1. The facts, which are not in dispute, are as under:
The Telangana State Public Service Commission (for short, ‘PSC’) issued Notification No.09/2015 on 29.08.2015 calling applications from eligible candidates to make selections for appointment to the post of Assistant Engineer, in various Engineering Subordinate Services, including Public Health and Municipal Engineers Subordinate Service. This notification included 258 posts of Assistant Engineers in Public Health and Municipal Engineering Subordinate Service. Out of this, 144 posts were earmarked to be filled up in city cadre. In the city cadre vacancies, 14 posts were reserved for Scheduled Caste (SC) category. Petitioner responded to the notification. In the selections conducted by the PSC, petitioner secured 169 marks. Petitioner was found eligible to be appointed against 14 vacancies reserved for SC category in city cadre. Accordingly, the PSC recommended his name to the Engineer-in-Chief, Public Health to appoint the petitioner. Petitioner was appointed as Assistant Engineer in city cadre and on appointment, he was posted to work in Greater Hyderabad Municipal Corporation.
2. While so, person by name Sri Venkat Swamy Salade, who also participated in the selections and secured 170 marks, claimed appointment as Assistant Engineer in the vacancies reserved for SC category in the city cadre stating that he actually belonged to city cadre, but he was erroneously treated as belonging to Zone-VI. As the PSC did not accept his plea, he filed W.P.No.42005 of 2016. Petitioner herein was arrayed as 3rd respondent in the said writ petition. W.P.No.42005 of 2016 was allowed by judgment dated 19.12.2018. This Court held that Venkata Swamy should be treated as a candidate belonging to city cadre and he should be appointed as per the merit secured by him against SC category vacancy by displacing the petitioner herein. In compliance of the said judgment, petitioner’s services were terminated and Sri Venkata Swamy was appointed in his place. Aggrieved by the said judgment, petitioner preferred W.A.No.482 of 2019, which is pending consideration before this Court.
3. After termination of his services, petitioner obtained information from the Engineer-in-Chief, Public Health, and the PSC and found that two persons, who were included in the merit list at Sl.Nos.19 and 87 - Sri S.Arvind Kumar and Sri G.Anoop, respectively, were not appointed as Assistant Engineers; both belong to SC category of city cadre and, therefore, there were two clear vacancies on the day when judgment was rendered and when Venkata Swamy was appointed. Petitioner submitted his representation dated 15.06.2019 to the PSC stating as above, and requested the PSC to appoint him as Assistant Engineer in one of those two vacancies. Alleging that PSC did not consider the representation submitted by the petitioner, he filed W.P.No.17516 of 2019. Said writ petition was disposed of directing the respondents-PSC to pass orders on the representation submitted by the petitioner. In compliance of the said directions, by Memo dated 25.02.2020, petitioner was informed that he cannot be considered for appointment against those two vacancies in view of the Government Orders in G.O.Ms.No.81 General Administration (Services-A) Department dated 22.02.1997 and in view of the provisions in PSC Rules of Procedure. It is stated in the Memo that the fallout vacancies, if any, due to relinquishment and non-joining etc. of selected candidates should be notified in the next recruitment. Challenging the said decision of the PSC, this writ petition is filed.
4. Heard learned senior counsel Sri D.V.Sita Ram Murthy for learned counsel for petitioner, Mr. D.Balakishan Rao, learned standing counsel for TSPSC, and Mrs. Vijaya Lakshmi, learned Government Pleader for Services-III.
5.1. According to the learned senior counsel for petitioner, as on the date of judgment rendered by this Court in W.P.No.42005 of 2016, there were two clear vacancies, out of 14 vacancies notified in the recruitment notification, meant to be filled up by SC category candidates in city cadre, but no appointment was made against those vacancies and illegally petitioner’s services were terminated to accommodate Venkata Swamy.
5.2. According to learned senior counsel, G.O.Ms.No.81, dated 22.02.1997 and the PSC Rules of Procedure are not attracted to the case on hand. Persons at Sl.Nos.19 and 87 were not appointed and, therefore, the vacancies do not fall under the category of nonjoining or relinquishment to attract the policy decision of the Government in G.O.Ms.No.81, dated 22.02.1997 and the PSC Rules of Procedure. According to learned senior counsel, those two persons did not respond to the notices issued to them to attend for verification of certificates. Unless certificate verification is undertaken to the satisfaction of the appointing authority, no appointment order would be issued and as those two persons did not attend to certificate verification, they were not issued appointment orders. Thus, these two vacancies were available and are not filled up even by now and therefore, there was no justification to terminate the services of the petitioner. Learned senior counsel would submit that these facts, though within the knowledge of the respondent-PSC, were not placed before this Court when Court considered W.P.No.42005 of 2016. Petitioner could secure the relevant information under the Right to Information Act only after the said writ petition was disposed of.
5.3. In support of his contention that the two vacancies mentioned above can not be treated as fallout vacancies, learned senior counsel placed reliance on the decision of learned single Judge in the case of K.Rajasekhar vs. The Vice Chairman & Managing Director, APSRTC, Hyderabad and another (2009 (3) APLJ 437 (HC), decision of Division Bench of this Court in Government of A.P. and others vs. Bhagam Dorsanamma and others (MANU/AP/1598/2013), and the decision of Hon’ble Supreme Court in Munja Praveen and others vs. State of Telangana and others (2017) 14 SCC 797). According to the learned senior counsel, as held by this Court and the Hon’ble Supreme Court in the above decisions, if no appointment order is issued to the selected candidate, the vacancy does not come under the category of non-joining vacancy or relinquishment vacancy and next meritorious candidate should be appointed.
6.1. Learned standing counsel vehemently defended the decision of the PSC. According to him, all the candidates, who were included in the provisional merit list, have attended for certificate verification before the PSC and on such certificate verification, their names were recommended to the appointing authority. Since their names were already included in the merit list forwarded to the appointing authority, if any candidate does not join in the post, it would become non-joining vacancy and has to be filled up only by a separate recruitment.
6.2. He would submit that system of waiting list is dispensed with. The merit list has to be confined to the number of vacancies notified and once merit list was drawn and sent to the appointing authority, the question of altering the merit list or including some other person in the merit list on the ground that the candidates, whose names are included in the merit list forwarded to the appointing authority, have not joined, is not permissible. The policy of the Government is very clear, as can be seen from G.O.Ms.No.81 dated 22.02.1997 and the PSC Rules of Procedure also do not permit such appointment. Learned standing counsel heavily relied upon paragraph-10 of the judgment of Hon’ble Supreme Court in Munja Praveen (supra) to contend that in the said selection, State Government relaxed the relevant provision as a special case to call for the candidates for verification of certificates as one-time exercise and permitted TSTRANSCO, TSSPDCL and TSNPDCL to fill up the left over notified vacancies. He, therefore, submitted that in view of peculiar facts of that case, decision was rendered by the Hon’ble Supreme Court and is not applicable to the case on hand.
6.3. He relied on the judgment of Hon’ble Supreme Court in Civil Appeal No.9338 of 2019, dated 11.12.2019, where Rules 6 and 7 of the PSC Rules of Procedure were interpreted. He also placed reliance on the judgment of Hon’ble Supreme Court in Civil Appeal No.3346 of 2019 dated 01.04.2019 in support of his contention that once a merit list is drawn and a candidate shown in the merit list has not joined, it cannot be filled up by the candidates lower down in the wait list. He would submit that merely because a candidate secured merit, there is no indefeasible right in him to claim appointment even if the vacancies are available. Thus, as petitioner has no such vested right, he cannot claim appointment by contending that two vacancies, meant to be filled up by SC candidates, were not filled up.
7. Though petitioner claimed that candidates at Sl.Nos.19 and 87 were not issued appointment orders, during the course of hearing, it was clarified that candidate at Sl.No.87 attended for certificate verification and was issued appointment order but did not join in the post. With reference to candidate at Sl.No.19, there was no clarity as to whether candidate reported for certificate verification before the PSC and report before the Engineer-in-Chief (Public Health), and whether appointment order was issued to the candidate at Sl.No.19, but he refused to join within the time granted to him. As this aspect is crucial to consider the claim of the petitioner, by order dated 09.07.2020, learned Government Pleader was directed to obtain instructions from the Engineer-in- Chief, Public Health, as to whether the information furnished by him under the Right to Information Act stating that person at Sl.No.19 of the merit list did not appear for certificate verification is true and no appointment order was issued to him. Learned standing counsel for PSC was also directed to ascertain when the merit list, placed on record, was final merit list drawn by the PSC.
8. According to learned Government Pleader, Sri S.Aravind Kumar, who was shown at Sl.No.19 in the list forwarded by the PSC, did not attend for certificate verification and, therefore, no appointment order was issued to him. Sri G.Anoop, who was shown at Sl.No.87 in the merit list attended for certificate verification and was issued appointment orders, but he did not join in the post. Learned standing counsel for the PSC clarified that the list placed on record is part of Engineer-in-Chief (Public Health) record. Both candidates reported for certificate verification before PSC and only after certificate verification, their names were included in the merit list sent to Engineer-in-Chief (Public Health). He has further clarified that no further recruitment notification is issued to fill up the posts of Assistant Engineers after the 2015 notification.
9. From the above narration of facts, it is clear that Sri S.Arvind Kumar, shown at Sl.No.19 in the merit list forwarded by the PSC to the Engineer-in-Chief (Public Health), selected against 14 vacancies reserved to be filled up by S.C. category candidates in city cadre, did not report for certificate verification and appointment order was not issued to him.
10. In the above facts scenario, issue for consideration is, whether the vacancy remained unfilled because the selected candidate did not report for certificate verification, and therefore no appointment order was issued, should be treated as a clear vacancy and is not a fallout vacancy?
11. Before considering the issue, one aspect needs to be cleared. According to learned senior counsel, petitioner do not intend to prosecute W.A.No.482 of 2019. On behalf of petitioner, Memo USR No.61809 of 2019 was filed on 21.10.2019 to withdraw the Writ Appeal. Further, in the writ petition, petitioner is not only challenging the decision of Public Service Commission rejecting his request to appoint him to unfilled SC category in city cadre, but also challenging the decision deleting his name from the merit list and dispensing with his services. As deletion of his name from the merit list and dispensing with his services was in compliance of the judgment in W.P.No.42005 of 2016, which decision has become final, the petitioner cannot seek to challenge them in this writ petition. Thus, the prayer in the writ petition is confined to legality of the decision of Public Service Commission, dated 25.02.2020 rejecting the request of petitioner to appoint against unfilled SC category, and the consequential relief to appoint him as Assistant Engineer in city cadre.
12. To appreciate the respective contentions, it is necessary to look into the policy decision of the Government as notified in G.O.Ms.No.81, date 22.02.1997, the ad hoc rule notified vide G.O.Ms.No.544, dated 04.12.1998 and the PSC Rules of Procedure.
13. By G.O.Ms.No.81, dated 22.02.1997 (G.O.Ms.No.81 General Admn. (Services-A) Department: 8. Therefore, the Government, after careful examination, has agreed with the proposal of the Andhra Pradesh Service Commission and accordingly direct that hence forth the list of the candidates approved/selected by the Andhra Pradesh Public Service Commission shall be equal to the number of vacancies only including those for reserved communities/categories notified by the unit officers. The fallout vacancies if any due to relinquishment and non-joining etc., of selected candidates shall be notified in the next recruitment. 5 Rule 6 (after amendment) – The list of the candidates approved/selected by the Commission shall be equal to the number of vacancies only including those for reserved communities/ categories notified by the Unit Officers Government. The fallout vacancies if any due to relinquishment and non-joining etc. of selected candidates shall be notified in the next recruitment.), Government directed that henceforth the list of candidates approved/selected by the PSC should be equal to the number of vacancies only and the fallout vacancies, if any, due to relinquishment and non-joining of selected candidates should be notified in the next recruitment. Consequently, ad hoc rule was formulated and notified vide G.O.Ms.No.544 dated 04.12.1998, which gives effect to the above policy decision.
14. Rule 65 of PSC Rules of procedure contemplated wait list and operation of the wait list for one year. This was amended in the year 1997, dispensing with wait list and to confine merit list to the extent of vacancies notified only, giving effect to G.O.Ms.No.81, dated 22.02.1997.
15. G.O.Ms.No.81, the ad hoc rule and Rules 6 and 7 of PSC Rules of procedure were considered by this Court and the Hon’ble Supreme Court in the precedent decisions.
15.1. In K.Rajasekhar (supra), petitioner claimed that though he was selected to the post of Traffic Supervisor (Trainee), he was not appointed. It was contended that person by name M.Vijaya Bhaskar was selected to the post of Traffic Supervisor (Trainee) under the Departmental quota in Hyderabad zone, but selection of M.Vijaya Bhaskar to the post of Traffic Supervisor (Trainee) was cancelled on the ground that he was not a Departmental candidate. Challenge made to the said decision in W.P.No.7791 of 2009 was negatived and writ petition was dismissed on 21.04.2009. The claim of the petitioner to appoint him to the said post, as per the merit secured by him, was rejected on the ground that in view of G.O.Ms.No.81, dated 22.02.1997, there was no scope to operate merit list further. Rejecting the said contention, this Court held that G.O.Ms.No.81, dated 22.02.1997 is applicable only to fallout vacancies due to relinquishment and non-joining of the selected candidates, and only such vacancies shall be notified in the next recruitment, and as the Corporation committed error in considering ineligible candidate under the Departmental quota, it would mean that there was no selection at all and, therefore, vacancy could not be treated as arising out of relinquishment or non-joining of selected candidate and accordingly directions were issued to appoint the petitioner.
15.2. In W.P.No.957 of 2011, similar issue was considered by the Division Bench of this Court. The challenge made to the decision of the APAT to provide employment to the post of Secondary Grade Teacher was dismissed, upholding the view taken by the Tribunal holding that the vacancy cannot be treated as nonjoining vacancy as the candidate initially selected against Physically Handicapped category was found to be not belonging to Physically Handicapped category. Therefore, next meritorious candidate was entitled to be appointed. Similar view was taken in W.P.No.5622 of 2013 in the judgment rendered on 13.03.2013.
15.3. In Bhagam Dorasanamma (supra), the same issue was considered by the Hon’ble Division Bench elaborately. The Division Bench of this Court examined the scope of G.O.Ms.No.81 and the ad hoc rule and considered earlier decisions. The Division Bench upheld the view taken by the earlier Division Bench and learned single Judge, and held that the process of recruitment starts from the date of notifying the vacancies and attains finality only with the act of issuing appointment order and the available vacancy cannot be treated as non-joining vacancy or vacancy arising out of relinquishment. The stand of respondents on the scope of application of G.O.Ms.No.81 dated 22.02.1997 and ad hoc Rule notified vide G.O.Ms.No.544, was repelled. It was a combined recruitment to various posts in the Forest Department. Ms. Nallabothula Laxmi Prasanna was selected for recruitment to the posts of Assistant Beat Officer and Thanadar, but she opted to the post of Assistant Beat Officer. Petitioner was within the merit to be appointed as Thanadar, but she was not appointed treating said vacancy as non-joining vacancy. The Division Bench held that as person did not choose to take second post, having accepted the higher post, the vacancy in the post of Thanadar cannot be treated as non-joining vacancy.
15.4. This view of the Hon’ble Division Bench in Bhagam Dorasanamma (supra) was upheld by the Hon’ble Supreme Court in Munja Praveen (supra). The Hon’ble Supreme Court held as under:
“9. According to us, the High Court has totally misconstrued the above GOMs. The portion of the GOMs quoted above clearly lays down that there shall be no waiting list and the selection shall be made equal to the number of posts notified. The purpose was that the vacancies arising due to people leaving the posts must be filled up by subsequent selection and not on the basis of a waiting list. It was clarified that after selection of the candidates and after issue of appointment orders, if the candidate fails to join within the stipulated period, that vacancy should be notified again. This portion of the GOMs admits of only one interpretation that after appointment order is issued and the person appointed does not join, then the vacancy cannot be filled up on the basis of the waiting list or by operating the merit list downwards. This is also clear from Clause 9 of the GOMs, which also clarifies that fallout vacancies due to relinquishment or non-joining of the selected candidates may be notified in the next recruitment. This obviously means that the clause will apply after issue of letter of appointment. There can be no relinquishment and non-joining unless an appointment letter is issued.”
15.5. Kulwinder Pal Singh and others. vs. State of Punjab and others (Civil Appeal Nos.5035 – 5036 of 2016):
a) Facts culled out from the judgment are as under: Out of 52 vacancies of Punjab Civil Service (Judicial Branch) notified for direct recruitment on 7.3.2007, 27 were meant for open competition and balance are reserved for various social groups. In the recruitment process, eight posts reserved to various categories including one meant for S.C category, remained unfilled. They were de-reserved and exhausted by Open Competition candidates up to Serial No. 34. Accordingly, appointment orders were issued to all the 52 candidates. Candidates at serial Nos. 1, 5 and 32 in the merit list did not join. Persons at serial Nos. 35, 36 and 37 i.e., the next in the merit belonging to Open Competition staked claim to those three vacancies. Their claim is negatived by the High Court on the administrative side, which decision is affirmed on the judicial side.
b) Three aspects can be noticed from the facts noted above:
(i) The selection process was completed by issuing appointment orders to all the 52 selected candidates; (ii) Three candidates selected against Open Competition vacancies did not join; and iii) High Court on the administrative side was critical of de-reservation of one S.C. vacancy and filling all vacancies contrary to earlier decision to adjust further vacancies towards supernumerary vacancies created to comply with the directions of the Hon’ble Supreme Court concerning earlier recruitment.
c) In the above facts and circumstances of the case, the Hon’ble Supreme Court held that no appointment can be made beyond the number of vacancies advertised; Once appointment orders are issued to all the vacant posts, the process of selection comes to an end; Waiting list cannot be used as a reservoir, to fill up a vacancy that may arise after the issuance of notification/advertisement and the unexhausted select list/waiting list cannot be pressed into service any more; merely because the name of a candidate finds a place in the select list, it would not give him indefeasible right to get an appointment as well; It is always open to appointing authority not to fill up vacancies. Therefore, the claims of petitioners therein to appoint them against non-joining vacancies were rejected.
15.6. Kerala State Road Transport Corporation Vs Akhlesh V.S. (C.A No. 3346 of 2019 dated 1.4.2019):
i) KSRTC placed an indent with the PSC to make recruitment for 405 vacancies in the post of Blacksmith Grade II. The Public Service commission recommended 380 names. The Corporation appointed upto rank number 278 only. The rank list expired on 21.10.2017. Candidates who secured rank below 278 claimed to make appointments to balance vacancies as recommended by Public Service Commission. High Court directed to fill all vacancies including those which arose subsequently. The corporation contended that it has financial crunch and higher staff - bus ratio and thus do not require more staff.
ii) The Hon’ble Supreme Court held that Court cannot compel the employer to recruit when, it does not intend to recruit. The Hon’ble Supreme Court observed that it is settled law that mere existence of vacancy or employment does not create any indefeasible right to appointment.
15.7. Andhra Pradesh Public Service Commission vs. Kota Lingeswara Rao and others (Civil Appeal No. 9338 of 2019 dt 11.12.2019):
From the judgment, following facts are culled out:
a) In the selection to the post of Junior Lecturer (Mathematics), Sri G.V.Ramakrishna Sagar was the last selected candidate in Zone III. He did not join the post. The selections were finalised in the year 2012. Four years later, Sri Kota Lingeswara Rao, filed O.A.No.3142 of 2016 in the A.P. Administrative Tribunal, claiming as the next meritorious candidate and praying to appoint him to the vacancy caused due to non joining of Sri G V Ramakrishna Sagar. The Tribunal dismissed the O.A. on the ground of delay and latches. W P No. 3695 of 2018 was filed in the High Court. The High Court by judgment dated 12.7.2018 allowed the writ petition directing the Public Service Commission to appoint the petitioner as Junior Lecturer in Mathematics against non joinder vacancy. The High Court relied on Rule 7 of the Telangana State Public Service Commission Rules of Procedure.
b) The Hon’ble Supreme Court considered the amendment to Rule 6 and Rule 7 of the Rules of Procedure and held that as maintaining waiting list is dispensed with, the respondent being a non selected candidate cannot urge the Commission to select him against non joinder vacancy based on unamended Rule 6 and such vacancy should go to next recruitment. Further, the claim of applicant before APAT was negatived on the ground of delay and latches.
16. In matters of recruitment, preparation of merit list and operation of the merit list, principles culled out from the above decisions, are as under:
(1) Selection process culminates only when an order of appointment is issued to a validly selected candidate;
(2) Once selection list is drawn and appointment orders are issued to all the selected candidates and entire select list is exhausted, question of operating waiting list to fill fallout vacancy does not arise;
(3) A vacancy can be treated as fallout vacancy only when a validly selected candidate receives appointment order, but does not join or joins but resigns to the post/relinquishes the post;
(4) If no appointment order is issued against notified vacancy to a candidate in the select list for any reason, including not reporting for certificate verification, it does not amount to exhausting the merit list and such vacancy is not a fallout vacancy;
(5) Even when appointment orders are issued against all vacancies, but on verification of certificates of eligibility such as disability, educational qualification, social status etc., if selection of a candidate is cancelled, the vacancy cannot be treated as a fallout vacancy. In other words, but for wrong declaration/claim, the candidate could not have been included in the merit list and therefore the other meritorious candidate who fits into particular category/criteria, ignored earlier because of such wrong declaration/claim, should not be deprived of his entitlement for appointment.
(6) Merely because a candidate is included in the merit list no indefeasible right would accrue to him to claim appointment and it is for the employer to utilise the merit list partially or fully. However, if the employer decides against filling all or any of the vacancies notified, he has to assign reasons in support of such decision.
17. In public employment, recruitment never takes place in a fixed time frame. The competent authority takes his own time to identify vacancies and notify to the recruiting agency. Process of recruitment is cumbersome and many times lack clarity on basic issues, such as qualifications, age of eligibility, procedure of selection, reservation, etc., leading to litigation, contributing delays in recruitment. All this happens against sanctioned cadre strength, while competent authority eagerly waits persons to man the posts. Having regard to delays in finalizing the selections and appointments, the system of wailing list was envisaged to draw persons from the said list against non-joinder/relinquishment/ subsequent vacancies.
18. However, in the combined State of Andhra Pradesh, operating waiting list against non-joinder/relinquishment vacancies created lot of administrative difficulties, resulted in sliding down or up in the merit list, moving candidates appointed in one post to another post, many times after few years of service, appointing lower meritorious candidates to higher posts leaving more meritorious to work in less creamy posts, leading to unending litigation. The problem was more acute when combined recruitment was made to posts organized in different services having different status in the hierarchical structure and future prospects. For example, in Group - I service, there are posts of Deputy Collector, Deputy Superintendent of Police, Commercial Tax Officer, etc. Though all are called as Group – I Service posts, but status and importance of some posts is higher compared to other posts.
19. In view of practical problems faced by the Government, it dispensed with maintaining a wait list and decision was taken to draw merit list only to the extent of vacancies notified (G.O.Ms.No.81). An ad hoc Rule was made, notified vide G.O.Ms.No.544, dated 04.12.1998, giving statutory backing to the policy decision. Consequently, Rule 6 of PSC Rules of procedure was also amended. This background has to be noted to justify dispensing with wait list. Thus, there is no wait list system and merit list has to be confined to the extent of vacancies notified.
20. However, not maintaining wait list is different from drawing proper merit list and operating it. The term ‘merit list’ has larger connotation and is a dynamic concept. The process of recruitment commences when the employer/appointing authority identifies vacancies in a post and places an indent with the recruiting agency. The role of recruiting agency starts when it receives the indent and sets in motion process of recruitment. It’s role ends when it draws final merit list, to the extent of indent placed before it and forwards the merit list to the employer/appointing authority.
21. On receiving the merit list, the employer/the appointing authority undertakes verification of the education and/or technical qualifications, age, social status, local candidate status and antecedents, and only on being satisfied, he would issue appointment orders. For example, if a candidate claims employment against a post reserved for B.C.-(A) group of castes, he has to produce a valid caste certificate. Similarly, if a person is claiming reservation against a disabled category, he must have a valid disability certificate. Same would apply to local reservation, educational qualifications etc. Antecedent verification is also an important component in the appointment process. Thus, before a person is appointed, irrespective of his merit position, candidate has to satisfy the appointing authority about his eligibility/ suitability, and merely based on his merit list position, he is not assured of his employment. Some times, the employer splits the verification process into two components and he undertakes some verification process after appointing the candidate provisionally.
22. If the appointing authority finds that candidate does not belong to a social group or false claim is made on social status/ does not have clean antecedents/suppressed certain material information having a bearing on his selection/character / does not appear for certificate verification/ does not produce relevant certificates, he may not appoint him or if such verification takes place after appointment, may cancel his provisional appointment.
23. Thus, drawing merit list is only one limb of recruitment process. The process of recruitment is complete only when appointment orders are issued / or provisional appointment is affirmed to all the candidates included in the merit list, on being satisfied of eligibility and suitability.
24. That is not the end of the story. In many instances, even though appointing authority was satisfied with the eligibility and suitability of the candidate and appoints him, there can be a challenge to such claim of the candidate on various aspects, such as educational qualifications, social status, percentage of disability and local status etc. and such challenge can end up holding that candidate was not eligible for appointment.
25. Thus, broadly there are three aspects on which a candidate included in the merit list can be denied appointment/liable for cancellation of his provisional appointment:
(1) At the stage of verification of eligibility/suitability before appointment;
(2) Though provisionally appointed, claim of belonging to a social group was found to be wrong/antecedent verification established bad antecedents disentitling him to public employment; and
(3) On a successful challenge by another candidate on eligibility/suitability of a candidate included in the merit list/appointed to a post.
26. The precedential law makes it clear that in all the three contingencies mentioned above, recruitment process has not attained finality and therefore the next meritorious candidate belonging to that social group/open competition, as the case may be, can stake claim for appointment. Such vacancy is not treated as a fall out vacancy. It does not amount to maintaining wait list and operating it. It is rectifying an illegal selection/deleting the name of a person who was not issued appointment order, including when he did not show up for certificate verification. G.O.Ms.No.81, ad hoc rule and amended Rule 6 of PSC Rules of procedure, as interpreted by the Constitutional Courts also make this aspect clear.
27. In spite of clear declaration of law by the Constitutional Courts, the skewed up understanding on what is meant by ‘fallout vacancy’ is resulting in depriving employment to successful candidates.
28. In the case on hand, admittedly, the person at Sl.No.19 S.Arvind Kumar did not report before the appointing authority for certificate verification and therefore no appointment order was issued to him. Thus, this vacancy cannot be treated as fallout vacancy and the policy decision in G.O.Ms.No.81, dated 22.02.1997, consequential ad-hoc rule notified in G.O.Ms.No.544, dated 04.12.1998 and amended Rule 6 of PSC Rules of procedure are not attracted. Therefore, it was available to include next meritorious candidate belonging to Scheduled Caste category in the merit list and to appoint him.
29. As always, the stout opposition to a genuine claim is by raising the contention, as urged by the learned standing counsel, that merely because a candidate cleared examination or included in the merit list, the candidate has no indefeasible right to claim appointment and the recruiting agency/appointing authority may refuse to appoint. There is no quarrel with this proposition. However, consistently, even in the decisions relied by learned standing counsel, the Hon’ble Supreme Court while setting forth limitations on claim for appointment merely because a candidate is selected, emphasized that denial of employment must be for valid reasons.
30. In Dinesh Kumar Kashyap vs. South Eastern Railway (2019) 12 SCC 798) while recognizing the employer’s right not to fill all vacancies, the Hon’ble Supreme Court emphasized the need to assign cogent reasons when employer declines to operate the merit list and fill all the notified vacancies. The Hon’ble Supreme Court observed, “just because discretion is vested in the authority, it does not mean that this discretion can be exercised arbitrarily” (paragraph-5). “However, the State must give some justifiable, non-arbitrary reason for not filling up the post. When employer is the State, it is bound to act according to Article 14 of the Constitution of India. It cannot, without any rhyme or reason, decide not to fill up the post. It must give some plausible reason for not filling up the posts” (paragraph-16).
31. In Kerala State Road Transport Corporation (supra), the Hon’ble Supreme Court accepted the reasons assigned by the Corporation not to fill all the vacancies notified on the ground that the Corporation was undergoing financial crunch, implying that it cannot afford to take the load of more employees and has no requirement of additional personnel. Thus, applying the proposition of law depends on the facts of a given case and justification assigned for not appointing all the candidates in the merit list.
32. As noticed above, this Court and the Hon’ble Supreme Court recognized the right of a candidate, who is next in the eligibility list to claim to include in the merit list and be appointed to a vacancy against which no appointment order was issued, as the more meritorious candidate did not apt to the post in issue. This right is subject to overarching decision of the employer not to fill a post, even if there is a vacancy, for valid reasons. From the proposition of law culled out from the precedent decisions, it is beyond pale of doubt that the selection process is complete only when appointment orders are issued to all the candidates included in the merit list to the extent of vacancies notified or a conscious, well considered decision is taken not to fill all or any of the vacancies.
33. In the case on hand selection process was not complete as candidate selected against SC reserved vacancy, Sri S.Arvind Kumar did not report for certificate verification and no appointment order was issued to him. In view of the law on the subject, the claim of petitioner to include his name in the merit list against SC reserved vacancy, in the place of Sri S.Arvind Kumar, who has opted out for appointment as Assistant Engineer at the stage of certificate verification by the appointing authority, is valid. It is not the stand of respondents that they did not intend to fill up all the vacancies notified. In fact, it was offered to Mr. Arvind Kumar, but he did not evince interest. Only reason assigned to deny claim of petitioner was procedural, i.e., in view of G.O.Ms.No.81, ad hoc rule and Rule 6 of the Public Service Commission Rules of Procedure, and not on the ground that the Department did not intend to fill the vacancy for valid administrative reasons. In other words, only by treating the vacancy caused due to not reporting for certificate verification by Sri S.Arvind Kumar as fallout vacancy, petitioner’s claim is denied.
34. In addition to the above aspect, i.e., the vacancy in issue is not a fall out vacancy, it is also to be noted that in the instant case, petitioner was included in the final merit list against 14 vacancies reserved for SC category in city cadre and was appointed and was working. W.P.No.42005 of 2016 was filed by Sri Venkat Swamy Salade, who secured one mark more than the petitioner, contending that by mistake he was treated as candidate belonging to Zone-VI, but he belongs to city cadre and as per his merit, he should be appointed in city cadre. Considering the said claim, relief was granted by this Court and he was directed to be appointed. Accordingly, he was appointed by terminating the services of petitioner. Apparently, the direction to terminate the services of petitioner was issued as Court was not informed about availability of vacancy because no appointment order was issued to Arvind Kumar.
35. By the time Sri Venkata Swamy Salade succeeded before this Court in W.P.No.42005 of 2016, a clear vacancy was available to accommodate the petitioner and there was no occasion to terminate the services of petitioner. If that vacancy was shown as available, the petitioner would have continued in service. Admittedly, that vacancy was meant to be filled up by SC category candidates and petitioner was next meritorious S.C. candidate eligible to be appointed in the place of S. Aravind Kumar. So far no further recruitment has taken place. The decision of this Court in W.P.No.42005 of 2016 was rendered on 19.12.2018. Based on this judgment, his services were terminated. Immediately thereafter, petitioner started probing into the availability of vacancies and as soon as he secured information, he made representation before the Commission and to the Engineer-in-Chief, Public Health. When they did not respond, he filed Writ Petition No.17516 of 2019. After directions issued by this Court, decision was made by the PSC, impugned herein. In spite of petitioner placing before the appointing authority and the PSC the correct facts, the same were not even looked into and mechanically Public Service Commission rejected the claim.
36. There was at least one clear vacancy meant to be filled up by SC candidate which is not a fall out vacancy. Based on the merit secured by him, petitioner was appointed as Assistant Engineer in the year 2016. Mr.Salede got one mark higher than petitioner. It is not disputed that there is no other SC candidate between these two persons. As the petitioner is the next meritorious candidate, he is entitled to be appointed against unfilled SC vacancy in the city cadre. In the first instance, he could not have been terminated to accommodate Sri Venkata Swamy Salede if concerned rules are applied properly and the Court was appraised of factual and legal position. Thus, for no fault of him, petitioner lost his job.
37. Having regard to these facts, it is not open to PSC to shield itself by placing reliance on the decision of the Hon’ble Supreme Court in Shankarsan Dash vs. Union of India (1991 AIR 1612: 1991 SCR (2) 567) and other decisions referred to above, and to contend that petitioner has no indefeasible right to seek appointment merely because he secured merit. In fact, the manner in which the drawing of merit list is handled resulted in illegally depriving employment to petitioner. Thus, accepting such stand would result in greater injustice. In the facts of this case, it cannot be said that petitioner has no right to claim employment.
38. In paragraph-11 of his representation addressed to the Public Service Commission, petitioner has clearly pointed out that there are two existing vacancies, meant to be filled up by SC category candidates and they are not fall out vacancies. Based on the information obtained by him, he has explained in detail as to how the vacancies are available. Further, from the decision impugned, it is clear that there was no application of mind by the PSC while considering the grievance of the petitioner. The request was mechanically rejected by referring to G.O.Ms.No.81, dated 22.02.1997. His submissions were not answered. Thus, the impugned decision is arbitrary.
39. At this stage, it is expedient to consider the precedent law on improper exercise of power by constitutional/statutory authority and when a decision can be said as arbitrary.
39.1. In Rameshwar Prasad (VI) v. Union of India (2006) 2 SCC 1), Supreme Court held;
“241. It is an unwritten rule of law, constitutional and administrative, that whenever a decision-making function is entrusted to the subjective satisfaction of a statutory functionary, there is an implicit obligation to apply his mind to pertinent and proximate matters only, eschewing the irrelevant and the remote. (See Shalini Soni v. Union of India [(1980) 4 SCC 544 : 1981 SCC (Cri) 38])”.
39.2. The view expressed by Professor Bernand Schwartz in his book ‘Administrative Law’ (3rd Edn.) approved by Supreme Court in Jayrajbhai Jayantibhai Patel vs. Anibhai Nathubhai Patel and others (2006 7 SCC 200) aptly applies to this case. Supreme Court observed in Paragraph-19 as under:
“19. The following passage from Professor Bernard Schwartz's book Administrative Law, (3rd Edn.) aptly echoes our thoughts on the scope of judicial review:
“Reviewing courts, the cases are now insisting, may not simply renounce their responsibility by mumbling an indiscriminate litany of deference to expertise. Due deference to the agency does not mean abdication of the duty of judicial review and rubber-stamping of agency action: [W]e must accord the agency considerable, but not too much deference; it is entitled to exercise its discretion, but only so far and no further.”
Quoting Judge Leventhal from Greater Boston Television Corpn. v. FCC [444 F 2d 841, 851 (DC Cir 1970)] he further says:
“…the reviewing court must intervene if it ‘becomes aware … that the agency has not really taken a “hard look” at the salient problems, and has not genuinely engaged in reasoned decision-making.…”
39.3. In Asha Sharma v. Chandigarh Administration and others (2011) 10 SCC 86), Supreme Court held as under:
“12. Arbitrariness in State action can be demonstrated by existence of different circumstances. Whenever both the decision-making process and the decision taken are based on irrelevant facts, while ignoring relevant considerations, such an action can normally be termed as “arbitrary”. Where the process of decision making is followed but proper reasoning is not recorded for arriving at a conclusion, the action may still fall in the category of arbitrariness. Of course, sufficiency or otherwise of the reasoning may not be a valid ground for consideration within the scope of judicial review. Rationality, reasonableness, objectivity and application of mind are some of the prerequisites of proper decision making. The concept of transparency in the decision-making process of the State has also become an essential part of our administrative law.
14. Action by the State, whether administrative or executive, has to be fair and in consonance with the statutory provisions and rules. Even if no rules are in force to govern executive action still such action, especially if it could potentially affect the rights of the parties, should be just, fair and transparent. Arbitrariness in State action, even where the rules vest discretion in an authority, has to be impermissible. The exercise of discretion, in line with principles of fairness and good governance, is an implied obligation upon the authorities, when vested with the powers to pass orders of determinative nature. The standard of fairness is also dependent upon certainty in State action, that is, the class of persons, subject to regulation by the Allotment Rules, must be able to reasonably anticipate the order for the action that the State is likely to take in a given situation. Arbitrariness and discrimination have inbuilt elements of uncertainty as the decisions of the State would then differ from person to person and from situation to situation, even if the determinative factors of the situations in question were identical. This uncertainty must be avoided.
23. On a proper analysis of the principles stated by this Court in a catena of judgments including the judgment aforereferred, it is clear that the courts can issue directions with regard to the dispute in a particular case, but should be very reluctant to issue directions which are legislative in nature. Be that as it may, because of the new dimensions which constitutional law has come to include, it becomes imperative for the courts in some cases, to pass directions to ensure that statutory or executive authorities do not act arbitrarily, discriminatorily or contrary to the settled laws……”
39.4. In Jayrajbhai Jay
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antibhai Patel (supra), Supreme Court held as under: “18. Having regard to it all, it is manifest that the power of judicial review may not be exercised unless the administrative decision is illogical or suffers from procedural impropriety or it shocks the conscience of the court in the sense that it is in defiance of logic or moral standards but no standardised formula, universally applicable to all cases, can be evolved. Each case has to be considered on its own facts, depending upon the authority that exercises the power, the source, the nature or scope of power and the indelible effects it generates in the operation of law or affects the individual or society. Though judicial restraint, albeit self-recognised, is the order of the day, yet an administrative decision or action which is based on wholly irrelevant considerations or material; or excludes from consideration the relevant material; or it is so absurd that no reasonable person could have arrived at it on the given material, may be struck down. In other words, when a court is satisfied that there is an abuse or misuse of power, and its jurisdiction is invoked, it is incumbent on the court to intervene. It is nevertheless, trite that the scope of judicial review is limited to the deficiency in the decision-making process and not the decision.” (emphasis supplied) 40. From the above decisions it emerges that if no reasoning is recorded in support of the decision by the administrative authority such decision can be interfered. Arbitrariness in State action, even where the rules vest discretion in an authority is impermissible. Though authority is entitled to exercise its discretion, such exercise must be well considered and supported by reasons and non-interference is only thus far and no further. There can be no rubber-stamping of administrative authority action merely because he has discretion to take a view. 41. The decision of Public Service Commission dated 25.02.2020 is set aside. The Writ Petition is allowed and following directions are issued: (i) The Public Service Commission is directed to forward the name of the petitioner to the Engineer-in-Chief (Public Health) within four (4) weeks from the date of receipt of copy of this judgment for appointment as Assistant Engineer against one of the 14 vacancies reserved to be filled up by Scheduled Caste category in the city cadre remained unfilled due to the candidate by name Sri S.Aravind Kumar not reporting to certificate verification; (ii) On receiving the proposals from the Public Service Commission, the Engineer-in-Chief (Public Health) shall take steps to appoint the petitioner as Assistant Engineer within four (4) weeks thereafter; (iii) It is made clear that such appointment has to be treated as fresh appointment. 42. Before parting with this case, the Court deems it necessary to place on record following aspect: (1) The stages of assessment of eligibility/suitability of a candidate for appointment, noticed in earlier paragraphs, takes place after the merit list is drawn by the PSC and forwards to the appointing authority. It appears, after the list is forwarded to the appointing authority, the PSC goes into loop line. The reason appears to be that not appointing/cancelling the appointment made from the list forwarded by the PSC is also treated as nonjoinder/ relinquished vacancy without noting the finer distinction between a candidate not joining the post after his appointment/ leaving the post after joining and not-appointing/cancelling provisional appointment due to ineligibility/bad antecedents, and there appears to be no interaction between PSC and the appointing authority on these aspects. (2) Even though this Court repeatedly held that G.O.Ms.No.81, and the ad hoc rule notified in G.O.Ms.No.544, are applicable only where person was already appointed but refused to join or person joined but immediately thereafter relinquished the post, the PSC ignores this aspect and does not undertake the exercise of drawing proper merit list, causing injustice to unemployees. From a cursory glance of merit list updated by the Engineer-In Chief (Public Health) in pursuant to the recruitment notification No.9/2015, it is seen that though several candidates did not report for certificate verification, their names were shown in the merit list and persons who secured next merit and eager to secure public employment were not added in the said list by replacing the candidates who did not report for certificate verification. After 2015 notification, in the next five years, no fresh recruitment process is initiated, and these vacancies go abegging for the last more than five years. This flawed understanding is the main problem. This needs serious consideration by the PSC. It may be desirable to have continuous interaction between the PSC and the appointing authority. It is hoped and expected that the PSC would bestow special attention to the manner of drawing merit list, duly taking note of the law on all aspects concerning recruitment. Pending miscellaneous petitions, if any, shall stand closed.