Richa Jaiswal vs Union Of India & Ors

Mohan Pyare, Member (Administrative)

Shri Shyamal Narain, learned counsel for the applicant and Shri Rajni Kant Rai, learned counsel for the respondents are present.

By means of this OA, the applicant has sought the following reliefs :

“ (i) That this Hon’ble Tribunal be pleased to issue a positive and time-bound direction to the respondents to fill up the three posts of Ward Assistant (Female), notified by them from amongst the successful female candidates who had participated in the selection and, in case the applicant is found successful and deserving of selection, then, to appoint her, according to her merit, to the said post, with all consequential benefits, w.e.f. the same date that the four finally selected Male candidates (whose names appear in the Final Select List), are appointed as Ward Assistants.

(ii) That this Hon’ble Tribunal be pleased to grant such other and further relief, as the applicant might be found entitled to in the facts and circumstances of the case.

(iii) That this Hon’ble Tribunal be pleased to award the costs of this Original Application in favour of the applicant, throughout.”

The brief facts about the case are that the General Manager, OEF, Kanpur invited online applications for recruitment to various Group ‘B’ and ‘C’ posts of Para Medical Staff at the OEF, Kanpur. The applicant applied for Ward Sahayak (Female) against 07 posts of Ward Sahayak (Male-04 and Female-03). Out of 07 posts, 04 were unreserved, 02 were reserved for OBC candidates and 01 was reserved for S.C. candidate and one post each for candidates belonging to the Physically Handicapped category and Ex-Servicemen category. The selection was prescribed to be done on the basis of merit in written test and Skill test. The applicant applied for the post of Ward Sahayak (Female) and appeared for written test, was successful and participated in Skill test. The result of the above selection was published on 06.02.2015 and the applicant was shocked to see that final selection select list for Ward Sahayak contended only 04 Male candidates. Against 03 vacancies of Female Ward Sahayak only 02 Females i.e. the applicant and Ms. Anjana Kumari was declared qualified after the written examination for Skill test. The respondents have finally selected only one OBC/ Physically handicapped candidate leaving one post of Ward Sahayak reserved for OBC candidate unfilled. The respondents have committed serious mistake in not filling up 03 posts of Ward Sahayak (Female) when 02 Female candidate who have successfully qualified the written examination were available for selection. The above action of the respondents is arbitrary, whimsical, irrational, unjust, unfair, unreasonable, unwarranted, discriminatory and in violation of applicant’s fundamental right to equality as enshrined in Article 14 of the Constitution of India, hence liable to be quashed. Despite sincere attempt made by the applicant to meet the respondents to press her grievance, she has failed to receive any audience from the respondents. Aggrieved by the above, the applicant has filed this OA.

The respondents in their counter affidavit have submitted that in pursuance of the said notification, 35 candidates have cleared written test and out of 35 candidates, 25 candidates appeared in the Skill test. On the basis of marks obtained in the written test and Skill test, merit list was prepared and 04 mail candidates were selected. The applicant stood at Sl. No.07 placed in the merit list and belongs to OBC category. The provisions of SRO are binding both upon the respondents as well as the applicant. The respondents have acted in accordance with SRO. The respondents have submitted that based on the marks obtained in the written examination and skill test, merit list was prepared and select list of 04 candidates (male) was declared. No female candidate was in the select list. In the final merit list, it was found that the applicant stood at the 7th place in the merit list. After considering the male candidates from the merit position 1st and 2nd against unreserved (UR) respondents had to go below in merit list for one post of SC and one PHP candidate, as selected for issuance of appointment letter. It became necessary to ignore the candidates at 3rd to 6th place of the merit list. If the applicant was to be considered as selected, ignoring higher ranked merit candidates (at S. No.3 to 6 of the merit list) that would have been possible if there would have been any provision in the SRO of Ward Sahayak for reservation/priority to female. The SRO does not speak of any differentiation between Male and Female. In such a situation a decision was taken to fill up only four posts of male candidates ranked at 1,2 (UR) 9 (SC) & 26 (PHP) of merit list and rest 3 posts would be advertised separately for ward Sahayak so that the situation of ignoring higher merit candidates would be take place. Further, if the applicant was declared selected in the merit list ignoring the candidates at 3rd to 6th position of merit list it would be infringement of the SRO and gross violation of Natural Justice for these candidates at the 3rd to 6th position of merit list. The applicant, therefore, was not selected. Only in cases where there is reservation for SC, ST, OBC and PHP etc. one may go down in the merit list in search of the eligible/suitable candidates, however, this cannot be done in the case of male/female candidates.

Heard both the parties and both counsels have submitted their written argument.

In their written submission, learned counsel for the applicant submitted that the present case relates to the post of Ward Sahayak, and for this post it was clearly specified that out of total number of 7 posts advertised, 04 were for Males and 03 were for females. This clearly meant that only males were eligible for being considered for the four posts of Male Ward Sahayaks, and likewise, only females were eligible for being considered for the posts of three Female Ward Sahayaks. It follows, therefore, that competition for selection for the 04 posts of Male Ward Sahayaks was confined to only male candidates and competition for the 03 posts of Female Ward Sahayaks was restricted to only female candidates. That is to say, for the posts of Ward Sahayak, male and female candidates, irrespective of their comparative merit, were not competing against each other. He further submitted that in the counter reply, in paras 7 and 11, the only reason given by the respondents for not filling up the three posts of female Ward Sahayak is that in the SRO there is no Male/Female distinction for the post of Ward Sahayak, and, therefore, selecting the 7th ranked applicant for that post would have been an act of injustice to candidates ranked 3rd to 6th above her. No other reason, apart from this, has been given by the respondents for leaving the three posts of Ward Sahayak unfilled. The applicant further submitted that the aforesaid plea of the respondents can also be easily demonstrated to be an after-thought and a contradiction in terms. For, if indeed the respondents, as they claim, were following the SRO, in letter and spirit, by doing away with the distinction and demarcation between Male and Female Ward Assistant, despite the advertisement clearly stating otherwise, then it begs the question as to why they did not fill up the remaining three posts of Ward Sahayak by three more candidates from the merit list, irrespective of gender, and stopped with publishing a select list of only four male candidates ? It is clear that the respondents, by their own action and statements are blowing hot and cold at the same time which they cannot be permitted to do. Further, the SRO argument of the respondents stands negated altogether by looking at the Advertisement and the SRO together. None of the posts, as advertised by respondents, as ear-marked for either Male or Female or both Male/Female candidates is in accordance with the SRO since the SRO contains no mention of any gender at all for any of the posts. Respondents need to be asked whether the other posts containing gender specification were filled by candidates of that gender only or they too were left unfilled for the same reason as is being given in the case of the applicant ? If they were filled without any objection, how can the applicant be treated differently.

The applicant has relied upon the judgment of Hon’ble Supreme Court in the case of Shankarsan Dash Vs. Union of India & ors. decided on 30.04.1991, in which the Hon’ble Supreme Court has held that “ Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted.”

The applicant has relied upon the judgment of Hon’ble Supreme Court in the case of State of U.P. Karunesh Kumar & ors. The relevant part of the order is reproduced as under :-

“ The principle governing changing the rules of game would not have any application when the change is with respect to selection process but not the qualification or eligibility. In other words, after the advertisement is made followed by an application by a candidate with further progress, a rule cannot be brought in, disqualifying him to participate in the selection process. It is only in such cases, the principle aforesaid will have an application or else it will hamper the power of the employer to recruit a person suitable for a job.”

The Gazette of India : August 20, 2005 /SRAVANA 29, 1927.

The Sl. No.18 of this gazette is quoted below :-

1

2

3

4

5

6

Ward Sahayak

155* (2004) * Subject to variation dependent on workload

Civilians

in Defence Services, NonIndustrial, Group ‘D’, Non-Ministerial

Rs.2,550- 55-2,660- 60-3,200

Selection by suitability

No

The respondents in their written submission have mentioned that the applicant was placed in merit position 7th as such she cannot jump the candidates who have secured higher marks in merit position i.e. merit position 3rd to 6th. The Division Bench of Allahabad High Court in the case of U.P. Public Service Commission Vs. State of U.P. and others on 08th March 2007 in Paragraph 21 held that “ at list candidate can seek appointment only if such a provision has been made under the rules or an executive order having force of law or the scheme of appointment enforced by the authorities provide for making appointment from the wait list, in case vacancy remains unfilled on account of non joining of the selected candidates. However, it is neither obligatory nor mandatory for the employer to prepare simultaneously wait list or to keep a wait list intact as and when any election is made besides the select list, unless a provision is made making it obligator to prepare a wait list. It is always open to the employer not to prepare any wait list and after declaring the result of the selected candidates, to make appointment there from and in case any vacancy remained unfilled, to make a fresh selection instead of looking for a wait list. However, where the provision for wait list has been made, the same has to be observed strictly and within the four corners of such provision and not beyond that. The right of wait listed candidate is a kind of right which is not enforceable in the absence of any statutory provision conferring a right upon him to claim appointment, in case selected candidate failed to join. In other words, the right of wait list candidate, thus, is a very weak kind of right and is not enforceable unless supported by a rule or executive order having force of law.” The Division Bench of Allahabad High Court in the case of U.P. Public Service Commission Vs. State of U.P. and others on 8th March 2007 in Paragraph 35 held that “ the Hon’ble Apex Court in Bihar State Electricity Board Vs. Suresh Prasad and others (supra) since the post in question as of reserved category and a concession was made in the counter affidavit on behalf of the government, it was directed to be filled in but there is no general law laid down therein that a select list candidate has a right to seek appointment.” The respondents further submitted that the applicant is not selected for appointment on the post in question but she is only wait listed candidate and on the basis of wait listed candidate the applicant cannot claim her appointment on the post in question.

The respondents have relied upon the judgment of Hon’ble Supreme Court in the case of State of Chairman, All India Railway Rec. Board & Anr. Vas Shyam Kumar & ors. The respondents also relied upon the judgment of Hon’ble High Court in the case of U.P. Service Commission Vs. State of UP and Atual Krishna decided on 08th March, 2007. The relevant part of the judgment is reproduced as under :-

“Thus, a wait list candidate cannot seek a writ of mandamus enforcing his right to claim appointment by seeking a direction to the Commission to make recommendation of his name from the waiting list and the Government is not obliged to appoint him consequently unless it is substantiated by a statutory provision.”

While analysing the submission made by both the parties and carefully analysing the documents available on record, it is clear that 03 Female candidates shown in the advertisement is only preferential. The respondents/department would have been happy to get 03 Female candidates for Ward Sahayak provided, those candidates were fulfillings the requirements of SRO and rules of reservation. The rules of reservation cannot be ignored to accommodate the preference and relying upon the findings of Apex Court in Shankarsan Dash Vs. Union of India & ors., the respondents have taken bonafide action for appropriate reasons (following SRO and rules of reservation). The respondents have respected the merit list and have not discriminated among candidates.

The other judgments relied upon by applicant also does not support the claim of the applicant.

The judgment relied upon by respondents by Hon’ble High Court of Allahabad U.P. Service Commission Vs. State of UP and Atual Krishna dated 08th March, 2007 is identical as this OA and supports the stand of respondents. The relevant recruitment rule does not support the selection of the applicant. Hence, the action of the respondents to not fill the vacancies of Female Ward Sahayak is in tune with the above findings of Hon’ble Apex Court.

In the light of above discussion, there is no merit in the OA of the applicant and is liable to be dismissed. Accordingly, the OA is dismissed. No order as to costs.

The Interim order, if any, stands vacated.

All associated MAs also stand disposed of.