Gujarat High Court
Dahyabhai Ramjibhai Prajapati & 4 vs State Of Gujarat & 2 on 12 July, 2016
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/201/2002 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 201 of 2002
With
SPECIAL CIVIL APPLICATION NO. 8186 of 1990
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
==========================================================
1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
==========================================================
DAHYABHAI RAMJIBHAI PRAJAPATI & 4....Petitioner(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
==========================================================
Appearance:
MR CHETAN K PANDYA, ADVOCATE for the Petitioner(s) No. 1 - 5
MR KRUTIK PARIKH, AGP for the Respondent(s) No. 1 , 3
MR HS MUNSHAW, ADVOCATE for the Respondent(s) No. 2
==========================================================
CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 12/07/2016
COMMON ORAL JUDGMENT
Since the issues raised in both the captioned writ-
Page 1 of 24
HC-NIC Page 1 of 24 Created On Sat Jul 16 06:17:01 IST 2016
C/SCA/201/2002 JUDGMENT
applications are more or less the same, those were heard analogously and are being disposed of by this common judgment and order.
By the two writ-applications under Article 226 of the Constitution of India, the petitioners, desirous of seeking appointment on the post of Agricultural Assistant, have prayed for the following reliefs :
"(A) To direct the Respondent no.1 to fill-up the post of Agricultural Assistants which are at present vacant from the Petitioners according to their serial numbers by way of writ of mandamus or writ of certiorari or any other writ, order or direction as the Honourable Court may deem fit and proper;
(B) To direct the Respondent no.1 not to cancel the said selection-list of Petitioners for the post of Agricultural Assistant by way of writ of mandamus or writ of certiorari or any other writ, order or direction as the Honourable Court may deem fit and proper;
(C) To direct the Respondent no.1 not to appoint any person except Petitioners in the post of Agricultural Assistant by way of writ of mandamus or writ of certiorari or any other writ, order or direction as the Honourable Court may deem fit and proper;
(D) During the pendency of the petition, kindly grant Ad-
interim relief in terms of para (B) and (c) in the interest of justice.
(E) To direct the Respondent no.1 to relax the age limit during the period when ban against the direct recruitment continue on the Government lines by way writ of mandamus or writ of certiorari or any other writ, order or direction as the Honourable Court may deem fit and proper;
(F) Any other order that the Honourable Court deems just and proper may be passed;
Page 2 of 24
HC-NIC Page 2 of 24 Created On Sat Jul 16 06:17:01 IST 2016
C/SCA/201/2002 JUDGMENT
(G) The Petitioners may be awarded the costs of the petition."
The case of the petitioners may be summarised as under :
The respondent no.1 - Corporation issued an advertisement in respect of the posts of Agricultural Assistant some time in the year 1982. All the petitioners had applied pursuant to the said advertisement. According to the procedure prescribed, each of the candidates had to first undergo a training. After completion of the successful training period, the written as well as the oral test was undertaken.
It is the case of the petitioners that they not only completed the training period successfully, but also cleared the written as well as the oral test. Certificates were issued by the Corporation to the respective candidates about their successful completion of the training.
At this stage, it may not be out of place to state that the training was imparted on the condition that after the completion of the training period, the incumbent concerned would be serving the State Government for a period of three years on the post in question. For this purpose, each of the petitioners had executed a bond in favour of the Corporation.
It appears that a select list was prepared of the candidates who had successfully completed the training as well as had passed the written as well as the oral test.
It is the case of the writ-applicants that the Corporation Page 3 of 24 HC-NIC Page 3 of 24 Created On Sat Jul 16 06:17:01 IST 2016 C/SCA/201/2002 JUDGMENT had given an assurance that they would be offered regular appointment on completion of the successful training period. It is their case that after the completion of the training, they were appointed on fixed wages for a limited period on the posts of the Agricultural Assistant. Thereafter, they all were relieved from the service on completion of the fixed period. On the date of the filing of the Special Civil Application No.8186 of 1990, there were 70 posts of the Agricultural Assistant vacant. Since they were not offered the regular appointment, they came before this Court.
The petitioners of the connected matter i.e. Special Civil Application No.201 of 2002 are also similarly situated. They are also seeking appointment on the posts of the Agricultural Assistant.
On 29th November 1990, the following order was passed :
"Rule. To be heard along with Special Civil Application No.2443 of 1989. Ad-interim relief directing the respondents not to make any appointment except from the selection list prepared for the purpose, if still operating."
The aforesaid interim order later on came to be modified on 6th July 1992 pursuant to the Civil Application No.800 of 1992 filed by the Corporation. The order reads as under :
"Rule. Mr.Rathod, Learned Advocate for the respondent waives service of Rule. For filling up the backlog of Scheduled Tribe candidates which is to the extent of 27posts only, pursuant to the advertisement issued in July '91, the applicant Corporation is permitted to fill up the posts. It has been informed to the court that from amongst the Page 4 of 24 HC-NIC Page 4 of 24 Created On Sat Jul 16 06:17:01 IST 2016 C/SCA/201/2002 JUDGMENT petitioners, all those who were the members of Scheduled Tribe, and whose names appeared in the select list, have been considered and appointments have been effected against the backlog. The interim orders given on 29/11/90 not to make any appointment, except from the candidates who are placed on the waiting list, is modified to that extent. Rule is made absolute."
Mr.Pandya, the learned counsel appearing for the writ- applicants, vehemently submitted that as such his clients may not have any legal right to claim appointment on the posts in question merely on completion of the bonded service for a period of three years. However, according to him, if the Corporation thought fit to prepare a select list for the purpose of regular appointment on the posts in question, then the Corporation was obliged to see that the appointments were made in accordance with the select list. He submitted that the select list was in operation from 1982 upto 1997. In the year 1997, the select list was operated for the last time. Although there were vacancies even in the year 1997, yet the same were not filled up from the select list which was in operation.
He submitted that between 1997 to 2011, there were no appointments. In 2011, a fresh advertisement was issued for the purpose of recruitment on the posts of the Agricultural Assistant, but it was too late in the day for the petitioners to apply because they had all crossed the requisite age prescribed in the said advertisement. He submitted that the affidavit-in-reply filed by the Corporation in the Special Civil Application No.8186 of 1990 is contradictory to a certain extent so far as the affidavit-in-reply which has been filed in the Special Civil Application No.201 of 2002 is concerned. In such circumstances referred to above, Mr.Pandya prays that Page 5 of 24 HC-NIC Page 5 of 24 Created On Sat Jul 16 06:17:01 IST 2016 C/SCA/201/2002 JUDGMENT the Corporation should be asked to reconsider the whole issue and atleast his clients should not have been disqualified on the ground that they had crossed the age having once found place in the select list. The argument is that on the date when they were placed in the select list, if they were within the age prescribed under the rules or any other regulations, then by the time the actual appointment is offered, if they have crossed the age, that should not be an impediment in their way.
On the other hand, both the writ-applications have been vehemently opposed by Mr.Munshaw, the learned counsel appearing for the Corporation. Mr.Munshaw submits that both the writ-applications are not maintainable as no indefeasible right or any other legal right of any of the petitioners could be said to have been infringed in any manner.
According to Mr.Munshaw, the writ-applicants might have undergone the training which was given to them by the Corporation and such training was given to them on the condition that after the completion of the training they would be serving the Corporation for a minimum period of three years, and for that, bonds were executed. According to Mr.Munshaw, merely because they served with the Corporation for a period of three years after executing the bonds by itself will not confer any legal right to claim appointment on the posts in question on regular basis.
Mr.Munshaw has placed reliance on the following averments made in the affidavit-in-reply filed in the Special Civil Application No.8186 of 1990 :
Page 6 of 24HC-NIC Page 6 of 24 Created On Sat Jul 16 06:17:01 IST 2016 C/SCA/201/2002 JUDGMENT "5. With reference to the contents of para 2 of the petition, I reiterate that the petitioners having successfully completed the concerned training does not entitle the petitioners to be appointed as Agricultural Assistants. The petitioners had undergone the said training between 1982 and 1984 at Soil Conservation Training Centres at Morbi and Thasra. A select list was prepared from amongst candidates who had successfully completed the said training. However, the candidates were specifically informed that completion of training did not confer any right upon them to get appointment. The said position was made very clear in the letter Annexure-
A and the letter at Annexure-B. The relevant portion in the letter at Annexure-A reads as under :
"No assurance for appointment is given after one is cleared by the department. But, appointment would be given only on the basis of the merit, eligibility as well as on the basis of the prescribed age limit and as per the requirement of the department."
(Translated from Gujarati) The relevant portion being Condition No.5 in Annexure 'B' reads as under :
"5. No assurance for appointment is given after obtaining the training, however, if appointed, then one should be ready to work anywhere in the State of Gujarat.
(Translated from Gujarati) 5.1 With further reference to the contents of para 2 of the petition, I say that the Govt. in the Finance Deptt. through Resolution dated 18.12.1986 had instructed not to fill in vacant posts. However, in view of the scarcity with a view to providing some help to the unemployed persons, persons were employed as Agricultural Assistants at fixed salary when scarcity relief works were going on. Upon closure of the scarcity works, the short term temporary employment of Agricultural Assistants was not continued. It is denied that the petitioners had undergone any post service training as alleged. I say that the training was imparted to 354 candidates in 7 batches between 1982 and 1984. Out of them, 59 have been given appointment as Agricultural Assistants under the respondent-Corporation in the order of their merit. There Page 7 of 24 HC-NIC Page 7 of 24 Created On Sat Jul 16 06:17:01 IST 2016 C/SCA/201/2002 JUDGMENT are 295 candidates who had successfully undergone the training but who are not given appointment as the respondent-Corporation does not at present need any more Agricultural Assistants. At present, there are 165 surplus Agricultural Assistants. It is denied that according to practice or procedure, any of the petitioners is entitled to be appointed as Agricultural Assistant. It is denied that 70 posts of Agricultural Assistants are vacant as alleged.
It is submitted that the Bond in question at Annexure 'D' to the petition is being misconstrued by the petitioners. Clause 5 of the said Bond at Annexure 'D' (page 19) does not confer any right upon the candidate, but it only provides for two different situations :
One, when the candidate is appointed as Agricultural Assistant within a period of 9 months from the date of completion of the training and the second situation arises where a candidate is appointed as Agricultural Assistant after expiry of 9 months from the date of completion of his training.
6. With reference to the contents of para 3 of the petition, it is submitted that by letter dated 9.1.1991, the Corporation had informed the State Government that about 165 Agricultural Assistants were surplus. In this view of the matter, there was no question of the Corporation being required to appoint any more Agricultural Assistants.
7. With reference to the contents of para 4 of the petition, it is submitted that it is true that Special Civil Applications Nos.2443/89 and 512/89 are pending before this Hon'ble Court. The Corporation had also filed Civil Application for vacating the ad-interim injunction granted in the said petition. The aforesaid two petitions are admitted and the interim orders are passed therein.
Against the said interim orders, the Corporation had preferred Letters Patent Appeals Nos.105/91 and 106/91. The said Letters Patent Appeals are now disposed of as the Hon'ble Court has provided for a temporary formula for giving adhoc promotions to the higher cadre of Field Supervisors (Soil Conservation) for a period of six months. I say that in view of the above, about 48 candidates from the Select List have already been given appointment as Agricultural Assistants. Out of the Page 8 of 24 HC-NIC Page 8 of 24 Created On Sat Jul 16 06:17:01 IST 2016 C/SCA/201/2002 JUDGMENT present petitioners also, 6 petitioners have been given appointments on the posts of Agricultural Assistants as per Office Orders dated 16.4.1991, 17.5.1991 and 3.7.1991 (the said are 1, 8, 10, 11, 13 and 17).
It is denied that 70 posts of Agricultural Assistants are lying vacant at Rajkot or elsewhere. As regards the question of age bar, the same will be decided according to Rules. As regards the notice dated 25.5.1990 sent on behalf of the petitioners, it is submitted that the Corporation has already given reply dated 11.9.1990 to the learned Advocate for the petitioners. Annexed hereto and marked Annexure 'I' is a copy of the said letter dated 11.9.1990.
8. With reference to the contents of para 5 of the petition, it is emphatically denied that the Corporation is trying to fill up 70 posts of Agricultural Assistants by way of direct recruitment from untrained persons. There is no question of appointing any untrained persons when trained persons are available. However, at present, there is no need to make any appointment from amongst trained persons. It is submitted that if prior to or upto 1984 all trained persons were appointed on account of availability of posts and work, it does not mean that in subsequent years also, all trained persons should be appointed, even if there are no vacancies or there is no work for them. It is denied that there is any violation of provisions of Articles 14 and 16 of the Constitution of India.
9. With reference to the contents of para 6 of the petition, the same are denied. It is denied that 70 posts of Agricultural Assistants are lying vacant. It is denied that the respondents have decided to appoint untrained people by way of direct recruitment. It is reiterated that there is no question of appointing untrained persons when trained persons are available, but at present, there is no need to employ any more Agricultural Assistants. As and when the Corporation's work will increase and new schemes and Grants will become available, and as and when more Agricultural Assistants will be required, persons who have successfully completed the training, will be considered for appointment in the order of their merit and as per the Recruitment Rules."
Page 9 of 24
HC-NIC Page 9 of 24 Created On Sat Jul 16 06:17:01 IST 2016
C/SCA/201/2002 JUDGMENT
Mr.Munshaw has also placed reliance on the following averments made in the affidavit-in-reply filed by the Corporation in the Special Civil Application No.201 of 2002.
"5. It is submitted that in the present case the petitioners nos.1, 4 and 5 took training in Batch No.16 at Thasra in the year 1984 and they were declared successful in the examination after completion of the training and they were at Sr.nos.50, 87 and 54 respectively. It is submitted that similarly at Morbi the petitioners nos.2 and 3 herein had undergone the same training course in Batch No.40 in the year 1984 and they were also declared successful in the examination held after completion of the training and they were at nos.29 and 08 respectively in the list of successful candidates.
6. It is submitted that all the trainees were paid stipend during the training period and it is pertinent to note that there was no assurance or an employment. A copy of a Form sent to all the candidates invited for the training is annexed herewith and marked as Annexure 'A' to this reply. It is stated that the appointments are to be given on the basis of administrative requirements and in no case successful trainees have right of employment. It is submitted that a Special Civil Application No.8186 of 1990 was filed by in all 19 petitioners on the ground that though they were selected after successful training they are not appointed. It is stated that all these petitioners were belonging to different batches and undergone training prior to the present petitioners. It is submitted that the appointments were not given due to administrative exigency, but later on out of 19 petitioners, in all 8 petitioners are appointed in the year 1991, but 11 said petitioners could not be appointed as they were of over age at the time of the appointment. It is stated that so far as Special Civil Application No.2032/1996 is concerned, the same is filed by in all 9 petitioners who had undergone successful training in different batches and they are also not appointed so far. It is submitted after 1st December 1984, there was no recruitment for considerably long period of 7 years and only after 19th April 1991, the recruitment was made and Page 10 of 24 HC-NIC Page 10 of 24 Created On Sat Jul 16 06:17:01 IST 2016 C/SCA/201/2002 JUDGMENT so far in all 41 candidates of different batches are appointed and last candidate was appointed on 13th October 1997. It is stated that out of 41 appointees, 38 appointees were appointed in the year 1991, but barring four candidates all of them were of prior batches and only Mr.H.A.Patel, General Category candidate, Shri S.T.Damor, General Category candidate, Mr.P.M.Pesivadiya, General Category candidate and Mr.B.V.Patel, General Category candidate are appointed from Batch No.16 or 40. It is stated that three candidates who are appointed in the year 1997 are of batch no.17, but as they are Scheduled Tribe category candidates and there is backlog, they are selected and appointed. It is stated that none of the present petitioners belongs to Scheduled Tribe category. It is submitted that Mr.H.A.Patel and Mr.P.M.Pesivadiya, who belong to General Category have secured 309 and 307 marks respectively while the present petitioners have secured less than that. It is stated that only B.V.Patel belonging to the General Category has secured 255 marks and he is appointed.
7. It is humbly stated that in view of the above mentioned facts and circumstances, it is clear that the respondent - corporation has acted in accordance with the Batches and seniority thereof and the appointments are made in accordance with the administrative exigency and there is not a single appointment after 1997 of any other category except of a Scheduled Tribe category and, therefore, it is clear that the respondent no.2 has acted in accordance with the Rules and Regulations. It is submitted that only because the petitioners have completed successful training, they do not get right of appointment as held by this Honourable High Court of Gujarat as well as the Honourable Supreme Court of India and hence this Honourable Court is prayed to reject the petition in limine with costs in the interest of administration and justice."
The learned counsel appearing for the Corporation placed reliance on a Division Bench decision of the Bombay High Court in the case of Megha Chandrakant Kale and others v. State of Maharashtra and others, (2014)3 AIR BomR 167. He Page 11 of 24 HC-NIC Page 11 of 24 Created On Sat Jul 16 06:17:01 IST 2016 C/SCA/201/2002 JUDGMENT placed reliance on the following observations made in paragraphs 16, 19, 20 and 21 :
"16. Merely because a bond is executed by a candidate out of the Rules of Admission and further completion of bond period ipso facto does not confer any right on such candidate to seek public employment or status of permanency, in the background of services rendered as a bonded candidate. In fact, the plain reading of the Rules of Admission coupled with Recruitment Rules of 1979 also does not indicate that any right is conferred upon the candidates of permanency in employment after completion of the bond period.
19. The contention of the petitioners that past decision of the Government of granting permanent employment to the bonded candidates confers similar right in the present petitioners of permanency is required to be rejected in view of the fact that the said claim has to be considered in the light of the Recruitment Rules and the policy of the Government.
20. So far as the reliance placed by the petitioners upon the judgment in the case of Confederation of Ex- Servicemen Associations & ors. vs. Union of India & ors. (cited supra) in support of the contention that there is a legitimate expectation in their favour about granting status of a permanent employee is concerned, the said principle cannot be made applicable to the case of the petitioners inasmuch as the Recruitment Rules and the policy adopted by the Government; more particularly in the light of the law laid down by the Apex Court in the case of Secretary, State of Karnataka & ors. vs. Umadevi & ors., the petitioners have no right to ask for the benefit under the doctrine of legitimate expectation. The further claim of the petitioners that they are entitled for the benefit of promissory estoppel is also liable to be rejected in view of the fact that the principle of promissory estoppel will not operate against the principle of law. The principle of law postulates that recruitment in the public employment has to be after following due procedure as provided under the Recruitment Rules.
Page 12 of 24
HC-NIC Page 12 of 24 Created On Sat Jul 16 06:17:01 IST 2016
C/SCA/201/2002 JUDGMENT
21. The contention of the petitioners that the person has worked for some time and in some cases for considerable length of time will have hardly any bearing on the status of permanency sought by the petitioners. In fact, the petitioners were aware of the fact that their entry into the service is by virtue of bond executed by them and the fact that they will not be given status of permanency was very much known to them. In the present case, there was no promise by the authorities that the petitioners will be given the status of permanency. In fact, it was the intention of the appointing authority that posts in question, which are permanent vacancies, are required to be filled in after following due procedure as provided for the recruitment. The observations made by the Honourable Apex Court in the case of Secretary, State of Karnataka & ors. vs. Umadevi & ors., in paragraphs 34, 36, 37, 38, 39 and 40 deal with the claim put-forth by the petitioners. In the light of above referred observations made by the Apex Court, the claim of the petitioners for grant of permanency in service is liable to be rejected and is rightly rejected by the learned Maharashtra Administrative Tribunal."
Thus, the affidavit of the Corporation in the Special Civil Application No.201 of 2002 makes the picture little clear. The stance appears to be that out of 19 petitioners herein, 8 were offered appointment, whereas 11 could not be offered appointment as, by the time they could be offered, they had crossed the age.
Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is, whether the petitioners are entitled to the reliefs prayed for in the two writ- applications.
So far as the principal argument of Mr.Munshaw as regards the legal right of the petitioners to claim appointment Page 13 of 24 HC-NIC Page 13 of 24 Created On Sat Jul 16 06:17:01 IST 2016 C/SCA/201/2002 JUDGMENT on the posts in question is concerned, there need not be any debate that merely because they completed the period of training successfully and later on also served with the Corporation on executing the bonds in that regard by itself would not confer any indefeasible right for being appointed on the substantive post. However, if the Corporation decided to prepare a select list in accordance with its policy and regulations for the purpose of giving regular appointments on the posts in question, then it was expected of the Corporation to strictly adhere to the same. After operating such select list for a substantially long period of time they could not have told the petitioners who figured in the said select list that they would not be offered appointments because by that time they had crossed the requisite age. This is very much evident from the Government Resolution itself, which is at page 44 of the Special Civil Application No.201 of 2002. The Corporation will have to reconsider the issue afresh in light of the observations made by this Court and also keeping in mind the Circular issued by the Corporation, which is at page 43, Annexure-E to this petition (i.e. Special Civil Application No.201 of 2002).
A Division Bench of this Court, in the Letters Patent Appeal No.347 of 2000, decided on 6th May 2005, has explained in details as to what should be the date with reference to which the eligibility of the candidates is to be determined. The relevant portion reads as under :
"What should be the date with reference to which the eligibility of the candidates is to be determined. This question is no longer res-integra and must be treated as settled by the judgments of the Supreme Court in Andhra Pradesh Public Service Commission versus Sarat Chandra, (supra); District Collector & Page 14 of 24 HC-NIC Page 14 of 24 Created On Sat Jul 16 06:17:01 IST 2016 C/SCA/201/2002 JUDGMENT Chairman, Vizianagaram (Social Welfare Residential School Society), Vizianagarm versus M. Tripura Sundara Devi, (1990) 3 SCC 655; Mrs.Rekha Chaturvedi v. University of Rajasthan, (1993) 1 JT (SC) 220; Dr M.V. Nair v. Union of India, (1993) 2 SCC 429; U.P. Public Service Commission, Allahabad v. Alpana, (1994)1 JT (SC) 94, Ashok Kumar Sharma v. Chander Shekhar (1997) 4 SCC 18, and Bhupinderpal Singh v. State of Punjab, AIR 2000 SC 2011. In the last mentioned decision, the Supreme Court while approving the view taken by the Division Bench of the Punjab and Haryana High Court laid down the following propositions:-
(i) The cut off date by reference of which the eligibility for requirement must be satisfied by.
the candidate seeking a public employment is the date appointed by the relevant service rules;
(ii) If there is no cut off date appointed by the rules, then such date as may be appointed for this purpose in the advertisement calling for the application; and
(iii) If there is no such date appointed, then the eligibility criteria shall be applied by reference to the last date fixed for the receipt of the application.
In the light of the aforementioned propositions, it must be held that the appellants and the writ petitioners, who were within the age limit on the last date fixed for receipt of the application, were eligible to be considered for selection for appointment as Bailiffs and the respondent had rightly considered their candidature and included their names in the select list after assessing their merit. It, however, appears that despite the availability of the vacant posts, the appellants and the petitioners were not offered appointment and after a long gap of seven years, the respondent deleted their names along with those of 8 other candidates by relying on Rule 9 of the Recruitment Rules. In our opinion, this was clearly impermissible because by virtue of their selection and placement in the merit list, the appellants and the writ Page 15 of 24 HC-NIC Page 15 of 24 Created On Sat Jul 16 06:17:01 IST 2016 C/SCA/201/2002 JUDGMENT petitioners had acquired the right to be appointed against the advertised posts and the appointing authority i.e., respondent could have denied the appointment only if there existed cogent and legally sustainable reasons for doing so. However, it is neither the pleaded case of the respondent nor any material has been placed on the record of these appeals and the writ petitions to show that there was any legal impediment in the appointment of the appellants and the petitioners against the available vacant posts or that they suffered from any disability. Therefore, there is no escape from the conclusion that failure of the respondent to appoint the appellants and the petitioners on the posts of Bailiffs in accordance with their merit placement in the select list has resulted in violation of their fundamental right to equality guaranteed under Article 14 and 16 of the Constitution of India.
While recording the aforementioned conclusion, we are not unmindful of the legal position that mere selection does not confer an indefeasible right on the selected candidate to be appointed against the advertised post and the competent authority can, for good and sufficient reasons to be recorded in writing, refuse to appoint the selected candidate -- State of Haryana versus Subash Chander Marwaha, (1974) 3 SCC 220, Jatinder Kumar versus State of Punjab, (1985) 1 SCC 122, Shankarsan Dash versus Union of India (1991) 3 SCC 47, Government of Orissa versus Haraprasad Das, (1998) 1 SCC 487, State of Orissa versus Bhikari Charan Khuntia, (2003) 10 SCC 144, and Food Corporation of India versus Bhanu Lodh (2005) 3 SCC 618. In Shankarsan Dash versus Union of India (supra), the Constitution Bench of the Supreme Court referred to some of the earlier judgements and held as under:-
"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 Page 16 of 24 HC-NIC Page 16 of 24 Created On Sat Jul 16 06:17:01 IST 2016 C/SCA/201/2002 JUDGMENT 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."
In Food Corporation of India versus Bhanu Lodh (supra), the Supreme Court set aside the direction given by Guwahati High Court for appointment of the respondents against the existing vacancies and held:
"Merely because vacancies are notified, the State is not obliged to fill up all the vacancies unless there is some provision to the contrary in the applicable rules. However, there is no doubt that the decision not to fill up the vacancies, has to be taken bona fide and must pass the test of reasonableness so as not to fail on the touchstone of Article 14 of the Constitution. Again, if the vacancies are proposed to be filled, then the State is obliged to fill them in accordance with merit from the list of the selected candidates. Whether to fill up or not fill up a post, is a policy decision, and unless it is infected with the vice of arbitrariness, there is no scope for interference in judicial review."
In Girish Arora versus State of Haryana, 1997 (5) SLR 660, a Division Bench of the Punjab and Haryana High Court of which one of us was a member considered the question whether the State Government has an absolute and fettered discretion to deny appointment to the candidates selected by Haryana Public Service Commission for recruitment to Haryana Civil Service (Executive Branch). After analyzing the relevant provisions of the Constitution, the Recruitment Rules and the judgments of the Supreme Court and various High Courts, the Division Bench laid down the following propositions:-
Page 17 of 24HC-NIC Page 17 of 24 Created On Sat Jul 16 06:17:01 IST 2016 C/SCA/201/2002 JUDGMENT "(a) The role of the Public Service Commission and other selecting agencies in the process of recruitment, which is initiated with the sending of requisition of the posts, is recommendatory and the appointing authority is not always bound to accept the recommendations made by the Commission etc. Rather the appointing authority is possessed with the power to approve or not to approve the recommendations made by the Commission and other selecting agencies. However, the power of the appointing authority to approve or not to approve the recommendations made by the Commission etc. is not absolute and untrammeled. The appointing authority does not have the licence of acting in an arbitrary manner. The decision not to accept the recommendations made by the selecting agency has to be made in good faith and for appropriate reasons.
(b) In cases where the appointing authority does not accept the recommendations of the selecting agency, it is bound to record the reasons for its decision and place the same before the Court as and when called upon to do so.
(c) If the Government decides not to approve the recommendations made by the Commission then the same must be placed before the Legislature as per the requirement of Article 323(2), although the same need not be communicated to the Commission or the affected candidates.
(d) While considering the recommendations made by the Commission etc. it is open to the appointing authority to take into consideration the developments which take place subsequent to the preparation of the select list and if the public interest warrants and there exists some material which justify withholding of approval of appointment then the appointing authority is not obliged to accept the recommendations made by the Commission etc.
(e) Mere recommendations by the Commission etc. do not confer vested right upon the selected candidates to be appointed to the Page 18 of 24 HC-NIC Page 18 of 24 Created On Sat Jul 16 06:17:01 IST 2016 C/SCA/201/2002 JUDGMENT service though the selected candidate may challenge the decision of the appointing authority on the ground of violation of the provisions of law, arbitrariness or mala fides."
The theory of absolute discretion has been negatived by the jurists as well as by the Courts. The traditional view that the executive is not answerable where its executive function is attributable to prerogative power has long been discarded. Prof. H.W.R.Wade in his work "Administrative Law" 6th Edition, drew distinction between powers of public authorities and those of private persons in the following words:-
". . .The common theme of all the authorities so far mentioned is that the notion of absolute or unfettered discretion is rejected. Statutory power conferred for public purposes is conferred as it were upon trust, no absolutely -- that is to say, it can validly be used only in the right and proper way which Parliament when conferring it is presumed to have intended. Although the Crown's lawyers have argued in numerous cases that unrestricted permissive language confers unfettered discretion, the truth is that, in a system based on the rule of law, unfettered governmental discretion is a contradiction in terms."
Prof. Wade went on to say:-
"...The whole conception of unfettered discretion is inappropriate to a public authority, which possesses powers solely in order that it may use them for the public good.
There is nothing paradoxical in the imposition of such legal limits. It would indeed be paradoxical if they were not imposed. Nor is this principle an oddity of British or American laws, it is equally prominent in French law. Nor is it a special restriction which fetters only local authorities; it applies no less to ministers of the Crown. Nor is it confined to the sphere of administration; it operates wherever discretion is given for some public purpose, for example, where a judge has Page 19 of 24 HC-NIC Page 19 of 24 Created On Sat Jul 16 06:17:01 IST 2016 C/SCA/201/2002 JUDGMENT discretion to order jury trial. It is only where powers are given for the personal benefit of the person empowered that the discretion absolute. Plainly tis can have no application in public law. For the same reasons there should in principle be no such thing as unreviewable administrative discretion, which should be just as much a contradiction in terms as unfettered discretion. The question which has to be asked is what is the scope of judicial review, and in a few special cases the scope for the review of discretionary decisions may be minimal. It remains axiomatic that all discretion is capable of abuse, and that legal limits to every power are to be found somewhere.
Padfield v. Minister of Agriculture, Fishery and Food, (1968) A.C. 997 is a landmark decision in the field of administrative law. The facts of that case were that the Minister had refused to order investigation into the complaint made by the members of the Milk Marketing Board that majority of the Board had fixed milk prices, which were unduly prejudicial to them. The Minister's decision was founded on the reason that it would be politically embarrassing for him if he decided not to implement the committee's decision. While rejecting the theory of absolute discretion, Lord Reid observed:-
"Parliament must have conferred the discretion with the intention that it should be used to promote the policy and objects of the Act; the policy and objects of the Act must be determined by construing the Act as a whole and construction is always a matter of law for the court. In a matter of this kind it is not possible to draw a hard and fast line, but if the Minister, by reason of his having misconstrued the Act or for any other reason, so uses his discretion as to thwart or run counter to the policy and objects of the Act, then our law would be very defective if persons aggrieved were not entitled to the protection of the Court."
In Breen v. Amalgamated Engineering Union, (1971) 2 QB 175, Lord Denning MR quoted the above extracted observation made by Lord Reid and held:
"The discretion of a statuary body is unfettered. It is a discretion which is to be exercised according to Page 20 of 24 HC-NIC Page 20 of 24 Created On Sat Jul 16 06:17:01 IST 2016 C/SCA/201/2002 JUDGMENT law. That means at least this; the statutory body must be guided by relevant considerations and not by irrelevant. If its decision is influenced by extraneous considerations which it ought not to have taken into account, then the decision cannot stand. No matter that the statutory body may have acted in good faith; nevertheless the decision will be set aside. That is established by Padfield v. Minister of Agriculture, Fisheries and Food, which is a landmark in modern administrative law."
In Laker Airways Limited v. Department of Trade, 1977 QB 643, Lord Denning discussed the prerogative of the Minister to give directions to Civil Aviation Authorities overruling the specific provisions in the statute in the time of war and said:-
"Seeing that prerogative is a discretion power to be exercised for the public good, it follows that its exercise can be examined by the Courts just as in other discretionary power which is vested in the executive."
In S.G.Jaisinghani versus Union of India, AIR 1967 SC 1427, the Supreme Court rejected the theory of unfettered discretion on the premise that it is incompatible with the doctrine of equality. The observations made by Ramaswami, J. on this issue are as under :
"In this context it is important to emphasize that the absence of arbitrary power is the first essential of the rule of law upon which our whole constitutional system is based. In a system governed by rule of law, discretion, when conferred upon executive authorities, must be confined within clearly defined limits. The rule of law from this point of view means that decisions should be made by the application of known principles and rules and, in general, such decisions should be predictable and the citizen should know where he is. If a decision is taken without any principle or without any rule, it is unpredictable and such a decision is the antithesis of a decision taken in accordance with the rule of law. (See Dicey- "Law of the Constitution"- Tenth Edn., Introduction ex). "Law has reached its finest moments", stated Page 21 of 24 HC-NIC Page 21 of 24 Created On Sat Jul 16 06:17:01 IST 2016 C/SCA/201/2002 JUDGMENT Douglas, J. United States v. Wunderlic (1951-342 US 98:96 Law Ed 113), "When it has freed man from he unlimited discretion of some ruler where discretion is absolute, man has always suffered". It is in this sense that the rule of law may be said to be the sworn enemy of caprice. Discretion, as Lord Mansfield stated it in classic terms in the case of John Wilkes (1770-98 ER 327), "means sound discretion guided by law. It must be governed by rule, not by humour : it must not be arbitrary, vague and fanciful."
In Shrilekha Vidyarthi versus State of U.P., AIR 1991 SC 537, a Division Bench of the Apex Court rejected the argument of absolute discretion and immunity of executive action from judicial review and observed:
"We have no doubt that the Constitution does not envisage or permit unfairness or unreasonableness in State actions in any sphere of its activity contrary to the professed ideals in the Preamble. In our opinion. it would be alien to the Constitutional Scheme to accept the argument of exclusion of Article 14 in contractual matters. The scope and permissible grounds of judicial review in such matters and the relief which may be available are different matters but that does not justify the view of its total exclusion. This is more so when the modern trend is also to examine the unreasonableness of a term in such contracts where the bargaining power is unequal so that these are not negotiated contracts but standard form contracts between unequals.
xxx xxx xxx Even assuming that it is necessary to import the concept Even assuming that it is necessary to import the concept of presence of some public element in a State action to attract Article 14 and permit judicial review, we have no hesitation in saying that the ultimate impact of all actions of the State or a public body being undoubtedly on public interest, the requisite public element for this purpose is present also in contractual matters. We, therefore, find it difficult and unrealistic to exclude the State actions in contractual Page 22 of 24 HC-NIC Page 22 of 24 Created On Sat Jul 16 06:17:01 IST 2016 C/SCA/201/2002 JUDGMENT matters, after the contract has been made, from the purview of judicial review to test its validity on the anvil of Article 14. It can no longer be doubted at this point of time that Article 14 of the Constitution of India applies also to matters of governmental policy and if the policy or any action of the Government, even in contractual matters, fails to satisfy the test of reasonableness, it would be unconstitutional. See Ramana Dayaram Shetty v. The International Airport Authority of India and Ors., [1979] 3 SCR 1014 and Kasturi Lai Lakshmi Reddy v. State of Jammu and Kashmir & Anr., [1980] 3 SCR 1338. In Col. A.S. Sangwan v. Union of India and Ors., [1980] Supp. SCC 559, while the discretion to change the policy in exercise of the executive power, when not trammeled by the statute or rule, was held to be wide, it was emphasized as imperative and implicit in Article 14 of the Constitution that a change in policy must be made fairly and should not give the impression that it was so done arbitrarily or by any ulterior criteria. The wide sweep of Article 14 and the requirement of every State action qualifying for its validity on this touch-stone, irrespective of the field of activity of the State, has long been settled. Later decisions of this Court have reinforced the foundation of this tenet and it would be sufficient to refer only to two recent decisions of this Court for this purpose."
By applying the ratio of the above noted judgments to the facts of this case, we hold that in the absence of any rational or tangible ground on which the appellants and the writ petitioners could be denied appointment, the respondent was duty bound to issue orders appointing them as Bailiffs against the advertised posts and his failure to do so has resulted in violation of their fundamental right to equality and has caused serious prejudice to them."
In view of the above, both the writ-applications are disposed of with the following directions :
Page 23 of 24HC-NIC Page 23 of 24 Created On Sat Jul 16 06:17:01 IST 2016 C/SCA/201/2002 JUDGMENT The respondent Corporation shall reconsider the entire issue afresh keeping in mind the observations made by this Court and also the position of law as explained relying on the Division Bench decision of this Court referred to above.
An appropriate decision in this regard shall be taken within a period of three months from the date of receipt of the order. The decision shall be in the form of a reasoned order and the same shall be communicated to the petitioners.
Out of the nineteen petitioners of the Special Civil Application No.8186 of 1990, if eight of those have already been appointed, then the order shall be communicated to the eleven petitioners who have not been appointed and also the five petitioners of the Special Civil Application No.201 of 2002.
Rule made absolute to the aforesaid extent. Direct service is permitted.
(J.B.PARDIWALA, J.) MOIN Page 24 of 24 HC-NIC Page 24 of 24 Created On Sat Jul 16 06:17:01 IST 2016