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Supreme Court of India
Mohd Rashid vs The Director Local Bodies New … on 15 January, 2020Author: 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’
1
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
6
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
7
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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