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PETITIONER: Dr.  P K JAISWAL

       Vs.

RESPONDENT: Ms. DEBI MUKHERJEE AND ORS

DATE OF JUDGMENT07/01/1992

BENCH: AHMADI, A.M. (J) BENCH: AHMADI, A.M. (J) AGRAWAL, S.C. (J)

CITATION:  1992 AIR  749            1992 SCR  (1)   1  1992 SCC  (2) 148        JT 1992 (1)   315  1992 SCALE  (1)120

ACT:      Service Law : Assistant Director General (Prevention of food   Adulteration)-Recruitment  to-Requisition  to   Union Public  Service Commission-Whether Government  can  withdraw before process of selection commences.

HEADNOTE:      The  Union government sent a requisition to the   Union Public  Service Commission for selection of a  candidate  to 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 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 selection  initiated  by  the  Commission.  The   appellant, feeling affected by the 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 Tribunal  disposed of the application directing  to  provide promotional   avenues   to  Respondent   No.1   who,   while functioning  as Assistant Secretary, had  also  occasionally held  the charge of Assistant Director  General.  Aggrieved, the appellant preferred the appeal by special leave to  this Court.     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.       Dismissing the appeal, this Court,                                                           2

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HELD  :  1.1 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 a particular post, it can, before an advertisement is issued by the  Commission and  the process of the selection is under way, request  the Commission  to  withhold  the same till it  decides  on  the question of amending the the rules. (p.5E-F)      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 repuisition 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 and hardship to candidates who seek appointment.(pp.5GH;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  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.5 C-D)      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  withdraw  the requisition sent to the Commission  before the  issuance of the advertisement dose not  interfere  with any vested right of selection because that stage had yet not reached.(p.5F)      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 for  appointment by promotion to the post in question. (p.5G)                                                        3      2.4  The appellant, therefore, cannot claim any  vested right.  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. (p.6BC)

JUDGMENT: CIVIL  APPELLATE  JURISDICTION: Civil Appeal No. 138 of 1992 From  the Judgment and Order dated 30.8.1991 of the  Central Administrative   Tribunal,Principal  Bench,  New  Delhi   in O.A.No. 1177 of 1987.   G.D. Gupta and Ashok K. Mahajan for the Appellant. K.T.S.  Tulsi,  Hemant  Sharma and  Vijay  K.Mehta  for  the Respondents.   The Judgment of the Court was delivered by   AHMADI, J. Special leave granted. 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

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Assistant Director General (prevention of Food Adulteration) in  the  Ministry  of  Health  and  Family  Welfare  of  the Government  of India. On his passing away 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   (Commission’ hereafter)  sometime in November, 1989, for selection  of  a candidate for 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 it  was examining the question of opening up an  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                                                       4 the recruitment 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  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  the Contempt Petition No. 5/90 dated May 4, 1990. The two layers thus 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 Tribuanl’s Order approached for impleadment/intervention but the  Tribunal  did not allow the same although we  are  told that  the  Tribunal gave a hearing to the  counsel  for  the appellant. The Tribunal ultimately disposed of the  petition with  a  direction  to the  concerned  Ministry  to  provide promotional  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 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 creation of tow layers 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 support of the first contention, strong reliance was placed  on the decision of this Court in N.T. Devin Katti  & Ors. v. Karnataka Public Service 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

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accordance  with  the rules as they existed at the  date  of advertisement.  He cannot be deprived of that limited  right on  the 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., [1985] 1 SCR 899. In that case, it was clarified  that an independent body like the                                                     5 Commission  is  established  to  ensure  selection  of  best available talent for 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   declined  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 to accept  the recommendation  of the Commission but the Government has  to make  the  appointment  strictly  in  accordance  with   the recruitment rules and 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 issued an advertisement at the behest of  the Government  and  pursuant  thereto  calls  a  candidate  for interviews,  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. But in the instant case the question  is whether the Government can withdraw the requisition sent  to the  Commission  for  initiating the  process  of  selection because  at  the point of time no right had  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 Commission 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  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 issuing an advertisement, it  was not  open to the Commission to insist that it will go  ahead

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with the selection process as the extant rule provided for                                                            6 promotion  by  direct recruitment and 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  an exercise  in  futility, waste of public time and  money  and hardship  to  candidates who seek  appointment.  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  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 communication 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  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.                                                           7