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

76 SUPREME COURT REPORTS [2020] 1 S.C.R. 76 [2020] 1 S.C.R. A ## MOHD. RASHID v. THE DIRECTOR, LOCAL BODIES, NEW SECRETARIAT & ORS. B (Civil Appeal No. 136 of 2020 etc.) ## JANUARY 15, 2020 ## **[L. NAGESHWARA RAO AND HEMANT GUPTA, JJ.]** _Service Law:_ C _Selection/Recruitment – Advertisement for recruitment on the posts in question – Challenged before Administrative Tribunal on the ground that alternative process of direct recruitment could not have been resorted to without resorting to process of promotion – Application dismissed by the Tribunal – High Court, in writ petition, allowed the case of the writ petitioners – Appeal to Supreme Court_ D _by the candidates of direct recruitment – Held: As per Recruitment Rules, direct recruitment was to be resorted to only if the posts could not be filled by promotion/deputation quota – The candidates of direct recruitment have no right to dispute the action of filling up the posts by way of promotion or deputation – The candidates cannot_ E _claim any right of appointment merely because they had responded to an advertisement._ ## **Dismissing the appeals, the Court** **HELD : 1. The Recruitment Rules providing 50% quota to be filled up by promotion failing which by direct recruitment and** F **another 50% by deputation quota failing which by direct recruitment are being followed by the Municipal Bodies. [Para 11] [82-B]** **2. The appellants who are aspirants for direct recruitment have no right for appointment merely because at one point of** G **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. Even after** H 76 MOHD. RASHID v. THE DIRECTOR, LOCAL BODIES, NEW 77 SECRETARIAT **completion of the selection process, the candidates even on the** A **merit list do not have any vested right to seek appointment only for the reason that their names appear on the merit list. [Para 12] [82-C-D]** _Shankarsan Dash v. Union of India_ **(1991) 3 SCC 47 : [1991] 2 SCR 567 – followed.** B **3. Since the selection process has not been completed and keeping in view the mandate of the Statutory Rules, 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** C **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. [Para 13] [83-B-C]** D ## **Case Law Reference** **[1991] 2 SCR 567 followed Para 12** CIVIL APPELLATE JURISDICTION : Civil Appeal No. 136 of 2020. From the Judgment and Order dated 01.09.2016 of the High Court of Delhi at New Delhi in W.P. (C) No. 5431 of 2016. E With Civil Appeal No. 137 of 2020. Dr. Harshvir Pratap Sharma, Sr. Adv., Ajay Sharma, Tejas Patel, Ms. Meera Kaura Patel, Ms. Rukhsar Khan, Pankaj Kumar, Gautam Jha, Advs. for the Appellant. S. Wasim A. Qadri, Sr. Adv., Zaid Ali Subzposh, Ajay Bansal, Praveen Swarup, Ms. Veena Bansal, Gaurav Yadava, Mrs. Archana Sharma, Hrishikesh Baruah, Ms. Radhika Gupta, Kshitij Paliwal, Ms. Memha Kaur, Vibhuti Sushant Gupta, Ram Naresh Yadav, Advs. for the Respondents. F G H 78 SUPREME COURT REPORTS [2020] 1 S.C.R. A The Judgment of the Court was delivered by ## **HEMANT GUPTA, J.** 1. The candidates for direct recruitment to the posts of Administrative Officer/Assistant Assessor and Collector[1] are in appeals before this Court directed against an order passed by the High Court of B 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 C 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, 2013[3] contemplate that the vacancies for the posts in question are to be filled up by promotion D failing which by direct recruitment. It was thus alleged that without resorting to promotion by convening meeting of the Departmental 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 E 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 F 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 G 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’ H 4 for short, ‘DPC’ 79 MOHD. RASHID v. THE DIRECTOR, LOCAL BODIES, NEW SECRETARIAT [HEMANT GUPTA, J.] post meant to be filled up by physically handicapped candidate which is A 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 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.” B C 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 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: D E **==> picture [301 x 54] intentionally omitted <==** **----- Start of picture text -----**<br> Sanction Filled Vacant Filled up Vacant<br>Post in up after DSC after DSC<br>promotion dated dated<br>quota 30.08.2013 30.08.2013 F<br>Total 58 33 25 25 00<br>**----- End of picture text -----**<br> (ii) The promotion to the post of Admn. Officer/AA&C (2014) was held as under : **==> picture [281 x 54] intentionally omitted <==** **----- Start of picture text -----**<br> Sanction Filled Vacant Filled up Vacant<br>Post in up after DSC after DSC<br>promotion dated dated<br>quota 31.01.2014 31.01.2014<br>Total 58 48 10 4 06<br>**----- End of picture text -----**<br> G 5 for short, ‘North DMC’ H 80 SUPREME COURT REPORTS [2020] 1 S.C.R. A (iii) The promotion to the post of Admn. Officer/AA&C (2015) was held as under : B **==> picture [282 x 53] intentionally omitted <==** **----- Start of picture text -----**<br> Sanction Filled Vacant Filled up Vacant<br>Post in up after DSC after DSC<br>promotion dated dated<br>quota 22.07.2014 22.07.2014<br>Total 58 23 35 31 04<br>**----- End of picture text -----**<br> (iv) The promotion to the post of Admn. Officer/AA&C (2016) was held as under : C **==> picture [281 x 54] intentionally omitted <==** **----- Start of picture text -----**<br> Sanction Filled Vacant Filled up Vacant<br>Post in up after DSC after DSC<br>promotion dated dated<br>quota 08.07.2015 08.07.2015<br>Total 58 34 24 22 02<br>**----- End of picture text -----**<br> (v) The promotion to the post of Admn. Officer/AA&C (2017) was held as under : D E **==> picture [281 x 76] intentionally omitted <==** **----- Start of picture text -----**<br> Sanction Filled Vacant Filled up Vacant<br>Post in up after DSC after DSC<br>promotion dated dated<br>quota 08.07.2015 08.07.2015<br>Total 68 14 54 38 16<br>(including 3<br>SC & 1 ST)<br>**----- End of picture text -----**<br> F G (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:- **==> picture [282 x 52] intentionally omitted <==** **----- Start of picture text -----**<br> Sanctioned Post Filled up Vacant Post<br>post<br>Promotion 72 54 (including 18<br>Quota 23 LAC given<br>by SDMC)<br>**----- End of picture text -----**<br> 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.” H MOHD. RASHID v. THE DIRECTOR, LOCAL BODIES, NEW 81 SECRETARIAT [HEMANT GUPTA, J.] 7. It is also mentioned that seniority list of feeder cadre has not A 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: B “(vii) Deputation Quota: The posts under deputation quota are being dealt by the concerned Corporation separately at their own C level, the vacancy position of North DMC is as under: ||North DMC|| |---|---|---| |Sanctioned|Filled|Vacant| |25|4|21| D 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. 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 6[th] February, 2019. 11 applications have been received though the last date of the receipt of the applications was 31[st] August, 2019. E F G 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 1[st] August, 2019. By a separate affidavit filed on behalf of East Delhi Municipal H 82 SUPREME COURT REPORTS [2020] 1 S.C.R. - A 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 B 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 C 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 India[1]**_ , a Constitution Bench of this Court held that a candidate seeking D 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 - E 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 - F 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, - G 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) H 6 (1991) 3 SCC 47 MOHD. RASHID v. THE DIRECTOR, LOCAL BODIES, NEW 83 SECRETARIAT [HEMANT GUPTA, J.] 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] .” A 13. Since the selection process has not been completed and keeping in view the mandate of the Statutory Rules, we find that the appellants B 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 C 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. D Kalpana K. Tripathy Appeals dismissed. E F G H