Mohd. Rashid vs The Director, Local Bodies, New Secretariat & Ors.

MOHD. RASHID .....APPELLANT(S)

VERSUS

THE DIRECTOR, LOCAL BODIES, NEW SECRETARIAT & ORS. .....RESPONDENT(S)

WITH

CIVIL APPEAL NO. 137 OF 2020 (ARISING OUT OF SLP (CIVIL) NO. 19912 OF 2017)

JUDGMENT

HEMANT GUPTA, J.

1. The candidates for direct recruitment to the posts of Administrative

Officer/Assistant Assessor and Collector1 are in appeals before this

Court directed against an order passed by the High Court of Delhi

on 1st September, 2016.

2. The candidates who were initially appointed as Lower Division

Clerks and promoted as Upper Division Clerks/Head Clerks invoked

the jurisdiction of the Central Administrative Tribunal 2 challenging

Advertisement No. 3 of 2013 dated 12th September, 2013 whereby,

1 for short, ‘posts in question’ 2 for short, ‘Tribunal’

1 the respondents set in process to fill up the posts advertised by

way of direct recruitment. The argument was that the Recruitment

Regulations for the post of Administrative Officer/Assistant

Assessor and Collector in North, South and East Delhi Municipal

Corporations, 20133 contemplate that the vacancies for the posts

in question are to be filled up by promotion failing which by direct

recruitment. It was thus alleged that without resorting to

promotion by convening meeting of the Departmental Promotion

Committee4, the alternative process of direct recruitment cannot

be resorted to. The said Original Application was dismissed by the

Tribunal on 28th May, 2015 by observing that the recruitment

process is not against the constitutional provisions but the

promotion must also not be tempered with. In the writ petition

directed against such order, the High Court held that the

respondents have failed to comply with the Recruitment Rules and

that only after the respondents are unable to fill up the vacancies

either by promotion or by transfer or by deputation, the

Department would be entitled to publish the advertisement to fill

up the vacancies. It was also found that no effort has been made

to hold DPC to carry out promotions nor the respondents have

explored the possibility to fill up the vacancies either by transfer or

deputation.

3. The advertisement was published to fill up 30 vacancies by direct

recruitment to the posts in question out of which 8 were reserved

3 for short, ‘Recruitment Rules’ 4 for short, ‘DPC’

2 for Other Backward Classes, 4 for Scheduled Castes, 2 for

Scheduled Tribes and 16 were meant for General category

candidates including 1 post meant to be filled up by physically

handicapped candidate which is a horizontal reservation.

4. The Recruitment Rules were amended on 17 th June, 2013 i.e. before

the advertisement was issued on 12 th September, 2013. The

amended Rule reads as under:

1. Name of the Post Administrative Officer/Assistant Assessor and Collector

10. Method of recruitment whether i) 50% by promotion, failing by direct recruitment or by which by direct recruitment.

promotion or by ii) 50% by deputation, failing deputation/absorption and % of which by direct recruitment.” the vacancies to be filled by various method.

5. A perusal of the above Rule shows that 50% of the posts are to be

filled up by promotion. If the posts are not filled up by promotion,

the same are to be filled up by direct recruitment. Similarly, 50%

of the posts are meant to be filled up by deputation. If the

deputationists are not available, the same are to be filled up by

direct recruitment.

6. An affidavit dated 7th August, 2019 has been filed on behalf of

North Delhi Municipal Corporation 5 as to how after the amendment

of the Rules, the number of posts falling to the promotion quota

have been filled up. The assertions in the affidavit are as under:

“5(i) After notification of new Recruitment Rules dated 17.06.2013, the promotion to the post of Admn.

Officer/AA&C (2013) was held as under:

5 for short, ‘North DMC’

3 Sanction Filled Vacan Filled up Vacant Post in up t after DSC after DSC promotion dated dated quota 30.08.2013 30.08.2013 Total 58 33 25 25 00

(ii) The promotion to the post of Admn. Officer/AA&C (2014) was held as under:

Sanction Filled Vacan Filled up Vacant Post in up t after DSC after DSC promotion dated dated quota 31.01.2014 31.01.2014 Total 58 48 10 4 06

(iii) The promotion to the post of Admn. Officer/AA&C (2015) was held as under:

Sanction Filled Vacan Filled up Vacant Post in up t after DSC after DSC promotion dated dated quota 22.07.2014 22.07.2014 Total 58 23 35 31 04

(iv) The promotion to the post of Admn. Officer/AA&C (2016) was held as under:

Sanction Filled Vacan Filled up Vacant Post in up t after DSC after DSC promotion dated dated quota 08.07.2015 08.07.2015 Total 58 34 24 22 02

(v) The promotion to the post of Admn. Officer/AA&C (2017) was held as under:

Sanction Filled Vacan Filled up Vacant Post in up t after DSC after DSC promotion dated dated quota 08.07.2015 08.07.2015 Total 68 14 54 38 16 (including 3 SC & 1 ST)

(vi) That at present details of Vacancy position of Administrative Officer/AA&C in all three Corporations under Promotion Quota as on 01.07.2019 is as under, which is dealt by the North DMC being Nodal Corporation for promotion for all the three Corporation:-

Sanctioned Post Filled up Vacant Post post Promotion 72 54 (including 18

4 Quota 23 LAC given by SDMC)

Note: A DSC is under process, wherein 94 Section Officers, Private Secretaries and Translators are being considered for promotion to the post of Admn.

Officer/AA&C.”

7. It is also mentioned that seniority list of feeder cadre has not been

finalised on account of pendency of the matter before the Tribunal

and the High Court and that in terms of directions of the High

Court, recommendation of the review DPC has been placed before

the High Court and the matter is pending consideration before the

High Court.

8. The said affidavit also gives the details of the manner of posts

falling under the deputation quota. It is mentioned that each of the

three Municipal Corporations deal with the deputation quota at

their own level. However, the vacancies of the North DMC are

stated to be as under:

“(vii) Deputation Quota: The posts under deputation quota are being dealt by the concerned Corporation separately at their own level, the vacancy position of North DMC is as under:

North DMC Sanctioned Filled Vacant 25 4 21

Note: As per Recruitment Rules North DMC has already invited applications for fill-up the post of Admn. Officer/AA&C under deputation quota vide circular dated 06.02.2019 and subsequent reminders dated 12.07.2019. 11 applications for appointment to the post of Admn. Officer/AA&C on deputation basis have been received till date. The last date of receipt of application is 31.08.2019.

5 The above said table shows that the vacancy to the post of Admn. Officer/AA&C has been filled up by the department regularly after notification of new Recruitment Rules dated 17.06.2013.”

9. Thus, in respect of 25 vacancies falling to the share of the North

DMC, it is mentioned that there are 21 vacant posts and that

applications have been invited to fill up the deputation quota vide

Circular dated 6th February, 2019. 11 applications have been

received though the last date of the receipt of the applications was

31st August, 2019.

10. In respect of deputation quota in South Delhi Municipal

Corporation, it is mentioned in the separate affidavit that out of 32

posts falling to the quota of deputationists, 13 posts are vacant as

on 1st August, 2019. By a separate affidavit filed on behalf of East

Delhi Municipal Corporation, it is mentioned that out of 14

sanctioned posts, 5 posts are falling vacant against the deputation

quota.

11. From the above information placed on record, we find that the

Recruitment Rules providing 50% quota to be filled up by

promotion failing which by direct recruitment and another 50% by

deputation quota failing which by direct recruitment are being

followed by the Municipal Bodies.

12. The appellants who are aspirants for direct recruitment have no

right for appointment merely because at one point of time the

vacancies were advertised. The candidates such as the appellants

6 cannot claim any right of appointment merely for the reason that

they responded to an advertisement published on 12 th September,

2013. Even after completion of the selection process, the

candidates even on the merit list do not have any vested right to

seek appointment only for the reason that their names appear on

the merit list. In Shankarsan Dash v. Union of India6, a

Constitution Bench of this Court held that a candidate seeking

appointment to a civil post cannot be regarded to have acquired an

indefeasible right to appointment in such post merely because of

the appearance of his name in the merit list. This Court held as

under:-

“7. It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. 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. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in the State of Haryana v. Subhash Chander Marwaha [(1974) 3 SCC 220 : 1973 SCC (L&S) 488 : (1974) 1 SCR 165] ; Neelima Shangla (Miss) v. State of Haryana [(1986) 4 SCC 268 : 1986 SCC (L&S) 759] or Jitender Kumar v. State of Punjab [(1985) 1 SCC 122 :

1985 SCC (L&S) 174 : (1985) 1 SCR 899] .” 6 (1991) 3 SCC 47

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13. Since the selection process has not been completed and keeping in

view the mandate of the Statutory Rules, we find that the

appellants have no right to dispute the action of the Municipal

Bodies to fill up the posts either by way of promotion or by

deputation as such posts are being filled up in terms of mandate of

the Rules. It is always open to the Municipal Bodies to fill up the

vacant posts by way of direct recruitment after the posts by way of

promotion and/or deputation quota are not filled up either on the

basis of recruitment process already initiated or to be initiated

afresh.

14. Consequently, we do not find any merit in the present appeals.

Accordingly, the same are dismissed.

.............................................J. (L. NAGESWARA RAO)

.............................................J. (HEMANT GUPTA)

NEW DELHI;

JANUARY 15, 2020.

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