Mohd. Rashid v. the Director, Local Bodies, New Secretariat & Ors.

HEMANT GUPTA, J. 1. The candidates for direct recruitment to the pos ts of Administrative Officer/Assistant Assessor and Collector 1 are in appeals before this Court directed against an order passed by the High Court of Delhi on 1 st 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 12 th September, 2013 whereby, the respondents set in process to fill up the posts advertised by way of direct recruitment. The argument was that the Recruitment Regulat ions for the post of Administrative Officer/Assistant Assessor and Collector in North, South and East Delhi Municipal Corporations, 2013 3 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 Departmen tal Promotion Committee 4, the alternative process of direct recruitment cannot be resorted to. The said Original Application was dismissed by the Tribunal on 28 th 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 s uch 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 for Other Backward Classes, 4 for Scheduled Castes, 2 for Scheduled Tribes and 16 were meant for General category candidates including 1 1 for short, ‘posts in question’ 2 for short, ‘Tribunal’ 3 for short, ‘Recruitment Rules’ 4 for short, ‘DPC’ 79 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: 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. Similar ly, 50% of the posts are meant to be filled up by deputation. If the deputationis ts are not available, the same are to be filled up by direct recruitment. 6. An affidavit dated 7 th August, 2019 has been filed on behalf of North Delhi Municipal Corporation 1 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: (ii) The promotion to the post of Admn. Officer/AA&C (2014) was held as under : 1. Name of the Post Administrative Office r/Assistant Assessor and Collector 10. Method of recruitment whether by direct recruitment or by promotion or by deputation/absorption and % of the vacancies to be filled by various method. i) 50% by promotion, failing which by direct recruitment. ii) 50% by deputation, failing which by direct recruitment.” 5 for short, ‘North DMC’ Sanction Post in promotion quota Filled up Vacant Filled up after DSC dated 30.08.2013 Vacant after DSC dated 30.08.2013 Total 58 33 25 25 00 Sanction Post in promotion quota Filled up Vacant Filled up after DSC dated 31.01.2014 Vacant after DSC dated 31.01.2014 Total 58 48 10 4 06 MOHD. RASHID v. THE DIRECTOR, LOCAL BODIES, NEW SECRETARIAT [HEMANT GUPTA, J.] (iii) The promotion to the post of Admn. Officer/AA&C (2015) was held as under : (iv) The promotion to the post of Admn. Officer/AA&C (2016) was held as under : (v) The promotion to the post of Admn. Officer/AA&C (2017) was held as under : (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 t hree Corporation:- Note: A DSC is under process, wherein 94 Section Offic ers, Private Secretaries and Translators are being considere d for promotion to the post of Admn. Officer/AA&C.” Sanction Post in promotion quota Filled up Vacant Filled up after DSC dated 22.07.2014 Vacant after DSC dated 22.07.2014 Total 58 23 35 31 04 Sanction Post in promotion quota Filled up Vacant Filled up after DSC dated 08.07.2015 Vacant after DSC dated 08.07.2015 Total 58 34 24 22 02 Sanction Post in promotion quota Filled up Vacant Filled up after DSC dated 08.07.2015 Vacant after DSC dated 08.07.2015 Total 68 14 54 38 16 (including 3 SC & 1 ST) Sanctioned Post Filled up post Vacant Post Promotion Quota 72 54 (including 23 LAC given by SDMC) 18 81 7. It is also mentioned that seniority list of feeder ca dre 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 Hig h Court, recommendation of the review DPC has been placed before the H igh 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 b e 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: Note: As per Recruitment Rules North DMC has already invited applications for fill-up the post of Admn. Officer/AA&C unde r 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 appl ication is 31.08.2019. The above said table shows that the vacancy to the post of Admn. Officer/AA&C has been filled up by the department regula rly 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 an d that applications have been invited to fill up the deputation quota vide Circular dated 6 th February, 2019. 11 applications have been received though the last date of the receipt of the applications was 31 st August, 2019. 10. In respect of deputation quota in South Delhi Munici pal 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 1 st August, 2019. By a separate affidavit filed on behalf of East Delhi Municipal North DMC Sanctioned Filled Vacant 25 4 21 MOHD. RASHID v. THE DIRECTOR, LOCAL BODIES, NEW SECRETARIAT [HEMANT GUPTA, J.] 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 p romotion 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 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 r eason that their names appear on the merit list. In Shankarsan Dash v. Union of India 1, a Constitution Bench of this Court held that a candidate seeking appointment to a civil post cannot be regarded to have acq uired an indefeasible right to appointment in such post merely bec ause 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 q ualified 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 St ate 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, t he 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) 6 (1991) 3 SCC 47 83 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] .” 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 a re 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. Kalpana K. Tripathy Appeals dismissed. MOHD. RASHID v. THE DIRECTOR, LOCAL BODIES, NEW SECRETARIAT [HEMANT GUPTA, J.]