1. Recruitment for Associate Professor post — Application filed after advertisement put on hold — Dispute over vacancy availability due to promotion under Dynamic Assured Career Progression scheme. (Para 2 )
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2022 Supreme(SC) 716
SUPREME COURT OF INDIA
K.M. Joseph, Hrishikesh Roy, JJ.
Employees State Insurance Corporation – Appellant
Versus
Dr. Vinay Kumar – Respondent
Civil Appeal No. 4150 of 2022
Decided on : 18-5-2022
Important Points
A candidate who has merely applied for a post lacks a legal right to compel the completion of the recruitment process. Furthermore, promotions under the Dynamic Assured Career Progression (DACP) scheme are not vacancy-linked and do not eliminate vacancies available for direct recruitment.
Subject
Employment Law - Recruitment and Promotion
Act Referred
CIVIL SERVICES: .
Employees State Insurance Corporation Medical Teaching Faculty Post Recruitment Regulations: .
Employees State Insurance Corporation Medical Teaching Faculty Post Recruitment Regulations: .
Headnote
Civil Services -- recruitment -- appellant issued advertisement for recruitment -- notice issued to keep recruitment process in abeyance -- respondent No. 1 applied after said notice -- respondent No. 4 promoted on said post -- challenged -- Central Administrative Tribunal passed order in favour of respondent No. 1 -- High Court dismissed appellant’s appeal -- appeal -- in case of direct recruitment, candidate has no legal right to insist that recruitment process be set in motion -- even inclusion of candidate in select list may not clothe him with such right -- this is, however, different from holding that employer is free to act in arbitrary manner -- appeal allowed. [Para 6]
Legal Category Hierarchy
Advocates:
Advocate Appeared:
For the Appellant : Manoranjan Paikaray and Tejaswi Kumar Pradhan
For the Respondent: Shailesh Madiyal, Ms. Neha Jain, Pratik Samajpathi and Rajan Parmar
Advocate Appeared:
For the Appellant : Manoranjan Paikaray and Tejaswi Kumar Pradhan
For the Respondent: Shailesh Madiyal, Ms. Neha Jain, Pratik Samajpathi and Rajan Parmar
Table of Contents
2. Appellants claim no legal right to compel recruitment and no vacancy exists; Respondent argues DACP promotion is not vacancy-linked, leaving the post available for direct recruitment. (Para 4 , 5 )
3. A candidate who merely applies for direct recruitment lacks a legal right to compel the employer to complete the process, though the employer cannot act arbitrarily. (Para 6 , 7 )
4. Promotions under the Dynamic Assured Career Progression scheme are not linked to vacancies and do not preclude direct recruitment for reserved category posts. (Para 7 )
5. Appeal allowed — High Court order set aside — Appellants directed to take a decision on filling the post within two months. (Para 7 )
6. Does an applicant in a direct recruitment process have a legal right to insist that the recruitment be completed?
No, a candidate who has merely applied for direct recruitment does not have a legal right to insist that the recruitment process be carried to its logical end, although the employer is not free to act in an arbitrary manner. (Para 6 , 7 )
7. How does promotion under the Dynamic Assured Career Progression (DACP) scheme affect the availability of vacancies for direct recruitment?
Promotions under the DACP scheme are made without linkage to vacancies. Consequently, such promotions do not fill the post, and the vacancy remains available for direct recruitment, including for reserved categories. (Para 2 , 7 )
ORDER :
1. Leave granted.
2. On 1.3.2018, advertisements were issued for calling for online applications to fill up among other posts, post of Associate Professor for the colleges run by the first appellant-corporation. In this case, we are concerned with the Dental College. However, on 21.3.2018, notice was issued to keep the recruitment process in abeyance in regard to the post of Associate Professor and Professor for administrative reasons, according to the appellant. Respondent No. 1 applied for the post of Associate Professor in Dentistry under the Scheduled Caste category at the ESIC Medical College, Bengaluru, by application dated 31.3.2018. Respondent No. 4 came to be promoted on 12.7.2018 to the post of Associate Professor with effect from 19.4.2017. The first respondent filed OA No. 298 of 2019 on 8.3.2019 seeking directions to fill up the post of Associate Professor in terms of advertisement dated 1.3.2018. After setting up the pleadings, the Central Administrative Tribunal passed an order in favour of the first respondent. The appellants challenged the said order before the High Court and the High Court dismissed the writ petition for the reasons as follows:
“2. The facts of the case reveal that respondent No. 1 Dr. Vinay Kumar who is working as Assistant Professor in the department of Dentistry came up before the Central Administrative Tribunal claiming appointment to the post of Associate Professor. It was stated in the Original Application that the advertisement was issued by respondent Corporation – Annexure -A.8 dated 1.3.2018 inviting online application for the post of Professor, Associate Professor and Assistant Professor for its 8 PGIMSR/Medical/Dental Colleges. The post of Dentistry was reserved for the Scheduled Caste candidate.
6. The learned counsel has drawn the attention of this Court towards the Employees State Insurance Corporation (Medical Teaching Faculty Post) Recruitment Regulations, 2015 and his contention is that, as per the schedule appended to the Recruitment Rules, the Department can resort to direct recruitment only if the post cannot be filled up by promotion. The learned counsel for ESI Corporation has vehemently argued before this Court that Dr. Kamala has been promoted by order dated 12.3.2018 with effect from 19.4.2017, and therefore, no vacant post was available. The learned counsel has also categorically stated that promotion of Dr. Kamala was on account of Office Memorandum issued by Government of India, Ministry of Health and Family Welfare, CHS Division, dated 29th October, 2008, thereby she was given promotion under the scheme of Extension of Dynamic Assured Career Progression (DACP). This Court has carefully gone through the DACP Scheme. Paragraph 3 of the aforesaid Scheme reads as under:
“3. The above mentioned promotions under DACP Scheme will be made by this Ministry without linkage to vacancies. Other conditions for effecting promotions will be governed by the respective Recruitment Rules as amended from time to time and Department of Personnel and Training’s instructions in this regard.”
7. The aforesaid paragraph makes it clear that promotions under the DACP Scheme are made by the Ministry without linkage to the vacancies, meaning thereby she has been given promotion under the DACP Scheme and the post has to be treated as available, as the promotion of Dr. Kamala cannot be linked to the vacancy of Associate Professor.
8. In the light of the aforesaid, this Court does not find any reason to interfere with the order passed by the Central Administrative Tribunal, Bengaluru. If there are no promotional candidate is available in the department, it has to be treated as vacant post and as it was reserved for Scheduled Caste category, it has to be filled up only to a person belonging to Scheduled Caste. Resultantly, no case for interference is made out in the matter.”
Thereafter, the High Court directed the appellants to have the process concluded positively within a period of 45 days
