- (1.) BY way of this writ petition, the petitioners (employers) seek to question the order dated 09.03.2012 as passed in OA No.348/2010 whereby, the Central Administrative Tribunal, Jodhpur Bench, Jodhpur ('the CAT') has allowed the claim made by the applicant (respondent No.1 herein) for appointment on the post of Telecom Technical Assistant ('TTA') on the ground that the post as advertised was still available with the petitioners for one of the selected candidates in Scheduled Caste ('SC') category having left during the course of training and before appointment; and for the applicant being placed in the waiting list pertaining to the SC candidates.
(2.) THE relevant facts and background aspects of the matter had been that the applicant-respondent No.1 applied for the said post of TTA in response to an advertisement dated 06.10.2008; and ultimately secured 3rd position in the merit standing of SC candidates but was kept in the waiting list at serial number 1 as there were only 2 vacancies earmarked for the SC candidates. The applicant, while asserting that the present petitioners got an agreement bond executed from him and he was also asked to submit a demand draft in the sum of Rs.5,000/- towards security, pointed out that under a communication dated 30.07.2009, it was informed that he would be called in case any of the selected person leaving the training. The applicant submitted that at the later stage, upon coming to know of the fact that one of the trainees Shri Lalit Kumar, an SC candidate selected against the reserved vacancy, left the training half way through, he made the request to the petitioners to consider his case for appointment. Upon failing to get a favourable response, the applicant filed the OA leading to this petition. The stand of the present petitioners before the CAT in opposition of the said OA was that all the selected candidates were called for 10 weeks' TTA training from 22.06.2009; and the said Shri Lalit Kumar also joined the training but after 5 weeks, submitted his resignation on 27.07.2009. The petitioners submitted that after receiving the resignation, the said Shri Lalit Kumar was asked to deposit the amount of Rs.13,938/- paid to him during the training period and after his depositing the requisite amount on 04.12.2009, his recruitment was cancelled w.e.f. 13.01.2010. It was contended that there was no vacant post of TTA available until 13.01.2010, the date on which the recruitment of Shri Lalit Kumar was cancelled. The petitioners asserted before the CAT that once all the candidates joined, the vacancies stood filled up and the wait list was having no purpose because once the notified vacancies were consumed, in the event of any vacancy arising later, on account of resignation or otherwise, the same could not have been filled up from the wait list. The CAT referred to clause No.14 of the advertisement inviting applications essentially to the effect that prior to the appointment as TTA, the selected candidates were to successfully complete the training; and the seniority was to be assigned on the basis of the merit position obtained in the training. It was also noticed that even in the communication as made to the said Shri Lalit Kumar, the present petitioners had stated that after successful completion of training, he would be appointed by the GMTD, Sirohi after ensuring the receipt of police verification. The CAT also referred to the communication dated 30.07.2009 whereby it was clearly given out that the applicant had been kept in the reserve list and would be considered in the event of any one of the selected candidates withdrawing from the training. After consideration of the material on record and the overall circumstances, the CAT found that a case was made out in favour of the applicant and, while allowing the OA, directed the respondents to accommodate him in the next available training with further directions that subject to successful completion of training, he would be treated as if having undergone the training in the 2009 batch itself; and his seniority would be above the subsequent batch. The CAT also directed that in case there was no schedule for the training in the near future, the applicant be imparted the training as a special case. The relevant observations and directions by the CAT in its impugned order dated 09.03.2012 read as under: - "11. All the above would go to prove that when Lalit Kumar had left the Training course he was only a TTA Trainee and not a TTA. He would have crystallized his appointment as TTA only on completion of full ten weeks' training course and after successful completion of the training. And his seniority would be based on the merit position in the Training. In view of the fact that the said Lalit Kumar had not completed the Training, he cannot be said to have been appointed to the SC reserved post of TTA. Thus, the said vacancy cannot be said to have been consumed or utilized, to make the wait list to be ceased to exist. The wait list is thus alive and since the applicant is first in the waiting list and since he had already furnished necessary bond, he has to be imparted the training and on successful completion of the same he would be appointed to the post of TTA. The decisions cited by the counsel for the applicant do not apply to the facts of this case, as the vacancy in question is not one that had arisen subsequently. 12. Respondents' counsel argued that the training period of ten weeks has already been over. Be that as it may, the applicant could well be accommodated in the next available training and he would be subject to successful completion of the training he would be treated as if he had undergone the training in the 2009 batch itself and his seniority would be above the subsequent batch. 13. Thus, the OA fully succeeds. It is declared that the applicant is entitled to be sent for training and followed by appointment to the post of TTA. Respondents are directed to act accordingly. If in the near future, there is no scheduled training, then the applicant be imparted training as a special case." Assailing the order aforesaid, the learned counsel for the petitioners has strenuously argued that the order passed by the CAT runs contrary to the fundamental principles that merely for occurrence of a subsequent vacancy after filling up of the advertised posts, the person standing in the so-called wait list acquires no right; and rather, the appointment to the vacancies arising subsequently has to be made after advertisement and after giving opportunity to the other eligible candidates in the open market. The learned counsel has particularly referred to the decisions of the Hon'ble Supreme Court in State of Punjab Vs. Raghbir Chand Sharma & Anr.: (2002) 1 SCC 113, Mukul Saikia & Ors. Vs. State of Assam & Ors.: (2009) 1 SCC 386, Ashok Kumar & Ors. Vs. Chairman, Banking Service Recruitment Board & Ors.: AIR 1996 SC 976, and Sanjoy Bhattacharjee Vs. Union of India & Ors.: AIR 1997 SC 2179. Per contra, the learned counsel for the applicant (respondent herein) has duly supported the order impugned and submitted that the principles as referred by the learned counsel for the petitioners do not apply to the fact situation of the present case because, in view of the stipulation in the advertisement and the procedure as adopted by the petitioners, consumption or filling up of the posts was to occur only upon successful completion of the training by the candidates; and, in fact, the seniority was also to be settled as per the result of the training. The learned counsel submitted that the petitioners were aware of the requirements of the procedure adopted by them and hence, under the communication dated 30.07.2009, assured the applicant of invitation in case of any person leaving the training. The learned counsel submitted that the petitioners indeed got completed all the basic formalities including execution of the bond and taking of security money from the applicant so as to invite him to training soon on any person leaving; and there was no reason that the applicant was not invited immediately upon resignation by one of the candidates during the training.
(3.) AFTER having given a thoughtful consideration to the rival submissions and having examined the record, we are unable to find any jurisdictional error on the part of the CAT insofar it has pronounced on the entitlement of the applicant to be taken in the training and then, for being appointed upon successful completion of the training. The principles emanating from the decisions cited by the learned counsel for the petitioners are neither of any doubt nor of any dispute. In the ordinary course, there exists no legal right in a person to be appointed only for the reason of being placed in the wait list; and appointment to the vacancies arising subsequently has to be by way of selection from the open market. However, these principles apply upon existence of a basic and fundamental fact that the vacancies have been filled up from the select list. In the present case, however, the very method and mode of recruitment as adopted by the petitioners had been different and, in the contextual meaning, "consumption of vacancy" was not to occur before appointment of the person concerned; and such appointment was to be made only after successful completion of training. As per the procedure envisaged and adopted by the petitioners, the persons on the select penal were, before the appointment, required to undergo successfully the training; and the seniority was to be settled on the basis of the marks obtained after such training. This aspect is distinctly available in clause No.14 of the advertisement in question, that reads as under: ...[VERNACULAR TEXT OMMITED]... In the face of the above stipulation, in our opinion, the CAT has rightly observed that for the reason of the said Shri Lalit Kumar not completing the training, he cannot be said to have appointed on the post of TTA in the SC category; and the said vacancy cannot be said to have been consumed or utilized so as to annul the wait list. ;