Central Administrative Tribunal - Jammu
Younes Raza vs Directorate Of School Education Ut Of ... on 31 December, 2025
:: 1 :: OA 557/2020 & TA 546/2020
CENTRAL ADMINISTRATIVE TRIBUNAL
JAMMU BENCH, JAMMU (RESERVED)
Hearing through video conferencing
Original Application No. 557/2020
Transfer Application No. 546/2020
Reserved on: - 10.11.2025
Pronounced on: - 31.12.2025
HON'BLE MR. RAJINDER SINGH DOGRA, MEMBER (J)
HON'BLE MR. RAM MOHAN JOHRI, MEMBER (A)
OA 557/2020
Younes Raza Age 31 years,
S/o Sh. Ghulam Rasool Beg,
R/o Village Behota,
Tehsil Marmat District Doda.
...Applicant
(Advocate: - Mr. Navyug Sethi)
VERSUS
1. The Union Territory of Jammu and Kashmir through its
Commissioner/Secretary, School Education Department, Civil
Secretariat, Jammu.
2. The Director, School Education, Jammu.
3. The Deputy Commissioner, Doda.
4. The Chief Education Officer, Doda.
HARSHIT Digitally
by HARSHIT
signed
YADAV YADAV
:: 2 :: OA 557/2020 & TA 546/2020
5. J&K Service Selection Board, Sehkari Bhawan, Rail Head Complex,
Jammu through its Secretary.
6. Chairman, J&K Service Selection Board, Sehkari Bhawan, Rail Head
Complex, Jammu.
...Respondents
(Advocate:- Mr. Rajesh Thappa, AAG, Mr. Sudesh Magotra, AAG)
2. TA 546/2020
1. Pyar Singh, Aged 33 years Son of Lekh Raj, R/o Draphra Tehsil
Bhalla, District Doda.
2. Sheetal Parihar, Aged 27 years D/o Jaswant Singh, R/o Halaram
Tehsil Kahra, District Doda.
3. Bilal Ahmed Aged 29 years Son of Mohd. Aslam, R/o Puneja
Bhaderwah District Doda.
4. Javed Iqbal Batt, Aged 27 years Son of Mohd. Iqbal Batt, R/o Village
Jonra Tehsil Kalrara District Doda.
5. Sudhir Singh, Aged 27 years Son of Bikram Singh, R/o Rokali Tehsil
Thathri, District Doda.
6. Manjeet Singh, Aged 25 years Son of Shankar Lal, R/o Korrerah
Tehsil & District Doda.
7. Chander Rattan Thakur, Aged 33 yrs Son of Bansi Lal, R/o Dichal
Tehsil Thathri, District Doda.
8. Ranjit Singh, Aged 26 years Son of Himmat Singh, R/o Village
Khelana Tehsil & District Doda.
9. Amir Latief Sheikh, Aged 28 years Son of Sh. Adbul Latief Sheikh,
R/o Village Dardi, Tehsil Bhaderwah District Doda.
10.Majid Hafiz, Aged 37 years Son of Abdul Hafiz Butt, R/o Khalkal
Tehsil Bhaderwah District Doda.
11.Hukum Chand, Aged 29 years Son of Bansi Lal, R/o Bijarni Gugwal
Tehsil Bhagwa District Doda.
...Applicants
(Advocate: - Mr. Navyug Sethi)
HARSHIT Digitally
by HARSHIT
signed
YADAV YADAV
:: 3 :: OA 557/2020 & TA 546/2020
Versus
1. Union Territory of Jammu & Kashmir Through
Commissioner/Secretary, School Education Department, Civil Secretariat,
Jammu.
2. Director, School Education, Jammu.
3. Deputy Commissioner, Doda.
4. Chief Education Officer, Doda.
5. J&K Service Selection Board, Sehkari Bhawan, Rail Head Complex,
Jammu Through its Secretary.
6. Chairman, J&K Service Selection Board, Sehkari Bhawan, Rail Head
Complex, Jammu
...Respondents
(Advocate:- Mr. Rajesh Thappa, AAG, Mr. Sudesh Magotra, AAG)
HARSHIT Digitally
by HARSHIT
signed
YADAV YADAV
:: 4 :: OA 557/2020 & TA 546/2020
ORDER
Per: - Rajinder Singh Dogra, Judicial Member
1. The applicant has filed the present Original Application under Section 19 of the Administrative Tribunals Act, 1985 seeking the following reliefs: -
OA 546/2020
a) Setting aside of Communication No. Edu-II/715/2018 dated 12-
07-2019 issued by respondent No.1 to respondent No.5 whereby 35 posts of Junior Assistants District Cadre Doda out of 80 earlier referred to the J&K Service Selection Board have been unilaterally withdrawn ab-initio without taking into consideration the recommendations made by the respondent No.5 and 6 regarding selection of candidates to 80 posts by adjusting 35 surplus candidates against 35 vacant posts of Accounts Assistant for the purpose of drawal of salary.
b) Directing the respondents 5 and 6 to declare the applicant as selected by issuing necessary select list to the post of Junior Assistant District Cadre Doda (unique number of advertisement No.2/2017/60) in reference to advertisement notice No.02/2017/43 to Advertisement No.02/2017/62 dated 18.10.2017 in view of he having competed in the process of selection and obtained score of 46.80.
HARSHIT Digitally
by HARSHIT
signed
YADAV YADAV
:: 5 :: OA 557/2020 & TA 546/2020
c) Prayer for the grant of any other interim or final relief as may
be deemed appropriate in the facts and circumstances of the case in favour of the applicant.
TA No. 546/2020
a) An appropriate writ, order or direction in the nature of writ of certiorari quashing communication No. Edu-II/715/2018 dated 12.07.2019 issued by respondent no.1 to respondent no. 5 whereby 35 posts of Junior Assistants District Cadre Doda out of 80 earlier referred to the J&K Service Selection Board have been unilaterally withdrawn ab-initio without taking into consideration the recommendations made by the respondent no. 5 and 6 regarding selection of candidates to 80 posts by adjusting 35 surplus candidates against 35 vacant posts of Accounts Assistant & Senior Assistant for the purpose of drawal of salary.
b) An appropriate writ, order or direction in the nature of writ of mandamus commanding the respondents 5 and 6 to declare the petitioners as selected by issuing necessary select list to the posts of Junior Assistants District Cadre Doda (unique number of advertisement no. 2/2017/60) in reference to advertisement notice no. 02/2017/43 to Advertisement no. 02/2017/62 dated 18.10.2017 in view of they having competed in the process of selection and obtained quite good score HARSHIT Digitally by HARSHIT signed YADAV YADAV :: 6 :: OA 557/2020 & TA 546/2020
c) An appropriate writ, order or direction in the nature of writ of mandamus commanding the respondents 5 and 6 not to recommend the names of 45 candidates including 09 candidates selected under RBA category to the posts of Junior Assistants District Cadre Doda (unique number of advertisement no. 2/2017/60) in reference to advertisement notice no. 02/2017/43 to Advertisement no. 02/2017/62 dated 18.10.2017 till the remaining 35 posts are filled up by issuance of select list and if the names of these 45 candidates recommended, then respondents 1 and 2 be restrained from issuing appointment orders in their favour.
d) Any other relief, which this Hon'ble Court in the facts and circumstances of the case deems fit and proper.
2. The facts of the case averred by the applicants in their pleadings are as follows: -
a) The present Transfer Application arises out of WP(C) No. 728/2020, originally instituted before the Hon'ble High Court of Jammu & Kashmir, which upon constitution of the Central Administrative Tribunal for the Union Territory of Jammu & Kashmir and Ladakh, stood transferred and registered as TA No. 546/2020. OA No. 557/2020, involving an identical controversy and arising from the same selection process, was HARSHIT Digitally by HARSHIT signed YADAV YADAV :: 7 :: OA 557/2020 & TA 546/2020 also filed by similarly situated applicants. In order to avoid multiplicity of proceedings and since both matters emanate from a common cause of action, they were clubbed together and heard conjointly.
b) The applicants are citizens of India and permanent residents of the Union Territory of Jammu & Kashmir. They participated in a common selection process initiated pursuant to Advertisement Notice No. 02/2017 dated 18.10.2017 issued by the J&K Services Selection Board for filling up 575 posts of Junior Assistants (District Cadre) in various districts of the erstwhile State. Under Advertisement Item No. 02/2017/60, a total of 80 posts of Junior Assistants were advertised for District Cadre Doda, with a specific category-wise breakup. The selection criteria prescribed under the advertisement comprised a type test and a Computer Based Written Test, with selection to be made strictly on merit, without any interview component.
c) The applicants, being fully eligible and possessing the requisite qualifications, applied pursuant to the said advertisement. After scrutiny of applications, they were found eligible and HARSHIT Digitally by HARSHIT signed YADAV YADAV :: 8 :: OA 557/2020 & TA 546/2020 accordingly appeared in the type test conducted in December 2017, followed by the Computer Based Written Test held between 08.04.2018 and 15.04.2018. The provisional answer keys were published, objections were invited and considered, and thereafter final answer keys were notified, thereby completing the examination phase of the selection process in a transparent manner.
d) Subsequently, respondent No. 5 issued a provisional shortlist dated 05.06.2018 for counselling and document verification.
The names of all the applicants figured in the said provisional shortlist strictly on the basis of merit. The applicants duly appeared for counselling and document verification, and their documents were verified and found in order, without any deficiency or objection being raised at any stage of the process.
e) However, despite completion of the entire selection process and despite availability of vacancies, a final select list dated 25.02.2020 was issued selecting only 45 candidates against the originally advertised 80 posts for District Cadre Doda. Under the RBA category, only 09 candidates were selected against 16 HARSHIT Digitally by HARSHIT signed YADAV YADAV :: 9 :: OA 557/2020 & TA 546/2020 advertised posts, leaving 07 posts unfilled. Even a revised select list dated 29.02.2020 did not alter the number of selected candidates.
f) The applicants thereafter came to know that vide communication No. Edu-II/715/2018 dated 12.07.2019, 35 posts of Junior Assistants, District Cadre Doda, which had been duly advertised and subjected to a completed selection process, were unilaterally withdrawn and treated as withdrawn ab initio, without issuance of any corrigendum, public notice or amendment to the advertisement. This was done notwithstanding the fact that the Chief Education Officer, Doda, had certified the availability of vacancies and recommended adjustment of candidates, which recommendation was endorsed by the Deputy Commissioner, Doda.
g) The applicants contend that the post-selection withdrawal of 35 advertised posts is arbitrary, unreasonable and violative of Articles 14 and 16 of the Constitution of India, and that once the selection process had culminated and vacancies were HARSHIT Digitally by HARSHIT signed YADAV YADAV :: 10 :: OA 557/2020 & TA 546/2020 available, the respondents could not have altered the number of posts to the prejudice of candidates who had participated on the basis of a clear and binding advertisement. Left with no alternative efficacious remedy, the applicants approached the Hon'ble High Court, and thereafter this Tribunal, seeking quashing of the impugned withdrawal and issuance of a complete select list against all advertised posts strictly in accordance with merit.
3. The respondents have filed their reply statement wherein they have averred as follows: -
a) The respondents have filed a common reply opposing the Transfer Application as well as the Original Application, contending that the same are misconceived, devoid of merit and liable to be dismissed. It is submitted that the applicants do not possess any indefeasible right to appointment merely by participating in the selection process or by figuring in a provisional shortlist, and that the State retains the discretion to determine the number of posts to be filled in accordance with administrative requirements and judicial directions.
HARSHIT Digitally by HARSHIT signed YADAV YADAV :: 11 :: OA 557/2020 & TA 546/2020
b) It is admitted that Advertisement Notice dated 18.10.2017 was issued for filling up 80 posts of Junior Assistants, District Cadre Doda, and that the selection process comprising written test, type test, counselling and document verification was conducted by the J&K Services Selection Board. However, it is contended that the final selection was required to be made strictly in accordance with the revised indent and administrative instructions issued by the competent authority.
c) The respondents justify the withdrawal of 35 posts by placing reliance on an order dated 06.07.2018 passed by the Hon'ble High Court in SWP No. 1313/2018 (Nasir Saleem & Ors.), wherein directions were issued to ensure that 25% of the cadre strength is not filled up. According to the respondents, the impugned communication dated 12.07.2019 was issued in compliance with the said judicial directions, and therefore, the withdrawal of posts cannot be termed arbitrary or illegal.
d) It is further contended that the applicants were not selected due to their lower merit position within the reduced number of posts, and that no candidate can claim appointment beyond the HARSHIT Digitally by HARSHIT signed YADAV YADAV :: 12 :: OA 557/2020 & TA 546/2020 number of posts finally determined by the employer. The respondents assert that the selection process was conducted strictly as per rules, and that the applicants have failed to demonstrate any violation of statutory provisions or constitutional guarantees.
e) The allegation of arbitrariness is denied, and it is asserted that the applicants have approached the Tribunal with unclean hands, seeking to derive benefit beyond their merit position. It is prayed that the Transfer Application as well as the Original Application be dismissed.
4. Heard learned counsel for the parties and perused the material placed on record.
5. The present Transfer Application arises out of WP(C) No. 728/2020, originally instituted before the Hon'ble High Court of Jammu & Kashmir. Upon constitution of the Central Administrative Tribunal for the Union Territory of Jammu & Kashmir and Ladakh, the matter stood transferred and was registered as TA No. 546/2020. OA No. 557/2020, involving an identical controversy arising from the same selection process and common cause of action, was also filed by HARSHIT Digitally by HARSHIT signed YADAV YADAV :: 13 :: OA 557/2020 & TA 546/2020 similarly situated applicants. Both matters were accordingly clubbed together and heard conjointly to avoid multiplicity of proceedings.
6. The applicants are citizens of India and permanent residents of the Union Territory of Jammu & Kashmir. They participated in a common selection process initiated pursuant to Advertisement Notice No. 02/2017 dated 18.10.2017 issued by the J&K Services Selection Board for filling up 575 posts of Junior Assistants (District Cadre) in various districts. Under Advertisement Item No. 02/2017/60, a total of 80 posts of Junior Assistants were advertised for District Cadre Doda with a specific category-wise breakup. The prescribed eligibility included graduation, typing proficiency and participation in a Computer Based Written Test, with selection to be made strictly on merit and without interview.
7. The applicants, being fully eligible, applied pursuant to the advertisement, were found eligible upon scrutiny, and appeared in the type test conducted in December 2017 and thereafter in the Computer Based Written Test held between 08.04.2018 and 15.04.2018. Provisional answer keys were published, objections were invited and considered, and final answer keys were notified, thereby completing HARSHIT Digitally by HARSHIT signed YADAV YADAV :: 14 :: OA 557/2020 & TA 546/2020 the examination process transparently. A provisional shortlist dated 05.06.2018 was issued for counselling and document verification, wherein the names of all applicants appeared strictly on merit. The applicants participated in counselling and document verification and their documents were found in order, without any deficiency being pointed out.
8. Despite completion of the entire selection process and despite availability of vacancies, the respondents issued a final select list dated 25.02.2020 selecting only 45 candidates against the originally advertised 80 posts. Under the RBA category, only 09 candidates were selected against 16 advertised posts, leaving 07 posts unfilled. Even a revised select list dated 29.02.2020 did not increase the number of selected candidates. The applicants subsequently learnt that vide communication No. Edu-II/715/2018 dated 12.07.2019, 35 posts of Junior Assistants, District Cadre Doda, were unilaterally withdrawn and treated as withdrawn ab initio, after completion of the selection process, without issuance of any corrigendum or public notice, despite certified availability of vacancies and favourable recommendations by HARSHIT Digitally by HARSHIT signed YADAV YADAV :: 15 :: OA 557/2020 & TA 546/2020 the Chief Education Officer, Doda, endorsed by the Deputy Commissioner, Doda.
9. Aggrieved by the post-selection withdrawal of advertised posts, the applicants approached the Court seeking quashment of the impugned communication and a direction to issue a complete select list against all 80 advertised posts strictly in accordance with merit.
10. The respondents opposed the applications contending that no candidate acquires an indefeasible right to appointment merely by participation or inclusion in a select list, and that the State retains discretion to determine the number of posts to be filled. Reliance was placed upon an order dated 06.07.2018 passed in SWP No. 1313/2018, contending that 25% of the cadre strength was not required to be filled, and that the impugned withdrawal was in compliance with the said order. It was further contended that the applicants were not selected on account of lower merit and that the selection process was conducted strictly in accordance with rules.
11. Despite several petitioners belonging to the RBA category having secured marks higher than the last selected RBA candidate, they were excluded from selection solely due to restriction of the select list. On HARSHIT Digitally by HARSHIT signed YADAV YADAV :: 16 :: OA 557/2020 & TA 546/2020 25.02.2020, a final select list of only 45 candidates was issued against 80 advertised posts, selecting merely 09 candidates under the RBA category against 16 advertised RBA posts, leaving 07 RBA posts unfilled, followed by a revised select list dated 29.02.2020 without increasing the total number of selected candidates. It was further submitted that the petitioners subsequently came to know that the withdrawal of 35 posts was affected after completion of the selection process without any public notice or corrigendum, despite the Chief Education Officer, Doda, having certified availability of vacancies and recommended adjustment of candidates, which was endorsed by the Deputy Commissioner, Doda. The impugned action, it was contended, is arbitrary, violative of Articles 14 and 16 of the Constitution of India and the settled law governing recruitment pursuant to a public advertisement, leaving the petitioners with no alternative efficacious remedy except to approach this Hon'ble Court.
12. The principal question that arises for consideration is whether the respondents were legally justified in withdrawing 35 advertised posts of Junior Assistants, District Cadre Doda, after the selection process HARSHIT Digitally by HARSHIT signed YADAV YADAV :: 17 :: OA 557/2020 & TA 546/2020 initiated pursuant to Advertisement Notice dated 18.10.2017 had not only commenced but had substantially culminated with completion of written examination, type test, counselling and document verification. The issue, therefore, is not whether the petitioners acquired an indefeasible right to appointment merely by participation or selection, but whether the post-selection withdrawal of advertised posts, despite availability of vacancies and absence of any illegality in the selection process, satisfies the constitutional requirements of fairness, non- arbitrariness and equality under Articles 14 and 16 of the Constitution of India.
13. The legal position with regard to filling up of advertised vacancies stands authoritatively settled by the Hon'ble Supreme Court in Shankarsan Dash v. Union of India, (1991) 3 SCC 47, wherein, at paragraph 7, the Court held that although a candidate does not acquire an indefeasible right to appointment merely by being selected, the State does not possess unfettered discretion to deny appointment, and any decision not to fill up advertised vacancies must be bona fide, reasonable and non-arbitrary. The Court clearly held that arbitrariness in public employment is impermissible and subject to HARSHIT Digitally by HARSHIT signed YADAV YADAV :: 18 :: OA 557/2020 & TA 546/2020 judicial review. Thus, while the State may, for valid reasons, decide not to fill vacancies, such decision cannot be taken in an arbitrary or discriminatory manner after the selection process has been completed.
14. The Hon'ble Supreme Court has consistently held that the rules of the game governing recruitment cannot be altered after the game has begun. In K. Manjusree v. State of Andhra Pradesh, (2008) 3 SCC 512, particularly paragraphs 27 and 28, the Court held that any modification in selection criteria or recruitment conditions after commencement of the selection process is unconstitutional and violative of Articles 14 and 16. This principle has been emphatically reaffirmed by the Hon'ble Supreme Court in its recent judgment dated 07.11.2024 in Civil Appeal No. 2634 of 2013, Tej Prakash Pathak & Ors. v. Rajasthan High Court & Ors., wherein the Court held that certainty, transparency and predictability are indispensable facets of public employment and that any alteration to the recruitment framework after initiation of the process, which prejudices candidates, is impermissible unless such change is statutory, prospective and non- prejudicial. The Court further clarified that administrative convenience or subsequent executive decision-making cannot justify HARSHIT Digitally by HARSHIT signed YADAV YADAV :: 19 :: OA 557/2020 & TA 546/2020 deviation from the declared recruitment process. The Hon'ble Apex Court in the , Tej Prakash Pathak & Ors. v. Rajasthan High Court & Ors has held as:-
"19.Once the process of recruitment has commenced, the rules of the game cannot be altered to the detriment of candidates who have already entered the zone of consideration. Certainty, predictability and transparency in public employment are integral facets of Article 14 of the Constitution. Any deviation from the declared recruitment framework after initiation of the process, unless expressly authorised by statute and applied prospectively, would be impermissible."
20.Administrative convenience or subsequent decision-making by the employer cannot be a valid justification for changing the conditions of recruitment mid-stream. Candidates who have participated in the selection process on the basis of the advertised terms acquire a legitimate expectation that the process will be completed in accordance with those terms."
21.Any alteration which has the effect of excluding or prejudicing candidates after commencement of the selection process would be arbitrary and violative of Articles 14 and 16 of the Constitution, unless it is shown to be backed by statutory mandate and overriding public interest."
HARSHIT Digitally
by HARSHIT
signed
YADAV YADAV
:: 20 :: OA 557/2020 & TA 546/2020
15. Applying the aforesaid principles, withdrawal or reduction of advertised posts after initiation or completion of the selection process clearly amounts to changing the recruitment conditions mid- stream, which is constitutionally impermissible. Such action directly defeats the legitimate expectations of candidates who participated in the process relying upon the representations made through the advertisement. The doctrine of legitimate expectation has been recognised and explained by the Hon'ble Supreme Court in Union of India v. Hindustan Development Corporation, (1993) 3 SCC 499 (paras 28-30), wherein it was held that when the State holds out a clear representation through policy or advertisement and induces participation, it cannot arbitrarily depart from the same to the detriment of affected persons, as such action would violate Article 14.
16. The Hon'ble Supreme Court has further held that where a selection process has been duly completed in accordance with law, vacancies exist, and no illegality is attributed to the selection, the State cannot frustrate the selection by denying appointments without justifiable reasons. In Tejpal Singh & Ors. v. State of Uttar Pradesh & Ors., (2005) 6 SCC 584 (paras 12-14), the Apex Court deprecated arbitrary HARSHIT Digitally by HARSHIT signed YADAV YADAV :: 21 :: OA 557/2020 & TA 546/2020 denial of appointment after a concluded selection process and held that such action amounts to hostile discrimination and violates Article 14 of the Constitution.
17. It is equally well settled that the recruiting authority is bound by the terms of the advertisement. Once a definite number of posts is advertised, the employer cannot subsequently reduce or withdraw those posts without amending the advertisement in a transparent and lawful manner.
18. In Ramesh Kumar v. High Court of Delhi, (2010) 3 SCC 104 (paras 12-14), the Hon'ble Supreme Court held that the terms and conditions of the advertisement are binding on the recruiting authority and any deviation therefrom to the prejudice of candidates is impermissible.
19. The Hon'ble Supreme Court has also held that leaving advertised vacancies unfilled despite availability of meritorious candidates amounts to arbitrary exercise of power. In State of Bihar v. Secretariat Assistant Successful Examinees Union, (1994) 1 SCC 126 (para 13), it was held that vacancies cannot be kept unfilled arbitrarily after completion of the selection process, as such conduct is violative of Articles 14 and 16 of the Constitution.
HARSHIT Digitally
by HARSHIT
signed
YADAV YADAV
:: 22 :: OA 557/2020 & TA 546/2020
20. The concept of arbitrariness being antithetical to equality has been firmly embedded in constitutional jurisprudence. In E.P. Royappa v. State of Tamil Nadu, (1974) 4 SCC 3 (para 85), the Hon'ble Supreme Court held that arbitrariness is the very antithesis of equality and any arbitrary State action is liable to be struck down under Article 14.
21. The Hon'ble Supreme Court has further emphasised that the State cannot act unfairly after inducing candidates to participate in a selection process. In Asha Kaul v. State of J&K, (1993) 2 SCC 573 (paras 10-11), the Court held that fairness in public employment is a constitutional obligation and that the State cannot frustrate legitimate expectations of candidates after completion of the selection process.
22. Administrative decisions affecting rights of candidates must stand or fall on the reasons contained therein and cannot be justified by subsequent explanations. In Mohinder Singh Gill v. Chief Election Commissioner, (1978) 1 SCC 405 (para 8), the Hon'ble Supreme Court held that the validity of an administrative order must be judged on the reasons stated in the order itself.
23. Exercise of power for an improper or extraneous purpose constitutes a colourable exercise of power and is liable to be invalidated. The HARSHIT Digitally by HARSHIT signed YADAV YADAV :: 23 :: OA 557/2020 & TA 546/2020 Supreme Court in State of Punjab v. Gurdial Singh, (1980) 2 SCC 471 (para 9), held that misuse of statutory or executive power under the guise of lawful authority cannot be sustained in law.
24. In the present case, the impugned communication dated 12.07.2019 withdrawing 35 posts was issued after completion of the selection process, without any public notice, corrigendum or amendment to the advertisement, despite certified availability of vacancies and favourable recommendations by the Chief Education Officer and Deputy Commissioner. The action, therefore, squarely falls foul of the settled legal principles laid down by the Hon'ble Supreme Court and is manifestly arbitrary, unconstitutional and violative of Articles 14 and 16 of the Constitution of India.
25. The contention that restoration of the withdrawn vacancies may result in consideration of candidates who are placed higher in merit than the petitioners but who have not approached this Court deserves to be considered in the light of settled law. It is a well-recognised principle that relief under Article 226 is discretionary and personal, and ordinarily extends only to those candidates who have been vigilant in HARSHIT Digitally by HARSHIT signed YADAV YADAV :: 24 :: OA 557/2020 & TA 546/2020 asserting their rights and have approached the Court within a reasonable time.
26. The Hon'ble Supreme Court in State of Uttar Pradesh & Ors. v.
Arvind Kumar Srivastava & Ors., (2015) 1 SCC 347, while dealing with the issue of "fence-sitters", held (paras 22-23) that persons who do not challenge an illegal action at the appropriate time and wake up after the matter has been settled cannot ordinarily claim parity with those who were vigilant. The Court clearly distinguished between similarly situated vigilant litigants and fence-sitters, holding that the latter are not entitled to relief as a matter of course, particularly where granting such relief would unsettle settled positions.
27. The Hon'ble Supreme Court further observed that although Article 14 mandates equal treatment of similarly situated persons, this principle does not extend to those who sleep over their rights, acquiesce in the illegality, or choose not to approach the Court, especially when the relief sought involves discretionary and equitable jurisdiction. Thus, delay, laches and acquiescence constitute valid grounds to deny relief to non-approaching candidates.
HARSHIT Digitally
by HARSHIT
signed
YADAV YADAV
:: 25 :: OA 557/2020 & TA 546/2020
28. In the present case, the petitioners approached this Court promptly challenging the post-selection withdrawal of 35 posts, whereas other candidates, if any, who may be higher in merit but chose not to challenge the impugned action, consciously accepted the position and allowed the matter to attain finality. Such candidates cannot now claim any enforceable right merely because vacancies are restored pursuant to judicial intervention obtained at the instance of the petitioners.
29. The Hon'ble Supreme Court in C. Lalitha v. State of Karnataka, (2006) 2 SCC 747 (para 29), has further held that although similarly situated persons should ordinarily be treated alike, those who do not approach the Court cannot automatically claim the same relief, particularly when the relief is granted on equitable considerations and not as a declaration of general applicability.
30. Therefore, restoration of vacancies pursuant to the present judgment shall ensure only to the benefit of the petitioners and such other candidates, if any, who have approached the Court and are parties to the proceedings, and shall not create any vested or HARSHIT Digitally by HARSHIT signed YADAV YADAV :: 26 :: OA 557/2020 & TA 546/2020 enforceable right in favour of fence-sitters or non-litigating candidates who failed to assail the impugned action in time.
31. This Court is thus satisfied that allowing the present petition and restoring the withdrawn vacancies does not violate the principle of equality, as the relief is being granted on the basis of judicial scrutiny of arbitrariness, prompt challenge by the petitioners, and equitable considerations, and is expressly confined to those who have been vigilant in asserting their rights.
32. For the reasons recorded hereinabove, this Court is of the considered view that the impugned withdrawal of 35 posts after culmination of the selection process is illegal and unsustainable in law. The respondents have failed to demonstrate any bona fide, compelling or legally sustainable reason to justify such withdrawal, and the action clearly defeats the legitimate expectations of the petitioners and other similarly situated candidates.
33. The legal position in this regard stands authoritatively settled. While it is true that inclusion in a select list does not confer an indefeasible right to appointment, the discretion of the State not to fill up advertised vacancies is not unfettered. Such discretion must be HARSHIT Digitally by HARSHIT signed YADAV YADAV :: 27 :: OA 557/2020 & TA 546/2020 exercised bona fide, reasonably and in a non-arbitrary manner. Any post-selection decision that frustrates a concluded selection process without justifiable reasons is amenable to judicial review.
34. It is equally well settled that the rules of the game governing recruitment cannot be altered after the game has begun. Once the recruitment process is initiated on the basis of a clear advertisement specifying the number of posts, the employer is bound by the terms of that advertisement. Any reduction or withdrawal of posts after completion of the selection process, without amending the advertisement in a transparent and lawful manner, is impermissible and violative of Articles 14 and 16 of the Constitution of India.
35. The reliance placed by the respondents on the order dated 06.07.2018 passed in SWP No. 1313/2018 is misconceived. The said order merely directed that 25% of the cadre strength shall not be filled and did not authorize withdrawal of posts already advertised and subjected to a completed selection process, nor did it permit treating such posts as withdrawn ab initio. The interpretation adopted by the respondents is self-serving and dehors the said order.
HARSHIT Digitally
by HARSHIT
signed
YADAV YADAV
:: 28 :: OA 557/2020 & TA 546/2020
36. The contention that the applicants were not selected due to lower merit is also untenable. Merit can be assessed only against the total number of advertised posts. Once 80 posts were advertised and the selection process was completed on that basis, restricting selection to 45 posts by withdrawing 35 posts mid-stream renders the entire merit determination legally irrelevant and vitiated.
37. The doctrine of legitimate expectation is clearly attracted. Candidates who participated in the selection process on the basis of a clear advertisement legitimately expected that the process would culminate in filling up of all advertised vacancies, particularly when vacancies existed and no illegality in the selection process has been alleged. Frustration of such legitimate expectation, without compelling and lawful justification, is arbitrary.
38. Administrative decisions affecting rights of candidates must stand or fall on the reasons contained therein. The impugned communication dated 12.07.2019 does not disclose any lawful or compelling reason justifying post-selection withdrawal of vacancies. The action, therefore, amounts to colourable exercise of power and cannot be sustained. As regards the possible contention that restoration of HARSHIT Digitally by HARSHIT signed YADAV YADAV :: 29 :: OA 557/2020 & TA 546/2020 vacancies may benefit candidates higher in merit who have not approached the Court, the law is well settled that relief under judicial review is discretionary and ordinarily confined to vigilant litigants. Candidates who chose not to challenge the impugned action and allowed the matter to attain finality cannot, as a matter of right, claim parity with those who have timely approached the Court.
39. Upon a cumulative consideration of the pleadings, material on record and the settled position of law, this Tribunal is of the view that the impugned action does not amount to alteration of the rules of recruitment or conditions of selection mid-stream. What has been assailed is essentially a decision of the employer to withdraw a part of the recruitment itself, which decision was taken prior to issuance of appointment orders and before the recruitment process had crystallized into enforceable rights.
40. It is now well settled that participation in a selection process, inclusion in a provisional shortlist or even placement in a select list does not confer an indefeasible or vested right to appointment. Until appointment orders are issued, the employer retains the discretion to determine the number of posts to be filled, subject only to the HARSHIT Digitally by HARSHIT signed YADAV YADAV :: 30 :: OA 557/2020 & TA 546/2020 limitation that such discretion is not exercised in an arbitrary, mala fide or discriminatory manner.
41. This court also finds that in the present case, the applicants have not been able to demonstrate that the withdrawal of 35 posts was targeted against any individual or category, or that it was actuated by malice in law or fact. The decision applies uniformly to all candidates and does not single out the applicants for hostile treatment. Mere reduction in the number of posts, by itself, does not violate Articles 14 and 16 of the Constitution, particularly when no appointment had been made and no vested right had accrued.
42. The argument that withdrawal of posts amounts to changing the "rules of the game" cannot be accepted in the facts of the present case. The selection criteria, eligibility conditions and evaluation process remained untouched throughout. What was altered was the administrative decision relating to filling up of posts, which falls within the domain of the employer, so long as the action is not demonstrably arbitrary or discriminatory.
43. At the same time, this Tribunal cannot be oblivious to the fact that the applicants did participate in the selection process, were found eligible, HARSHIT Digitally by HARSHIT signed YADAV YADAV :: 31 :: OA 557/2020 & TA 546/2020 and their names figured in the provisional shortlist. The record further reveals that recommendations regarding availability of vacancies and possible adjustment of candidates were made by the Chief Education Officer and endorsed by the Deputy Commissioner. While such recommendations do not confer a right to appointment, they do indicate that the issue of available vacancies was administratively under consideration.
44. Therefore, although the applicants cannot claim appointment as a matter of right nor seek restoration of the withdrawn posts, the ends of justice would be met if the respondents are directed to consider the cases of the applicants, strictly in accordance with rules and merit, against such vacancies as may be available and permissible under the cadre strength and applicable instructions, without treating this order as a mandate to revive or fill the withdrawn posts.
45. In the present case, the Tribunal finds that the eligibility conditions, selection criteria and evaluation methodology remained unchanged throughout the recruitment process. The impugned action pertains not to alteration of the recruitment framework, but to a HARSHIT Digitally by HARSHIT signed YADAV YADAV :: 32 :: OA 557/2020 & TA 546/2020 decision on the extent to which the recruitment was to be acted upon, taken prior to issuance of appointment orders.
46. The material on record indicates that recommendations regarding availability of vacancies and possible adjustment of candidates were made by the Chief Education Officer and endorsed by the Deputy Commissioner. While such recommendations do not create a right to appointment, they do give rise to a limited and legitimate expectation that the cases of the applicants would be considered in accordance with law, particularly when they were found eligible and had participated in the selection process.
47. Notwithstanding the conclusion that the applicants do not acquire any indefeasible or vested right to appointment, this Tribunal cannot lose sight of the fact that the applicants were found eligible, participated in the entire selection process, qualified the written examination and type test, and were called for counselling and document verification, wherein no deficiency was pointed out.
48. The record further reflects that recommendations regarding availability of vacancies and possible adjustment of candidates were made by the Chief Education Officer, Doda and endorsed by the HARSHIT Digitally by HARSHIT signed YADAV YADAV :: 33 :: OA 557/2020 & TA 546/2020 Deputy Commissioner, Doda. While such recommendations do not confer a legal right to appointment, they do give rise to a limited and legitimate expectation of fair consideration, particularly when viewed in the context of the principles of non-arbitrariness and transparency underlying Article 14 of the Constitution.
49. Therefore, in the interest of justice and to balance administrative discretion with fairness in public employment, this Tribunal is of the considered view that the applicants deserve consideration of their cases, strictly in accordance with law, without directing revival of the withdrawn posts or issuance of appointment orders as a matter of course.
50. However, the respondents are directed to consider the cases of the applicants, along with other similarly situated candidates, against such vacancies as may be available or arise, if any, strictly in accordance with their merit position, reservation policy and applicable service rules, subject to cadre strength and administrative feasibility.
51. The aforesaid exercise, if undertaken, shall be completed within a period of eight weeks from the date of receipt of a copy of this order.
HARSHIT Digitally
by HARSHIT
signed
YADAV YADAV
:: 34 :: OA 557/2020 & TA 546/2020
52. It is further clarified that this order is passed in the peculiar facts and circumstances of the case and shall not be treated as a precedent.
53. No order as to costs.
(RAM MOHAN JOHRI) (RAJINDER SINGH DOGRA)
Administrative Member Judicial Member
/harshit/
HARSHIT Digitally
by HARSHIT
signed
YADAV YADAV