Mohd Rashid vs The Director Local Bodies New … on 15 January, 2020


Supreme Court of India

Mohd Rashid vs The Director Local Bodies New … on 15 January, 2020

Author: Hemant Gupta

Bench: L. Nageswara Rao, Hemant Gupta

                                                              REPORTABLE

                         IN THE SUPREME COURT OF INDIA

                           CIVIL APPELLATE JURISDICTION


                      CIVIL APPEAL NO. 136 OF 2020
              (ARISING OUT OF SLP (CIVIL) NO. 7243 OF 2017)


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’

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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

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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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