Narendra Kumar and Others vs Union of India (UOI) and Another

Madan B. Lokur, J.—The Petitioners seek appointment to the post of Sub-Inspector (Executive) in the Delhi Police.

In the process of selection, 50% posts were to be filled up by promotion and 50% by direct recruitment. Out of the 50% direct recruitment quota, 10% were to be filled up by departmental candidates. For the year that we are concerned that is March, 1994 onwards, 300 posts were advertised out of which 30 posts were reserved for departmental candidates to be appointed as Sub-Inspector (Executive) through direct recruitment.

The examination consisted of a written paper, physical endurance test and interview. The result of the written examination was made available on 7th July, 1995 and there is no dispute that the Petitioners qualified that examination. Thereafter, they undertook the physical endurance test as well as the interview and on 25th September, 1995 the final list was announced by the Respondents. According to learned Counsel for the Petitioners out of 30 posts reserved for departmental candidates only 24 posts were filled up. Some of the persons who were denied selection in the open category were of the opinion that they had better marks than some of the selected candidates and so they approached the Central Administrative Tribunal challenging their non-appointment. The Tribunal dismissed the applications filled by those persons and then they approached the Supreme Court.

In the Supreme Court, the case was heard and disposed of on 14th August, 1997 and a decision rendered in SLP 16356-16358/1996 (Vijay Pal and Ors. v. UOI and Ors.). The Supreme Court was of the view that the Respondents may consider the appointment of the parties before the Supreme Court and other similarly situated candidates on the basis of merit as per the aggregate marks obtained in all the papers. It was observed that if on the basis of such consideration, it was found that the parties before the Supreme Court can be so appointed, the Respondents should appoint them against the existing vacancies by relaxing the requirement of minimum qualifying marks prescribed for Hindi in Paper III. Of course, the Supreme Court made it clear that this direction could be enforced only if the vacancies were available for appointment to the post of Sub-Inspector (Executive).

A perusal of the above indicates that minimum qualifying marks were prescribed in Hindi in Paper III. Learned Counsel for the Petitioner contends that these minimum qualifying marks were prescribed only after the physical endurance test and interview were held. She further says that this was legally impermissible. This is denied by learned Counsel for the Respondents, but for the present moment, it is not necessary to delve into that controversy at all.

As mentioned above, Vijay Pal and others approached the Tribunal and also the Supreme Court and the Petitioners also approached the Tribunal for the same relief. In the cases filed by the Petitioners, the Tribunal admitted the original applications and also passed an interim direction to the effect that the posts may be filled up subject to final orders that may be passed in the original applications pending before the Tribunal. There is no controversy in this regard. The consequence of this is that in so far as the Petitioners are concerned, their applications were admitted for final hearing by the Tribunal and since there are six Petitioners before us, the Respondents would be entitled to fill up six posts subject to the final outcome of the original applications.

After the decision was rendered by the Supreme Court in the case of Vijay Pal and others, the matter was taken up by the Tribunal and both the parties agreed that the original applications pending in the Tribunal were covered by the decision of the Supreme Court. Consequently, the Petitioners were entitled to appointment, subject to availability of posts in terms of the orders passed by the Supreme Court.

Unfortunately, the Petitioners were declined appointment on the ground that the posts were not available since all of them were filled up. As mentioned above, learned Counsel for the Petitioner submitted before us that out of 30 posts reserved for the departmental candidates to be filled up by direct recruitment, only 24 posts were actually filled up. As such, factually there are posts that are available for being filled up by the Petitioners. However, even if it is assumed for the sake of argument that all 30 posts were filled up, at least six were to be filled up subject to final orders to be passed by the Tribunal.

On these facts, learned Counsel for the Petitioners contends that there is no question of the Petitioners being denied any appointment because posts were available unlike in the case of Vijay Pal where posts were not available.

Learned Counsel for the Respondents contend that no posts were available and the Petitioners were identically placed as Vijay Pal and others and so they too cannot be given any appointment.

We do not agree with this submission because the admitted position in Vijay Pal and others was that there was no interim order passed by the Tribunal or by the Supreme Court for keeping any post vacant or for filling up any of the posts subject to the final outcome of the original application or the SLP. However, in the case of the six Petitioners that we are concerned with, interim orders were initially passed that posts should be kept available for them and if those posts are later to be filled up, it would be subject to the final outcome of the original applications. In that sense, posts were and are available for being occupied by the Petitioners.

This being the position, there is a vital difference between the case of Vijay Pal and the case of Petitioners. In the case of Vijay Pal posts were not available, but in the case of the Petitioners, posts are available subject to the final orders of the Tribunal.

On merits both the learned Counsel were in agreement (before the Tribunal) and now before us that the case of the Petitioners is covered by the case of Vijay Pal. Under the circumstances, we have no option but to agree with the contentions of learned Counsel for the Petitioners and direct that in terms of the decision of the Supreme Court, the Petitioners should be accommodated in the post of Sub-Inspector (Executive) in the Delhi Police.

As we have noted above, learned Counsel for the Petitioners has submitted that six posts are available. If that is so, these Petitioners can be accommodated against those posts. However, if learned Counsel for the Petitioners is not correct and six posts are not lying vacant, then the Respondents have no option but to accommodate the Petitioners in terms of the interim order passed by the Tribunal, which obviously merges with the final order in favour of the Petitioners. This will mean that six of the existing appointees will have to give way to the Petitioners.

The impugned order passed by the Tribunal denying appointment to the Petitioners to the post of Sub-Inspector (Executive) is quashed. Necessary steps be taken by the Respondents to accommodate the Petitioners on or before 31st December, 2008. We make it clear that the Petitioners will not be entitled to any back wages till the date of their appointment. The Petitioners will be accommodated in the batch of 1994 and will be entitled to count their services for pensionary benefits and notional fixation of pay.

The writ petition is allowed. The parties shall bear their own costs.