Mere name in the selection list doesn’t guarantee appointment: Supreme Court
In the case of Commissioner of Police and Anr. Versus Umesh Kumar [Special leave petition (c) 5545/2019], the Supreme Court discerned that mere inclusion of one’s name in the selection list doesn’t inflict upon them or the fact that he/she will be appointed. The acumen was passed by the Honorable Justice Dr. Dhananjaya Y Chandrachud. J on Wednesday, 07 October 2020. The respondent after applying and qualifying for the post of ‘Constable (Executive) – Male’, was allotted roll number for appearing in the written examination. The written examination after being cancelled twice, was re-conducted on 16 November 2014. The respondents were selected after all the qualifying criteria were duly fulfilled and were directed to report to the DCP – Recruitment cell, Delhi for further ‘codal formalities’. Further while basic training commenced, the candidates were directed complete the documents, to facilitate the issuance of offers of appointment. The appellants before the Tribunal challenged the answer keys in the written examination and claimed that they had not obtained marks for correct answers for 8 questions resulting in abeyance and non-issuance of appointment. The expert committee found typographical errors in the answer keys and directed “ …in view of the statements made by the respondents that further action regarding the recruitment process will be taken as per the recommendations of the Expert Committee, and that till date no candidate has been given appointment for the post in question, and, considering the vagueness of the statements made by the respondents, we deem it just and proper to direct the respondents to ensure submission of the report by the said Expert Committee within one month from today, if such report has not yet been submitted by the Expert Committee, and to take further necessary action regarding the recruitment process within two months from today. Ordered accordingly.” After revising the results, the candidates were selected and five vacancies could not be filled up due to unavailability of suitable candidates. The cut of marks for OBC after re-evaluating was 79.49134 but that of two respondents were 77.514 &amp; 77.271.  After the vacancies were  filled by as per the new cut-off list, Umesh file a writ petition in the Delhi High court. The ASG asserted that the re-evaluation was duly done and that respondent didn’t achieve the required cut-off marks. It was reiterated that the resignation of Umesh from the Railway Protection Force was no ground of issuance of appointment by the Delhi High Court by the writ of Mandamus.
Reportable IN THE CIVIL APPELLATE JURISDICTION Civil Appeal No. 33320 Arising out of Special Leave PetitionNo. 33319) Commissioner of Police and Anr Umesh Kumar …Respondent And With Civil Appeal No. 33320 Arising out of Special Leave PetitionNo. 55419) JUDGMENT Dr Dhananjaya Y Chandrachud J On 27 January 2013 a notice was published in the newspapers for filling up 523 vacancies for the post of ‘ConstableMale’ in the Delhi Police. The break up of vacancies indicated 262 to be unreserved 142 for OBC candidates 79 for Scheduled Caste candidates and 40 for those belonging to the Scheduled Tribes. The candidates appeared for a physical endurance and measurement test on 4 October 2013. Upon qualifying at the test the candidates were allotted roll numbers for appearing in the written examination. Of a total of 50 422 candidates 39 597 appeared in the written examination which was held on 8 March 2014. This examination was cancelled by the Delhi Police and a fresh written examination was held on 25 May 2014 which was cancelled as well. Finally a written examination was conducted on 16 November 2014 consisting of one objective type multiple choice question paper of 100 marks. After an evaluation of the OMR sheets a list of 514 provisionally selected candidates was declared on 13 July 2015. Nine vacancies could not be filled up due to the unavailability of suitable candidates in the ex servicemen category. The respondents were declared to be selected under the OBC category. During the course of scrutiny it was found that a bonus mark had not been allocated to candidates whose height was measured at 178 centimetres or above at the time of the physical endurance and measurement test. Candidates were entitled to an extra bonus mark under the provisions of Point No. 4of the then Standing Order 212 of 2011 according to which: “A candidate whose height is 178 cms or more shall be given 01 bonus mark to be added in the total marks while determining the merit list." Accordingly the result was recompiled after allocating one bonus mark to all the candidates with a height of at least 178 centimetres and a final revised result was declared on 17 July 2015. 512 candidates were selected while the remaining 11 vacancies were not filled up due to the unavailability of candidates from the ex servicemen category. In the result which was declared on 17 July 2015 32 new candidates came within the selection zone and 34 candidates were ousted. The respondents to the present Civil Appeals were declared as selected from the OBC category in the revised result as well. The minimum qualifying marks for the OBC category were 71.29004295. Umesh Kumar the respondent in the first of the two appeals secured 74.16991306 marks. Satyendra Singh the respondent in the companion appeal secured 71.49891738 marks. In the note attached to the final list declared on 17 July 2015 all candidates were directed to report to the DCP Recruitment Cell New Police Lines Kingsway Camp Delhi for further “codal formalities” between 27 July 2015 and 31 July 2015. Candidates were distributed on these dates in accordance with their roll numbers: All the selected candidates were issued the prescribed forms so as to expedite the process of recruitment. The object appears to have been that during the commencement of batches for basic training the candidates should have all documents complete to facilitate the issuance of offers of appointment. The documents which were issued to candidates were: “a. Attestation Form for Police Verificationfor medical examination. c. Agreement Form i.e. regarding depositing of capitation charges in case he she left service before 5 years after joining Delhi Police. d. Certificate of Characterfor police verification and a medical form for conducting a medical examination in accordance with Rules 24 and 25 of the Delhi PoliceRules 1980. On receipt of a satisfactory police verification and medical report candidates were to be issued a communication directing them to report at the Recruitment Cell NPL together with original documents. The following forms had to be submitted before the issuance of an offer of appointment: “a. Agreement Form i.e. regarding depositing of capitation charges in case he she left service before 5 years after joining Delhi Police. b. Certificate of Characterincluding 7 questionswhich were declared void earlier full marks be given to all candidates in such a manner that all candidates were given marks as per scaling method for the respective number of Questions from each category. iii. The options of answer of Q. No.6 & 10may be changed modified fromto& fromto respectively as well as options of the same questions of other Booklet Series having different sequence number may also be changed iv. The option of answer of only Q.No.67may be changed modified from to as the option of answer of the same question of other Booklet Series(C) andis correct.” Resultantly the entire result was revised. The final result after re evaluation of all OMR sheets was declared on 22 February 2016. 518 candidates were declared to be provisionally selected subject to “codal formalities” such as the satisfactory verification of character and antecedents medical examination and final verification of documents. Five vacancies could not be filled up due to the unavailability of suitable candidates from the ex servicemen category. In the final result which was declared on 22 February 2016 129 new candidates came into the selection zone and 123 candidates who had been declared selected earlier in the result of 17 July 2015 were ousted. The cut off for the OBC category after re evaluation of results was 79.49134163 marks. The marks which were secured by the two respondents in the revised results of 22 February 2016 were as follows:  Umesh Kumar : 77.51406888  Satyendra Singh : 77.27164463 The newly selected candidates from the result declared on 22 February 2016 were called for the completion of “codal formalities”. Police verification and medical fitness was carried out and the candidates who successfully completed this process were required to report to the recruitment cell at New Police Lines Kingsway Camp Delhi with original attested copies of documents to collect their offers of appointment. Except for candidates with an adverse background all selected candidates were issued offers of appointment and joined the basic training programme for Constables in Delhi Police with effect from 4 April 2016. After the declaration of the result on 22 February 2016 some candidates challenged the process before the Tribunal in O.A. No. 96164 and O.A. No. 124165 in March 2016. The Tribunal dismissed the OAs on 5 May 2016 and the Review Petitions were subsequently dismissed on 1 June 2016. Following this writ petitions under Article 226 of the Constitution W.P.No. 741166 and 4 Sandeep Kumar & Ors. vs C.P. Delhi & Anr. 5 Bijendere Kumar & Ors. vs. C.P. Delhi & Anr. 6 Sandeep Kumar & Ors. vs. Delhi Police & Anr. W.P.No. 762167 challenging the judgments of the Tribunal were also dismissed as not pressed by the Delhi High Court on 7 September 2016. 10 On 21 March 2016 the respondents filed O.A. No. 11416 challenging their non selection in the revised result declared on 22 February 2016 before the Tribunal. The OA was dismissed on 15 September 2017. Umesh Kumar then filed a writ petition under Article 226 Writ PetitionNo.101417 in the Delhi High Court which was allowed by a judgment dated 6 December 2018. Following its decision in the case of Umesh Kumar the Delhi High Court also allowed the writ petition instituted by Satyendra Singh Writ PetitionNo.130518 by its judgment dated 19 December 2018. The ultimate directions that have been issued by the Delhi High Court in the first of the two writ petitions are in the following terms: “For the aforesaid reasons we find no merits in the submissions of Mr. Satyakam learned counsel for the respondents. The petition is accordingly allowed and we direct the respondents to appoint the petitioner to the post of ConstableDelhi Police. He shall be deemed to have been appointed from the date of appointment with his other batch mates and his seniority shall be determined accordingly on notional basis. However he shall not be entitled to any arrears of pay and allowances. Compliance be made within next four weeks.” The companion writ petition has been allowed in similar terms. 11 Ms Madhavi Divan learned Additional Solicitor General has assailed the correctness of the judgment of the Delhi High Court. The learned ASG submitted that: 7 Bijender Kumar & Ors. vs. Delhi Police & Anr. The process of re evaluation of the first result was necessitated following the receipt of complaints and the filing of OAs before the Tribunal An Expert Committee was constituted by the competent authority of Delhi Police and upon due enquiry. The report established irregularities in the preparation of the answer key and the allocation of marks Following the report of the Expert Committee a fresh revised list was drawn up and both the respondents secured marks below the cut off for the OBC category iv) As many as 228 candidates are ranked higher than the respondent Umesh Kumar while 265 candidates are ranked higher than the respondent Satyendra Singh The mere fact that all candidates including the respondents who had been successful in the first result declared on 17 July 2015 have been furnished with requisite documents including the agreement form did not confer a vested right to appointment The revision of result has taken place in accordance with due process by applying the same yardstick to all candidates. Admittedly the respondents have thereafter failed to secure marks above the cut off for the OBC category and 2015 vii) The judgement of the Delhi High Court is contrary to the law laid down by a two judge Bench of this Court in Rajesh Kumar vs State of Bihar8 viii) A grievance of respondent Umesh Kumar that he had resigned from the Railway Protection Force9 was no ground for the Delhi High Court to direct the appellants by a writ of mandamus to issue an appointment. The respondent in terms of Rule 275 of the RPF Rules 1987 could have sought re instatement in service which he failed to do. 12 On the other hand Mr Salman Khurshid learned Senior Counsel appearing on behalf of the respondents submitted that: Neither of the two candidates in question has been at fault Both the respondents participated in the selection process and were declared to have been successful in the first result declared on 17 July Though as a consequence of the revision of the result the respondents stand ousted grave prejudice has been caused to them iv) By furnishing documents to the respondents including the agreement form a representation was held out to them by the appellants of their eligibility to join Delhi Police and of their selection to the post and 84 SCC 690 9 RFP There may be other candidates higher than the respondents in merit in the revised result but none of them has approached this Court under Article 136 of the Constitution or the High Court under Article 226. Hence the ultimate direction that was issued by the High Court should not be disturbed. This judgment has adverted to the course which the recruitment process followed since the publication of an advertisement for selection to the 2013 batch of ConstablesMale in Delhi Police. 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. 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 Punjab SEB vs. Malkiat Singh10 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 109 SCC 22 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 3 SCC 47 : 1991 SCC 800 : 1991) 17 ATC 95] which reads:“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 Marwaha3 SCC 220 : 1973 SCC488 :1 SCR 165] Neelima Shangla v. State of Haryana4 SCC 268 : 1986 SCC759] or Jatinder Kumar v. State of Punjab1 SCC 122 : 1985 SCC174 :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. 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. In Rajesh KumarJustice 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 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. For the above reasons we are of the view that the judgements delivered by the Delhi High Court on 6 December 2018 in Writ PetitionNo. 101417 and on 19 December 2018 in Writ PetitionNo. 130518 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 Constablein 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. We accordingly allow the appeals and set aside the judgments of the High Court dated 6 December 2018 in Writ PetitionNo.101417 and 19 December 2018 in Writ Petition No.13052 of 2018. Both the Writ Petitions shall stand dismissed. There shall however be no order as to costs. Pending application(s) if any shall stand dismissed. [Indira Banerjee] New Delhi October 07 2020. 