By Participating In Selection Process, Candidates Do Not Get Indefeasible Right To Get Appointment, Delhi High Court Reiterates
The Delhi High Court has dismissed a Writ Petition which challenged a judgement of the Central Administrative Tribunal. The Petitioner had sought seniority from the year 2007 despite being appointed in the year 2009, contending that he was entitled for appointment in the year 2007 itself.
The Division Bench of Justices Suresh Kumar Kait and Girish Kathpalia held that the petitioner who participated in the selection process for the post of Sub Inspector had no vested right to claim appointment for the recruitment process of 2007, since he was already appointed in the year 2009.
Background: The petitioner applied for the position of Sub Inspector (Male) in Delhi Police under the Unreserved (UR) category based on a 2007 recruitment advertisement and participated in the selection process. He learnt through the Right to Information Act that his score was 127, while the UR category cut-off was 128. The petitioner filed an Application before the Central Administrative Tribunal and contended that all the vacancies should have been filled with eligible candidates. He argued that out of 692 total vacancies, only 616 were filled and four candidates with scores below the cut-off were appointed post-result. Meanwhile the unfilled vacancies were carried forward to the next recruitment cycle for 2009 and the Petitioner withdrew the challenge reserving the right to challenge the 2009 notification.
Challenging the 2009 notification, the Counsel for the petitioner argued that the vacancies (unfilled and due to resignations) should have been filled from the eligible list, with the petitioner being number 17 in the waiting list. He also argued for consideration as a “Departmental Candidate,” citing six unfilled posts.
Meanwhile, during the adjudication before the Tribunal, the Petitioner was appointed as a Sub Inspector on 30.09.2009 and therefore, he amended his petition and only sought fixation of his seniority from 2017. The Tribunal dismissed the petition by order dated 23.05.2011. Although the Petitioner sought a Review of the order, it was also dismissed by the Tribunal imposing a cost of Rs. 10,000.
Therefore, the Petitioner challenged the orders passed by the Central Administrative Tribunal dated 23.05.2011 as well as the order of dismissal of Review Application dated 30.09.2024 before the Delhi Court.
Contentions of the Respondent:
The respondent contended that the Tribunal correctly dismissed the petitioner's case, noting that the recruitment rules and procedures were followed. It was argued that the petitioner, who was selected in the 2009 cycle could not be given seniority from the year 2007 since the appointment was of 2009.
The respondent asserted that the petitioner's review application was delayed due to procedural issues and a lack of diligence. It was further averred that that the petitioner's claims lacked merit and the dismissal was justified.
Findings of the Delhi High Court:
The High Court on perusal of the record found that the petitioner sought his appointment from the unfilled vacancies in 2017 recruitment process.
The Bench relied upon the decision of the Constitution Bench in Shankarsan Dash Vs. Union of India, (1991) 3 SCC 47 which stated that the State was under no legal duty to fill up all or any of the vacancies but at the same time, the State could not act in an arbitrary manner. It was observed that the decision not to fill up the vacancies had to be taken bona fide for appropriate reasons and if the vacancies were filled, the State was bound to respect the comparative merit of the candidates, as reflected in the recruitment test and no discrimination could be permitted.
The Court upheld this decision and stated that merely by appearing in the selection process, the applicants/candidates, such as the petitioner, do not get an indefeasible right to get appointment and the respondent having invited applications is under no obligation to offer appointment especially when a candidate has not even been able to make place in the merit list. It was observed that the petitioner having secured 127 marks against 128 cut off marks, cannot claim appointment.
The Court cited another decision of the Hon'ble Supreme Court in Vallampati Sathish Babu Vs. State of A.P. (2022) 13 SCC 193 which held,
“Once final select list was prepared and wait list was not contemplated and the posts vacant were carried forward for whatsoever reason for future recruitment; the candidate next in merit cannot claim appointment as his name neither figured in the select list nor in the wait list.”
The Court affirmed the decision of the tribunal and held that since there was no waitlist panel, the petitioner had no right to claim appointment from the 2007 recruitment process especially because he was appointed in the year 2009. Additionally, the petitioner's request for parity with four candidates appointed after the results were declared was rejected on the basis of different factual circumstances. The Bench held that the petitioner was appointed vide Notification of 2009 and having joined duties of respondent on 30.09.2009 could not be given seniority from 2007.
The court upheld the judgment and order dated 23.05.2011 and 07.09.2020 passed by the Central Administrative Tribunal and dismissed the writ petition.
Case Title: W.P.(C) 7241/2020
VIJAY KAUSHIK Versus COMMISSIONER OF POLICE
Counsel for petitioner: Mr. Ankur Chhibber, Advocate
Counsel for respondent: Mr. Vineet Dhanda, CGSC with Mr.Abhishrut Singh& Ms. Aishani Mohan, Advocates