Ravindra Haribhau Malokar And Ors vs Union of India And Ors

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This application has been filed on 30.10.2018 under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs:

"a) This Hon'ble Tribunal may be pleased to call for the records of the case, and after examining the same, be pleased to hold and declare that the order posted on official website of Respondents on 15.10.18 is void ab-initio, illegal, non-est and bad in law and issue an order quashing and setting aside the same. (15

b) This Hon'ble Tribunal may further be pleased to direct the Respondents to operate the waitlist henceforth and offer appointments to the waiting list candidates in PA/SA exam for the year 2013-14 as per their mecit and as per the vacancits available

c) Such other orders and directions as are deemed fit in the facts and circumstances of the case may pleased be passed.

d) Cost of the Application be provided for."

The applicants in this OA had appeared in the written test re-examination held for Paper II for selection to the post of Postal/Sorting Assistant pertaining to vacancies of the year 2013-14. The examination for the year 2013-14 in Paper I & II had been previously ordered for partial re-examination by this Tribunal in OA No. 143, 187, 334 & 2085 of 2015 in Komal Ashok Sakharkar & Ors. Vs. Union of India & Ors. decided on 31.07.2015 and was to be held within three months of those orders. These orders were challenged by the respondents in a writ filed before the Hon'ble High Court of Bombay which upheld the decision of the Tribunal in its orders dt. 23.02.2016. Thereafter, conduct of the examination for Paper-II was postponed with respondents seeking extension of time from the Tribunal pending engagement of a different organization for conducting the exam and finally, exam for Paper-II was conducted on 23-25 October 2017 and results were published on 24.11.2017 for 1055 vacancies. The respondents also published a waiting list, it is stated by applicants, around 15.01.2018. Meanwhile, examinations have been conducted for direct recruitment of TA/SA for vacancies relating to the years 2015-16 & 2016-17 by the Staff Selection Commission and those candidates had reported for their duties. Some candidates who were placed in the waiting list had represented to respondents on 08.08.2018(Annexure A-13) requesting appointment against candidates who had dropped out. The applicants have also enclosed certain details of status that they have obtained in respect of some of the applicants who had filed representations on various dates in February, April, May, July, August & September, 2018 and they finally received a reply stating that the validity of waitlist was for six months further extendable for another six months or until next exam held, whichever is earlier. Since both the next years of exams had been held and candidates had joined, no candidate against the waitlist could be posted. A specific reply was also posted on the official website on 15.10.2018 which has been impugned as Annexure A-1 and reads as below:-

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"Appointment to Postal Assistant/Sorting Assistant Cadre in the Department of Posts against direct quota vacancies for the year 2013 and 2014.

As per the instructions received from Postal Directorate vide memo no. 60-2/2014-SPB-I dated 21.02.2014, a waitlist will be kept operative for a period of six months extendable by another six months or till the next examination is held, whichever is earlier.

As the examination for Direct Recruitment of PA/SA for the year 2015-16 and 2016-17 have already been completed by Staff Selection Commission and candidates have joined Department of Posts. Hence, waitlist will not be operative for the above exam.

Hence, the Recruitment process for the above said examination conducted for appointment to PA/SA for the year 2013 and 2014 stands completed.

Sd/-

(D.G. Chaskar)

Asstt Director Postal Services(Rectt)

O/o Chief Postmaster General

Maharashtra Circle, Mumbai 400 001"

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When the matter was heard at the admission stage, learned counsel for the applicant was inquired as to whether he was making any reference to rules or challenging the rules in the context of the preparation of waiting list, its extension for further period and the specific rule that the waitlist would lapse the moment the next exam was conducted and selection made. The learned counsel for applicant submitted that the main arguments of the applicants were with reference to the kinds of replies that they had received on the pending decision in regard to posting candidates from the waiting list that they had received from February 2018 onwards until the final denial arose. The learned counsel argues that the applicants were bearing legitimate expectations that the waiting list would be extended and they would be appointed against the candidates who had not reported for which, by the admission of respondents themselves, information had not been reported by their branch offices on the joining of posted candidates from the select list.

The original orders of this Tribunal in OA No. 143, 187, 334 & 2085 of 2015 dt. 31.07.2015 have been perused and the orders passed by this Tribunal are as under:-

"74(a). From the above discussion, it is obvious that the applicants are not entitled to get any relief. The OAs Nos. 143, 187, 334 and 2085 of 2015 are, therefore, dismissed.

(b). However, in spite of dismissal of the OAs, the impugned second merit list duly approved by the respondents on rectification of error shall not be acted upon or implemented, since reexamination of Paper II is being directed.

(c). As such, without disturbing the result of Paper I i.e. written examination, the respondents are directed to hold reexamination of Paper II for 5056 candidates, who appeared initially in the said Paper II, within a period of three months from the date of a receipt of copy of this order and then prepare fresh select list as per rules.

(d). The respondents will, however, be at liberty to engage services of an independent agency, other than CMC, having sufficient experience in the field for holding reexamination in the field for holding reexamination of Paper II.

(e). The respondent No.2 is directed to nominate a Senior Officer working under him not below the rank of Joint Director, who shall supervise the entire process of holding reexamination of Paper II and its evaluation to ensure that no error crops up or repeated in assessment of the marks obtained by candidates in Data Entry Test and Typing Test(Paper II).

(f). After holding re-examination of Paper II as above, a merit list be prepared taking into consideration the marks obtained by the candidates in Paper I and who qualified in Paper II and further necessary steps to taken to complete the recruitment process.

(g). The respondents will be at liberty to take appropriate action against CMC for the error committed, if they so desire."

From the above, it is evident that this Tribunal had given directions for holding a re-examination for Paper-II and for adding the previously available marks for Paper-I to arrive at the final result and to publish the list of successful candidates. The preparation of waiting list is part of the selection process but it is settled law that there is no right for appointment but only to be considered for appointment. The citations referred by the applicant in the OA do not vest any right with persons in the waiting list.

At the time when the Tribunal passed orders in respect of this selection for the year 2013-14, the issue of saliency of a waiting list for selection for the year 2013-14 had not arisen. Even by that time, a selection process had already been done apparently for the year 2015 and by the time this re-examination for Paper II was held in October 2017, a further selection process had been made for the year 2016. Therefore, even at that time there was clearly no need to prepare a waiting list but simply to select persons against the 1055 vacancies and post them. In case any vacancies remained because candidates did not join, there was no bar on carrying forward these vacancies into the following years. However, the respondents appear to have chosen to prepare a waiting list and were apparently making efforts to identify vacancies for non-reported candidates so that they could draw persons from the waiting list. There was no obligation for the respondents to extend the waiting list especially since the extant rules provide for the lapse of the waiting list once examinations and selections have been made for the subsequent year, in this case, 2015. As a matter of fact, subsequent selections were also made for the year 2016. Applicants cannot raise the argument of legitimate expectations based on the status report communicated on the website or directly by respondents, on the final decision for creation or extension of a waiting list by the Competent Authority.

Once the Competent Authority had decided, they issued the order published on the official website and this became the final position. Applicants have not shown any instance of deviation that could establish discrimination and, therefore, bind the respondents to provide relief to applicants who were similarly placed.

In the circumstances, there are no merits in this OA and it is accordingly dismissed in limine at the admission stage without any order as to costs.