Union Of India @APPELLANT@Hash Mahendra Bharti

Nirmarjit Kaur, J

The present Writ Petition is preferred against the impugned order dated 03.01.2018 passed by Central Administrative Tribunal, Jodhpur Bench,

Jodhpur vide which the Original Application(OA) No.265/Jodhpur/2013 filed by respondent-applicant Mahendra Bharti was allowed with a direction to

the petitioner - Union of India to appoint respondent - applicant on the post of Gramin Dak Sewak Branch Post Master, Ajasar (GDSBPM)

pursuant to a Notification issued on 27.04.2011.

The petitioner issued Notification dated 27.04.2011 for calling applications to fulfill the post of Gram Dak Sewak, BPM, Ajasar. A Select Panel was

prepared and the respondent-applicant was placed at S.No.4. On 03.05.2011, first candidate Kanhaiyalal Suthar was offered appointment. However,

he resigned on 30.09.2011. Accordingly, the said post was offered to the next selected candidate Shri Babu Singh on 10.10.2011. Since, he failed to

provide a building for the Branch Post Office, Ajasar, his offer for appointment was cancelled. Thereafter, Shri Kunan Gar, who was placed at

S.No.3 in the panel was offered appointment on 18.11.2011. Although, he joined on 28.01.2013, his services were terminated on 31.05.2013 after

inquiry in pursuance to certain complaints received against him. Respondent-applicant as stated above was at S.No.4.

As per the order dated 25.06.2010 issued by Government of India, Ministry of Communication & IT, Department of Posts, the Select Panel was valid

only for a period of one year from the date of finalisation of recruitment process. Hence, the petitioner issued a fresh Notification for GDS BPM,

Ajasar on 11.06.2013 while earmarking the said post for Scheduled Caste.

At this stage, the respondent â€" applicant preferred O.A. before the Central Administrative Tribunal, Jodhpur which was allowed vide impugned

order dated 03.01.2018. The O.A. was allowed by observing as under:

 “9. ……… the appointment of Shri Kunan Gar was terminated on 31.5.2013 and fresh notification was issued on 11.6.2013 i.e. after only 11

days. The respondents could not clarify as to what level at which the decision was taken to change the reservation of the post from OBC to SC.

Another aspect is also quite surprising. The last date for receipt of application in response to the advertisement of 11.6.2013, was 11.7.2013 and the

applications were to be submitted by registered/speed post. Logically an application could have been received by the office by the end of the office

hours. Therefore, holding a selection committee meeting on the same day and making the selection and also issuing appointment letter on that very

day seems to be quite surprising. Logically the selection committee should have met on the next day at the earliest since an application can be

received at the end of the day.

10. On detailed consideration of the facts, we are clear of the view that if the due process had been followed properly, then the third person should

have been asked to join and take charge within a month’s period i.e. by end of December, 2011 at the maximum failing which his appointment

should have been cancelled. In that case, the issue of validity of the panel and consequently re-notification for the post of GDSBPM would not have

been issued at all as the next person in the select list was already available. If the validity of the panel is the key factor as contended by the

respondents then the third person in the list should not have been allowed time till Jan 2013.â€​

Learned counsel for the respondent â€" applicant too has heavily relied on the above observation to defend the order impugned.

After hearing learned counsel for the parties, we find that the impugned order cannot be sustained. The Selection Panel was admittedly valid for

one year from finalization of the recruitment process. This fact is not disputed. The order dated 25.06.2010 issued by the Department of Post,

New Delhi shows that the panel, if at all, will operate in the event of the following contingencies :-

(i) Refusal by the meritorious candidate

(ii) Resignation by the 1st candidate even after joining within one year

(iii) Review made by the higher authority within one year with a further stipulation that that the same will be valid for one year from the date of

finalization and after that it will lose its validity.Â

The said Select Panel accordingly lapsed on 3rd May, 2012. As observed above, the third candidate was offered appointment on 18.11.2011 before

expiry of the period of the select panel. No doubt, the third candidate Shri Kunan Gaur was given charge as late as on 28.01.2013 on account of

hurdles created by the villagers. However, the argument of the respondent â€" applicant that 3rd candidate â€" Kunan Gar should not have been

granted time uptill January, 2013 to join and in case he had failed to join by the month of December, 2011 at the maximum, the appointment should

have been cancelled and offered to respondent â€" applicant No.4 cannot be sustained. The failure of the 3rd candidate to join by a particular date and

the extension of time granted to third candidate to join or handing over the charge to him as late as on 28.01.2013 does not give an automatic right to

the respondent â€" applicant to be appointed. More so, when the respondent â€" applicant did nothing during the intervening period. The third

candidate was granted appointment on 18.11.2011. He did not join for quite some time. The petitioner should have approached the concerned

authorities at that point of time. However, the petitioner kept sleeping over it. Meanwhile, the candidate No.3 was handed over the charge as late as

on 28.01.2013. Even then, the petitioner did nothing. Meanwhile, the services of candidate No.3 â€" Kunan Gar also stood terminated on

31.05.2013. It is at this stage that the respondent-applicant filed his OA, that is, as late as in July, 2013 after fresh advertisement was issued on

11.06.2013.  Â

It is a well settled proposition of law as held in the case of State of U.P. & Ors. Vs. Harish Chandra & Ors. reported in JT 1996(4) 414 that a

candidate seeking appointment after expiry of period of select list had no right as also that a panel of selected candidates will not be valid for an

indefinite period. In the said case, the appointing authority had granted appointment from a select list even after the said list had expired. The

Apex Court while holding such appointments as contrary to the provisions of Statutory Rules deprecated the practice adopted by the appointing

authority in making such appointment and therefore, set aside the direction given by the High Court to grant appointment to the other similarly situated

persons by holding that the respondents who claimed their right to be appointed on the basis of such a list did not have a subsisting right on the date

they approached the High Court. The same reads as under:

“This being the position and in view of the Statutory Rules contained in Rule 26 of the Recruitment Rules we really fail to understand how the High

Court could issue the impugned direction to recruit the respondents who were included in the select list prepared on 4.4.87 and the list no longer

survived after one year and the rights, if any, of persons included in the list did not subsist. In the course of hearing the learned counsel for the

respondents, no doubt have pointed out some materials which indicate that the Administrative Authorities have made the appointments from a list

beyond the period of one year from its preparation. The learned counsel appearing for the appellants submitted that in some cases pursuance to the

direction of the Court some appointments have been made but in some other cases it might have been done by the Appointing Authority. Even though

we are persuaded to accept the submission of the learned counsel for the respondents that on some occasion appointments have been made by the

Appointing Authority from a select list even after the expiry of one year from the date of selection but such illegal action of the Appointing Authority

does not confer a right on an applicant to be enforced by a Court under Article 226 of the Constitution. We have no hesitation in coming to the

conclusion that such appointments by the Appointing Authority have been made contrary to the provisions of the Statutory Rules for some unknown

reason and we deprecate the practice adopted by the Appointing Authority in making such appointments contrary to the Statutory Rules. But at the

same time it is difficult for us to sustain the direction given by the High Court since, admittedly, the life of the select list prepared on 4.4.87 had expired

long since and the respondents who claim their rights to be appointed on the basis of such list did not have a subsisting right on the date they

approached the High Court.â€​

In the case of Sri Sanjoy Bhattacharjee Vs. Union of India & Ors. reported in AIR 1997 SC 2179, the Apex Court laid down the principle that a

person does not get a vested right just because he has been put in the waiting list.

Admittedly, in the case in hand, as already discussed above in detail, the respondent â€" applicant approached after the said list had lapsed.Â

Although, the 3rd candidate was offered appointment much before the lapse of the list, the handing over of the charge to the third candidate after the

date of expiry of the select list too is debatable and may not be correct but the same does not give any right to the respondent â€" applicant to be

appointed in pursuance to a Select List which had long lapsed.

The second aspect that there was no satisfactory explanation as to how the post was re-advertised for Scheduled Caste Category when the original

Notification was for OBC Category is an altogether a separate issue and cannot be co-related with the dispute in hand, wherein, the petitioner is

seeking appointment on the post on the basis of select list which has already lapsed, especially when there was no averment in the O.A. that the

petitioner had applied in pursuance to the subsequent Notification. The incumbent selected in pursuance to the fresh advertisement too was not made

a party.  Â

In view of the above, the present writ petition is allowed and the order dated 03.01.2018 passed by the Central Administrative Tribunal, Jodhpur

Bench, Jodhpur is set aside.  Â