Case: COMMISSIONER OF POLICE &amp; ANR.  Vs. UMESH KUMAR

to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in State of Haryana v. Subash Chander Marwaha [(1974) 3 SCC 220 : 1973 SCC (L&S) 488 : (1974) 1 SCR 165 ] , Neelima Shangla v. State of Haryana [(1986) 4 SCC 268 : 1986 SCC (L&S) 759] or Jatinder Kumar v. State of Punjab [(1985) 1 SCC 122 : 1985 SCC (L&S) 174 : (1985) 1 SCR 899 ] . (emphasis supplied) In the present case, after the name of respondents appeared in the results declared on 17 July 2015, the process of recruitment was put in abeyance since the results were challenged before the Tribunal. The process of revising the results during the course of the recruitment was necessitated to align it in accordance with law. An Expert Committee was specifically appointed following the institution of proceedings before the Tribunal. The report of the Expert Committee established errors in the answer key, and thereafter a conscious decision was taken, after evaluating the report, to revise the results on 1 February 2016. In the fresh list which was drawn up, both the respondents have admittedly failed to fulfil the cut-off for the OBC category to which they belong. As the learned ASG submitted before the Court, as many as 228 candidates are ranked above Umesh Kumar on merit while 265 candidates stand above Satyendra Singh. The submission of Mr Khurshid that these are the only two candidates before this Court would not entitle them to a direction contrary to law since they had no vested right to appointment. 15. In regard to respondent Umesh Kumar, it is also brought to our attention that he resigned from the RPF on 16 August 2015 and his resignation was accepted on 25 August 2015. Evidently, the respondent tendered his resignation without any justification when the recruitment process had not been concluded and even before an offer of appointment was made to him. In any event, it would have been open to him seek re-enlistment in the RPF at the material time which he chose to not do. 16. In Rajesh Kumar (supra), Justice TS Thakur, as the learned Chief Justice of India then was, dealt with a case where the model answer key, and hence the process of evaluation of answer scripts by the Bihar Staff Selection Commission, had been found to be flawed. The Court held: 15.The writ petitioners, it is evident, on a plain reading of the writ petition questioned not only the process of evaluation of the answer scripts by the Commission but specifically averred that the model answer key which formed the basis for such evaluation was erroneous. One of the questions that, therefore, fell for consideration by the High Court directly was whether the model answer key was correct. The High Court had aptly referred that question to experts in the field who, as already noticed above, found the model answer key to be erroneous in regard to as many as 45 questions out of a total of 100 questions contained in A series question paper. Other errors were also found to which we have referred earlier. If the key which was used for evaluating the answer sheets was itself defective the result prepared on the basis of the same could be no different. The Division Bench of the High Court was, therefore, perfectly justified in holding that the result of the examination insofar as the same pertained to A series question paper was vitiated. This was bound to affect the result of the entire examination qua every candidate whether or not he was a party to the proceedings. It also goes without saying that if the result was vitiated by the application of a wrong key, any appointment made on the basis thereof would also be rendered unsustainable. The High Court was, in that view, entitled to mould the relief prayed for in the writ petition and issue directions considered necessary not only to maintain the purity of the selection process but also to ensure that no candidate earned an undeserved advantage over others by application of an erroneous key. In Rajesh Kumar (supra), the Court then refused the oust those individuals from service who did not make the grade after re-valuation of the result since they had been in service for nearly seven years. However, in the present case, as we have discussed above, the revised result was declared even before offers of appointment were made to the respondents since the entire process of recruitment had been put in abeyance. 17. For the above reasons, we are of the view that the judgements delivered by the Delhi High Court on 6 December 2018 in Writ Petition (C) No. 10143 of 2017 and on 19 December 2018 in Writ Petition (C) No. 13052 of 2018 do not comport with law. The High Court has been manifestly in error in issuing a mandamus to the appellants to appoint the respondents on the post of Constable (Executive) in Delhi Police. The direction was clearly contrary to law. The respondents have participated in the selection process and upon the declaration of the revised result, it has emerged before the Court that they have failed to obtain marks above the cut-off for the OBC category to which they belong.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]The narration of facts demonstrates that a result notifying a list of provisionally selected candidates was initially declared on 13 July 2015 but it was soon found that an error had crept in due to the failure to allocate a bonus mark to every candidate whose height was in excess of 178 centimetres. The allotment of bonus marks was provided in Standing Order No. 212 of 2011, which necessitated a revision of the results. In the revised result, which was declared on 17 July 2015, certain candidates from the original list were ousted while new candidates came in. Both the respondents were part of the list of successful candidates. Yet, there can be no dispute about the factual position that the recruitment process was yet to be concluded. For one thing, the process of verification of character and antecedents and the ascertaining of medical fitness was yet to be carried out. But apart from this, a set of OAs came to be instituted by unsuccessful candidates before the Tribunal highlighting grievances in regard to the manner in which the answer key had been prepared. The authorities agreed before the Tribunal to appoint an Expert Committee. Following the submission of the report of the Expert Committee, the results were revised on 22 February 2016. After a decision was taken by the Competent Authority for revising the result, as many as 123 candidates who had been selected earlier were ousted and 129 new candidates came into the selected list. This process of revising the results was carried out when the recruitment process was yet to be completed for the candidates selected in the result declared on 17 July 2015. This process of the revision of the result was then unsuccessfully challenged in the first batch of OAs before the Tribunal, and subsequently the writ petitions under Article 226 before the High Court were also dismissed as not pressed. The flip-flops which took place were undoubtedly because of the failure of the authorities to notice initially the norm of allotting 1 bonus mark based on height and due to the failure to prepare a proper answer key. Such irregularities have become a bane of the public recruitment process at various levels resulting in litigation across the country before the Tribunals, the High Courts and ultimately this Court as well. Much of the litigation and delay in carrying out public recruitment would be obviated if those entrusted with the duty to do so carry it out with a sense of diligence and responsibility.14. The real issue, however, is whether the respondents were entitled to a writ of mandamus.This would depend on whether they have a vested right of appointment. Clearly the answer to this must be in the negative.In the present case, after the name of respondents appeared in the results declared on 17 July 2015, the process of recruitment was put in abeyance since the results were challenged before the Tribunal. The process of revising the results during the course of the recruitment was necessitated to align it in accordance with law. An Expert Committee was specifically appointed following the institution of proceedings before the Tribunal. The report of the Expert Committee established errors in the answer key, and thereafter a conscious decision was taken, after evaluating the report, to revise the results on 1 February 2016. In the fresh list which was drawn up, both the respondents have admittedly failed to fulfil the cut-off for the OBC category to which they belong.The submission of Mr Khurshid that these are the only two candidates before this Court would not entitle them to a direction contrary to law since they had no vested right to appointment.15. In regard to respondent Umesh Kumar, it is also brought to our attention that he resigned from the RPF on 16 August 2015 and his resignation was accepted on 25 August 2015. Evidently, the respondent tendered his resignation without any justification when the recruitment process had not been concluded and even before an offer of appointment was made to him. In any event, it would have been open to him seek re-enlistment in the RPF at the material time which he chose to not do.16. In Rajesh Kumar (supra), Justice TS Thakur, as the learned Chief Justice of India then was, dealt with a case where the model answer key, and hence the process of evaluation of answer scripts by the Bihar Staff Selection Commission, had been found to be flawed. The Court held:15.The writ petitioners, it is evident, on a plain reading of the writ petition questioned not only the process of evaluation of the answer scripts by the Commission but specifically averred that the model answer key which formed the basis for such evaluation was erroneous. One of the questions that, therefore, fell for consideration by the High Court directly was whether the model answer key was correct. The High Court had aptly referred that question to experts in the field who, as already noticed above, found the model answer key to be erroneous in regard to as many as 45 questions out of a total of 100 questions contained in A series question paper. Other errors were also found to which we have referred earlier. If the key which was used for evaluating the answer sheets was itself defective the result prepared on the basis of the same could be no different. The Division Bench of the High Court was, therefore, perfectly justified in holding that the result of the examination insofar as the same pertained to A series question paper was vitiated. This was bound to affect the result of the entire examination qua every candidate whether or not he was a party to the proceedings. It also goes without saying that if the result was vitiated by the application of a wrong key, any appointment made on the basis thereof would also be rendered unsustainable. The High Court was, in that view, entitled to mould the relief prayed for in the writ petition and issue directions considered necessary not only to maintain the purity of the selection process but also to ensure that no candidate earned an undeserved advantage over others by application of an erroneous key.In Rajesh Kumar (supra), the Court then refused the oust those individuals from service who did not make the grade after re-valuation of the result since they had been in service for nearly seven years. However, in the present case, as we have discussed above, the revised result was declared even before offers of appointment were made to the respondents since the entire process of recruitment had been put in abeyance.17. For the above reasons, we are of the view that the judgements delivered by the Delhi High Court on 6 December 2018 in Writ Petition (C) No. 10143 of 2017 and on 19 December 2018 in Writ Petition (C) No. 13052 of 2018 do not comport with law. The High Court has been manifestly in error in issuing a mandamus to the appellants to appoint the respondents on the post of Constable (Executive) in Delhi Police. The direction was clearly contrary to law. The respondents have participated in the selection process and upon the declaration of the revised result, it has emerged before the Court that they have failed to obtain marks above the cut-off for the OBC category to which they belong.In Punjab SEB vs. Malkiat Singh (2005) 9 SCC 22  , this Court held that the mere inclusion of candidate in a selection list does not confer upon them a vested right to appointment. The Court held:4. …the High Court committed an error in proceeding on the basis that the respondent had got a vested right for appointment and that could not have been taken away by the subsequent change in the policy. It is settled law that mere inclusion of name of a candidate in the select list does not confer on such candidate any vested right to get an order of appointment. This position is made clear in para 7 of the Constitution Bench judgment of this Court in Shankarsan Dash v. Union of India [(1991) 3 SCC 47  : 1991 SCC (L&S) 800 : (1991) 17 ATC 95] which reads: (SCC pp. 50-51)7. It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in State of Haryana v. Subash Chander Marwaha [(1974) 3 SCC 220  : 1973 SCC (L&S) 488 : (1974) 1 SCR 165 ] , Neelima Shangla v. State of Haryana [(1986) 4 SCC 268  : 1986 SCC (L&S) 759] or Jatinder Kumar v. State of Punjab [(1985) 1 SCC 122  : 1985 SCC (L&S) 174 : (1985) 1 SCR 899 ] .