Judgment :-

A.K. SIKRI, J.

1. Leave granted.

2. This appeal has been preferred by the present appellants questioning the validity of the judgment and order dated May 16, 2011 passed by the High Court, in Writ Petition which was filed by the appellants questioning the validity of the order dated 29th March 2011, of the Central Administrative Tribunal (hereinafter referred to as the “Tribunal”), Principal Bench, New Delhi. The Tribunal had dismissed the Original Application preferred by the appellants herein under Section 19 of the Administrative Tribunal Act against their non- appointment to the post of Section Officer’s Grade of the Central Secretariat Service. The said O.A. was dismissed by the Tribunal vide order dated 29th March 2011 which has been upheld by the High Court.

3. There is no dispute about the facts, which may be briefly recapitulated to understand the controversy that has arisen in these proceedings. The appellants were working as Assistants in the Central Secretariat Service (CSS) and appeared in Limited Departmental Competitive Examination for the next promotion to the post of Section Officer’s Grade in that service. There are two channels of promotion: one by way of seniority and other fast track in the form of Limited Departmental Competitive Examination (LDCE). The appellants appeared in the said LDCE 2005, which was conducted by the Union Public Service Commission (UPSC) on the requisition sent to it for 184 general category posts by the Department of Personnel and Training (DoP&T). After holding the examination the UPSC had recommended 184 candidates in two lots. First lot of 141 candidates who were found suitable candidates for the said post whereas in the second lot 43 successful candidates were recommended for appointment. Out of them 6 candidates did not join. The DoP&T thereafter vide its letter dated 20th November 2009 had requisitioned 6 general category vacancies. However, the UPSC recommended names of three candidates from out of reserve list maintained by it. These two appellants who were next in the merit list had secured 305 marks, same as secured by one Rajesh Kumar Yadav who was recommended by the UPSC in the supplementary list candidates.

4. The appellants felt aggrieved by their non-recommendation, thereby denying them the appointment to the post of Section Officer’s Grade. Under these circumstances, these appellants filed the O.A. before the Tribunal alleging that the UPSC had acted in an arbitrary and discriminatory manner in contravention of Article 14 and 16 of the Constitution of India denying them the right to get the appointment to the post to which they were not only selected but equally placed as another candidate who was given the appointment.

5. The Tribunal dismissed the O.A. primarily on the ground that ACR’s are also seen for determining merit position inter-se candidates who had secured same marks in written test and it was because of this reason that these two appellants were not placed before Shri Rajesh Kumar Yadav.

6. Before the High Court, the appellants submitted that they were not questioning the aforesaid reason given by the Tribunal determining inter-se merit position of the candidates who qualified the written test. Instead their argument was that the Tribunal lost sight of the actual plea taken viz. when there were sufficient vacancies available and even as per the letter sent by the DoP&T vide its letter dated 20th November 2009 names of 6 candidates were requisitioned, there was no reason not to forward the names of the appellants for the appointment. The appellants relied upon Clause 4© of the Office Memorandum dated 14th July 1967 in support of their aforesaid contention. This Clause is reproduced hereinbelow: “4© Once the results are published, additional persons should not normally be taken till the next examination. Nor should vacancies reported before declaration of the results, be ordinarily withdrawn after declaration of the results. If, however, some o