Anil Kumar vs Staff Selection Commission

Nita Chowdhury, J

By filing this OA, the applicant is seeking the following reliefs:-

(i) To direct the respondent that the applicant be given appointment to the D.E.O. as per the merit in present selection process conducted by SSC under Combined Higher Secondary Level Examination (CHSL), 2011 with all consequential benefits including seniority and promotion and pay & allowance.

Or

(ii) Any other relief which this Hon‟ble Court deems fit and proper may also be awarded to the applicant.

This case was earlier dismissed by this Tribunal vide Order dated 22.1.2018 with the following observations:-

"Learned proxy counsel for applicant seeks adjournment which was opposed by the learned counsels for respondents. Learned counsels for respondents submit that the prayer as claimed in the OA has already been granted to the applicant and the applicant has already been appointed and he is working on the post of DEO. Under such circumstances, there is no need to adjourn this case, as this OA has become infructuous and the same is, accordingly, dismissed as having become infructuous. No costs."

Thereafter the applicant has filed Review Application being RA No.23/2018 in OA 3496/2013 and this Tribunal vide Order dated 4.2.2019 allowed the said OA with the following observations:-

"3. The main contention of the learned counsel for the review applicant in this case is that this Tribunal by the Order under review dismissed the OA having become infructuous on the basis of submission of learned counsel for the respondents that the applicant has already been appointed and he is working on the post of DEO but the grievance of the applicant in the OA was to direct the respondents that he be given appointment to the D.E.O. as per the merit in present selection process conducted by SSC under Combined Higher Secondary Level Examination 3 (CHSL), 2011 with all consequential benefits including seniority, promotion and pay & allowance. However, although the respondents have appointed the applicant to the post of DEO but they have not passed any order on the issue of consequential benefits including seniority, promotion and pay and allowances. Counsel for the applicant referred to the appointment letter dated 6.12.2016 and submitted that the same does not grant the applicant the seniority and pay at per with his batchmates. On the strength of aforesaid submission, learned counsel for the review applicant submitted that OA was made by Order under review as infructuous is factually not correct and as such the Order passed in the OA requires to be reviewed and the OA be reheard accordingly.

On the other hand, learned counsel for the review respondent no.5 submitted that the applicant has been granted appointment w.e.f. 6.12.2016 and all his pay and allowances are fixed accordingly and there is no question of granting any consequential benefits in the matter for the period when the applicant was not working with the answering respondent.

After hearing learned counsel for the parties, this Court is of the considered view that in the OA, the applicant besides grant of appointment to the post in question has also sought for grant of consequential benefits. Since on the basis of 4 submission of learned counsel for the respondents that prayer, as claimed in the OA, has already been granted to the applicant and the applicant has already been appointed and working on the post of DEO, the said Order under review is required to be recalled and consequently the OA is also required to be heard afresh. As such in view of the above facts and circumstances of the case, we allow this RA and recall the Order dated 22.1.2018 passed in OA 3496/2013.

OA 3496/2013

Registry is directed to list it before appropriate Court on 27.2.2019 for hearing."

Now the only issue involved to be adjudicated in this case is whether as per the merit in the selection process conducted by the SSC under Combined Higher Secondary Level Examination (CHSL), 2011, the applicant is entitled for all consequential benefits including seniority, promotion and pay and allowance.

The contention of the applicant in this case is that he was finally declared nominated on 31.7.2012, allocated the post in question in the department of National Crime Record Bureau (NCRB), Delhi. The applicant has himself stated that his dossier from NCRB has been returned to SSC on the ground that the applicant is not in possession of „O‟ Level Computer Certificate and further he is not having computer subject in 10+2. Counsel for the applicant stated that no such qualification was mentioned in the advertisement in pursuance of which the applicant applied for the selection process.

In the reply filed by respondent nos.1 and 2, they stated that on the basis of the requisition sent by the NCRB, Ministry of Home Affairs to the Commission for appointment on 14 posts of Data Entry Operator, Grade „A‟, they had nominated equal number of candidates and the dossiers related to various Regional/Sub-Regional Offices of the SSC were sent to the NCRB for appointment on the said post on the basis of their comparative merit position in the Combined Higher Secondary (10+2) Level Examination, 2011 but the said dossiers of 14 candidates had been returned by the NCRB on the ground that these nominated candidates did not possess the required qualifications. In response to their letter, these respondents vide their letter dated 26.11.2012 conveyed their decision of relaxation of possession of "O" course under the department of Electronics accreditation Computer courses. However, vide letter dated 12.12.2012, the NCRB conveyed to SSC (respondent nos.1 and 2) that relaxation of educational qualifications is not acceptable to them as the possession of the same is absolutely necessary keeping in view the nature of work involved.

6.1 The respondent nos.1 and 2 further stated that since the NCRB shown their reluctance to appoint 14 candidates, including the applicant on the post of D.E.O. Grade „A‟, therefore, the answering respondents have now recommended the candidature of the applicant and others for appointment on the said post in the Office of Comptroller & Auditor General, New Delhi (Respondent No.5) and the dossier of the applicant had also been sent to their office on 23.9.2014.

Respondent No.5 in their short affidavit has stated that respondent No.1/SSC had forwarded the dossiers of successful candidates whose nomination were not accepted by any other department pertaining to CGLE 2008, 2011, 2012 and 2013 of different posts including the post of the applicant. The issue of accepting the dossiers of these candidates re-nominated by respondent no.1/SSC for appointment to various posts of Accountants, Data Entry Operator and Junior Hindi Translator was examined by the respondent no.5 and due to issues regarding fixation of their seniority and confirmation, it was decided to return those dossiers to respondent no.1. However, the matter was under correspondence with respondent no.1 as regards their fixation of seniority and their preferred allocations, etc. Accordingly, a meeting was held on 11.4.2016 wherein it was decided that the respondent no.1 would first explore the possibilities of accommodating these candidates (49 in total) in other departments. A subsequent meeting was also held on 13.7.2016 with respondent no.1 after 06 candidates of CGLE 2008 were accommodated by the Controller General of Accounts. During the said meeting, respondent no.1 requested the respondent no.5 to accommodate the remaining 43 candidates.

7.1 It is further stated that as per Para 10.2 of CAG MSO (Admn.) Vol. I, dossiers from respondent no.1 of candidates of earlier selection, if sponsored after sponsoring candidates of later selection who have joined service, the dossier of earlier selected should be returned to the Commission. However, based on the meeting dated 13.7.2016, the request of respondent no.1/SSC was examined and it was decided to obtain the approval of CAG of India to relax the instruction contained in the CAG SO (Admn.) Vol. I. The CAG of India has approved the said relaxation on 1.8.2016. Accordingly, it has been decided to call for the dossiers of those candidates who had given their unconditional and unequivocal consent for deciding the state allocation as per functional requirement in IA&AD, i.e., 17 candidates for the post of DEO, 11 candidates for the post of JHT. As regards accommodating 6 candidates to the post of Accountant, the respondent no.1 has also asked to send their dossiers, if SSC allows CAG office to obtain their unconditional and unequivocal consent for deciding the state allocation as per functional requirement of IA&AD. Accordingly, the applicant has been nominated for the post of DEO, vide Order dated 4.8.2016.

We have heard learned counsel for the parties and perused the pleadings available on record.

The main contention of the learned counsel for the applicant is that since admittedly the applicant dossier was sent to the NCRB for appointment to the post of Data Entry Operator and the fact that there is no such qualification of having „O‟ Level computer certificate was mentioned in the advertisement in pursuance of which he applied for the selection process, the applicant is entitled to all consequential benefits, including seniority, promotion and pay and allowance as there is no fault on his part and his appointment was delayed due to the fact that NCRB returned his dossier for want of „O‟ level computer certificate and thereafter his dossier was sent to CAG for appointment.

On the other hand, case of the respondent nos.1 and 2 is that the selection has been made as per the provisions of notice for examination and the said provisions have been applied uniformly to all similarly placed candidates. The case of the applicant underwent change of allocation as the NCRB returned his dossier and other 13 candidates as they do not possess the qualification of „O‟ Level computer certificate, which is absolutely necessary keeping in view the nature of work involved. Even they requested to NCRB to give relaxation of possession of the said qualification which request was not acceded to by the NCRB and thereafter, the dossiers of applicant and other 13 candidates were forwarded to respondent no.5 with a request to accommodate them against the subsequent vacancies of the post of Data Entry Operator notified by respondent no.5 and respondent no.5 gave approval to relax the instruction contained in the CAG MSO (Admn.) Vol. I. Thereafter the applicant was nominated for the post of DEO vide letter dated 4.8.2016. We do not observe any inordinate delay in the above processing stages.

The Staff Selection Commission is an agency of the Government of India for conducting recruitment to various lower level posts in the Government of India. Before conducting the examination, the Commission calls for requisitions of vacant posts from various departments and as per result of the examination and option given by the examinees, they are allotted to the respective departments.

We note in the case of the applicant that for various reasons, the applicants' allocation could not be processed as his dossier was returned by the NCRB for the above said reason.

This is not a case where the applicant has not been made an offer of appointment. The applicant has joined the CGA as Data Entry Operator. The aforesaid applicant's contention is baseless. The circumstance in the said department (NCRB) where the applicants' dossier was sent was such that they could not accommodate the applicant and other 13 candidates for the above said reason, but the applicant has been finally offered a post where he was able to join. We find that the reasons given by the NCRB for not taking up the offer of appointment of the applicant are reasonable and do not merit any intervention. Such unavoidable circumstances ocurrded and it is seen that respondent nos.1 and 2 have handled the same in a manner that the applicant's appointment and joining in a post has fructified. The respondents also submit that all similarly placed candidates whose dossiers were returned have also received the similar treatment. Hence, there has been no discrimination in the case of the applicant. There were a total number of 14 candidates including the applicant whose allocation was also revised on account of return of dossiers due to some unavoidable circumstances by the NCRB - department to whom they were initially allocated. It is relevant to mention that the Apex Court in Karnataka Public Service Commission and Ors. Vs. B.M. Shankar and Ors., AIR 1992 SCC 952 held as follows:-

"We do not find any ground for interference and observed that power and authority of the Commission to hold examination, regulate its working and functioning, take action against erring candidates guilty of misconduct are all provided for by the rules and instructions issued in exercise of power conferred by the statutes."

Thus, the panel of names which has legitimately attained finality is not required to be disturbed or interfered with. The offer of appointment to applicant was made to the next available vacancy and applicant cannot claim hostile discrimination on the basis of this action. The Apex Court in Shankarsan Dash v. Union of India, reported in (1991)3 SCC 47, held as follows:-

"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 State of Haryana v. Subhash Chander Marwaha, Neelima Shangla v. State of Haryana, or Jatendra Kumar v. State of Punjab.

In State of Haryana v. Subhash Chander Marwaha 15 vacancies of Subordinate Judges were advertised, and out of the selection list only 7, who had secured more than 55 per cent marks, were appointed, although under the relevant rules the eligibility condition required only 45 per cent marks. Since the High Court had recommended earlier, to the Punjab Government that only the candidates securing 55 per cent marks or more should be appointed as Subordinate Judges, the other candidates included in the select list were not appointed. They filed a writ petition before the High Court claiming a right of being appointed on the ground that vacancies existed and they were qualified and were found suitable. The writ application was allowed. While reversing the decision of the High Court, it was observed by this Court that it was open to the government to decide how many appointments should be made and although the High Court had appreciated the position correctly, it had "somehow persuaded itself to spell out a right in the candidates because in fact there were 15 vacancies". It was expressly ruled that the existence of vacancies does not give a legal right to a selected candidate. Similarly, the claim of some of the candidates selected for appointment, who were petitioners in Jatendra Kumar v. State of Punjab, was turned down holding that it was open to the government to decide how many appointments would be made. The plea of arbitrariness was rejected in view of the facts of the case and it was held that the candidates did not acquire any right merely by applying for selection or even after selection. It is true that the claim of the petitioner in the case of Neelima Shangla v. State of Haryana, was allowed by this Court but, not on the ground that she had acquired any right by her selection and existence of vacancies. The fact was that the matter had been referred to the Public Service Commission which sent to the government only the names of 17 candidates belonging to the general category on the assumption that only 17 posts were to be filled up. The government accordingly made only 17 appointments and stated before the court that they were unable to select and appoint more candidates as the Commission had not recommended any other candidate. In this background it was observed that it is, of course, open to the government not to fill up all the vacancies for a valid reason, but the selection cannot be arbitrarily restricted to a few candidates notwithstanding the number of vacancies and the availability of qualified candidates; and, there must be a conscious application of mind by the government and the High Court before the number of persons selected for appointment is restricted. The fact that it was not for the Public Service Commission to take a decision in this regard was emphasised in this judgment. the appellant.

In the peculiar circumstances of this case, we find that the applicant‟s dossier was sent by the recruiting agency, i.e., SSC to NCRB who did not agree to appoint the applicant and other 13 similarly placed persons due to their not having certain qualification which are required from the employees of NCRB. Thereafter the action of the recruiting agency to undertake an exercise to find any department(s) who would appoint such selected/short-listed persons was undertaken and it was only after considerable efforts on the part of respondent no.1/SSC that CAG of India was approached to relax the instruction contained in CAG SO (Admn.) Vol. I and after the CAG of India approved the said relaxation on 1. 8.2016, it was decided to call for the dossiers of those candidates including the applicant who gave their unconditional and unequivocal consent for deciding the state allocation as per functional requirement in IA&AD. Accordingly, after obtaining the consent of the candidate, the applicant was nominated for the post of DEO vide order dated 9.4.2016. Hence, it cannot in any way be held that the applicant has anyway being discriminated in the matter of placement by the respondent no.1, i.e., SSC. Along with the applicant there were other similarly placed candidates whose allocation has also been revised after receiving the approval of the CAG of India for relaxation of the instruction contained in CAG SO (Admn.) Vol. I. Hence, we do not find any hostile discrimination against the applicant of this OA.

Applicant has accepted the second offer made and has joined the post. Hence, the purpose of qualifying the examination has been served. We do not find any need to interfere in the matter in view of the above peculiar facts and circumstances of this case. Even otherwise, applicant's right was to be given an appointment on the basis of qualifying in the examination, which has already been satisfied. Hence, we find no merit in the present OA and the same is dismissed accordingly. No costs.