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Manoj Manu And Another v. Union Of India And Others
Factual and Procedural Background
The appellants, serving as Assistants in the Central Secretariat Service (CSS), sat for the 2005 Limited Departmental Competitive Examination (LDCE) conducted by the Union Public Service Commission (UPSC) for promotion to Section Officer grade. The Department of Personnel and Training (DoPT) had originally requisitioned 184 general category vacancies. UPSC recommended 184 candidates in two lots, but six of those candidates did not join the post for reasons such as acceptance of other appointments, technical resignation, or opting for seniority-quota promotion.
Invoking Clause 4(c) of DoPT’s Office Memorandum dated 14-7-1967, DoPT on 20-11-2009 requested UPSC to forward six replacement names from the reserve list. UPSC supplied only three names, excluding the present appellants who had the same aggregate (305 marks) as one of the forwarded candidates, Shri Rajesh Kumar Yadav.
The appellants challenged their non-recommendation before the Central Administrative Tribunal (OA No. 3511 of 2010). The Tribunal dismissed the application. Their writ petition (WP (C) No. 3297 of 2011) met the same fate before the Delhi High Court on 16-5-2011. The present appeal to the Supreme Court is against those concurrent dismissals.
Legal Issues Presented
- Whether UPSC’s refusal to forward six replacement names—despite DoPT’s requisition and Clause 4(c) of the O.M. dated 14-7-1967—was arbitrary and violative of Articles 14 and 16 of the Constitution.
- Whether candidates next in merit (with identical marks to a candidate already appointed) acquire a legitimate expectation to recommendation and appointment when notified vacancies remain unfilled.
Arguments of the Parties
Appellants’ Arguments
- Clause 4(c) of the 1967 O.M. bars withdrawal of reported vacancies after declaration of results; therefore, six available vacancies had to be filled from the reserve list.
- UPSC’s omission to include the appellants, despite identical marks to an appointed candidate, was discriminatory and offended Articles 14 and 16.
- No fresh examination was needed because the vacancies arose from non-joining of initially selected candidates, not from subsequent events.
UPSC’s Arguments
- Long-standing policy allows issuance of a supplementary list only for “repeat” or “common” candidates; the appellants did not fall in these categories.
- Accepting DoPT’s requisition beyond the established policy would disrupt the convention and create administrative uncertainty.
- The examination had already exhausted the notified vacancies once 184 names were forwarded; any further appointments should await the next LDCE.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Neelima Shangla v. State of Haryana, (1986) 4 SCC 268 | Inclusion in a select list does not confer an indefeasible right to appointment; Government may choose not to fill posts if a valid reason exists. | Used to show that although no automatic right exists, the Government/UPSC must have a valid, non-arbitrary reason for not filling all advertised vacancies. |
| State of Haryana v. Subash Chander Marwaha, (1974) 3 SCC 220 | Government can decide not to fill vacancies, but such decision must be founded on conscious, rational considerations. | Reinforced the requirement that any decision to withhold appointments must be based on sound reasons; none existed here. |
| Sandeep Singh v. State of Haryana, (2002) 10 SCC 549 | Vacancies should ordinarily be filled unless a statutory embargo prevents it. | Cited to underline the public interest in filling available posts, supporting the appellants’ stance. |
| Virender S. Hooda v. State of Haryana, (1999) 3 SCC 696 | When selected candidates do not join, the next candidates within the range of selection should be considered. | Applied directly: failure to forward the next three candidates—including the appellants—was held discriminatory. |
Court's Reasoning and Analysis
The Supreme Court observed that the six vacancies arose because selected candidates never joined; hence the recruitment process for those posts had not culminated. Under Clause 4(c) of the 1967 O.M., DoPT was entitled, “within a reasonable time,” to request replacement names, which it did on 20-11-2009. UPSC’s policy restricting supplementary lists to “repeat/common” candidates was found to lack statutory backing and to conflict with the express terms of the O.M.
The Court distinguished situations where vacancies re-emerge after being filled from the present scenario where the posts were never occupied. It reaffirmed that although a select-list candidate has no absolute right to appointment, the Government’s intention here was to fill all notified vacancies; therefore, a refusal to forward adequate names required valid justification, which UPSC failed to provide.
Evaluating precedent, the Court emphasized that administrative discretion in public appointments must be exercised fairly and consistently. Because one candidate with 305 marks (Rajesh Kumar Yadav) was forwarded while the equally-placed appellants were not, the Court found clear discrimination.
Holding and Implications
Appeal Allowed; orders of the High Court and Tribunal set aside. The Court issued a mandamus directing UPSC to forward the next three eligible candidates (including the appellants) to DoPT for appointment as Section Officers. They are to receive seniority from the date Rajesh Kumar Yadav was appointed, with notional pay fixation and no arrears.
Implications: The judgment underscores that UPSC cannot ignore departmental requisitions for replacement candidates when vacancies remain within the originally notified number. It reinforces the principle that administrative conventions cannot override explicit governmental instructions and constitutional equality mandates. No new doctrinal rule was fashioned, but existing norms on filling advertised vacancies were firmly applied.
A.K Sikri, J.— Leave granted. This appeal has been preferred by the present appellants questioning the validity of the judgment and order dated 16-5-2011 WP (C) No. 3297 of 2011 passed by the High Court, in the writ petition which was filed by the appellants questioning the validity of the order dated 29-3-2011 OA No. 3511 of 2010, of the Central Administrative 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 Tribunals Act against their non-appointment to the post of Section Officer's grade of the Central Secretariat Service. The said OA was dismissed by the Tribunal vide order dated 29-3-2011 OA No. 3511 of 2010 which has been upheld by the High Court.
2. There is no dispute about the facts, which may be briefly 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 and the 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 and Training (DoPT). After holding the examination UPSC had recommended 184 candidates in two lots. The first lot of 141 candidates 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 not join. DoPT thereafter vide its Letter dated 20-11-2009 had requisitioned 6 general category vacancies. However, UPSC recommended names of three candidates from out of the reserve list maintained by it. These two appellants who were next in the merit list had secured 305 marks, same as secured by one Rajesh Kumar Yadav who was recommended by UPSC in the supplementary list candidates.
3. The appellants felt aggrieved by their non-recommendation, thereby denying them the appointment to the post of Section Officer's grade. Under these circumstances, these appellants filed the OA before the Tribunal alleging that UPSC had acted in an arbitrary and discriminatory manner in contravention of Articles 14 and 16 of the Constitution of India denying them the right to get the appointment to the post to which they were not only selected but equally placed as another candidate who was given the appointment. The Tribunal dismissed the OA primarily on the ground that ACR's are also seen for determining merit position inter 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.
4. Before the High Court, the appellants submitted that they were not questioning the aforesaid reason given by the Tribunal 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 DoPT dated 20-11-2009 names 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 14-7-1967 in support of their aforesaid contention. This clause is reproduced hereinbelow:
“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 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 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.”
(emphasis supplied)
5. 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 were vacancies, and the appellants who had passed the LDCE were available, their names should have been recommended by UPSC for appointment to ensure that vacancies do not go unfilled. It was also submitted that from the recommended/allotted candidates by UPSC in case some of them are not available for whatever reason; the department concerned 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 out of the vacancies reported and even requisition was made, UPSC should have forwarded the names of 6 persons thereby including the appellants.
6. The stand of UPSC, on the other hand, was that whether or not UPSC should accept the said requisition was not the subject-matter of the aforesaid office memorandum. 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 “common” candidates. Repeat candidates are those candidates who have participated in the same category in two LDCEs and are successful in the first examination and results had not been declared when the second departmental competitive examination was held. Common candidates are those candidates, who get selected in more than one category in LDCE.
7. The High Court accepted the aforesaid contention of UPSC with the observation that taking a different view would upset the policy or convention followed by UPSC and will create ambiguity which may also lead to confusion. The High Court observed that the examination in question was held for 196 vacancies as intimated by DoPT 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 “common/repeat” candidates.
8. 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 DoPT for forwarding the names of persons in the reserve list was that some of the candidates whose names had been forwarded by UPSC did not join the post for one or the other reason. DoPT in its Communication dated 20-11-2009 had itself stated so, giving the following reasons:
Sl. No. Roll No. Name (S/Shri) Category Reasons for the vacancies to arise 1. 001147 Sanjay Bora General Already appointed as PS vide OM No. 5/2/2009-SC.II dated 16-3-2009. 2. 000713 Ms Kitty General Already appointed as PS vide OM No. 5/2/2009-CS.II dated 16-3-2009. 3. 001823 Devjyoti General Technically resigned on 17-8-2007 i.e prior to the declaration of the result. His lien is over on 17-8-2009. 4. 001604 Sanjeev Jain General He has opted for appointment against Seniority Quota, 2005 instead of LDCE 2005. 5. 001376 Vishwajit Kalynai General He has given his undertaking to remain as Personal Secretary. 6. 001711 Jai Kishore SC Qualified in LDCE 2005 Exam, however pursuant to a court direction, he has been adjusted against SL 2000 (LDCE)
In respect of each of the aforesaid six candidates DoPT had given the reasons as to why those six persons opted not to join the post of Section Officer's grade.
9. 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 caused again because of some subsequent event, position would have been different. In that eventuality UPSC would 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 circumstances when the candidates in reserved list on the basis of examination already held, were available and DoPT had approached UPSC “within a reasonable time” to send the names, we do not see any reason or justification on the part of UPSC not to send the names.
10. 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 such a course of action. This legal position has been narrated by this Court in Neelima Shangla v. State of Haryana (1986) 4 SCC 268, (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 of the Rules, the Public Service Commission was required to hold first a written test 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 paper, he will not be called for the viva 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 Government. The 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 to make available to the Government, a complete list of qualified candidates arranged in order of merit. How should the Government, act is stated by the Supreme Court in the following words: (Neelima Shangla case (1986) 4 SCC 268, (1986) 3 SCR 785)
‘2. … Thereafter the Government is to make the selection strictly 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 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% is the minimum qualifying mark, in the interests of higher standards, they would not appoint anyone who has obtained less than 60% of the marks.’”
(emphasis supplied)
11. The Court after making reference to the decision of the Supreme Court in State of Haryana v. Subash Chander Marwaha (1974) 3 SCC 220, (1973) 2 LLJ 266 further observed as under: (Neelima Shangla case (1986) 4 SCC 268, (1986) 3 SCR 785)
“2. … However, as we said, the selection cannot arbitrarily be restricted to a few candidates, notwithstanding the number of vacancies and the availability of qualified candidates. There must be a conscious application of the mind of the Government, 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.”
(emphasis supplied)
12. It is, thus, manifest that 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/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 the Government to fill up the vacancies.
13. In the present case, however, we find that after 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 DoPT sent requisition to UPSC to send six names so that the remaining vacancies are also filled up. This shows that insofar as the Government is concerned, it wanted to fill up all the notified vacancies. The requisition dated 20-11-2009 in this behalf was in consonance with its Clause 4(c) of OM dated 14-7-1967. Even when the Government wanted to fill up the posts, UPSC chose to forward names of three candidates.
14. There is a sound logic, predicated on public interest, behind OM dated 14-7-1967. 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 OM also stipulates that the Government should not fill up more vacancies than the vacancies which were advertised. The purpose behind this provision is to give chance to those who would have become eligible in the meantime. Thus, this OM dated 14-7-1967 strikes a proper balance between the interests of two groups of persons. In the present case since the requisition of DoPT contained in Communication dated 20-11-2009 was within the permissible notified vacancies, UPSC should have sent the names of six candidates instead of three.
15. This Court in Sandeep Singh v. State of Haryana (2002) 10 SCC 549 commended that the vacancies available should be filled up unless there is any statutory embargo for the same. In Virender S. Hooda v. State of Haryana (1999) 3 SCC 696, 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 similar to the present case, the Court held that the appellant's case ought to have been considered when some of the candidates (sic vacancies arose) 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.
16. It is not the case of 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 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 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 marks have been left out even when the vacancies were available.
17. We are, therefore, of the opinion in the facts of the present case, the decision of UPSC in forwarding three names against requisition of DoPT for six vacancies was inappropriate. We, accordingly, allow the present appeal, set aside the order of the High Court WP (C) No. 3297 of 2011 as well as the Tribunal OA No. 3511 of 2010 and issue a mandamus to UPSC to forward the names of the next three candidates to DoPT for appointment to the post of Section Officer's grade. They shall get the seniority from the date when Rajesh Kumar Yadav was appointed to the said post. Their pay shall notionally be fixed, without any arrears of the pay and other allowances. No costs.
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