Case: DINESH KUMAR KASHYAP Vs. SOUTH EAST CENTRAL RAILWAY

Deepak Gupta, J. 1. Leave granted. 2. Respondent No.1, South East Central Railway (for short the SECR) issued an advertisement on 15.12.2010 inviting applications for filling up 5798 posts in the pay scale of Rs.5200-Rs. 20,200 + Grade Pay of Rs.1800/- in Raipur, Bilaspur and Nagpur divisions and workshops. The claim of the original writ petitioners who filed applications before the Central Administrative Tribunal (for short CAT) was that as per the existing instructions the select list was prepared with 20% extra candidates. Therefore, the result of 6995 candidates was declared who were successful. The appellants fall in the category of extra 20%. The SECR did not make the appointments from these 20% extra candidates though 624 posts remained unfilled in the general category itself. The appellants who fall in the 20% category of extra candidates filed applications before the CAT praying that the SECR be directed to fill in the unfilled vacancies from this list of 20% candidates. This application was rejected by the Tribunal. The writ petition filed by the appellants was also rejected. Hence these appeals. 3. To understand the issue at hand it would be pertinent to refer to the instructions relied upon by the appellants. The relevant portion of the instruction reads as follows :-?……..3. The issue has been examined and it has now been decided by the Board that the number of candidates called for document verification shall be 20% over and above the number of vacancies.4. This shall, however, be done with the following proviso.(i) It has to be brought out clearly in the Call Letter to the candidate that the purpose of calling 20% candidates over and above the number of vacancies at the time of document verification is primarily to avoid shortfall in the panel and that merely calling a candidate for document verification does not, in any way, entitle him/her to an appointment in the railways. (ii) Even where the number of candidates available after document verification exceeds the number of vacancies, the panel finalized by RRC (Railway Recruitment Cell) shall be equal to the number of vacancies only. In case, the Railway administration after giving stipulated joining time to the selected candidates, certifies that certain number of candidates have not turned up within the specific period, another panel equal to the number of candidates finally not turning up for taking appointment will be supplied by RRC. Before calling for replacement in -lieu of the candidates finally not turning up for taking appointment CPO shall personally satisfy himself that the procedure for cancellation of the offer of appointment to the originally empanelled candidates has been strictly followed. Under no circumstances, the number of candidates covered in the original as well as replacement panels shall exceed the number of vacancies indented by the railway; and (iii) Replacement panels shall include only such number of reserved / un-reserved candidates as have not turned up as per original panel. …….?4. From a reading of the order passed by the CAT it is apparent that the stand taken by the SECR before the Tribunal was that the purpose of declaring the result of 20% extra candidates is to ensure that in the eventuality of some of the candidates who are higher up in merit not turning up for document verification or being declared unfit in medical examination the unfilled posts can be filled from the reserved panel. It was the stand of the SECR that the purpose of calling 20% candidates was to primarily avoid shortfall in the vacancies filled. It was also submitted that merely calling the candidate for document verification does not give any vested right to the candidate to be appointed. It was further submitted that after 10.01.2014 the system of maintaining replacement panels has been discontinued. According to the Tribunal the appellants had no right to be appointed. 5. Aggrieved, the appellants approached the High Court of Chhattisgarh in which they also took another plea that persons from the 20% extra replacement panel had been offered appointment by the Railways in many other zones and it was only in the 3 divisions of Bilaspur, Raipur and Nagpur that this was not done. The writ petition was dismissed holding that the appellants herein had no right and also that merely because some appointments have been made in other zones from the replacement panel, it would not create any right in the appellants. 6. The main issue which arises before us is whether the SECR could have ignored the 20% extra panel despite the letter dated 02.07.2008 without giving any cogent reason for the same. No doubt, it is true, that mere selection does not give any vested right to the selected candidate to be appointed. At the same time when a large number of posts are lying vacant and selection process has been followed then the employer must satisfy the court as to why it did not resort to and appoint the selected candidates, even if they are from the replacement panel. Just because discretion is vested in the authority, it does not mean that this discretion can be exercised arbitrarily. No doubt, it is not incumbent upon the employer to fill all the posts but it must give reasons and satisfy the court that it had some grounds for not appointing the candidates who found place in the replacement panel In this behalf we may make reference to the judgment of this Court in R.S. Mittal vs. Union of India (UOI) (1995) Suppl.2 SCC 230 , wherein it was held as follows:-" 10. ……………………...…………………….It is no doubt correct that a person on the select panel has no vested right to be appointed to the post for which he has been selected. He has a right to be considered for appointment. But at the same time, the appointing authority cannot ignore the select panel or decline to make the appointment on its whims. When a person has been selected by the Selection Board and there is a vacancy which can be offered to him, keeping in view his merit position, then, ordinarily, there is no justification to ignore him for appointment. There has to be a justifiable reason to decline to appoint a person who is on the select panel. In the present case, there has been a mere inaction on the part of the Government. No reason whatsoever, not to talk of a justifiable reason, was given as to why the appointments were not offered to the candidates expeditiously and in accordance with law. The appointment should have been offered to Mr Murgad within a reasonable time of availability of the vacancy and thereafter to the next candidate. The Central Government?s approach in this case was wholly unjustified.?7. Our country is governed by the rule of law. Arbitrariness is an anathema to the rule of law When an employer invites applications for filling up a large number of posts, a large number of unemployed youth apply for the same.They spend time in filling the form and pay the application fees. Thereafter, they spend time to prepare for the examination. They spend time and money to travel to the place where written test is held.If they qualify the written test they have to again travel to appear for the interview and medical examination etc. Those who are successful and declared to be passed have a reasonable expectation that they will be appointed. No doubt, as pointed out above, this is not a vested right. However, the State must give some justifiable, non-arbitrary reason for not filling up the post. When the employer is the State it is bound to act according to Article 14 of the Constitution. 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. The courts would normally not question the justification but the justification must be reasonable and should not be an arbitrary, capricious or whimsical exercise of discretion vested in the State. It is in the light of these principles that we need to examine the contentions of the SECR. 8. On behalf of the SECR it has been contended that before calling for replacement candidates the CPO was to satisfy himself that the procedure for cancellation of the order of appointment of the original empanelled candidates has been strictly followed.It is urged that since this was not done the appellants could not be appointed. This argument holds no merit. There is no indication in the pleadings that the vacancies were not to be filled up. If an official of the Respondent No. 1 fails to do his duty the appellants cannot suffer for the same. They are not at fault. 9. On behalf of the respondents it was urged before us that after the selection process in question 2 more selection processes were started in 2012 and 2013. Resultantly, three recruitment cycles were running concurrently and, therefore, the vacancies were filled up in the subsequent selections. This argument deserves to be rejected since it was not even raised before the Tribunal. Furthermore, the rights of the appellants who had appeared in the selection pursuant to the notification of 2010 could not be taken away by the selection processes started much later.They cannot be made to suffer for the delays on the part of the SECR. 10. The fact that three simultaneous selection processes were undertaken, itself proves that the Respondent No. 1 wanted to fill up all the posts and did not want any vacancies to be left unfilled. This negates the plea of the Respondent No. 1 that it was not necessary to fill up the vacant posts. 11. It has been urged before us that the validity of the panel was only for two years and since the last merit list was published for March 2014, validity of the list has expired in March 2016. This submission is only to be rejected. The appellants herein who approached the CAT and the High Court with promptitude cannot suffer only because the matter was pending in Court. 12. Another submission raised on behalf of the SECR is that the appellants have obtained lower marks than the cut- offs prescribed in the selection processes held in the year 2012 and 2013. This amounts to comparing apples to oranges. Every selection process has a different examination with different level of assessment. By no stretch of imagination can comparison be made between the three different selection processes. 13. Another argument raised is that recruitment policy is an executive decision and the courts should not question the efficacy of such policy.Neither the appellants nor this Court is questioning the efficacy of the policy contained in the letter dated 02.07.2008. All that has been done is to ensure implementation of the policy by the Respondent No. 1, especially when it has failed to give any cogent reason to justify its action of not calling for candidates from the replacement list of extra 20% candidates.

Decision:
1[ds]No doubt, it is true, that mere selection does not give any vested right to the selected candidate to be appointed. At the same time when a large number of posts are lying vacant and selection process has been followed then the employer must satisfy the court as to why it did not resort to and appoint the selected candidates, even if they are from the replacement panel. Just because discretion is vested in the authority, it does not mean that this discretion can be exercised arbitrarily. No doubt, it is not incumbent upon the employer to fill all the posts but it must give reasons and satisfy the court that it had some grounds for not appointing the candidates who found place in the replacement panelOur country is governed by the rule of law. Arbitrariness is an anathema to the rule of law When an employer invites applications for filling up a large number of posts, a large number of unemployed youth apply for the same.They spend time in filling the form and pay the application fees. Thereafter, they spend time to prepare for the examination. They spend time and money to travel to the place where written test is held.If they qualify the written test they have to again travel to appear for the interview and medical examination etc. Those who are successful and declared to be passed have a reasonable expectationthat they will be appointed. No doubt, as pointed out above, this is not a vested right. However, the State must give some justifiable, non-arbitrary reason for not filling up the post. When the employer is the State it is bound to act according to Article 14 of the Constitution.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. The courts would normally not question the justification but the justification must be reasonable and should not be an arbitrary, capricious or whimsical exercise of discretion vested in the State.It is in the light of these principles that we need to examine the contentions of the. On behalf of the SECR it has been contended that before calling for replacement candidates the CPO was to satisfy himself that the procedure for cancellation of the order of appointment of the original empanelled candidates has been strictly followed.It is urged that since this was not done the appellants could not be appointed.This argument holds no merit. There is no indication in the pleadings that the vacancies were not to be filled up. If an official of the Respondent No. 1 fails to do his duty the appellants cannot suffer for the same.They are not at. On behalf of therespondents it was urged before us that after the selection process in question 2 more selection processeswere started in 2012 and 2013.Resultantly, three recruitment cycles were running concurrently and, therefore, the vacancies were filled up in the subsequent selections.This argument deserves to be rejected since it was not even raised before the Tribunal. Furthermore, the rights of the appellants who had appeared in the selection pursuant to the notification of 2010 could not be taken away by the selection processes started much later.They cannot be made to suffer for the delays on the part of the. The fact that three simultaneous selection processes were undertaken, itself proves that the Respondent No. 1 wantedto fill up all the posts and did not want any vacancies to be left unfilled. This negates the plea of the Respondent No. 1 that it was not necessary to fill up the vacant. It has beenurged before us that the validity of the panel was only for two years and since the last merit list waspublished for March 2014, validity of the list has expired in March 2016.This submission is onlyto be rejected. The appellants herein who approached the CAT and the High Court with promptitude cannot suffer only because the matter was pending inr submission raised on behalf of the SECR is that the appellants have obtained lower marks than the cut- offs prescribed in the selection processes held in the year 2012and 2013. This amounts to comparing apples to oranges. Every selection process has a different examination with different level of assessment.By no stretch of imagination can comparison be made between the three different selection. Another argument raised is that recruitment policy is an executive decision and the courts should not question the efficacy of such policy.Neither the appellants nor this Court is questioning the efficacy of the policy contained in the letter dated 02.07.2008. All that has been done is to ensure implementation of the policy by the Respondent No. 1, especially when it has failed to give any cogent reason to justifyits action of not calling for candidates from the replacement list of extra 20% candidates.