REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 136 OF 2020 (ARISING OUT OF SLP (CIVIL) NO. 7243 OF 2017)

MOHD. RASHID .....APPELLANT(S)

VERSUS

THE DIRECTOR, LOCAL BODIES,  NEW SECRETARIAT & ORS. .....RESPONDENT(S)

W I T H

CIVIL APPEAL NO. 137 OF 2020 (ARISING OUT OF SLP (CIVIL) NO. 19912 OF 2017)

J U D G M E N T

HEMANT GUPTA, J.

1. The candidates for direct recruitment to the posts of Administrative

Officer/Assistant Assessor and Collector1 are in appeals before this

Court directed against an order passed by the High Court of Delhi

on 1st September, 2016.

2. The  candidates  who  were  initially  appointed  as  Lower  Division

Clerks and promoted as Upper Division Clerks/Head Clerks invoked

the jurisdiction of the Central Administrative Tribunal2 challenging

Advertisement No. 3 of 2013 dated 12th September, 2013 whereby,

1  for short, ‘posts in question’ 2  for short, ‘Tribunal’

1

the respondents set in process to fill up the posts advertised by

way of direct recruitment.  The argument was that the Recruitment

Regulations  for  the  post  of  Administrative  Officer/Assistant

Assessor and Collector in North,  South and East Delhi  Municipal

Corporations, 20133 contemplate that the vacancies for the posts

in question are to be filled up by promotion failing which by direct

recruitment.   It  was  thus  alleged  that  without  resorting  to

promotion by convening meeting of the Departmental Promotion

Committee4,  the alternative process of direct recruitment cannot

be resorted to.  The said Original Application was dismissed by the

Tribunal  on  28th May,  2015  by  observing  that  the  recruitment

process  is  not  against  the  constitutional  provisions  but  the

promotion must also not be tempered with.  In the writ  petition

directed  against  such  order,  the  High  Court  held  that  the

respondents have failed to comply with the Recruitment Rules and

that only after the respondents are unable to fill up the vacancies

either  by  promotion  or  by  transfer  or  by  deputation,  the

Department would be entitled to publish the advertisement to fill

up the vacancies.  It was also found that no effort has been made

to  hold  DPC to  carry  out  promotions  nor  the  respondents  have

explored the possibility to fill up the vacancies either by transfer or

deputation.

3. The advertisement was published to fill up 30 vacancies by direct

recruitment to the posts in question out of which 8 were reserved

3  for short, ‘Recruitment Rules’ 4  for short, ‘DPC’

2

for  Other  Backward  Classes,  4  for  Scheduled  Castes,  2  for

Scheduled  Tribes  and  16  were  meant  for  General  category

candidates  including 1  post  meant  to  be  filled  up by  physically

handicapped candidate which is a horizontal reservation.

4. The Recruitment Rules were amended on 17th June, 2013 i.e. before

the  advertisement  was  issued  on  12th September,  2013.  The

amended Rule reads as under:

1. Name of the Post Administrative Officer/Assistant  Assessor and Collector

10. Method  of  recruitment  whether by  direct  recruitment  or  by promotion  or  by deputation/absorption  and  %  of the  vacancies  to  be  filled  by various method.  

i)  50% by promotion,  failing which by direct recruitment. ii) 50% by deputation, failing which by direct recruitment.”

5. A perusal of the above Rule shows that 50% of the posts are to be

filled up by promotion.  If the posts are not filled up by promotion,

the same are to be filled up by direct recruitment.  Similarly, 50%

of  the  posts  are  meant  to  be  filled  up  by  deputation.   If  the

deputationists are not available, the same are to be filled up by

direct recruitment.   

6. An affidavit  dated  7th August,  2019 has  been filed on  behalf  of

North Delhi Municipal Corporation5 as to how after the amendment

of the Rules, the number of posts falling to the promotion quota

have been filled up.  The assertions in the affidavit are as under:

“5(i)  After notification of new Recruitment Rules dated 17.06.2013,  the  promotion  to  the  post  of  Admn. Officer/AA&C (2013) was held as under:

5  for short, ‘North DMC’

3

Sanction Post  in promotion quota

Filled up

Vacan t  

Filled  up after  DSC dated 30.08.2013

Vacant after  DSC dated 30.08.2013

Total 58 33 25 25 00

(ii)  The promotion to the post of  Admn. Officer/AA&C (2014) was held as under:

Sanction Post  in promotion quota

Filled up

Vacan t  

Filled  up after  DSC dated 31.01.2014

Vacant after  DSC dated 31.01.2014

Total 58 48 10 4 06

(iii)  The promotion to the post of Admn. Officer/AA&C (2015) was held as under:

Sanction Post  in promotion quota

Filled up

Vacan t  

Filled  up after  DSC dated 22.07.2014

Vacant after  DSC dated 22.07.2014

Total 58 23 35 31 04

(iv) The promotion to the post of Admn. Officer/AA&C (2016) was held as under:

Sanction Post  in promotion quota

Filled up

Vacan t  

Filled  up after  DSC dated 08.07.2015

Vacant after  DSC dated 08.07.2015

Total 58 34 24 22 02

(v)  The promotion to the post  of  Admn. Officer/AA&C (2017) was held as under:

Sanction Post  in promotion quota

Filled up

Vacan t  

Filled  up after  DSC dated 08.07.2015

Vacant after  DSC dated 08.07.2015

Total 68 14 54 38 16 (including 3 SC & 1 ST)

(vi)  That  at  present  details  of  Vacancy  position  of Administrative  Officer/AA&C  in  all  three  Corporations under Promotion Quota as on 01.07.2019 is as under, which  is  dealt  by  the  North  DMC  being  Nodal Corporation for promotion for all the three Corporation:-

Sanctioned Post Filled  up post

Vacant Post

Promotion 72 54 (including 18

4

Quota 23 LAC given by SDMC)

Note:  A  DSC  is  under  process,  wherein  94  Section Officers,  Private Secretaries and Translators are being considered  for  promotion  to  the  post  of  Admn. Officer/AA&C.”

7. It is also mentioned that seniority list of feeder cadre has not been

finalised on account of pendency of the matter before the Tribunal

and  the  High  Court  and that  in  terms of  directions  of  the  High

Court, recommendation of the review DPC has been placed before

the High Court and the matter is pending consideration before the

High Court.

8. The said affidavit  also  gives  the details  of  the  manner  of  posts

falling under the deputation quota.  It is mentioned that each of the

three  Municipal  Corporations  deal  with  the  deputation  quota  at

their  own level.   However,  the  vacancies  of  the  North  DMC are

stated to be as under:

“(vii)  Deputation  Quota:  The  posts  under  deputation quota  are  being  dealt  by  the  concerned  Corporation separately at their own level,  the vacancy position of North DMC is as under:

North DMC Sanctioned Filled Vacant

25 4 21

Note: As per Recruitment Rules North DMC has already invited  applications  for  fill-up  the  post  of  Admn. Officer/AA&C  under  deputation  quota  vide  circular dated  06.02.2019  and  subsequent  reminders  dated 12.07.2019.   11  applications  for  appointment  to  the post of Admn. Officer/AA&C on deputation basis have been  received  till  date.   The  last  date  of  receipt  of application is 31.08.2019.

5

The above said  table  shows that  the vacancy to  the post of Admn. Officer/AA&C has been filled up by the department  regularly  after  notification  of  new Recruitment Rules dated 17.06.2013.”

9. Thus, in respect of 25 vacancies falling to the share of the North

DMC,  it  is  mentioned  that  there  are  21  vacant  posts  and  that

applications have been invited to fill up the deputation quota vide

Circular  dated  6th February,  2019.   11  applications  have  been

received though the last date of the receipt of the applications was

31st August, 2019.   

10. In  respect  of  deputation  quota  in  South  Delhi  Municipal

Corporation, it is mentioned in the separate affidavit that out of 32

posts falling to the quota of deputationists, 13 posts are vacant as

on 1st August, 2019.  By a separate affidavit filed on behalf of East

Delhi  Municipal  Corporation,  it  is  mentioned  that  out  of  14

sanctioned posts, 5 posts are falling vacant against the deputation

quota.

11. From the  above  information  placed  on  record,  we  find  that  the

Recruitment  Rules  providing  50%  quota  to  be  filled  up  by

promotion failing which by direct recruitment and another 50% by

deputation  quota  failing  which  by  direct  recruitment  are  being

followed by the Municipal Bodies.   

12. The appellants who are aspirants for direct recruitment have no

right  for  appointment  merely  because  at  one  point  of  time the

vacancies were advertised.  The candidates such as the appellants

6

cannot claim any right of appointment merely for the reason that

they responded to an advertisement published on 12th September,

2013.   Even  after  completion  of  the  selection  process,  the

candidates even on the merit list do not have any vested right to

seek appointment only for the reason that their names appear on

the  merit  list.  In  Shankarsan  Dash v. Union  of  India6,  a

Constitution  Bench  of  this  Court  held  that  a  candidate  seeking

appointment to a civil post cannot be regarded to have acquired an

indefeasible right to appointment in such post merely because of

the appearance of his name in the merit list. This Court held as

under:-  

“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  the State  of Haryana v. Subhash  Chander  Marwaha [(1974)  3  SCC 220  :  1973  SCC  (L&S)  488  :  (1974)  1  SCR 165]  ; Neelima  Shangla  (Miss) v. State  of Haryana [(1986)  4  SCC  268  :  1986  SCC  (L&S)  759] or Jitender Kumar v. State of Punjab [(1985) 1 SCC 122 : 1985 SCC (L&S) 174 : (1985) 1 SCR 899] .”

6  (1991) 3 SCC 47

7

13. Since the selection process has not been completed and keeping in

view  the  mandate  of  the  Statutory  Rules,  we  find  that  the

appellants  have  no  right  to  dispute  the  action  of  the  Municipal

Bodies  to  fill  up  the  posts  either  by  way  of  promotion  or  by

deputation as such posts are being filled up in terms of mandate of

the Rules.  It is always open to the Municipal Bodies to fill up the

vacant posts by way of direct recruitment after the posts by way of

promotion and/or deputation quota are not filled up either on the

basis  of  recruitment  process  already  initiated  or  to  be  initiated

afresh.   

14. Consequently,  we do not  find any merit  in  the present appeals.

Accordingly, the same are dismissed.

.............................................J. (L. NAGESWARA RAO)

.............................................J. (HEMANT GUPTA)

NEW DELHI; JANUARY 15, 2020.

8