Raj D 17 March 2022

Question regarding interim relief

Dear Learned members

An institute appointed an ineligible candidate. On our complaint, the ineligible candidate resigned (within 6 months of appointment) but the institute did not provide an appointment to the next waitlisted candidate saying that the selection list has been used. The institute has also advertised for new recruitment for the same position.

We have recently approached CAT seeking to offer the position to the waitlisted candidate. Further, we have sought interim relief to stay the ongoing recruitment process till the disposal of the case.

However, the court did not give interim relief and asked the respondent (the institute) to reply within 15 days.

As time is important here to ensure the institute does not recruit someone for the said position, should we move higher court? What are the options before us? Kindly advise.

Thanks for your suggestions.

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5 Replies

P. Venu (Advocate) 17 March 2022

15 days is not a long period. If there is further delay or there is no decision as to interim relief, you may approach the High Court in a Petition under Article 227.

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Palak batra 18 March 2022

Dear querist,

It was held in the case of Anil Lamba & Ors. vs Govt. Of Nct & Ors. on 6 March, 2017 that, At the instance of persons irregularly appointed the process of regular recruitment shall not be stopped. Courts should not pass interim orders to continue employment of such irregularly appointed persons because the same will result in stoppage of recruitment through regular appointment procedure.

During the course of the arguments, various orders of courts either interim or final were brought to our notice. The purport of those orders more or less was the issue of directions for continuation or absorption without referring to the legal position obtained.

Therefore, it is a settled legal proposition that no person can be appointed even on a temporary or ad hoc basis without inviting applications from all eligible candidates. If any appointment is made by merely inviting names from the Employment Exchange or putting a note on the Notice Board etc. that will not meet the requirement of Articles 14 and 16 of the Constitution. Such a course violates the mandates of Articles 14 and 16 of the Constitution of India as it deprives the candidates who are eligible for the post, from being considered.

Regards,

Palak

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Dr J C Vashista (Advocate) 18 March 2022

Recruitment process for new incumbant cannot be stopped.

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Raj D 18 March 2022

Thank you Dr. Vashishtha for your kind reply.

If the raecruitment process continues, the position gets filled, and in that case, wont the petitioner's appeal become infructous/pointless? Please note that the advertiement is for the same position which was filled earlier, and got vacated due to resignation of the ineligible candidate.

In the next hearing, we are planning that either the CAT provides us interim relief (i.e. stay) or it diposes the case on merit so that we can reach to High Court.

Sir, do you think thats the best way forward. Thank you.

Dr J C Vashista (Advocate) 19 March 2022

The most you can ask from CAT is that a vacancy may be directed to be reserved for you during pendency of your application, which may not be granted in such circumstances.