Ram Kishor Meena and Ors. v. Union of India and Ors.

XXXXX XXXXX xv) The dates in this case are important. The advertisement for 8 posts/ vacancies was issued on 8th Nov, 2016 and till the date of publication of result i.e. 16 Feb, 2017, no representation was made by any candidate regarding miscalculation of vacancies. It only started once the merit list was out. xvi) It is pertinent to mention here that the representation submitted by 2 ASI, after the 11:30 declaration of the result, were never examined on file with reference to the rules and decision taken in a meeting chaired by the IG (Pers). xviii)Revising the calculation after the merit is prepared is totally irregular, as by that time the name of beneficiaries were known.

XXXXX XXXXX xxiii)The IG (Pers) was responsible for taking a decision in a meeting and issuing directions for recalculation of vacancies after declaration of the merit, without examining the issue on file w.r.t. the rule position, thus benefitting candidates who could not make it to the merit. xxiv)Correct method of Calculation of vacancies should be followed in accordance with the DoP& T OM No. AB.14017/2/1997-Estt /(R) Pt dated 19.01.2007.

XXXXXXX XXXXXX”

15. Premised upon the afore-noted opinion, the Board recommended as under:-

16. The fulcrum of afore-noted recommendation resulted in disciplinary/ administrative departmental action against the erring Dealing Assistants and Officer who perpetuated the faulty calculation of vacancies. Though the recommendation of the Court of Inquiry specifically mentions that there is no fault of 53 candidates, however, pursuant to the afore-noted recommendations, the respondents vide order No. 299/RC/SSB/SI(Min)/LDCE/2016-17/2173/2320 dated 17.07.2020 directed as under:- “i) The 08 ASI (Mins) who got promoted through LDCE during the year 2016-17 against the vacancies notified in the advertisement dated 08/11/2016, may be considered valid as due procedure was followed. ii) As regards the additional 53 ASI (min) selected 11:30 and got promoted through LDCE after revision of vacancies for the year 2016-17 may be cancelled as due procedure was not followed.”

17. Further, vide another Order being No. 9-1/20/LDCE-SI (Min)/ SSB/ Pers-III of even date, the appointment of 53 SI (Min) was cancelled by the respondents and they were reverted back to their post of ASI (Min) from the date of their promotion i.e. 02.03.2017.

18. We have also gone through another communication of respondents sent by FAX/WAN Msg. dated 20.07.2020, whereby all the Unit Heads were informed that a review DPC for promotion of ASI (Mins) shall be convened for assessing their suitability for promotion to the rank of SI (Min) for the vacancy year 2019 (01/01/2019 to 31/12/2019). Pertinently, the above said communication mentions the name of all the 53 candidates, who have been reverted by virtue of order dated 17.07.2020.

19. This Court has also gone through the Advertisement bearing No.334/RC/SSB(MIN)/LDCE/2017/2237-2390 dated 23.02.2018, whereby respondents had invited applications for appointment to the post of Sub-Inspector and total 54 vacancies were notified for the year 2017-

2018. Vide Order bearing No. XX-9/17/SSB/LDCE-SI(Min)/VOL.II/ P.III (BN.) /9834-36, four (04) ASI (Min) were appointed to the post of SI (Min).

20. There is another Advertisement bearing No.334/RC/SSB/SI (Min) LDCE/2018/2091-2245 dated 18.04.2019 issued by the respondents, vide which applications were invited to fill 63 vacancies to the post of SI (Min) for the year 2018. However, vide Wan Message dated 29.10.2019, the aforesaid Advertisement was cancelled by the respondents due to 11:30 administrative reasons, though not mentioned therein.

21. As noted above, the Advertisements dated 23.02.2018 and 18.04.2019 show that for the year 2017-18, the vacancy position for the post of SI (Min) through LDCE was 54 and for the year 2018, it was 63. With regard to vacancy position for the year 2016-17, vide Advertisement bearing No.299/RC/SSB/SI-Min (LDCE)/2016-17/7080- 7183 dated 08.11.2016, only 08 vacancies were notified, however, vide FAX/ WAN Message bearing No. 299/ RC/SSB/SI-Min (LDCE)/2016- 17/7080-7183 dated 08.11.2016, the vacancies recalculated by the respondents was 61, though the same stood later withdrawn by the respondents. However, we fail to understand, when in the year 2016-17, the available vacancies were as less as 08 vacancies, how in the subsequent years, i.e. 2017-18 and 2018, the vacancies advertised were as high as 54 and 63. In Para-(i) of the Opinion of the Board of Court of Inquiry it has been noted that the respondents had not adopted the correct criteria for calculating the correct vacancies for the years 2014-15 and 2016-17. It would not be misplaced to presume here that even for the year intermediate i.e. 2015-16 also, the vacancy position would not have been correctly calculated. It is an admitted position by the respondents that the unfilled vacancies for the years 2014-15 and 2016-17 were not carried forward and again, in our considered opinion, this can be the reason for notifying only 08 vacancies for the year 2016-17.

22. Once it has been admitted by the respondent that there has been an error in calculating the vacancies for the years 2014-15 and 2016-17, the order dated 17.07.2020, cancelling the appointment of 53 candidates 11:30 comes under a cloud. Thus, it seems to be dubious whether the signal dated 02.03.2017, revising the select list to 61 candidates instead of 08 already published, rightly reassessed the available vacancies OR the order dated 17.07.2020, cancelling the appointment of 53 additional candidates, was right. Relevantly, it is not just the wrong calculation of number of vacancies by the respondents, but also the procedure prescribed in notifying the vacancies from 08 to 61; and the manner of appointment of 53 candidates, which is a matter of consideration by this Court.

23. It is the settled legal position that vacancies cannot be filled up over and above the number of vacancies advertised, as it would be in violation of rights of those who become eligible after the advertised is notified. It is also settled legal position that while notifying the vacant posts, due approval of competent authority has to be taken. It is also settled position that for making appointments to a post due procedure prescribed under the applicable recruitment rules has to be followed. It has already been held in a number of decisions that creation and sanction of posts is the prerogative of the executive and legislative authorities and the courts cannot take upon themselves the power of creation of posts.

24. There is also no dispute that prior to making appointments, the available vacancies must be notified and applications should be invited from all eligible candidates. Also that the appointments cannot be made over and above the vacancies notified in the advertisement given. The undisputed position in the present case is that neither sanction from the appropriate authority was taken for creation of 53 additional vacancies 11:30 nor these vacancies were notified calling upon the eligible applicants to appear in the examination process to fill up these posts. Instead, acting in a clandestine manner, the respondents filled the 53 vacant seats out of the list of candidates who had appeared in the examination process for filling up 08 vacancies pursuant to advertisement dated 08.11.2016. Thereby, not only the respondents acting in an irresponsible manner, first committed an error in calculating the vacancies pertaining to the year 2016-17, thereafter violated the procedure prescribed by not obtaining sanction from the competent authority and made appointments.

25. Relevantly, a few eligible officers, who had not applied and appeared in the LDCE selection process for 08 vacancies pursuant to advertisement of 08.11.2016, preferred petitions before different High Courts. One such petition, being W.P.(C) No. 2559/2017, was dismissed by a Coordinate Bench of this Court vide order dated 22.10.2018 holding that no prejudice shall be caused to the unselected candidates, who had not appeared in the selection procedure, as the Court was informed that the said posts were not carry forward posts but the backlog posts. In W.P.(C) No. 2559/2017, the challenge to the appointment of 61 candidates was to the effect that initially 08 vacancies were notified, but later on by issuing corrigendum, the vacancies were enhanced to 61. However, the opinion of the Board holding Court of Inquiry was rendered on 31.05.2000 i.e. after the decision dated 22.10.2018 in W.P.(C) No. 2559/2017 was pronounced. It is not hypothetical to assume had there actually been 61 vacancies existing at the time of notifying the advertisement dated 08.11.2016, all 165 eligible officers would have 11:30 applied.

26. The petitioners before us have also placed reliance upon counter affidavit filed by the respondents in W.P.(C) No.2559/2017 wherein the respondents have averred that since calculation of 08 vacancies was incorrect, it was increased to 61 vacancies. However, in the Additional Counter Affidavit filed by respondents in the present case, the respondents have averred that the counter affidavit filed in the said case was with the approval of IG (Pers), whereas counter affidavit was required to be approved by SDG/ADG and hence, any averment made in the said counter affidavit, cannot be taken as lawful.

27. Petitioners have also placed reliance upon decision in Prakash Ratan Sinha (Supra) to submit that they were not given opportunity of hearing and if any administrative decision results in civil consequences, the decisions have to be judicially reviewed. In the said case, by an administrative decision nomenclature of the employee from daily wager to accounts clerk was changed, without affording an opportunity of hearing, which had affected the promotional avenues.

28. Whether or not reverting the petitioners to their substantive post without affording them an opportunity of hearing, was against the principles of natural justice or not, on this aspect different opinions have been rendered by the Courts. In Shridhar Vs. Nagar Palika, Jaunpur and Others 1990 SCC (L&S) 600, the Hon’ble Supreme Court has observed as under:- “8. The High Court committed serious error in upholding the order of the Government dated 11:30 13.2.80 in setting aside the appellant's appointment without giving any notice or opportunity to him. It is an elementary principle of natural justice that no person should be condemned without hearing. The order of appointment conferred a vested right in the appellant to hold the post of Tax Inspector, that right could not be taken away without affording opportunity of hearing to him. Any order passed in violation of principles of natural justice is rendered void. There is no dispute that the Commissioner's Order had been passed without affording any opportunity of hearing to the appellant therefore the order was illegal and void. The High Court committed serious error in upholding the Commissioner's Order setting aside the appellant's appointment. In this view, Orders of the High Court and the Commissioner are not sustainable in law.”

29. Similarly, in Shrawan Kumar Jha and Others Vs. State of Bihar and others 1991 Supp (1) SCC 330, the Hon’ble Supreme Court has held as under:- “3...... It is not necessary to go into all these questions. In the facts and circumstances of this case, we are of the view that the appellants should have been given an opportunity of hearing before cancelling their appointments. Admittedly, no such opportunity was afforded to them. It is well settled that no order to the detriment of the appellants could be passed without complying with the rules of natural justice. We set aside the impugned order of cancellation dated November 3, 1988 on this short ground. As suggested by the learned Solicitor General, we direct that the secretary (Education), Government of Bihar, or to other person nominated by him should give an opportunity of hearing to the appellants and thereafter give a finding as to 11:30 whether the appellants were validly appointed as Assistant Teachers. He shall also determine as to whether any of the teachers joined their respective schools and for how much duration. In case some of them joined their schools and worked, they shall be entitled to their salary for such period.”

30. In the Court of Inquiry it has been opined that no plausible and justified reasons or supportive grounds have been mentioned or explained by any of the concerned staff dealing with Pers-III for revising the vacancies after the declaration of the result. In all fairness, respondents have also themselves admitted that there is no fault of 53 candidates, who have been appointed. When this petition came up for hearing before this Court on 24.07.2020, respondents were directed to maintain status quo with regard to appointment of 53 petitioners on 02.03.2017. It is pertinent to mention here that the petitioners joined in the rank of Sub-Inspector (Ministerial) pursuant to order dated 02.03.2017 and successfully completed their probation period in March, 2019; and the respondents vide order dated 15.07.2020 confirmed and regularized them to the said post and by now, they have not only gained work experience but also received financial benefits, honour and respect attached to the rank. Though there is no dispute that their appointment have been made contrary to the prescribed rules, but no opportunity of hearing was granted to the petitioner before reverting them to their substantive post.

31. The factual scenario in the present case is that 53 candidates have been appointed to the post of SI (Min) through LDCE for the vacancies of the year 2016-17, which actually never existed; but at the same time 11:30 they have been holding and working on these posts since their appointment on 02.03.2017. The plea of petitioners is that just two days prior to the issuance of impugned order dated 17.07.2020, they were confirmed to the said posts, on the other hand respondents’ stand is that out of 53 candidates only 17 candidates have been inadvertently confirmed to the post. Be that as it may.

32. The respondents have pleaded before us that the Review DPC in respect of 53 SI (Min), who had been selected after revision of vacancies for the year 2016-17, are eligible for promotion from 01.01.2019 and DPC is yet to be convened, for which nominations have been invited and there will be only minor changes in their seniority. The petitioners have pleaded that if the impugned order dated 17.07.2020 cancelling their appointment and reverting them to the post of ASI is not set aside, they will suffer huge loss. The petitioners have also pleaded that in such case, their seniority will reckon from 2019, whereas after the year 2016, examination process to fill the vacant posts of SI (Min) falling in the year 208-19 were also held, wherein they had not participated and now, if they are promoted from 01.01.2019, their juniors will come above their seniority.

33. When this petition came up for hearing before this Court on 24.07.2020, this Court had directed the respondents to maintain status quo with regard to appointment of 53 petitioners as on 02.03.2017. Though we do not dispute the proposition of law already set down that appointments made against the relevant Rules and on the posts which are not sanctioned; and promotion and seniority attached thereto, cannot be 11:30 permitted to hold the field, however, this Court is constrained to take serious note of respondents’ shilly-shally with the process of appointment. Not only at the first instance respondents have been in error in calculating the vacancies since the year 2014, but also their acts have been shrouded with mystery since the joining of petitioners, as the petitioners joined in the rank of Sub-Inspector (Ministerial) pursuant to order dated 02.03.2017 and successfully completed their probation period in March, 2019; and the respondents vide order dated 15.07.2020 confirmed and regularized them to the said post. Over and above, the respondents first filed affidavit before this Court in W.P.(C) No.2559/2017 stating that calculation of 08 vacancies was incorrect, and so, increased to 61 vacancies; and thereafter did a volte face in the present case to submit that the said affidavit should not be relied upon, having not been approved by SDG/ADG. It is very strange that an organisation like SSB has acted in such an irresponsible manner taking stances as per their choices.

34. Accordingly, we are of the considered opinion that for the incautious behaviour of respondents, the 53 candidates, who have been subsequently appointed, cannot be made to suffer. The peculiar fact of the case is that these 53 petitioners have been successfully holding the posts of Sub-Inspector (Min) since their appointment in the year 2017 and after their confirmation and being regularized, have gained good experience and knowledge by now; and also that their appointment are not against future vacancies but is against the ‘carry forward’ vacancies of the previous years. Hence, we find that to remove 53 petitioners from 11:30 the post of Sub-Inspector (Min) would be against the principles of natural justice. It is extremely hard for us to turn the clock back and relegate the 53 petitioners to a position, which indisputably stands long relieved by them.

35. The Supreme Court in Pankjeshwar Sharma & Others Vs. State of Jammu & Kashmir and Others (2021) 2 SCC 188, dealt with a case wherein appointments to the post of Sub-Inspector of Police were made over and above the vacancies notified; and the unsuccessful candidates challenged the appointments; and after multiple rounds of litigation, the Supreme Court held that the appointment of 22 candidates, whose appointment was challenged, was an exceptional case, where the appointment was made on a concession granted by the State for giving a quietus to the long drawn litigation and held as under:

36. In view of the afore-noted reasons, this case being undoubtedly one of such exceptional circumstances, the signal/ order dated 17.07.2020 is hereby quashed while making it clear that the Revised Select List of SI (Min), LDCE, 2016-17 dated 02.03.2017 shall remain in force and all the 61 appointees, including all the 53 petitioners herein, in terms of their merit, shall continue to work from the date of their appointments i.e. 02.03.2017.

37. In the event thereof, the 04 candidates appointed through LDCE in the year 2018 against the vacancies of the year 2017-18 shall be considered appointed from the date of order dated 05.09.2018, vide which they were appointed.

38. With aforesaid directions, the present petition is accordingly disposed of. Pending application is disposed of as infructuous. (SURESH KUMAR KAIT) JUDGE (SAURABH BANERJEE)

JUDGE NOVEMBER 02, 2022 r 11:30