Vinod M. vs The Comptroller and Auditor General of India

Jayant Patel, J.—As in all the petitions, common question of law arise for consideration they have been considered simultaneously.

All petitions are directed against the order dated 6-8-2015, passed by the Tribunal in the respective original applications, whereby the Tribunal directed the authority to consider the case of applicants before the Tribunal along with the other first 100 candidates in the merit list, inter se merits be decided and the select list be prepared accordingly, for filling up of the posts of Multitasking Staff.

We have heard Mr. Narayana Bhat M., learned Counsel appearing for the applicants before the Tribunal and Mr. M. Vasudeva Rao, learned Senior Central Government Standing Counsel, appearing for the Comptroller and Auditor General of India.

We may state that since there are number of petitions filed against the very judgment and order of the Tribunal by both sides, the parties shall be referred to as per their status before the Tribunal, instead of their status in the present petitions, for the sake of convenience.

The contentions raised on behalf of the applicants are that, in the earlier round of litigation, when the selection was under challenge as also the marking pattern, the Tribunal vide its judgment and order dated 17-1-2012, did not interfere with the selection already made of 100 persons, but since 12 posts were left out, the Tribunal directed the respondents to consider the case of the applicants and then, to take appropriate decision. It is the contention of the applicants, that the Tribunal had used the expression of accommodating four applicants in the left out vacancies and therefore, the merit of only those four original applicants were required to be considered. Instead of consideration of the merit of only four applicants for being accommodated in the vacant posts, the respondent before the Tribunal did not properly implement the order and consequently, the appointments were not offered to the applicants. Once again, the applicants were required to approach before the Tribunal and it was obligatory on the part of the Tribunal to go by the earlier decision taken and not to expand the scope of consideration of the merits of the candidates, including the applicants before the Tribunal. However, in the impugned order, the Tribunal directed for consideration of merit of the applicants with other left out persons of the select list and then, further directed for consideration, which is erroneous. It is submitted that the Tribunal has not properly considered the case of the applicants and hence, this Court may consider the same in the present petitions.

Whereas, learned Counsel appearing for respondents submitted that as such, initially, the appeal was not to be preferred against the order of the Tribunal, since the Tribunal had directed for consideration of the merit of all other left out candidates and other applicants before the Tribunal. However, subsequently, as the original applicants before the Tribunal have preferred petitions before this Court, assailing the order of the Tribunal, the cross petitions have been filed. Learned Counsel submitted that if this Court finds that order of the Tribunal calls for no interference, respondents would not press the matter further.

It may be recorded that in the earlier round of litigation vide order dated 17-1-2012, copy whereof is produced at Annexure-A13, it is true that at one point of time, the Tribunal did observe accommodation of four applicants. But the Tribunal further added a rider that "if they possess minimum educational qualification and also satisfy the age restrictions and other conditions specified in the notification", then they could be accommodated. Not only that, in the ultimate operative portion of the order, the Tribunal issued the following directions:

"We direct respondent 2 to consider the appointment of the applicants against vacancies available within a period of 30 days from the date of receipt of a copy of this order."

It is also pertinent to take note that the challenge by the applicants in the first round of litigation before the Tribunal was about the marking pattern applied by the respondents at the time when the select list was prepared. The said select list was already prepared and the appointments were also offered to 100 candidates. The Tribunal had taken note of the same, but did not interfere with the selection already made of 100 candidates and appointments given to them. However, the Tribunal having found that twelve vacancies were available and the cases of the applicants could also be considered, exercised its discretion and directed for consideration of the cases of the applicants.

The respondents did consider the cases of the applicants but, since they were not found meritorious to be included for the purposes of selection, appointments were not offered to them.

In the second round of litigation, when the subsequent decision of the respondents was challenged, the Tribunal found that the other candidates, who were left out but not offered appointments, should also be considered and inter se merit should be considered and thereafter, the cases of the applicants should be considered.

In our view, in order to find out the inter se merit of the candidates selected subsequently, the cases of the applicants were ordered to be considered. That could not be said to be an unreasonable approach on the part of the Tribunal. Even otherwise, the applicants who had approached the Tribunal could not march over in merit merely because they had preferred the applications.

The attempt on the part of the applicants to contend that the earlier observations of the Tribunal in the first round of litigation could not be diluted, in our view, cannot be countenanced for the simple reason that the Tribunal had accepted the prayer of the applicants to be considered, but on the basis of inter se merit of all the similarly situated persons. So far as the method and marking pattern adopted by the respondents was concerned, the Tribunal in the earlier round of litigation also, did not interfere with the same. Under these circumstances, it is not possible to accept the contention that in the second round of litigation the Tribunal has nullified the observations made by it in the first round of litigation.

In any event, the consideration is ordered by the Tribunal as per the inter se merit, which can hardly be said to be an unreasonable approach on the part of the Tribunal. On the contrary, if any candidate asserts right for appointment de hors the merit, such would be an unreasonable request on the part of the candidates, which cannot be granted by this Court.

In view of the above, we find that the order passed by the Tribunal does not call for our interference. Hence, all the writ petitions are without merit and they are dismissed accordingly.

In view of the dismissal of the writ petitions, the interlocutory applications do not survive for consideration and stand dismissed.