Tara Chand & Ors. vs Govt. of NCT of Delhi & Anr.

Hon’ble Dr. Anand S. Khati, Member (A)

The present Original Application (OA) has been filed by the applicants seeking the following relief(s):-

The brief facts as narrated by the learned counsel for the applicants, are as under:

The applicants were appointed as Constable (Executive) in Delhi Police in the years 2007/2008. The Delhi Police invited applications for the Promotion List “A” Test-2014, the result of which was declared in August, 2014. Thereafter, applications were invited against 495 vacancies for the Promotion List “A” Test-2015. The applicants, for whom the said examination was the last opportunity as they had crossed the age of 30 years, applied for consideration.

The result of the Promotion List “A” Test-2015 was declared on 28.08.2015, wherein only 473 candidates were selected against the notified 495 vacancies. Subsequently, as per the RTI reply dated 08.07.2016, Delhi Police declared 109 additional candidates as selected in the Promotion List “A” Test-2014, including approximately 30 candidates who had also been selected in the Promotion List “A” Test-2015.

Consequently, the selection and promotion of such candidates under the Promotion List “A” Test-2015 were cancelled, and they were declared selected and promoted as Head Constable (Executive) under the Promotion List “A” Test-2014, vide order dated 04.02.2016.

He further submitted that as per the RTI information dated 08.07.2016, they had secured 114 marks, which was also the cut-off marks. A total of 35 candidates had secured 114 marks; however, the applicants were not included in the select list on the ground of being junior in age amongst the candidates securing the same marks, out of whom only four candidates were selected.

The applicants contended that, after exclusion of the candidates who were subsequently selected under the Promotion List “A” Test-2014, vacancies remained available for consideration of the next candidates in merit. He submitted that, according to information available to the applicants, around 30 vacancies of Head Constable (Executive) in Delhi Police remain unfilled from the Promotion List “A” Test-2015, and he applicants fall within the first 30 candidates in the merit list of unselected candidates and, therefore, would become eligible for promotion if the said vacancies are filled up by operating the merit list in accordance with their merit position.

The applicants further contended that despite the availability of vacancies and their securing the cut-off marks, the respondents have failed to consider their cases for promotion. It is submitted that the applicants would suffer serious prejudice if only 465 vacancies are ultimately filled, as they would be deprived of promotion despite being otherwise eligible and despite vacancies being available. On the other hand, if the remaining vacancies are also filled by considering Central Administrative Tribunal^{candidates strictly in order of merit, the applicants would have a} legitimate opportunity of being promoted as Head Constable (Executive).

The learned counsel argued that it is well-settled law that in case some candidates higher up in the merit list (category-wise) do not join, fail to qualify medical examination or police verification, or otherwise do not avail the appointment/promotion, the vacancies ought to be offered to the next candidates in order of merit instead of being allowed to remain vacant. In support, reliance has been placed upon the judgment of the Hon’ble High Court of Delhi in Prakash Choudhary vs Delhi Police in W.P. No.2937/2010, decided on 27.07.2010, wherein the action of filling vacancies from the next candidate in the merit list was upheld.

He further submitted that the same principle has been followed in earlier recruitment matters by this Tribunal. In Recruitment-2007, eight candidates were appointed after being found to be the next eight candidates in the merit list, out of whom four candidates were directed to be appointed by this Tribunal in O.A. Nos.2109/2008 and 2402/2008, decided on 06.01.2009, and O.A. No.2578/2009, decided on 10.09.2009. Similarly, in Recruitment-2009 (Phase-I), seven candidates were appointed from amongst the next candidates in the merit list, with directions issued by the Tribunal in O.A. Nos.3452/2009 and 3498/2009, which were subsequently Central Administrative Tribunal^{implemented vide order dated 04.06.2010.}

It is also submitted that the Hon’ble High Court of Delhi, in its judgment dated 27.07.2010 in W.P. No.2937/2010, not only justified the action of the respondents to fill up the vacancies from the next below candidate if a person higher up in merit list do not accept the offer of appointment but also directed that if candidates who are empanelled do not join, the offer must go to the next below candidates so that the posts do not remain vacant. According to the applicants, the same principle squarely applies to the present case, particularly when vacancies are admittedly available and the applicants are next in merit.

The applicants further relied upon the judgment dated 05.03.2013 in DSSSB vs Rajni, W.P. No.2552/2012, wherein directions were issued for preparation of a reserve list and for offering appointment to the next below candidates where candidates higher in merit do not join. It is contended that the respondents have failed to follow the aforesaid principle despite its applicability to the present case.

He further submitted that the aforesaid judicial precedents were also followed by this Tribunal in O.A. No.620/2015, decided on 05.05.2016, whereby the respondents were directed to consider the next candidates against vacancies remaining vacant out of the notified vacancies.

The applicants have also placed reliance upon the Order passed by this Tribunal in O.A. No.2836/2015 dated 26.07.2024, which has been affirmed by the Hon’ble High Court of Delhi in WP(C) No. 17711/2024 in Govt. of NCT of Delhi & Ors. vs Shabana Parveen, vide Order dated 23.12.2024. The applicants, therefore, sought for a direction to the respondents to fill up the remaining vacancies by operating the merit list and to consider the applicants for promotion to the post of Head Constable (Executive) in accordance with their merit position.

On the other hand, pursuant to the directions issued by this Tribunal vide order dated 09.04.2026, the respondents filed an affidavit furnishing the details of the DPCs and Review DPCs conducted for Promotion List ‘A’–2014 and 2015. Placing reliance upon the averments made therein, the learned counsel appearing for the respondents submitted that the DPC for Promotion List ‘A’–2014 was held from 21.07.2014 to 05.08.2014, with the cut-off fixed at 105 marks. Subsequently, representations regarding incorrect answers to certain questions were received and, upon examination, answers to three questions were revised, with one additional mark being awarded for each such question to the candidates as per answer opted by them.

He further submitted that, consequently, a Review DPC was held on 09.04.2015, which found 38 Constables (Exe.) (Male) eligible Central Administrative Tribunal^{on the revised cut-off, and recommended 37 candidates for inclusion} in Promotion List ‘A’-2014 w.e.f. 06.08.2014, one candidate being kept under sealed cover. The Promotion List was adjusted against vacancies available for the year 2015.

Subsequently, many other candidates filed representations regarding wrong answer of some questions and the process to decide those representations was underway. Meanwhile, the process for Promotion List ‘A’–2015 was completed and all 495 available vacancies (473 + 09 OTP + 13 sealed cover) were filled. The cut-off for Promotion List ‘A’-2015 was fixed at 114 marks.

Thereafter, another Review DPC for Promotion List ‘A’–2014 was held on 12.01.2016 and it found 71 Constables eligible and recommended 68 candidates for inclusion in Promotion List ‘A’–2014 w.e.f. 06.08.2014, with two cases kept under sealed cover and one candidate having died. The promotions were adjusted against vacancies available for the year 2016.

It was subsequently found that 15 Constables already included in Promotion List ‘A’-2015 were also eligible for Promotion List ‘A’-2014. Accordingly, their inclusion in Promotion List ‘A’–2015 was cancelled and they were granted inclusion in Promotion List ‘A’-2014 w.e.f. 06.08.2014.

He further submitted that that this adjustment affected only the seniority of the said 15 Constables, as they were already holding the vacancies and no additional vacancies became available. If the Review DPC for Promotion List ‘A’-2014 had been conducted before the DPC for 2015, the vacancies would have been adjusted against the vacancies of the year 2015.

He clarified that there is no provision for maintaining a waiting list in the Promotion List ‘A’ examination. Therefore, if personnel are subsequently removed from the Promotion List, the resultant vacancies are carried forward to the next vacancy year and cannot be filled by unselected candidates from the same Promotion List.

When the matter was taken up for hearing on 03.07.2026, the learned counsel for the respondents submitted that the Review DPCs were conducted in accordance with para 18.1 of DoPT OM No. 22011/5/86-Estt.(D), dated 10.04.1989 and also produced the minutes of the Review DPCs held on 09.04.2015 and 12.01.2016 in a sealed envelope, which was returned to the counsel after perusal by the Court to verify the mode of selection of 2014 Test in promotional quota. The respondents were also directed to clarify whether the applicants have been promoted at a later stage at any point of time and have been given functional rank and also to make available the list of the candidates who had secured 114 marks in 2015 Test.

In compliance of the directions issued vide Order dated Central Administrative Tribunal^{03.07.2026, the learned counsel for the respondents placed on record} the list of the candidates who secured 114 marks in 2015 Test as well as a copy of the Order No.5840-41/Promotion Cell (‘A’ List) PHQ dated 13.07.2016, which reads as under:-

The learned counsel also placed on record another Order dated 30.07.2026 passed by the respondents in continuation of the aforesaid letter dated 13.07.2016. The relevant portion of the same reads as under:-

Accordingly, he submitted that the all the applicants have already been promoted as Head Constable (Exe.) and, thus, the O.A. has become infructuous.

Heard the learned counsel for the parties and perused the pleadings/judgments on record as well as the material produced by the respondents in compliance of the orders passed by this Tribunal from time to time.

It is noticed that the respondents were specifically directed to clarify the subsequent promotional status of the applicants. The material placed on record shows that all the applicants have subsequently attained the rank of Head Constable (Executive), though through different modes and at different points of time. In particular, the respondents have placed on record orders granting the subsequent promotion/assignment of functional rank in respect of the applicants. The subsequent promotion of the applicants would undoubtedly render the prayer seeking a direction for their present promotion to the post of Head Constable (Executive) substantially infructuous. However, merely because the applicants have subsequently been promoted, their claim for retrospective inclusion in Promotion List ‘A’-2015, if otherwise legally sustainable, would not automatically stand extinguished. We have, therefore, considered the substantive claim of the applicants independently.

In the present O.A., the principal grievance of the applicants is that against 495 vacancies notified for Promotion List ‘A’ Test-2015, only 473 candidates were initially declared selected and, subsequently, about 30 candidates who had been included in Promotion List ‘A’-2015 were shifted to Promotion List ‘A’-2014 pursuant to the Review DPCs. According to the applicants, this resulted in vacancies becoming available in the 2015 promotional quota, which ought to have been offered to the next candidates in order of merit, including the applicants. The applicants have further relied upon the fact that they had secured 114 marks, which was the cut-off for the said examination.

The aforesaid contention, however, does not find support from the subsequent material placed on record by the respondents pursuant to the directions of this Tribunal. It has been specifically stated by the respondents that although 473 candidates were initially declared selected, all the 495 vacancies pertaining to Promotion List ‘A’-2015 were ultimately accounted for and filled, namely, 473 + 09 OTP + 13 sealed-cover cases. It is further evident from the record that pursuant to representations regarding incorrect answers in the Promotion List ‘A’-2014 examination, Review DPCs were held on 09.04.2015 and 12.01.2016. In the 2^nd Review DPC, 71 Constables were found eligible and 68 candidates were recommended for inclusion in Promotion List ‘A’-2014, while two cases were kept under sealed cover and one candidate had expired. Out of the said 71 candidates, 15 candidates had already been included in Promotion List ‘A’-2015 and were already holding the relevant vacancies. Consequently, their inclusion in Promotion List ‘A’-2015 was cancelled and they were granted inclusion in Promotion List ‘A’-2014 with effect from 06.08.2014. As specifically explained by the respondents, such adjustment affected their seniority but did not result in the creation or release of any additional vacancy.

The aforesaid explanation assumes significance because the entire claim of the applicants is founded upon the premise that the shifting of candidates from Promotion List ‘A’-2015 to Promotion List ‘A’-2014 resulted in vacancies becoming available for being offered to the next candidates in merit. The material before us does not substantiate such a premise. On the contrary, the respondents have categorically stated that the said 15 candidates were already occupying the vacancies and also that, had the Review DPC for the year 2014 been held prior to the DPC for the year 2015, the vacancies would have been adjusted against the vacancies of the relevant year.

We are, therefore, unable to accept the contention that merely because 15 candidates were subsequently shifted from Promotion List ‘A’-2015 to Promotion List ‘A’-2014, 15 vacancies became available in Promotion List ‘A’-2015 for the next candidates in merit. The alteration in the promotional list pursuant to a Review DPC, in the facts of the present case, was essentially an adjustment of the Central Administrative Tribunalseniority and promotional year of candidates who were already occupying the posts.

The applicants have also relied upon the fact that they had secured 114 marks, which was the cut-off for Promotion List ‘A’-2015. However, this contention, by itself, does not confer upon them any right to inclusion in the Promotion List. It is well settled that securing the minimum cut-off marks does not, in the absence of a vacancy and subject to the applicable selection criteria, confer an indefeasible right to promotion. Where more than the requisite number of candidates secure the same marks, the selection has necessarily to be made in accordance with the prescribed criteria governing such tie.

The respondents have also placed before us the list of candidates who secured 114 marks in the Promotion List ‘A’-2015 examination in a sealed cover for perusal and specifically stated that the applicants do not fall within the next 15 candidates in the said list. It has further been stated that the candidates referred to at Serial Nos. 20, 24, 31 and 34, i.e. the applicants herein, have subsequently been granted/assigned the rank of Head Constable. Thus, even on the assumption that the subsequent shifting of the 15 candidates could have resulted in vacancies being considered afresh, the applicants have not demonstrated that they occupied a merit position which would entitle them to consideration against such vacancies. The applicants' mere placement amongst the candidates securing the cut-off marks cannot, therefore, furnish a basis for directing their retrospective inclusion in Promotion List ‘A’-2015.

The applicants have placed considerable reliance upon the judgment of the Hon’ble High Court of Delhi in Prakash Choudhary (supra) as well as the orders passed by this Tribunal in various earlier OAs to contend that where a selected candidate does not join or a vacancy remains unfilled, the next candidate in merit ought to be considered. There can be no dispute with the general proposition that where a duly selected candidate does not join or otherwise does not avail the appointment against a notified vacancy, the authorities may, subject to the applicable rules and instructions, consider the next candidate in merit. However, the said principle cannot be extended to a case where no vacancy is in fact shown to have remained unfilled.

However, the factual position in the present case is materially different. The 15 candidates who were subsequently shifted to Promotion List ‘A’-2014 had already been granted promotion and were holding the relevant vacancies. Their subsequent inclusion in the earlier promotional list pursuant to a Review DPC did not amount to their failure to join, refusal of promotion or non-utilisation of the posts. Consequently, the authorities were not dealing with 15 unfilled vacancies which were required to be offered to the next candidates in merit. Therefore, the judgments relied upon by the applicants do not advance their case, in the facts and circumstances presently before Central Administrative Tribunal^{us. The ratio of those decisions cannot be invoked in abstraction from} the factual condition that an actual vacancy remained available for being filled from the next candidate in merit.

The applicants have also relied upon the judgment in DSSSB vs Rajni and the order passed by this Tribunal in O.A. No.620/2015, as well as the order dated 26.07.2024 in O.A. No.2836/2015, stated to have been affirmed by the Hon’ble High Court of Delhi in W.P.(C) No.17711/2024. These decisions may support the proposition that genuine vacancies remaining unfilled out of the notified vacancies may be offered to candidates next in merit, subject to the governing rules. However, the said principle would have no application where the applicants fail to establish the existence of such vacancies.

In the present case, the respondents have categorically stated that there is no provision for maintaining a waiting list in the Promotion List ‘A’ examination. The applicants have not been able to point out any statutory rule, departmental instruction or applicable provision which mandates the preparation or operation of a waiting list in the said promotional examination. In the absence of such a provision, the applicants cannot claim, as a matter of right, that their names must be operated from an alleged list of next-in-merit candidates after the selection process had been completed.

Having considered the matter in its entirety, we find that the applicants have failed to establish that any of the 495 vacancies pertaining to Promotion List ‘A’-2015 remained available for being offered to the next candidates in merit. The subsequent shifting of 15 candidates to Promotion List ‘A’-2014 pursuant to the Review DPC did not create or release any corresponding vacancies, as those candidates were already holding the relevant posts. The applicants have also failed to establish that they fell within the zone of consideration against any vacancy.

The mere securing of 114 marks, being the cut-off, does not confer any right to retrospective inclusion in Promotion List ‘A’-2015. There is also no provision for maintaining or operating a waiting list in the said examination, nor has any statutory or regulatory provision been brought to our notice enabling retrospective inclusion at this stage in the circumstances of the present case. Grant of such relief would, apart from lacking any legal basis, have a cascading effect on the seniority and promotional position of other personnel whose service rights have crystallised in the intervening period.

We, therefore, find no basis to grant retrospective inclusion or any consequential seniority, pay or other service benefits. The prayer for promotion as Head Constable (Executive) has, in any event, been rendered substantially infructuous in view of the subsequent promotion/assignment of functional rank to the applicants.

In view of the foregoing, the Original Application is dismissed. In the facts and circumstances of the case, there shall be no order as to costs. Pending MAs, if any, shall also stand disposed of.