Full Judgment
Junior Telecom Officers Recruitment Rules, 1999, have no retrospective operation. Junior Telecom Officers Recruitment Rules, 1999, cannot affect the existing rights of the applicants who are being considered for selection as they possess the requisite qualifications prescribed by the rules before amendment.
3. Respondents resist the O.A. contending that the claim of the applicants for promotion to the post of Junior Telecom Officer solely on the ground that they have passed the screening test is not permissible. Mere passing in the screening test would not confer them with any vested right for promotion. In view of the new Recruitment Rules of the year, 1999, vacancies which arose on and after 1.9.99 are to be filled up under the new recruitment rules. There are no vacancies which arose prior to 1.9.99 and remained unfilled to accommodate the applicants. Applicants' claim, if any, can be considered only against the vacancies occurred prior to 1,9.99. 183 Junior Telecom Officers were promoted until further orders subject to the outcome of the pending litigations. Justified post of Junior Telecom Officer on the basis of assets as on 31.8.99 are not yet assessed. Even if posts are justified and approved for creation now, in view of the judgment in OA 428/95 of this Bench of the Tribunal the vacancies occurring/created after publication of the Recruitment Rules arc required to be filled up on the basis of revised Recruitment Rules. The new Recruitment Rules contemplating more functional responsibilities on Junior Telecom Officers seek to insist more rigorous qualification in respect of T.T.As for promotion as Junior Telecom Officers. Vacancies which arose after 1.9.99 are to be filled up by T.T.As satisfying the qualifications prescribed in the new Recruitment Rules. Applicants do not have a vested right to be sent for training when there are no vacancies available. Applicants are not send for pre-basic training, as no vacancies occurred prior to 1.9.99 remain unfilled to accommodate them.
4. Applicants have'raised a contention in the rejoinder that the reply statement filed is only to be ignored for the reason that it is not in compliance with Rule 12 of the Central Administrative Tribunal (Procedure) Rules, 1987.
5. Learned Counsel appearing for the applicants relying on Rule 12 of the Central Administrative Tribunal (Procedure) Rules argued that as per the said rule reply statement shall be signed and verified as a written statement by the respondent or any other person duly authorised by him in writing in the same manner as provided in Order 6, Rule 15 of the C.P.C. and as per 12(3) of the Central Administrative Tribunal (Procedure) Rules, the documents referred to in Sub-rule (2) shall also be filed along with the reply and so, as the reply statement is filed not by any of the respondents, the authorisation should have also accompanied the reply statement. The reply statement is verified and signed by the Assistant General Manager (Admn.), in the Office of the Chief General Manager Telecommunications, Trivandrum-33. As per Government of India (Authorisation of Officers for Verification of Pleadings and Other Documents to be filed in the Central Administrative Tribunal) Rules, 1993, any Group A Officer in any non-Secretariat Office of the Government of India is authorised to verify the pleadings. That being the case, the reply statement filed by the Assistant General Manager (Admn.), Office of the Chief General Manager, Telecommunications, Trivandrum-33 is by a person who is authorised and as such it is not necessary to produce any authorisation along with the reply statement. Hence, this contention of the applicants cannot be accepted.
6. Learned Counsel for the the applicants drew our attention to the rule in Ram Rakha v. Union of India and another, (1988) 8 ATC 16, wherein it has been held that when delegated officers are unable to sign and verify the replies, they should authorise some responsible officers of the department concerned in writing to sign and verify the replies on their behalf and as such authorisation should be filed along with the reply to indicate that the person who filed the reply has been duly authorised by the competent authority. Here, it is a case of the officer authorised as per Rules of 1993 has verified the reply statement.
7. Applicants further contend that the Assistant General Manager (Admn), Office of the Chief General Manager, Telecommunications, Trivandrum-33, who has signed and verified the reply statement has not disclosed the nature and source of his knowledge as regards the facts and averments in the reply statement, Rule 12 of the Central Administrative Tribunal (Procedure) Rules says that the reply statement shall be signed and verified as a written statement as provided for in Order 6, Rule 15 of the Code of Civil Procedure. Order 6, Rule 15 says that the person verifying shall specify, by reference to the numbered paragraphs of the pleadings, what he verifies of his own knowledge and what he verifies upon information received and believed to be true.
Here, the verification is to the effect that what is contained in all the paragraphs are true and correct to the knowledge, information and belief of the person who has verified the same. So, when the stand is that the entire statement is true and correct to the best of the knowledge, information and belief of the person who has verified the same, there is nothing further to be specified by reference to the particulars as to what is verified of his own knowledge and what is verified upon information received and believed to be true.
8. Learned Counsel appearing for the applicants drew our attention to the following rulings: (i) S. Govindarajuv.Karnataka S.R.T.C and Anr., (1986)3 SCC 273=1986(3) SLJ 98 (SC).P. Mahendran and Ors. v. State of Karnataka and Ors. and Malteesh Y. Annigeri and Ors.v.State of Karnataka and Ors.,(1990) 1 SCC 411 1990 (1) SLJ 48 (SC).Gopabandhu Biswal v. Krishna Chandra Mohanty and Ors., (1998) 4 SCC 447 =1998(3) SLJ 102 (SC).
(vi) Gopal Krishna Rath v.M.A.A.Baig (Dead) by LRs.and Ors., (1999) 1 SCC 544.
9. In (1986) 3 SCC 273 what is stated as that once a candidate is selected and his name is included in the select list for appointment in accordance with the regulations, he gets a right to be considered for appointment as and when vacancy arises. Here, admittedly, the applicants have not been selected for the reason that in their pleadings it is specifically stated that the selection process already commenced will have to be completed in accordance with the rules and that the Junior Telecom Officers Recruitment Rules, 1999 cannot affect the existing right of the applicants who are being considered for selection. So, the said ruling has no application to the facts of the case at hand.
10. As far as the ruling reported in 1998(1) KLT 567 (SC) is concerned, it was a case where selection was over and a select list was issued.
Name of the appellant was included in the select list. Here, admittedly the selection is not over and applicants are only being considered for selection.
11. In 1985 KLT 793 is also in respect of direct recruitment. There it is clearly stated that if a vacancy which has to be filled up by promotion from a lower cadre, the eligibility has to be determined in accordance with the rules and only those who are eligible on the date of occurrence of the vacancy can claim the post and that no body who has no right to be promoted in that vacancy on the date of occurrence of the vacancy even if he subsequently becomes entitled for the post can have a legal right to insist that he should get the post. Here the applicants will be entitled to be posted as Junior Telecom Officers only on successful completion of the pre-basic training. They have not undergone such training at all.
12. Respondents have taken a definite stand that there are no vacancies prior to the commencement of the Recruitment Rules of the year 1999 to accommodate the applicants. On this aspect the learned Counsel appearing for the applicants drew our attention to A19 dated 21.12.99.
There it is stated that posts of JTOs "based on assets installed upto 31st of August, 99 may be created as per norms 35% quota of these posts, may be filled up by qualified candidates through Screening Test to be conducted as per JTO Recruitment Rules of 1996." It further says that action may be taken to sanction these posts. So, from A19 it could not be said that posts have been sanctioned and vacancies have thereby arisen. A19 will not go to the extent of showing that posts have been sanctioned. A19 is subsequent to the filing of this O. A. also. So based on A19 it cannot be said that posts are created thereby vacancies are available.
13. Respondents have stated that 183 Junior Telecom Officers were promoted until further orders subject to the outcome of the pending litigations. Learned Counsel appearing for the respondents brought to our notice the order of the Bangalore Bench of the Tribunal in O.A.946/98. As per the said order, the impugned order dated .15.10.98 creating 1966 posts with effect from 1993 is quashed.
14. A20 is the copy of thejudgment of the Apex Court in Civil No.4339/95. According to applicants in the light of A20 those vacancies prior to the date of coming into force of the new Recruitment Rules are to be filled up among the officials qualified in the screening test held on 29.1.95. At this juncture it is relevant to state that simply passing the screening test the applicants do not get a right to be appointed as Junior Telecom Officers. Before appointment as Junior Telecom Officers they have to successfully undergo a pre-basic training course. As already stated they have not undergone the same. Respondents say that A20 has no relevance to the facts of the case at hand.
15. This Bench of the Tribunal in OA 428/95 has held following the ruling of the Chandigarh Bench of the Tribunal in OA 1000/94 that vacancies in the cadre of Telecom Technical Assistant which occurred on or before 31.12.94 are to be filled up in accordance with the statutory rules as they stood prior to the amendment on 31.12.94. So in the light of the finding in the said O.A. vacancies occurring after the commencement of the new Recruitment Rules year 1999 are to be filled up according to the new Recruitment Rules. In Gopabandhu Biswal v. Krishna Chandra Mohanty and Ors. (supra) it has been held that the Tribunal cannot ignore its earlier judgment and that the use of precedent is an indispensable foundation upon which to decide what is the law and its application to individual cases, for it provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs, as well as a basis for orderly development of legal rules.
16. Applicants are T.T.As and are claiming promotion to the post of Junior Telecom Officers having only come out successful in the screening test, what is the position we shall examine.
17. A three Judge Bench of the Apex Court in Jai Singh Dalai and Ors.
v. State of Haryana and another, 1993 Supp (2) SCC 600 held: "7. It is clear from the above pleadings that in 1990 the State Government resolved to resort to special recruitment to the Haryana Civil Service (Executive Branch) invoking the proviso to Rule 5 of the rules. Pursuant thereto, it issued the notifications dated December 20, 1990 and January 25, 1991. The names of the candidates were forwarded by the State Government to the HPSC for selection.
The HPSC commenced the selection process and interviewed certain candidates. In the meantime, on account of an undertaking given by the Advocate General to the High Court at the hearing of C.W.P. No. 1201 of 1991 and allied writ petitions, the Slate Government was required to forward the names of the candidates belonging to two other departments of the State Government, Before it could do so, the new Government came into power and it reviewed the decision of the earlier Government and found the criteria evolved by the earlier Government unacceptable and also noticed certain infirmities in the matter of forwarding the names of eligible candidates. It, therefore, resolved to rescind the earlier notifications of December 20, 1990 and January 25, 1991. It will thus be seen that at the time when the writ petition which has given rise to the present proceedings was filed, the State Government had withdrawn the aforesaid two notifications by the notification dated December 30, 1991. The stage at which the last mentioned notification came to be issued was the stage when the HPSC was still in the process of selecting candidates for appointment by special recruitment. During the pendency of the present proceedings the State Government finalised the criteria for special recruitment by the notification of March 9, 1992. Thus, the HPSC was still in the process of selecting candidates and had yet not completed and finalised the select list nor had it forwarded the same to the State Government for implementation. The candidates, therefore, did not have any right to appointment. There was, therefore, no question of the High Court granting a mandamus or any other writ of the type sought by the appellants. The law in this behalf appears to be well settled.
In the State of Haryana v. Subash Chander Marwaha this Court held that the mere fact that certain candidates were selected for appointment to vacancies pursuant to an advertisement did not confer any right to be appointed to the post in question to entitle the selectees to a writ of mandamus or any other writ compelling the authority to make the appointment. In that case, an advertisement was issued stating that there were 50 vacancies in the Haryana Civil Service (Judicial Branch). An examination was held by the HPSC and 40 candidates passed the said examination with the required minimum of 45 per cent marks. Their names were published in the Government Gazette. The State Government, the appointing authority, made seven appointments out of the said list in the order of merit.
Respondents, who ranked 8, 9 and 13 respectively in that list, did not get an appointment although there were vacancies. The reason for not appointing the respondents was that in the view of the State Government, which was incidentally identical to that of the High Court, candidates getting less than 55 percent marks in the examination should not be appointed as Subordinate Judges in the interest of maintaining high standards of competence in judicial service. Respondents 1 to 3 challenged this decision on the ground that the State Government was not entitled to pick and choose only seven out of them for appointment, because to do so tantamounted to prescribing a standard which was not contemplated. The State Government on the other hand contended that the rules did not oblige them to fill in all the vacancies and it was open to them to appoint the first seven candidates in the interest of maintaining high standards. It was further contended that there was no question of picking and choosing and since the rules did not preclude it from selecting from the list the candidates for appointment to set a higher standard, the State Government could not be said to have infringed any legal right of the selectees for appointment. In the background of these facts this Court came to the conclusion that the mere fact that the candidates were chosen for appointment in response to the advertisement did not entitle them to appointment.
To put it differently, no right had vested in the candidates on their names having been entered on the select list and it was open to the Government for good reason not to make the appointments therefrom and fill in the vacancies. In a recent decision in Shankarsan Dash v. Union of India the Constitution Bench of this Court reiterated that even if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates do not acquire any indefeasible right to appointment against the existing vacancies. It was pointed out that 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. The State is under no legal duty to fill up all or any of the vacancies by appointing candidates selected for that purpose. Albeit, the State must act in good faith and must not exercise its power malafide or in a arbitrary manner. The Constitution Bench referred with approval the earlier decision of this Court in Subash Chander. Therefore, the law is settled that even candidates selected for appointment have no right to appointment and it is open to the State Government at a subsequent date not to fill up the posts or to resort to fresh selection and appointment on revised criteria. In the present case, the selection was yet to be made by the HPSC. Therefore, the petitioners cannot even claim that they were selected for appointment by the HPSC. The selection process had not been completed and before it could be completed the State Government reviewed its earlier decision and decided to revise the eligibility criteria for appointment. It is, therefore, clear from the settled legal position that the petitioners had no right to claim that the selection process once started must be completed and the Government cannot refuse to make appointments of candidates duly selected by the HPSC.18. Rulings relied on by the applicants in (1983) 3 SCC 33, (1990) 1 SCC 411, (1999) 2 KLT 710 (SC), (1999) 1 SCC 544 are concerned, they are Division Bench rulings and we have to follow the three Judge Bench ruling of the Apex Court.
19. The second relief sought is to direct the respondents 1 to 3 to complete the selection process already initiated for promotion to the posts of Junior Telecom Officers and to promote them us Junior Telecom Officers on their successful completions of ihc requisite training prescribed in that behalf without regard to Juniors Telecom Officers Recruitment Rules, 1999. In the light of the dictum laid down in 1993 Suppl (2) SCC 600 the applicants are not entitled to the second relief sought for.
20. The first relief sought is to declare that the applicants arc fully eligible and entitled to be promoted as Junior Telecom Officers on the basis of their qualifying in the departmental screening test subject to their successful completion of pre-basic training. Since the selection process is admittedly not over, they are not entitled to the declaration sought for.
21. The third relief sought is to direct the Respondents 1 to 3 to depute the applicants for pre-basic training forthwith. As already slated, in the light of,the dictum laid down in 1993 Supp (2) SCC 600 applicants do not have any vested right to gel the process completed.
That being so, there cannot be a direction to depute them for pre-basic training.