* IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P.(C) 3180/2006 RAJ KUMAR ..... Petitioner Through Mr. M.K. Bhardwaj, advocate. versus UOI & ORS. ..... Respondents Through Mr. R.M. Singh, Advocate for respondent No. 1. Mr. Ajit Pudussery, Advocate for respondent No. 2. CORAM: HON'BLE MR. JUSTICE SANJIV KHANNA O R D E R % 08.05.2008 1. On 14th October, 2003 and 25th October, 2003 the respondent National Scheduled Tribes Finance and Development Corporation (hereinafter referred to as NSTFDC, for short) invited applications for appointment to various posts including six posts of Data Entry Operators. 2. Mr. Raj Kumar, the petitioner herein applied for the post of Data Entry Operator and appeared in proficiency test and interview on 5th January, 2005. The six posts of Data Entry Operators advertised were filled up by appointment of applicants on merits. The petitioner was kept at serial No. 2 on the waiting list. 3. On 22nd June, 2005 an offer of appointment for the post of Data Entry Operator at Guwahati was issued to the petitioner by the respondent- NSTFDC. The petitioner got himself medically examined and submitted requisite papers. However, no joining letter was issued and when the petitioner made written representations, he was informed vide letter dated 10th November, 2005 that the offer of appointment stands cancelled. It was pointed out that there was violation of provisions of Employment Exchange (Compulsory Notification of Vacancies) Act, 1959. It was stated that it was necessary to notify the vacancy at the Zonal Office at Guwahati to the Employment Exchange at Guwahati. 4. This prompted the petitioner to file the present writ petition. 5. In the counter affidavit filed by the respondents on 18th August, 2006 it is stated that the vacancies advertised were for six vacancies for Data Entry Operators at NSTFDC headquarters at New Delhi. With regard to offer of appointment issued to the petitioner for the post of Data Entry Operator at Guwahati, it is mentioned that there was lapse on the part of the said respondent, for absence of mandatory notification of the said vacancy to the local Employment Exchange. It is pointed out that there were complaints and after examining the matter it was decided to cancel the offer of appointment. However, in the counter affidavit it is specifically stated that the petitioner was not selected for the six posts advertised and meant for NSTFDC headquarters at Delhi and he was put on the waiting list. It is further stated that need arose to fill up the post of Data Entry Operator at Guwahati zonal office and thereupon the management thought it right to utilize the waiting list and gave offer of appointment to the petitioner. Subsequently when complaints were received, the offer of appointment was cancelled. 6. It is, therefore, clear that the advertisements dated 14th October, 2003 and 25th October, 2003 were only in respect of six posts of Data Entry Operators at New Delhi. The said advertisements were not for filling up of the post of Data Entry Operator at Guwahati. The selection which was made was for filling up of the six posts at Delhi. The petitioner was kept on the waiting list and offer of appointment was made to first six candidates as per order of merit. The first six candidates have filled up the said posts. The selection panel thereupon got exhausted and did not survive. I do not think the petitioner has any right to be selected and appointed to the post of Data Entry Operator at Guwahati as the said post was not advertised and applications for filling up the said post had not been called for. 7. With regard to filling up of the post of Data Entry Operator at Guwahati, the respondent-NSTFDC in the additional affidavit filed on 3rd March, 2007 has clarified that the then Chairman-cum-Managing Director on 14th August, 2003 had approved a proposal for recruitment of six Data Entry Operators at head office at Delhi and one post each at Zonal Offices at Jaipur, Bhubneshwar and Guwahati. For the six posts of Data Entry Operators for the head office at Delhi, the Employment Exchange Delhi was duly notified and it is pursuant to the said notification that advertisements were published in the Times of India at Delhi on 14th October, 2003 and in the Employment News on 25th October, 2003. It is further pointed out that one post of Data Entry Operators at Zonal Offices at Jaipur, Bhubneshwar and Guwahati are concerned, Employment Exchanges were notified and list of candidates from Employment Exchanges at Jaipur and Guwahati were received in October, 2003 and from Bhubneshwar Employment Exchange only one name was forwarded in November, 2003. However, the then CMD approved process of selection of Data Entry Operator for zonal office at Jaipur, while the appointment to the posts of Data Entry Operator at Bhubneshwar and Guwahati were postponed. Subsequently, selection for the post of Data Entry Operator at zonal office Jaipur was held at Jaipur and appointment was made on 27th August, 2004. Thereafter, recruitment process was initiated for filling up of the post of Data Entry Operator at Zonal Office at Guwahati and by letter dated 29th October, 2004 request was sent to zonal Manager Guwahati to make arrangements for holding of the test. Zonal office at Guwahati, however, felt that services of Data Entry Operator was not urgently required and in turn forwarded a proposal for recruitment of a Stenographer and a Peon on contract basis. While all this was in progress, it appears that a letter of appointment dated 22nd June, 2005 was issued to the petitioner for the post of Data Entry Operator at Guwahati on the basis that he was at serial No. 2 on the waiting list, which was prepared for filling up of the six posts of Data Entry Operators at Delhi. It is obvious that the petitioner was not selected or on waiting list for appointment at Guwahati. The said post was not notified when advertisements were issued in October, 2003. 8. The respondents in their reply have also pointed out that complaints were received that the petitioner is son of an official attached with the Joint Secretary, Ministry of Tribal Affairs and, therefore, he was wrongly offered appointment as Data Entry Operator at Zonal Office Guwahati. 9. The facts stated above clearly reveal that only six posts of Data Entry Operators at Delhi were notified and applications were invited for filling up of the said posts in the advertisements published on 14th October, 2003 and 25th October, 2003. The select list was made for the said post. The petitioner was at serial No. 2 in the waiting list. He has not been selected for the said six posts. As far as post of Data Entry Operator at Guwahati is concerned, the same was not subject matter of the advertisements and no applications for the said post was invited. As is clear from the additional affidavit, by letter dated 29th October, 2004 Zonal Manager Guwahati was asked to make arrangements for holding test at Guwahati for recruitment of Data Entry Operator. For filling up of the said post, as per the provisions of Employment Exchange (Compulsory Notification of Vacancies) Act and Rules, twenty two candidates whose list was forwarded by the Zonal Employment Exchange Guwahati had to be called for and also considered for the purpose of selection. The said candidates were never called for and considered for selection as no selection was made for appointment to the post of Data Entry Operator at Guwahati. There was, therefore, lapse on the part of the respondents. It is not easy for this Court to determine why the said lapse had occurred. The petitioner, however, it is apparent was a beneficiary of the lapse. The mistake, however, has been corrected by the respondent- NSTFDC when they cancelled the offer of appointment. No vested right accrues to the petitioner due to the said mistake and error made by the respondent. In these circumstances, I am not inclined to grant any relief to the petitioner. I may also note that the learned counsel for the respondent has relied upon judgment of the Supreme Court in the case of Union of India versus Rati Pal Saroj and Another, reported in AIR 1998 SC 1117, wherein it has been held that withdrawal of offer of appointment is within the competence of an employer and cancellation or withdrawal does not cast any stigma and no hearing to a prospective employee is necessary. It has also been held that the person accepting appointment but before he joins the new service, is a selectee and not a probationer. It has been accordingly held that principles of natural justice are not applicable in such cases and it is not necessary to issue show cause notice before cancelling the offer of appointment. In any case, in the present matter I have already examined the reasons and grounds given by the respondents for cancellation of appointment and find that respondents had made a mistake and rectified the same. 10 In view of the above, I do not find any merit in the present writ petition and the same is dismissed. SANJIV KHANNA, J. MAY 08, 2008 VKR