MANOJ MANU & ANR.versusUNION OF INDIA & ORS.

                       [2013] 10 S.C.R. 8


A                     MANOJ MANU & ANR.
                                v.
                    UNION OF INDIA & ORS.
                 (Civil Appeal No. 6707 of 2013)
                       AUGUST 12, 2013
B
             [ANIL R. DAVE AND A.K. SIKRI, JJ.)

       Service Law - Appointment/selection - Competitive
  examination - UPSC recommended names of candidates for
C appointment - 6 vacancies remained unfilled because 6 of
  the recommended candidates did not join - UPSC. was
  approached to recommend names for the 6 vacancies -
  UPSC recommended only 3 names - Two candidates who
  were next in the merit list and had secured same marks as
o secured by one of the 3 recommended candidates,
  challenged the act of UPSC in non-recommending their
  names - Courls below dismissed their claim - On appeal,
  held: Though a person included in the select list, does not
  acquire any right to be appointed - But the decision of the
E Government not to fill up the adverlised vacancies should not
  be arbitrary or unreasonable - In the instant case, decision
  of UPSC in forwarding 3 names against the requisition for 6 .
  vacancies was inappropriate - Exclusion of the names of the
  appellants, even when the vacancies were available, has
F resulted in discrimination - Constitution of India, 1950 -
  Arlie/es 14 and 16 - Office Memorandum dated 14th July,
  1967 - Clause 4(c).

      The appellants, who were working as Assistants in
  the Central Secretariat Service, appeared in Limited
G Departmental Competitive Examination for the next
  promotion to the post of Section Officer's Grade in that
  service. After the examination, UPSC recommended 184
  candidates for appointment. Out of them, 6 candidates
  did not join. Thereafter 6 general category vacancies were
H                               8
                                                        .I
   MANOJ MANU & ANR. v. UNION OF INDIA & ORS.               9


 requisitioned. UPSC recommended names of 3                      A
 candidates from out of the reserve list maintained by it.
 The two appellants, who were next in the merit list had
 secured the same marks as secured by one of the 3
 recommended candidates. The appellants challenged
 their non-recommendation before Administrative                  B
 Tribunal, which was dismissed. The writ petition against
 the order of Tribunal was also dismissed. Hence the
 present appeal.

     Allowing the appeal, the Court
                                                                 c
      HELD: 1. Though a person whose name is included
  in the select list, does not acquire any right to be
  appointed. The Government may decide not to fill up all
  the vacancies for valid reasons. Such a decision on the
  part of the Government not to fill up the required/            D
  advertised vacancies should not be arbitrary or
  unreasonable but must be based on sound, rational and
  conscious application of mind. Once, it is found that the
. decision of the Government is based on some valid
  reason, the Court would not issue any Mandamus to              E
  Government to fill up the vacancies. [Para 14] [18-G-H; 19-
  A-B]

      State of Haryana vs. Subhash Chander Marwah (1972)
 llLLJ 266 SC - referred to.
                                                                 F
      2. In the present case, however, after the UPSC sent
 the list of 184 persons/recommended by it, to the
 Government for appointment, six persons out of the said
 list did not join. It is not a case where the Government
 decided not to fill up further vacancies. On the contrary       G
 DoP&T sent requisition to the UPSC to send six names
 so that the remaining vacancies are also filled up. This
 shows that in so far as Government is concerned, it
 wanted to fill up all the notified vacancies. The requisition
 dated 20th November 2009 in this behalf was in                  H·
    10      SUPREME COURT REPORTS           [2013] 10 S.C.R.


A consonance with its Clause 4(c) of O.M. dated 14th July
  1967. Even when the Government wanted to fill up the
  post, the UPSC chose to forward names of three
  candidates. [Para 15] [19-B-D]
       3. There is a sound logic, predicated on public
8
  interest, behind O.M. dated 14th July 1967. The intention
  is not to hold further selection for the post already
  advertised so as to save unnecessary public expenditure.
  At the same time, this very O.M. also stipulates that the
  Government should not fill up more vacancies than the
C vacancies which were advertised. The purpose behind
  this provision is to give chance to those who would have .
  become eligible in the meantime. Thus, the OM dated 14th
  July 1967 strikes a proper balance between the interests
  of two groups of persons. In the present case since the
D requisition of the DoP&T contained in communication
  dated 20th November 2009 was within the permissible
  notified vacancies, the UPSC should have sent the names
  of six candidates instead of three. [Para 16] [19-D-G]
E       Sandeep Singh vs. State of Haryana and Anr. (2002) 10
    SCC 549; Virender S.Hooda and Ors. Vs. State of Haryana
    and Anr. AIR 1999 SC 1701: 1999 (3) sec 696 - relied on.

       4. It is not the case of the UPSC that under no
  circumstances the names are sent by way of
F supplementary list, after sending the names of the
  candidates equal to the vacancies. As per the UPSC itself,
  names of "repeat/common" candidates are sent and in
  the present case itself, three names belonging to such
  category were sent. However, exclusion of the persons
G like the appellants has clearly resulted in discrimination
  as one of those three candidates who had also secured
  305 marks was appointed to the post in question, the
  appellants with same marks have been left out even when
  the vacancies were available. [Para 18] [20-C-E]
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 MANOJ MANU & ANR. v. UNION OF INDIA & ORS.                     11


     5. The decision of UPSC in forwarding three names                A
against requisition of DoP&T for six vacancies was
inappropriate. Therefore, Mandamus is issued to the
UPSC to forward the names of the next three candidates
to the DoP& T for appointment to the post of Section
Officer's Grade. They shall get the seniority from the date           B
when one of the candidates recommended by UPSC was
appointed to the said post. Their pay shall notionally be
fixed, without any arrears. of the pay and other
allowances. [Para 19] [20-E-G)
                       Case Law Reference:                            c
    (1972) llLLJ 266 SC         referred to             Para 13
    (2002) 10 sec 549           relied on              Para 17
    1999 (3) sec 696            relied on              Para 17        D
    CIVIL APPELLATE JURISDICTION : Civil Appeal No.
6707 of 2013.

    From the Judgment & Order dated 16.5.2011 of the High
Court of Delhi at New Delhi in Writ Petition (Civil) No. 3297 of      E
2011.

     Satya Mitra Garg, Padma Kumar for the Appellants.

    Naresh Kaushik, Vardhman Kaushik, Lalita Kaushik for the
Respondents.                                                          F

     The Judgment of the Court was delivered by

     A.K. SIKRI, J.1. Leave granted.

    2. This appeal has been preferred by the present                  G
appellants questioning the validity of the judgment and order
dated May 16, 2011 passed by the High Court, in Writ Petition
which i.yas filed by the appellants questioning the validity of the
order dated
      --·-    ..
                 29th March 2011, of the Central Administrative
                                                                      H
    12      SUPREME COURT REPORTS                [2013] 10 S.C.R.


A Tribunal (hereinafter referred to as the "Tribunal"), Principal
  Bench, New Delhi. The Tribunal had dismissed the Original
  Application preferred by the appellants herein under Section
  19 of the Administrative Tribunal Act against their non-
  appointment to the post of Section Officer's Grade of the
B Central Secretariat Service. The said O.A. was dismissed by
  the Tribunal vide order dated 29th March 2011 which has been
  upheld by the High Court.

         3.There is no dispute about the facts, which may be briefly
C   recapitulated to understand the controversy that has arisen in
    these proceedings. The appellants were working as Assistants
    in the Central Secretariat Service (CSS) and appeared in
    Limited Departmental Competitive Examination for the next
    promotion to the post of Section Officer's Grade in that service.
    There are two channels of promotion: one by way of seniority
D   and other fast track in the form of Limited Departmental
    Competitive Examination (LDCE). The appellants appeared in
    the said LDCE 2005, which was conducted by the Union Public
    Service Commission (UPSC) on the requisition sent to it for
    184 general category posts by the Department of Personnel
E   and Training (DoP&T). After holding the examination the UPSC
    had recommended 184 candidates in two lots. First lot of 141
    candidates who were found suitable candidates for the said
    post whereas in the second lot 43 successful candidates were
    recommended for appointment. Out of them 6 candidates did
F   not join. The DoP&T thereafter vide its letter dated 20th
    November 2009 had requisitioned 6 "{feneral category
    vacancies. However, the UPSC recommended names of three
    candidates from out of reserve list maintained by it. These two
    appellants who were next in the merit list had secured 305
G   marks, same as secured by one Rajesh Kumar Yadav who was
    recommended by the UPSC in the supplementary list
    candidates.


         4. The appellants felt aggrieved by their non-
H
 MANOJ MANU & ANR. v. UNION OF INDIA & ORS.                    13
               [A.K. SIKRI, J.]
recommendation, thereby denying them the appointment to the          A
post of Section Officer's Grade. Under these circumstances,
these appellants filed the O.A. before the Tribunal alleging that
the UPSC had acted in an arbitrary and discriminatory manner
in contravention of Article 14 and 16 of the Constitution of India
denying them the right to get the appointment to the post to         B
which they were not only selected but equally placed as another
candidate who was given the appointment.

     5. The Tribunal dismissed the O.A. primarily on the ground
that ACR's are also seen for determining merit position inter-       C
se candidates who had secured same marks in written test and
it was because of this reason that these two appellants were
not placed before Shri Rajesh Kumar Yadav.

      6. Before the High Court, the appellants submitted that they
were not questioning the aforesaid reason given by the Tribunal      D -
determining inter-se merit position of the candidates who
qualified the written test. Instead their argument was that the
Tribunal lost sight of the actual plea taken viz. when there were
sufficient vacancies available and even as per the letter sent
by the DoP&T vide its letter dated 20th November 2009 names          E
of 6 candidates were requisitioned, there was no ·reason not
to forward the names of the appellants for the appointment. The
appellants relied upon Clause 4(c) of the Office Memorandum
dated 14th July 1967 in support of their aforesaid contention.
This Clause is reproduced hereinbelow:                               F
     "4(c) Once the results are published, additional persons
     should not normally be taken till the next examination. Nor
     should vacancies reported before declaration of the
     results, be ordinarily withdrawn after declaration of the
     results. If,· however, some of the candidates                   G
     recommended/allotted for appointment against the
     specific number of vacancies reported in respect of
     a particular examination do not become available for
     one reason or another, the Commission may be
     approached, within a reasonable time, with request              H
    14       SUPREME COURT REPORiS               [2013] 10 S.C.R.


A        for replacements from reserved, if available. When
         replacements may not be available, the vacancies that may
         remain unfilled should be reported to the Commission for
         being filled through the next examination."

B                                            (Emphasis supplied)

        7. The submission of the appellants before the High Court
  was that the aforequoted Clause specifically provides that the
  vacancies which are reported have not to be ordinarily
  withdrawn after the declaration of results. Therefore, when there
C were vacancies, and the appellants who had passed the LDCE
  were available, their names should have been recommended
  by the UPSC for appointment to ensure that vacancies do not
  go unfilled. It was also submitted that from the recommended/
  allotted candidates by the UPSC in case some of them are not
D available for whatever reason; the concerned department could
  approach the Commission, within a reasonable time with
  request for placement from reserved, if available. It was, thus,
  stressed that in the instant case when some of the persons did
  not join with the result that some vacancies were still available
E out of the vacancies reported and even requisition was made,
  the UPSC should have forwarded the names of 6 persons
  thereby including the appellants.


       8. The stand of the UPSC, on the other hand, was that
F whether or not UPSC should accept the said requisition was
  not the subject matter of the aforesaid Office Memorandum. The
  UPSC pleaded that it was the convention, followed throughout
  as a policy decision, that supplementary list is not to be issued
  except in two categories of cases, namely, "repeat" or
G "common" candidates. Repeat candidates are those
  candidates, who have participated in the same category in two
  LDCE and are successful in the first examination and results
  have not declared when the second Departmental Competitive
  Examination was held. Common candidates are those
H
 MANOJ MANU & ANR. v. UNION OF INDIA & ORS.                    15
               [A.K. SIKRI, J.]
candidates, who get selected in more than one category in the        A
LDCE.

     9. The High Court accepted the aforesaid contention of the
UPSC with the observation that taking a different view would
upset the policy or convention followed by UPSC and will create
                                                                     6
ambiguity which may also lead to confusion. The High Court
observed that the examination in question was held for 196
vacancies as intimated by DoP&T and UPSC had nominated
184 candidates in two lots. 12 SC vacancies remained unfilled
for want of suitable candidates. A supplementary list of three
persons was also issued as three selected candidates were            C
"common/repeat" candidates.

      10. We are unable to agree with the approach of the High
Court in the facts of the present case. It will be useful to point
out that reason for sending the requisition by DoP&T for             D
forwarding the names of persons in the reserve list was that
some of the candidates whose names had been forwarded by
the UPSC did not join the post for one or other reason. The
DoP&T in its communication dated 20th November 2009 had
itself stated so, giving the following reasons:                      E
 S. Roll        Name          Category     Reasons for the
 No. No.                       (S/Shri)    vacancies to arise

 1. 00114 7 Sanjay Bora General            Already appointed
                                           as PS vide OM             F
                                           No.5/2/ 2009-SC.ll
                                           dt.16.3.09

 2.   000713 Ms.Kitty         General      Already appointed
                                           as PS vide OM
                                                                     G
                                           No.5/2/2009-CS. II
                                           dt.16.3.09

 3.   001823 Devjyoti         General      Technically resigned
                                           Chakravarty on
                                                                     H
    16      SUPREME COURT REPORTS               [2013] 10 S.C.R.


A                                            17th August 2007
                                             i.e. prior to the
                                             declaration of the
                                             result.His lien is over
                                             on 17th August
B                                            2009.

     4.   001604 Sanjeev        General      He has opted for
                 Jain                        appointment against
                                             seniority quota, 2005
                                             instead of LDCE
c                                            2005.

     5.   001376 Vishwajit      General      He has given his
                 Kalynai                     undertaking to
                                             remain as Personal
D                                            Secretary.


     6. 001711 Jai Kishore SC                Qualified in LDCE
                                             2005 Exam.,however
                                             pursuant to a court
E
                                             direction, he has
                                             been adjusted
                                             against SL 2000
                                             (LDCE)

F
          In respect of each of the aforesaid six candidates DoP&T
    had given the reasons as to why those six persons opted not
    to join the post of Section Officer's grade.
G       11. It can be clearly inferred from the reading of the
  aforesaid that it is not the case where any of these persons
  initially joined as Section Officer and thereafter resigned/left/
  promoted etc. thereby creating the vacancies again. Had that
  been the situation viz. after the vacancy had been filled up, and
H caused again because of some subsequent event, position
  MANOJ MANU & ANR. v. UNION OF INDIA & ORS.                 17
                [A.K. SIKRI, J.]
would have been different. In that eventuality the UPSC would      A
be right in not forwarding the names from the list as there is
culmination of the process with the exhaustion of the notified
vacancies and vacancies arising thereafter have to be filled up
by fresh examination. However, in the instant case, out of 184
persons recommended, six persons did not join at all. In these     B
circumstances when the candidates in reserved list on the basis
of examination already held, were available and DoP&T had
approached UPSC "within a reasonable time" to send the
names, we do not see any reason or justification on the part of
the UPSC not to send the names.                                    c
     12. We are conscious of the legal position that merely
because the name of a candidate finds place in the select list,
it would not give him/her indefeasible right to get appointment
as well. It is always open to the Government not to fill up all
vacancies. However, there has to be a valid reason for adopting    D
such a course of action. This legal position has been narrated
by this Court in Ms.Neelima Shangla vs. State ofHaryana
(1986) 3 SCR 785. In that case:
     The appellant was the candidate for appointment to the
     post of Subordinate Judge in Haryana. Under the scheme
                                                                   E
     of the Rules, the Public Service Commission was required
     to hold first a written tast in subjects chosen by the High
     Court and next a viva voce test. Unless a candidate
     secures 45% of the marks in the written papers and 33%
     in the language p~per, he will not be called for the viva     F
     voce test. All candidates securing 55% of the marks in the
     aggregate in the written and viva voce tests are considered
     as qualified for appointment. The appellant though secured
     55% of the marks was not appointed as her name was not
     sent by the Public Service Commission to the Govt. The        G
     Supreme Court in such fact situation found that the Public
     Service Commission is not required to make any further
     selection from the qualified candidates and is, therefore,
     not expected to withhold the name of any qualified
     candidate. The duty of the Public Service Commission is       H
    18       SUPREME COURT REPORTS                [2013] 10 S.C.R.


A        to make available to the Govt., a complete list of qualified
         candidates arranged in order of merit. How should Govt.,
         act is stated by the Supreme Court in the following words:
         "Thereafter the Government is to make the selection strictly
B        in the order in which they have been placed by the
         Commission as a result of the examination. The names of
         the selected candidates are then to be entered in the
         Register maintained by the High Court strictly in that order
         and appointments made from the names entered in that
c        Register also strictly in the same order. It is. of course.
         open to the Government not to fill up all the vacancies for
         a valid reason. The Government and the High Court may,
         for example, decide that, though 55 per cent is the
         minimum qualifying mark, in the interests of higher
         standards, they would not appoint anyone who has
D
         obtained less than 60 per cent of the marks."

                                               (Emphasis supplied)

      13. The Court after making reference to the decision of the
E Supreme Court in the case of State of Haryana vs. Subhash
  Chander Marwah reported in (1972) llLLJ266 SC further
  observed as under:

         "However. as we said. the selection cannot arbitrarilv be
         restricted to a few candidates. notwithstanding the number
F        of vacancies and the availability of qualified candidates.
         There must be a conscious application of the mind of the
         Govt.. and the High Court before the number of persons
         selected for appointment is restricted. Any other
         interpretation would make Rule 8 of Part D meaningless."
G               (Emphasis supplied)

       14. It is, thus, manifest that though a person whose name
  is included in the select list, does not acquire any right to be
  appointed. The Government may decide not to fill up all the
H vacancies for valid reasons. Such a decision on the part of the
 MANOJ MANU & ANR. v. UNION OF INDIA & ORS.                   19
               [A.K. SIKRI, J.]
Government not to fill up the required/advertised vacancies         A
should not be arbitrary or unreasonable but must be based on
sound, rational and conscious application of mind. Once, it is
found that the decision of the Government is based on some
valid reason, the Court would not issue any Mandamus to
Government to fill up the vacancies.                                a
       15. In the present case, however, we find that after the
UPSC sent the list of 184 persons/recommended by it, to the
Government for appointment six persons out of the said list did
not join. It is not a case where the Government decided not to
fill up further vacancies. On the contrary DoP&T sent requisition   C
to the UPSC to send six names so that the remaining
vacancies are also filled up. This shows that in so far as
Government is concerned, it wanted to fill up all the notified
vacancies. The requisition dated 20th November 2009 in this
behalf was in consonance with its Clause 4(c) of O.M. dated         D
14th July 1967. Even when the Government wanted to fill up the
post, the UPSC chose to forward names of three candidates.

     16. There is a sound logic, predicated on public interest,
behind O.M. dated 14th July 1967. The intention is not to hold      E
further selection for the post already advertised so as to save
unnecessary public expenditure. At the same time, this very
O.M. also stipulates that the Government should not fill up more
vacancies than the vac~~~s which were advertised. The
purpose behind this pr®IB1on is to give chance to those who         F
would have beco~e~gible in the meantime. Thus, this OM
dated 14th Ju!y-vr967 strikes a proper balance between the
interests of two groups of persons. In the present case since
the requisition of the DoP&T contained in communication dated
20th November 2009 was within the permissible notified              G
vacancies, the UPSC should have sent the names of six
candidates instead of three.
    17. This Court in Sandeep Singh vs. State of Haryana &
Anr. (2002) 10 sec 549 commended that the vacancies
available should be filled up unless there is any statutory         H
     20       SUPREME COURT REPORTS                [2013] 10 S.C.R.

 A embargo for the same. In Virender S.Hooda & Ors. Vs. State
   of Haryana & Anr. AIR 1999 SC 1701, 12 posts for direct
   recruitment were available when the advertisement for
   recruitment was made which was held in the year 1991. Some
   of the selected candidates did not join in this batch almost
 B similar to the present case, the Court held that the appellant's
   case ought to have been considered when some of the
   candidates for reasons of the non-appointment of some of the
   candidates and they ought to have been appointed if they come
   within the range of selection.
 C        18. It is not the case of the UPSC that under no
      circumstances the names are sent by way of supplementary list,
      after sending the names of the candidates equal to the
      vacancies. As per the UPSC itself, names of "repeaVcommon"
      candidates are sent and in the present case itself, three names
   D belonging to such category were sent. However, exclusion of
      the persons like the appellants has clearly resulted in
      discrimination as one of those three candidates Rajesh Kumar
      Yadav had also secured 305 marks and once he was
      appointed to the ·post in question, the appellants with same
· · E marks have been left out even when the vacancies were
      available.
          19. We are, therefore, of the opinion in the facts of the
    present case, the decision of UPSC in forwarding three names
    against requisition of DoP& T for six vacancies was
  F inappropriate. We, accordingly, allow the present appeal; set
    aside the order of the High Court as well as Tribunal and issue
    Mandamus to the UPSC to forward the names of the next three
    candidates to the DoP&T for appointment to the post of Section
    Officer's Grade. They shall get the seniority from the date when
  G Rajesh Kumar Yadav was appointed to the said post. Their pay
    shall notionally be fixed, without any arrears of the pay and other
    allowances.
          20. No costs.
  H K.K.T.                                           Appeal allowed.