MOHD. RASHID versus THE DIRECTOR, LOCAL BODIES, NEW SECRETARIAT & ORS. on 15 January 2020

1. The candidates for direct recruitment to the posts ofAdministrative Officer/Assistant Assessor and Collector[1] are in appealsbefore this Court directed against an order passed by the High Court ofBDelhi on 1[st] September, 2016.

2. The candidates who were initially appointed as Lower DivisionClerks and promoted as Upper Division Clerks/Head Clerks invokedthe jurisdiction of the Central Administrative Tribunal[2] challengingAdvertisement No. 3 of 2013 dated 12[th] September, 2013 whereby, theCrespondents set in process to fill up the posts advertised by way of directrecruitment. The argument was that the Recruitment Regulations forthe post of Administrative Officer/Assistant Assessor and Collector inNorth, South and East Delhi Municipal Corporations, 2013[3] contemplatethat the vacancies for the posts in question are to be filled up by promotionDfailing which by direct recruitment. It was thus alleged that withoutresorting to promotion by convening meeting of the DepartmentalPromotion Committee[4], the alternative process of direct recruitmentcannot be resorted to. The said Original Application was dismissed bythe Tribunal on 28[th] May, 2015 by observing that the recruitment processis not against the constitutional provisions but the promotion must alsoEnot be tempered with. In the writ petition directed against such order,the High Court held that the respondents have failed to comply with theRecruitment Rules and that only after the respondents are unable to fillup the vacancies either by promotion or by transfer or by deputation, theDepartment would be entitled to publish the advertisement to fill up thevacancies. It was also found that no effort has been made to hold DPCFto carry out promotions nor the respondents have explored the possibilityto fill up the vacancies either by transfer or deputation.

3. The advertisement was published to fill up 30 vacancies bydirect recruitment to the posts in question out of which 8 were reservedGfor Other Backward Classes, 4 for Scheduled Castes, 2 for ScheduledTribes and 16 were meant for General category candidates including 1

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1 for short, ‘posts in question’

2 for short, ‘Tribunal’

3 for short, ‘Recruitment Rules’

4 for short, ‘DPC’

MOHD. RASHID v. THE DIRECTOR, LOCAL BODIES, NEWSECRETARIAT [HEMANT GUPTA, J.]

post meant to be filled up by physically handicapped candidate which isa horizontal reservation.

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4. The Recruitment Rules were amended on 17[th] June, 2013 i.e.before the advertisement was issued on 12[th] September, 2013. Theamended Rule reads as under:

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1. Name of the PostAdministrative Officer/Assistant Assessor and Collector 10. Method of recruitment whether by direct i) 50% by promotion, failing which recruitment or by promotion or by by direct recruitment. deputation/absorption and % of the ii) 50% by deputation, failing which vacancies to be filled by various method. by direct recruitment.”

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5. A perusal of the above Rule shows that 50% of the posts are tobe filled up by promotion. If the posts are not filled up by promotion, thesame are to be filled up by direct recruitment. Similarly, 50% of theposts are meant to be filled up by deputation. If the deputationists arenot available, the same are to be filled up by direct recruitment.

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6. An affidavit dated 7[th] August, 2019 has been filed on behalf ofNorth Delhi Municipal Corporation[1] as to how after the amendment ofthe Rules, the number of posts falling to the promotion quota have beenfilled up. The assertions in the affidavit are as under:

“5(i) After notification of new Recruitment Rules datedE17.06.2013, the promotion to the post of Admn. Officer/AA&C(2013) was held as under:

Sanction Filled Vacant Filled up Vacant Post in up after DSC after DSC promotion dated dated quota 30.08.2013 30.08.2013Total58 33 25 25 00

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

Sanction Filled Vacant Filled up Vacant Post in up after DSC after DSC promotion dated dated quota 31.01.2014 31.01.2014Total584810406

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5 for short, ‘North DMC’

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

Sanction Filled Vacant Filled up Vacant Post in up after DSC after DSC promotion dated dated quota22.07.2014 22.07.2014Total5823353104

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

Sanction Filled Vacant Filled up Vacant Post in up after DSC after DSC promotion dated dated quota 08.07.2015 08.07.2015Total58 34 24 22 02

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

Sanction Filled Vacant Filled up Vacant Post in up after DSC after DSC promotion dated dated quota 08.07.2015 08.07.2015Total[REDACTED] (including 3 SC & 1 ST)

(vi) That at present details of Vacancy position of AdministrativeOfficer/AA&C in all three Corporations under Promotion Quotaas on 01.07.2019 is as under, which is dealt by the North DMCbeing Nodal Corporation for promotion for all the threeCorporation:- Sanctioned Post Filled up Vacant PostpostPromotion 7254 (including 18Quota 23 LAC given by SDMC)

Note: A DSC is under process, wherein 94 Section Officers,Private Secretaries and Translators are being considered forpromotion to the post of Admn. Officer/AA&C.”

7. It is also mentioned that seniority list of feeder cadre has notbeen finalised on account of pendency of the matter before the Tribunaland the High Court and that in terms of directions of the High Court,recommendation of the review DPC has been placed before the HighCourt and the matter is pending consideration before the High Court.

8. The said affidavit also gives the details of the manner of postsfalling under the deputation quota. It is mentioned that each of the threeMunicipal 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 arebeing dealt by the concerned Corporation separately at their ownlevel, the vacancy position of North DMC is as under:

Note: As per Recruitment Rules North DMC has already invitedapplications for fill-up the post of Admn. Officer/AA&C underdeputation quota vide circular dated 06.02.2019 and subsequentreminders dated 12.07.2019. 11 applications for appointment tothe post of Admn. Officer/AA&C on deputation basis have beenreceived till date. The last date of receipt of application is31.08.2019.

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

9. Thus, in respect of 25 vacancies falling to the share of theNorth DMC, it is mentioned that there are 21 vacant posts and thatapplications have been invited to fill up the deputation quota vide Circulardated 6[th] February, 2019. 11 applications have been received though thelast date of the receipt of the applications was 31[st] August, 2019.

10. In respect of deputation quota in South Delhi MunicipalCorporation, it is mentioned in the separate affidavit that out of 32 postsfalling 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 A

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ACorporation, it is mentioned that out of 14 sanctioned posts, 5 posts arefalling vacant against the deputation quota.

11. From the above information placed on record, we find that theRecruitment Rules providing 50% quota to be filled up by promotionfailing which by direct recruitment and another 50% by deputation quotaBfailing which by direct recruitment are being followed by the MunicipalBodies.

12. The appellants who are aspirants for direct recruitment haveno right for appointment merely because at one point of time thevacancies were advertised. The candidates such as the appellants cannotCclaim any right of appointment merely for the reason that they respondedto an advertisement published on 12[th] September, 2013. Even aftercompletion of the selection process, the candidates even on the merit listdo not have any vested right to seek appointment only for the reasonthat their names appear on the merit list. In Shankarsan Dash v. Unionof India[1], a Constitution Bench of this Court held that a candidate seekingDappointment to a civil post cannot be regarded to have acquired anindefeasible right to appointment in such post merely because of theappearance 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 arenotified for appointment and adequate number of candidates areEfound fit, the successful candidates acquire an indefeasible rightto be appointed which cannot be legitimately denied. Ordinarilythe notification merely amounts to an invitation to qualifiedcandidates to apply for recruitment and on their selection they donot acquire any right to the post. Unless the relevant recruitmentFrules so indicate, the State is under no legal duty to fill up all orany of the vacancies. However, it does not mean that the Statehas the licence of acting in an arbitrary manner. The decision notto fill up the vacancies has to be taken bona fide for appropriatereasons. And if the vacancies or any of them are filled up, theState is bound to respect the comparative merit of the candidates,Gas reflected at the recruitment test, and no discrimination can bepermitted. This correct position has been consistently followed bythis Court, and we do not find any discordant note in the decisionsin the State of Haryana v. Subhash Chander Marwaha [(1974)

MOHD. RASHID v. THE DIRECTOR, LOCAL BODIES, NEWSECRETARIAT [HEMANT GUPTA, J.]

3 SCC 220 : 1973 SCC (L&S) 488 : (1974) 1 SCR 165] ; NeelimaShangla (Miss) v. State of Haryana [(1986) 4 SCC 268 : 1986SCC (L&S) 759] or Jitender Kumar v. State of Punjab [(1985)1 SCC 122 : 1985 SCC (L&S) 174 : (1985) 1 SCR 899] .”

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13. Since the selection process has not been completed and keepingin view the mandate of the Statutory Rules, we find that the appellantsBhave no right to dispute the action of the Municipal Bodies to fill up theposts either by way of promotion or by deputation as such posts arebeing filled up in terms of mandate of the Rules. It is always open to theMunicipal Bodies to fill up the vacant posts by way of direct recruitmentafter the posts by way of promotion and/or deputation quota are notCfilled up either on the basis of recruitment process already initiated or tobe initiated afresh.

14. Consequently, we do not find any merit in the present appeals.Accordingly, the same are dismissed.

Kalpana K. Tripathy

Appeals dismissed.

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