JUDGMENT
A.K. Sikri J.
1. The two petitioners herein are working as Assistants in the Ministry of Finance and Ministry of Commerce and Industry, respectively. The post which they are holding is a part of Central Secretariat Service (CSS) of the Government of India. Department of Personnel and Training (hereinafter referred to as DOP&T, for short), is the model department for this Service. The next post in the line of promotion to which the petitioners are entitled to be considered as per the extent, Recruitment Rules is that of Section Officer. The mode of recruitment / promotion to this post, as per CSS Rules, 1962 is as under:-
Mode
of Recruitment
Quota
Feeder
Grade for promotion/source of recruitment
Direct
Recruitment
20%
Civil
Services Exam.
Seniority-cum-fitness
40%
Assistants.
Limited
Departmental Competitive Exam. (LDCE)
40%
Assistants
and Steno. Gr. ‘C ‘ of Central Secretariat Stenographers Service.
2. The posts of Section Officer are spread over in all the Departments/Ministries of the Government of Indian which are participating in the CSS. DOP&T manages the services and after collecting vacancy position form various Ministries/Departments it requests UPSC to fill the post and for that purpose UPSC holds examinations under direct recruitment quota as well as LDCE.
3. In the year 1997, UPSC conducted LDCE examination and 46 candidates were recommended for appointment to the post of Section Officer on the basis of the aforesaid examination the result of which was declared in December, 1998. It may be mentioned here that the result of the LDCE 1996 was delayed considerably and was declared only in August, 1998. Therefore, many candidates who appeared in LDCE, 1996 examination also appeared in 1997 examination as by that time the result of 1996 examination were not declared. As a consequence thereof some of the candidates who appeared in 1996 examination and were recommended for appointment also found place in the panel recommended for appointment on the basis of 1997 examination.
4. As a result of this overlapping, 15 candidates found their names in both the examinations. Taking note of this situation, DOP&T requested UPSC, vide letter dated 29th December, 1998, to furnish supplementary list to fill up requisite number of vacancies. UPSC vide its response dated 2nd February, 1999 forwarded 15 names. However, it so happened that in these 15 names also, 5 candidates were those who were earlier appointed as Section Officer on the basis of 1996 examination. Consequently DOP&T sent another requisition dated 11th May, 1999 to UPSC for sending 5 more names. However, before UPSC could send these 5 names, DOP&T, within a fortnight of its earlier letter, sent another letter dated 25th May, 1999 instructing UPSC not to send any further names and treat the earlier letter dated 11th May, 1999 as withdrawn. The reason given in this letter was that Ministry of defense, where 5 vacancies of Section Officers grade earmarked in the aforesaid examination remained unfilled, had informed DOP&T that consequent upon the review of vacancy position it had decided not to fill more vacancies.
5. In short, the position which emerged at that point of time was that out of 46 vacancies in the quota of LDCEs only 41 vacancies were filled. It was for the reason that in the Ministry of defense 5 vacancies of Section Officer, on review of vacancy position, were reduced and it was decided not fill those vacancies.
6. The petitioners, because of this act of the respondents, could not get promotion to the post of Section Officer though they had appeared in the LDCE Examination and expected that had the remaining 5 names been sponsored by UPSC, they would have figured in that list. Accordingly, they approached the Central Administrative Tribunal by filing an application under Section 19 of the Central Administrative Tribunal’s Act, which was marked as O.A. 924/2000.
8. The main challenge in the Original Application filed by the petitioners was that even if the decision was taken to reduce 5 pots of Section Officers, all the 5 posts from the quota of LDCEs could not be reduced. Such a reduction had to be in proportion to the quota meant for different sources. Their contention was that as there were 3 modes of recruitment namely, direct recruitment (205), seniority-cum-fitness (40%) and Limited Departmental Competitive Examination (40%) even if there was a decision to reduce the posts it could have been in the ratio of 20:40:40. Thus for reduction of 5 posts of Section Officers it should have been in the ratio of 1:2:2 and not all the 5 posts from the quota of LDCEs. It was contended by the petitioners that by reducing all the posts from the quota meant for LDCE, the respondents have violated the recruitment rules.
9. After hearing the aforesaid original Application at length, the learned Tribunal by reason of the impugned judgment dated 14th May, 2001 dismissed the same. Although in the earlier portion of the judgment the Tribunal rightly brought out the facts. The tribunal came to the conclusion that reduction in the number of vacancies had occurred due to administrative reasons. The petitioners had only a right to be considered for promotion and they were duly considered. However, once it was decided not to fill the vacancies at all for genuine administrative reasons, the petitioners could not seek a direction for filling up the post.
10. The petitioners herein immediately filed a Review Application stating that the challenge of the petitioners was not on the decision by the respondent in reducing the vacancy or deciding not to fill up the vacancies. What was argued was that if 5 vacancies were to be reduced all could not have been LDCE quota and it should have been in the ratio prescribed by the Recruitment Rules which aspect was not at all dealt in the impugned judgment. However the Review Application was also dismissed vide Order dated 16th August, 2001 stating that the petitioners had not come with any fresh valid grounds that would warrant review of the judgment under Section 22(3)(f) of the Central Administrative Tribunals Act, 1985 read with order XxxxvII Rule 5 of the Code of Civil Procedure. It was mentioned that the petitioners had simply repeated the averments made in the original Application which has already been taken care of by the Tribunal in its impugned judgment dated 14th May, 2001. thus, since there was no error apparent on the face of the record the Review Application was rejected.
11. It is the backdrop of the aforesaid factual matrix the petitioners have filed this Writ Petition challenging the decision of the learned Tribunal dismissing the Original Application vide Order dated 14th May, 2001 and Review Application vide Order dated 16th August, 2001. In view of the submissions of the petitioners before the Tribunal and the approach of the tribunal while dismissing the Original Application of the petitioners it hardly needs emphasis that the learned Tribunal did not at all address itself to the real question that was raised by the petitioner and posed before it for decision. The question did not relate to the right of the respondent/employer not to fill up the post on administrative grounds. For valid reasons, the Government can decide not to fill up the vacancies. No employee has vested right in promotion. Even if an employee finds his name in the select list he has no right to be promoted to the post if for administrative reasons decision is taken not to fill up the post in question. There is no quarrel up to this stage. (See : Union of India v. K.V. Vijeesh reported in 1996 (3) SC 139, Shankarsan Dash versus Union of India .
12. However, what the Tribunal failed to overlook was the contention of the petitioners that even if such a decision was taken, all the five posts meant for LDCE quota could not have been reduced and such a reduction had to be in the ratio/quota prescribed as per the statutory Requirement Rules. The learned Tribunal did not examine the mater from this angel and did not answer the aforesaid question at all.
13. We may state here that when notice of this writ Petition was served upon the respondents, the respondents filed its counter affidavit wherein the respondents have tried to justify the reduction of 5 posts only from the quota of LDCE by relying upon an O.M. dated 2nd July, 1997 issued by the Department in compliance with the Constitution Bench Judgment of the Supreme Court in the case of R.K. Sabharwal and Ors. v. State of Punjab and Ors. reported in (1995) 2 SC 745. It is contended that on the basis of the aforesaid judgment and O.M. dated 2nd July, 1997 the Department had moved from vacancy based roster to post-based roster. The respondents have attempted to clarify that although R.K. Sabharwal’s judgment related to the reservations for Schedule Caste and Schedule Tribes and OBCs only, the shifting to post based roster from vacancy based roster has been adopted for the purpose of appointment wherever there are appointments from different sources in a particular ratio. This is because the disadvantages of the vacancy based roster apply in such situation equally. It was submitted that under the post based roster where a vacancy arises by retirement or otherwise of an incumbent who had been appointed in the LDCE quota, a person from that very quota will be appointed in his place. Similarly, if a person from the direct recruitment quota retires, a person from that very quota shall be appointed in his place. This is to ensure that the representation of the various streams remain in the same proportion. The short comings of the vacancy based roster were that the proportion/ratio would gradually keep shifting since normally direct recruits were appointed at a younger age and would therefore retie later, and less vacancies would arise from that quota. The representation of the direct recruits would therefore keep on increasing beyond their ear-marked ratio.
14. However, it is not necessary for us to go into the aforesaid issue in this Writ Petition. Keeping in view the mandate of the Supreme Court in the case of L. Chandra Kumar v. Union of India reported in 1997 SC 1125 it is fro the Tribunal to decide the aforesaid issue in the first instance. Since the Tribunal had not at all addressed itself to the question which was posed before it for determination, we set aside the impugned judgment and remit the case back to the tribunal for taking fresh view of the matter and decide the aforesaid issue. The Writ Petition is, accordingly, allowed. No costs.