P. K. JAISWALversusMS. DEBI MUKHERJEE AND ORS.

                                    Dr. P. K. JAISWAL                                  A
                                              V.
                           Ms. DEBI MUKHERJEE AND ORS.

                                     JANUARY 7 , 1992

                      [A.M. AHMADI AND S. C. AGRAWAL, JJ .]                            B
                Service Law : Assistant Director General (Prevention of Food Adul-
          teration}-Recruitment to-Requisition to Union Public Service Commis-
          sion-Whether Government can withdraw before process of selection com-
          mences.
                                                                                       c
                 The Union Government sent a requisition to the Union Public
     -l   Service Commission for selection of a candidate to the post of Assistant
          Director General (Prevention of Food Adulteration) in the Ministry of
-·        Health and Family Welfare which, under the extant rules, was to be
          filled in only by direct recruitment. However, before the Commission
          could advertise the post, the Government informed it not to proceed with     D
          the process of selection as it was examining to fill up the post by
          promotion of Assistant Secretary. But inspite of this, the commission
          advertised the post and the appellant was called for an interview where-
          upon Respondent No. 1, an Assistant Secretary who was expecting her
          promotion to the. post on amendment of the rules, obtained an interim
          order from Central Administrative Tribunal, staying the process of           E
          selection initiated by the Commission. The appellant, feeling affected by
          tht! said order, unsuccessfully moved the Tribunal for impleadment.
          Meanwhile two further layers above that of Assistant Secretary, though
          in higher pay-scales but with no separate designations, were created by
          an amendment of rules in pursuance of this Court's direction. The
                                                                                       F
          Tribunal disposed of the application directing to provide promotional
          avenues to Respondent No. 1 who, while functioning as Assistant Secre-
          tary, had also occasionally held the charge of Assistant Director General.
          Aggrieved, the appellant preferred the appeal by special leave to this
          Court.
                                                                                       G
                It was contended by the appellant that once the process for
          selection had started, it was not open to the Government as well as to the
          Tribunal to freeze the process and the Commission was entitled to
          complete the selection; and that the fact of creation of two layers by the
          amendment of the rules was wrongly overlooked by the Tribunal.
                                                                                       H
               Dismissing the appeal, this Court,
                                              1
    2                    SUPREME COURT REPORTS                  [1992] 1 s. c. R.

A         HELD : 1.1 If the Government is at a given point of time consid-          '1-
    ering the question of amending the recruitment rules with a view to
    providing for promotion to a particular post, it can, before an advertise-
    ment is issued by the Commission and the process of selection is under
    way, request the Commission to withbold the same till it decides on the
    question of amending the rules. [p. SE-Fl
B
          1.2 Whether to provide for promotion as a mode of appointment
    to the post in question is a matter of policy left to the Government to
    decide. [p. 6AB)

           1.3 Once the decision of the Government to withdraw the requi-
C   sition was communicated to the Commission before it had set the process
    of selection in motion by issuing an advertisement, it was not open to the
    Commission to go ahead with the selection process as the Government
    could amend the recruitment rules retrospectively, if it so desired, with
    a view to providing for appointment by promotion. Such an exercise by
    the Commission would be one in futility, waste of public time and money
D   and hardship to candidates who seek appointment. [pp. SGH; 6A)

          The action of the Commission was somewhat hasty and unjustified.
    [p. 6B]

          2.1 If the Commission issues an advertisement at the behest of the
E   Government and pursuant thereto calls a candidate for interview, the
    candidate has a right to be considered for selection but not a right to be
    selected or to appointment to the post in question. The right to selection
    crystalises only after the candidate is called for interview pursuant to the
    advertisement. [p. S C-D]

F         N.T. Devin Katti & Ors. v. Karnataka Public Service Commission &
    Ors., [1990] 3 SCC 157 and Jatinder Kumar & Ors. v. State of Punjab &
    Ors., [1985)1 SCR 899, referred to.

         2.2 In the instant case, the decision of the Government to with-
    draw the requisition sent to the Commission before the issuance of the
G   advertisement does not interfere with any vested right of selection
    because that stage bad yet not reached. [p. SF]

          2.3 Before the appellant acquired a right to be considered for
    selection the Government had already intimated that it was examining
    the question of amending the recruitment rules with a view to providing
H   for appointment by promotion to the post iD question. [p. SGJ
               JAISWAL v. DEBI MUKHERJEE [AHMADI, J.]                          3

      2.4 The appellant, therefore, cannot claim any vested right. Nor             A
can the Tribunal's omission to notice that two new layers were created
have a bearing on the Government's decision to place the process of
selection in hibernation till a rmal decision is taken on the proposal to
provide for promotion to the post. [p. 6BC]

      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 138of1992.                    B

       From the Judgment and Order dated 30.8.1991 of the CentralAdmini~
strative Tribunal, Principal Bench, New Delhi in O.A. No. 1177 of 1987.

      G.D. Gupta and Ashok K. Mahajan for the Appellant.
                                                                                   c
      K.T.S. Tulsi, Hemant Shanna and Vijay K. Mehta for the Respondents.

      The Judgment of the Court was delivered by

      AHMADI, J. Special leave granted.
                                                                                   D
      Heard counsel on both sides. The facts giving rise to this appeal, briefly
stated, are as under :

       One Mr. Jaisani, a direct recruit, was holding the post of Assistant
Director General (Prevention of Food Adulteration) in the Ministry of Health
and Family Welfare of the Government of India On his passing away                  E
sometime in July 1989, a vacancy arose which was required to be filled under
the extant recruitment rules. The recruitment rules which were then in
operation provided for the said post being filled in by direct recruitment only.
A requisition was sent to the Union Public Service Commission ('Commis-
sion' hereafter) sometime in November, 1989 for selection of a candidate for       F
filling in the vacancy in question.

      However, before the Commission could advertise the post, the Union
Government informed the Commission by letter dated December 29, 1989
received by the Commission on January 1, 1990 not to proceed with the
process of selection because it was examining the question of opening up an G
avenue for promotion from Assistant Secretary to the post in question.
Notwithstanding the said communication, the Commission advertised the
post in January 1990. The appellant applied for the same and was called for
an interview on December 13, 1990. Thereupon the first respondent, Mrs.
Debi Mukherjee, who was then serving as Assistant Secretary, and was
hoping to be promoted as Assistant Director General on the amendment of H
    4                     SUPREME COURT REPORTS                     [1992) 1 S. C.R.

A    the recruiunent rules, approached the Central Administrative Tribunal, New
     Delhi and obtained an interim order staying the process of selection initiated
     by the Commission. It may here be mentioned that in the meantime two
                                                                                        r
     further layers above that of Assistant Secretary came to be created providing      )

     for higher pay-scales by an amendment of the rules pursuant to the directions
     given by this Court in Writ Petition No. 1118/89 read with the directions in
B    the Contempt Petition No. 5/90 dated May 4, 1990. The two layers •hus
     created provided for higher pay-scales but no separate designations. The
    .question regarding the appointment to the vacancy created on the demise of
     Jaisani, however, had still to be dealt with. The appellant who was affected
     by the Tribunal's Order approached for impleadment/intervention but the
     Tribunal did not allow the same although we are told that the Tribunal gave
c    a hearing to the counsel for the appellant The Tribunal ultimately disposed
     of the petition with a direction to the concerned Ministry to provide promo-
     tional avenues to the applicant who had functioned in the post of Assistant
     Secretary for several years and had held the charge of Assistant Director
     General as and when the occasion arose. Three months' time was granted to
     the concerned Ministry to carry out the directions. The failure to carry out the
D    directions had led to the filing of a Contempt Application also.

          The grievance of the appellant is two-fold. Firstly, he contends that
    once the process for selection had started it was not open to the Government
    as well as the Tribunal to freeze the process and the Commission was entitled
    to complete the selection. The second point urged was that the fact of the
E   creation of two layets by the amendment of the relevant rules had been totally
    over-looked by the Tribunal even though its attention was drawn to the same
    by counsel for the appellant.

          In suppbrt of the first contention, strong reliance was placed on the
    decision of this Court in N.T. Devin Katti & Ors. v. Karnataka Public Service
F
    Commission & Ors., [1990] 3 SCC 157. In that case this Court observed that
    a candidate who is eligible and otherwise qualified in accordance with the
    relevant rules and the terms of the advertisement acquires a vested right of
    being considered for selection in accordance with the rules as they existed at
    the date of advertisement. He cannot be deprived of that limited right on the
G   amendment of rules during the pendency of selection unless the amended
    rules are retrospective in nature. While making these observations, it was
    made clear that a candidate on making an application for a post pursuant to
    an advertisement does not acquire any vested right of selection or of
    appointment to the post in question. This is obvious from the ratio of this
    Court's decision in Jatinder Kumar & Ors. v. State of Punjab & Ors., [1985]
H   1 SCR 899. In that case, it was clarified that an independent body like the
                    JAISWAL v. DEBI MUKHERJEE [AHMADI, J.]                       5

--{   Commission is established to ensure selection of best available talent for A
      appointment to the post in question to avoid arbitrariness and nepotism in the
      matter of appointment. The selection has to be made by the Commission and
      on the basis thereof the Government has to fill up the post adhering to the
      order of merit drawn up by the Commission. This Court emphasised that the
      selection by the Commission is only recommendary in nature and the final
      authority for appointment is the Government, and if the Government declines B
      to accept the recommendation the Constitution enjoins the Government to
      place on the table of the legislature its reasons and report for so doing.
      Thereby the Government is made answerable to the elected representatives
       under the Constitution. This, however, does not clothe the selectee with any

-     right to appointment that is to say that he cannot force the Government tQ
      accept the recommendation of the Commission but the Government has to
      make the appointment strictly in accordance with the recruitment rules and
                                                                                     c
      merits as determined by the Commission and it cannot disturb the list at its
      sweet will. Nor can the Government appoint a person whose name does not
      appear in the list. It is obvious from the ratio of these two decisions to which
      our attention was pointedly drawn that if the Commission issues an advertise-
      ment at the behest of the Government and pursuant thereto calls a candidate D
      for interview, the candidate has a right to be considered for selection but not
      a right to be selected or to appointment to the post in question. The right to
      selection crystalises only after the candidate is called for interview pursuant
-i_   to the advertisement. But in the instant case the question is whether the
      Government can withdraw the requisition sent to the Commission for initiat-
      ing the process of selection because at the point of time no right had E
      crystalised in anyone for being considered for selection. If the Government
      is at a given point of time considering the question of amending the
      recruitment rules with a view to providing for promotion to the post in
      question, the Government can before an advertisement is issued by the
      Commission and the process of selection is under way request the Commis-
                                                                                       F
      sion to withdraw the same till it decides on the question of amending the
      rules. The decision of the Government to withdraw the requisition sent to the
      Commission in November 1989 before the issuance of the advertisement
      does not interfere with any vested right of selection because that stage had
      yet not reached. In the instant case, that is exactly what happened. Therefore,
      before the appellant acquired a right to be considered for selection the G
      Government had already intimated that it was examining the question of
      amending the recruitment rules with a view to providing for appointment by
      promotion to the post in question. Once this decision was communicated to
      the Commission before it had set the process of selection in motion by
      issuins an advertisement, it was not open to the Commission to insist that it
      will go ahead with the selection process as the extant rule provided for H
    6                    SUPREME COURT REPORTS                    [1992) 1 S. C.R.

A   promotion by direct recruibnent and the Government could amend the re-
    cruibnent rules retrospectively, if it so desired, with a view to providing for
    appointment by promotion. Such an exercise by the Commission would be an
    e21-ercise in futility, waste of public time and money and hardship to candi-
    dates who seek appoinbnenl. Whether to provide for promotion as a mode of
    appointment to the post in question is a matter of policy left to the
B   Government to decide and if it desired that the selection process should be
    held in abeyance till the question was examined and a final decision was
    taken thereon, it was not open to the Commission to ignore the communica-
    tion of the Government in that behalf and proceed to set the selection process
    in motion. We think the action of the Commission was somewhat hasty and

C
    unjustified. The appellant, therefore, cannot claim any vested right as urged
    by his learned counsel. Nor can the Tribunal's omission to notice that two
    new layers were created have a bearing on the Government's decision to
    place the process of selection in hibernation till a final decision is taken on
    the proposal to provide for promotion to the post
                                                                                      --
          For the above reasons, we are of the opinion that the decision reached
    by the Tribunal does not require any interference at our hands in exercise of
    the power under Article 136 of the Constitution. Hence, the appeal fails and
    is accordingly dismissed with no order as to costs.

    R.P.                                                        Appeal dismissed.