with the proposition that where an existing engagement of a GDS is sought to be disturbed in exercise of the power contemplated under Rule 4(3), the requirement of giving an opportunity of hearing has to be duly considered. However, the factual position in the present case is materially different. The applicant had not joined the post and had never acquired the status of a formally engaged GDS. The impugned order did not terminate any existing engagement of the applicant; rather, it cancelled the recruitment process itself pursuant to a review of the process by the competent authority.
Therefore, the case of the applicant cannot be equated with a case of termination of an existing GDS engagement. The principle relied upon in Sonu Kumar cannot be applied mechanically to a situation where the entire recruitment process is cancelled before the selected candidate is formally engaged and joins the post.
The decision in Union of India vs. Uzair Imran & Ors. also does not assist the applicant beyond the principle that a candidate who has progressed in the selection process is entitled to fair and non-discriminatory treatment. The said decision does not confer an indefeasible right of appointment. In the present case, the respondents have placed before us the material indicating the basis on which the recruitment process was reviewed and subsequently cancelled by the competent authority.
We are conscious that the applicant had secured 81.5% marks, had been selected against the SC vacancy, furnished the requisite security and was declared medically fit. We are also conscious that, according to the RTI replies, the post remained vacant and the applicant's recruitment file was pending. These circumstances may explain the applicant's grievance and expectation of appointment, but they cannot, by themselves, create a vested right to appointment after the recruitment process itself has been cancelled.
The vacancy of the post also cannot compel the respondents to appoint the applicant from a recruitment process which has been cancelled on account of irregularities noticed during review. Once the recruitment process itself stood cancelled by the competent authority, a direction to permit the applicant to join pursuant to the same process would, in effect, amount to reviving the cancelled recruitment process in his favour.
We further find that the respondents have disclosed a rational basis for the impugned action. The communication dated 04.07.2017 records that the recruitment records, including those relating to Mandi BO, were under review by the Circle Office, while the communication dated 07.09.2017 records the decision of the competent authority to cancel the recruitment process for GDS MC Mandi BO. There is no material before us to establish that the cancellation was actuated by mala fides, extraneous considerations or any reason personal to the applicant.
We also note that the applicant was subsequently supplied the cancellation order and that his representation dated 12.06.2018 was considered and replied to by the competent recruiting authority vide communication dated 17.07.2018. Though subsequent consideration cannot substitute a pre-decisional hearing wherever such hearing is otherwise mandatory, the same is relevant to the overall factual position and demonstrates that the applicant's grievance was subsequently considered by the respondents.
The contention of the applicant that completion of medical examination and furnishing of security created a right to joining also cannot be accepted. These were steps in the recruitment/engagement process and did not, in the circumstances of the present case, amount to formal engagement against the post.
The respondents have also relied upon paragraphs 20 and 21 of the notification dated 18.11.2014, which reserved the right of the Department to cancel the engagement process. Such a condition cannot authorize arbitrary action; nevertheless, in the present case the cancellation was preceded by review of the recruitment records and followed by a specific direction of the competent authority.
We are, therefore, of the considered view that the applicant had a reasonable expectation arising from his selection and the completion of the prescribed formalities, but such expectation did not mature into an indefeasible or enforceable right to appointment. The respondents have demonstrated that the cancellation was of the recruitment process as a whole and was based upon administrative review undertaken by the competent authority.
We are not called upon in the present proceedings to adjudicate upon the disciplinary liability of the then recruiting authority or to finally determine each and every irregularity referred to in the review proceedings. The limited question before us is whether the impugned order dated 05.10.2017 warrants interference. On the material available on record, we find no sufficient ground to do so.
In view of the foregoing discussion, we find no jurisdictional error, arbitrariness or illegality in the impugned order dated 05.10.2017 warranting interference by this Tribunal. The judgments relied upon by the applicant, considered in the factual context of the present case, do not lead to a different conclusion.
Accordingly, the Original Application is dismissed. The prayer for quashing of the order dated 05.10.2017 and for a direction to permit the applicant to join the post of GDS Mail Carrier, Mandi BO, New Delhi-110047 is rejected.
Pending MAs, if any, shall stand disposed of. There shall be no order as to costs.