Union of India & Ors Vs. K.V. Vijeesh
[1996] INSC 329 (27
February 1996)
Ahmadi
A.M. (Cj) Ahmadi A.M. (Cj) Mukherjee M.K. (J) Venkataswami K. (J)
CITATION:
1996 SCC (3) 139 1996 SCALE (2)631
ACT:
HEAD NOTE:
O R D
E R
Special
leave granted.
Heard
the learned counsel for the parties.
By its
Employment Notice No. 1/90 the Railway Recruitment Board invited applications
for 308 vacancies in the post of Diesel Assistants in Palghat and Trivandrum
Divisions of the Southern Railways. Among others the respondent applied for the
above post, and on his success in the written examination and viva voce test
held for the purpose, the Board included his name in the select list, published
under Notification No. 4/91 dated March 25, 1991 and forwarded the same to the Southern
Railway Administration recommending appointments therefrom. As in spite of his
such inclusion in the panel he was not being given any appointments he filed an
application before the Central Administrative Tribunal, Ernakulam, contending
inter alia, that even though in the select list his rank was 172 he had not
been given appointment but persons lower in rank were appointed. Accordingly,
he prayed for necessary directions for his appointment as a Diesel Assistant in
accordance with his position in the panel.
In
contesting the application the appellant-Railways contended that subsequent to
the issuance of the notification dated March 25, 1991 the Railways had taken a policy
decision that the requirement of Diesel Assistant staff had to be reduced owing
to impending absorption of Steam surplus staff. As a result, the bottom 25
persons in the select list had to be withdrawn from the list recommended for
employment. The Railways further contended that the select list was not
prepared in order of merit and that the respondent's contention that his rank
in the list was 172 was incorrect. Indeed, according to the Railways, the
respondent was at the bottom of the list and consequently his name, besides
others', had to be withdrawn on the reduction of the number of vacancies.
While
accepting the Railways' contention that the select list was not prepared in
order of merit and conceding their right to adjust the number of vacancies
according to requirement or according to policy, the Tribunal observed that
there must be some protection given to those who had been declared successful.
The Tribunal further observed that the least that was expected of the Railways
was that such of the candidates who were successful but could not be
accommodated as a result of reduction in the number of vacancies could be
employed subsequently when the vacancies arose. In making the above
observations the Tribunal quoted and relied upon the following passage from the
judgment of this Court in Prem Prakash vs. Union of India (AIR 1984 SC 1831):
"Once
a person is declared successful according to the merit list of selected
candidates which is based on the declared number of vacancies the appointing
authority has the responsibility to appoint him even if the number of vacancies
undergoes a change after his name has been included in the list of selected
candidates." With the above observations the Tribunal directed the
Southern Railways to consider the respondent for appointment as Diesel
Assistant in any existing or next available vacancy on the basis that his name
had been recommended by the Railway Recruitment Board for appointment. The
above order of the Tribunal is under challenge in the present appeal at the
instance of the Railways.
In the
context of the facts of the instant case the only question which falls for
determination in this appeal is whether a candidate whose name appears in the
select list on the basis of a competitive examination acquires a right of
appointment in Government service in an existing or a future vacancy. The above
question has been answered by a Constitution Bench of this Court in Shjankarsan
Dash vs. Union of India (AIR 1991 SC 1612); [(1991) 3 SCC 47] with the
following words:- "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. 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 had to be taken bona fide for appropriate
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." (emphasis supplied) In view of the above pronouncement
of this Court the order of the Tribunal directing absorption of the respondent
solely on the ground that his name was included in the select list cannot be
sustained. The reliance of the Tribunal on the judgment of this Court in Prem Prakash's
case (supra), particularly, the above quoted passage was wholly misplaced for,
in that case, the notification regarding recruitment specifically providing
that once a person was declared successful according to the merit list of
selected candidates the appointing authority had the responsibility to appoint
him even if the number of vacancies had undergone a change after his name had
been included in the list of selected candidates. It further provided that
where selected candidates were awaiting appointment, recruitment should either
be postponed till all the selected candidates were accommodated or,
alternatively, intake for the next recruitment reduced by the number of
candidates awaiting appointment. Relying solely on the above notification this
Court made earlier quoted observations in Prem Prakash's case (supra). In
absence of any such rules governing the appointment of the respondent, the
Tribunal was therefore not justified in passing the impugned order.
Though
the above discussion of ours was sufficient to set aside the impugned order, we
had, - keeping in view the observations of this Court in Shankarsan Dash's case
(supra) - called for and looked into the relevant records of the Railways to
ascertain whether the Railway Administration had acted arbitrarily in rejecting
the respondent's claim and, for that matter, whether appointments had been made
according to the comparative merits of the candidates or not. The records not
only indicate that the contention of the Railways that the respondent was
placed at the bottom of the list is correct but also that the appointments have
been made according to the comparative merits of the candidates.
It
cannot, therefore, be said that the rejection of the respondent's claim was
arbitrary or discriminatory.
For
the foregoing discussion we allow this appeal and set aside the impugned order
of the Tribunal. There will be no order as to costs.
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