Allahabad High Court
Vimlesh Kumar Sharma vs Central Administrative Tribunal ... on 3 September, 2019
Equivalent citations: AIRONLINE 2019 ALL 1463, (2019) 4 ESC 1716, (2019) 6 ALL WC 6316, (2019) 9 ADJ 384 (ALL)
Author: Anil Kumar
Bench: Anil Kumar, Saurabh Lavania
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Judgment Reserved Court No. - 3 Case :- SERVICE BENCH No. - 22973 of 2016 Petitioner :- Vimlesh Kumar Sharma Respondent :- Central Administrative Tribunal Circuit Bench Lko. & Ors. Counsel for Petitioner :- Mohammad Babar Khan Counsel for Respondent :- Anurag Srivastava Hon'ble Anil Kumar,J.
Hon'ble Saurabh Lavania,J.
(As per Saurabh Lavania,J.) Heard Sri Mohammad Babar Khan, learned counsel for the petitioner and Sri Anurag Srivastava, learned counsel for the respondents.
Under challenge is the order dated 11.04.2016 passed by the Central Administrative Tribunal (in short "CAT") in Original Application No. 427 of 2012 (in short "OA") filed by the petitioner for the following main reliefs:-
"(i) Issue a writ, order or direction in the nature of certiorari quashing the impugned order and judgment dated 11.04.2016 passed by the learned Central Administrative Tribunal (opposite party No. 1) in Original Application No. 427/2012, as contained in Annexure No. 1 to the writ petition.
(ii) Issue a writ, order or direction in the nature of mandamus commanding the opposite parties No. 2 to 4 to appoint the petitioner on the post of Store-Keeper in Jawahar Navodaya Vidyalaya Itara Pihani District Hardoi on the basis of select list prepared on 24.02.2009, forthwith.
(iii) Issue any other order or direction which this Hon;ble Court may deem just and proper under the circumstances of the case.
(iv) Award the costs of the writ petition in favour of the petitioner."
The facts, in brief, of the present case are that for filling the post of Chaukidar, Chaukidar-cum-Sweeper, Electrician-cum-Plumber and Store Keeper, lying vacant, in the Jawahar Navodaya Vidyalaya, Itara Pihani, Hardoi, the name of eligible candidates were sought from the employment exchange. Vide letter dated 30.04.2008, the employment exchange sent the list of eligible candidates for the post of Store Keeper (Annexure No. 2 to the writ petition).
It appears that for other posts, the lists were also sent by the employment exchange. On the basis of the list forwarded by the employment exchange, the Selection Committee was constituted and eligible candidates were required to undergo Trade Test (Typing Test) held on 24.02.2009.
In the Typing Test, the petitioner was declared successful. The Typing Test was also held for the post of Electrician/Plumber on 24.02.2009 and in the said test, one Sri Faheem Siddiqui was declared successful. On being declared successful, appointment was provided to Sri Faheem Siddiqui on 09.07.2009 on the post of Electrician/Plumber. The appointment to the petitioner was not provided on the post of Store-Keeper for which he appeared in the Typing Test and was declared successful on 24.02.2009.
It is pertinent to point out that the eligibility list dated 30.04.2008, which was provided to the employer by the employment exchange, for the post of Store-Keeper, the name of the petitioner find place at Serial No. 3 but the name of Sri Faheem Siddiqui does not find place in the aforesaid list for the reason that the posts on which Sri Faheem Siddiqui was provided appointment is the post of Electrician/Plumber and a separate list of eligible candidates for the post of Electrician/Plumber was provided by the employment exchange to the employer.
The petitioner being aggrieved by denial of appointment, sought the information through the RTI Act, 2005 vide application dated 14.07.2009.
In response to the same, the employer provided the reply disclosing the reasons for not giving the appointment to the petitioner on the post of Store-Keeper. The reasons indicated in the reply dated 11.08.2009 reads as under:-
"जिला सेवायोजन कार्यालय से अभ्यर्थियों की जो सूचि प्राप्त हुयी थी उन्ही अभ्यर्थियों का दिनांक 24.02.09 को ट्रेड टेस्ट कराया गया | चूँकि प्राप्त सूचि की वैधता मात्रा छः माह मानी गयी इसलिए सक्षम अधिकारी द्वारा सम्बंधित सूचि पर दिनांक 24.02.09 को करायी गयी टंकण परीक्षा को वैध नहीं माना गया इसलिए चयन का अनुमोदन नहीं किया गया |"
The above quoted reasons mentioned in reply dated 11.08.2009 are based on letter of employment exchange dated 17.01.2009, according to which the list of eligible candidates provided by the employment exchange was valid only for six months.
In the counter reply filed before the CAT in response to OA, the opposite parties took the main pleas to the effect that:-
(i) list of eligible candidates provided by the employment exchange expired after lapse of six months, accordingly, the same was not acted upon,
(ii) that mere appearance in the competitive examination and even being declared successful therein does not entitle the applicant/petitioner to get appointment on the post rather a candidate, who applies for the post concerned, has a right to be considered for appointment on the post concerned and which, in the present case, the applicant/petitioner has availed, and
(iii) even in pursuance to the selection for the post of Store-Keeper, no such, appointment has even been made by the opposite parties and the post in question at Jawahar Navodaya Vidylaya, Hardoi has been filled up by transfer of opposite party no. 4.
In aforesaid factual background, the petitioner has filed the OA before the Tribunal for the reliefs quoted hereinabove.
The Tribunal, after considering the facts of the case and relying upon the judgment of the Hon'ble Apex Court passed in the cases of S.S. Balu and another v. State of Kerala and others reported in (2009) 2 SCC 479 and All India SC/ST Employees Association v. A. Arthur Jeen and others reported in 2001 (6) SCC 380, dismissed the OA.
In the case of S.S. Balu (supra), the Hon'ble Apex Court observed as under:-
"A person does not acquire a legal right to be appointed only because his name appears in the select list. The State as an employer has a right to fill up all the posts or not to fill them up. Unless a discrimination is made in regard to filling up of vacancies or arbitrariness is committed, the candidate concerned will have no legal right for obtaining a writ of mandamus. Even selected candidate do not have legal right in this behalf."
In the case of All India SC/ST Employees Association (supra), the Hon'ble Apex Court observed as under:-
"Inclusion of a candidate in the panel only indicates his provisional selection and he does not acquire any indefeasible right for appointment even on existing vacancy."
The Tribunal, while dismissing the OA, has also taken note of the fact that on the post, in issue, for which the type test was held, one person, who was earlier working in Itawah was posted at Hardoi vide letter dated 16.11.2010. The Tribunal has also taken note of the fact, while dismissing the OA, that the validity of the list was only for six months and after lapse of six months, the same was not considered for providing appointment to the petitioner.
Assailing the impugned order dated 11.04.2016 passed by the Tribunal in the OA No. 427/2012 filed by the petitioner, the counsel for the petitioner submits that the petitioner as well as Sri Faheem Siddiqui were duly selected in the type test held on 24.02.2009 and the appointment to Sri Faheem Siddiqui was provided by the employer-opposite parties-Navodaya Vidalaya and the appointment was not given to the petitioner and this act of the employer is arbitrary, unjust and iniquitous.
Learned counsel for the petitioner has further submitted that in the case of Sri Faheem Siddiqui, the select list was acted upon and in the case of the petitioner, the appointment has been denied on the ground that the list has expired and thus, denial of the appointment to the petitioner by the opposite parties is arbitrary and illegal and liable to be interfered by this Court.
It has also been submitted by the learned counsel for the petitioner that the Tribunal without appreciating the facts of the case in its true spirit, dismissed the OA and while doing so, relied upon the judgments of the Hon'ble Apex Court, which in the facts of the case are not applicable.
Per contra, learned counsel for the respondents submitted that the petitioner was declared successful in the type test held on 24.02.2009 for the post of Store-Keeper for which the list of eligible candidates was sent by the employment exchange on 30.04.2008 in which the name of Sri Faheem Siddiqui does not find place and Sri Faheem Siddiqui was declared successful in the type test held for the post of Eletrician-cum-Plumber for which separate eligibility list was sent by the employment exchange. Thus, the claim of the petitioner based on parity is unsustainable in the eye of law.
Learned counsel for the respondents further submitted that prior to approval of the select list with regard to the post of Store-Keeper, the validity of the list expired and on account of this reason, the approval for appointment was not made by the competent authority and in view thereof, the appointment was not given to the petitioner.
Learned counsel for the respondents further submitted that on account of transfer of Sri A. Singh from Itawah to Hardoi, the post, in issue i.e. the post of Store-Keeper, against which the selection, in issue, was held, is not vacant and accordingly, the petitioner cannot be appointed against the said post.
We have considered the submissions advanced by the learned counsel for the parties and gone through the record.
We find from the record that the eligibility list for the post of Store-Keeper was sent by the employment exchange to the employer for the post of Store-Keeper wherein, the name of the petitioner find place at Serial No. 3 and in the said list, the name of Sri Faheem Siddiqui does not find place.
It is also evident from the select list dated 25.02.2009 (Annexure No. 2 to the writ petition) that in the said select list, the name of the petitioner finds place at Serial No. 3 and in the said select list, the name of Sri Faheem Siddiqui, who was appointed on the post of Electrician-cum-Plumber does not find place.
In view of the above facts, it is crystal clear that the select list, which was acted upon by the employer for providing the appointment to Sri Faheem Siddiqui, is a different select list and accordingly, we are of the view that the claim of the petitioner on the ground of parity is unsustainable.
It is admitted fact that the validity of the period of list was six months and prior to the period of validity of the list, the select list, in issue, was neither acted upon nor it was approved by the competent authority.
It is also evident from the record that the post of the Store-Keeper, against which the selection process was initiated and the petitioner was declared successful, is not vacant on account of the joining of Sri A Singh on the said post.
The judgment relied upon by the petitioner of the Apex Court in the case of Purushottam v. Chairman, M.S.E.B. and another reported in (1999) 6 SCC 49 is not applicable as in the said case, the appointment was denied on the basis of the decision of the Screening Committee, which was reversed by the High Court.
In the instant case, the select list dated 25.02.2009, for the post of Store-Keeper, was not acted upon during the period of validity of the list provided by the employment exchange, which was of six months.
The judgment of the Apex Court in the case of R.S. Mittal v. Union of India reported in 1995 Supp (2) SCC 230 relied upon by the learned counsel for the petitioner is also not applicable in the facts of the present case, in which the validity of the list was for the period of the six months and after the period of validity of the list, no appointment can be made, as per the law laid down by the Apex Court in various pronouncements. In the case of R.S. Mittal (supra) also the Apex Court only awarded the compensation and not provided the appointment to the appellant therein on account of the period of validity of the select list/panel.
In view of the above, the judgment of the Apex Court in the case of R.S. Mittal (supra) would not in any way help the petitioner.
The judgment passed by the Apex Court in the case of Santosh Kumar and others v. G.R. Chawla and others reported in (2003) 10 SCC 513 relied upon by the learned counsel for the petitioner in support of his claim is not applicable as in the said case, the select list was acted upon and the appellant therein was not appointed.
In the instant case, the select list for the post of Store-Keeper (Annexure No. 3 to the writ petition) was not acted upon and separate select list for the post of Eletrician-cum-Plumber was acted upon.
The aforesaid judgment is also not applicable in the case of the petitioner because, in the aforesaid judgment, the recruitment process was canceled and the Hon'ble Apex Court after considering the facts of the case, came to the conclusion that the recruitment process was canceled in an arbitrary manner and thereafter, interfered therein and directed the authorities to finalize the process of appointment.
When there is no legal vested right if a candidate declared successful in the recruitment process to get the appointment, the writ of mandamus cannot be issued in view of the settled law that a writ petition under Article 226 of the Constitution is maintainable for enforcing the statutory or legal right or when there is a complaint by an employee that there is a breach of a statutory duty on the part of the employer. Therefore, there must be a judicially enforceable right for the enforcement of which the writ jurisdiction can be resorted to. The Court can enforce the performance of a statutory duty by public bodies through its writ jurisdiction at the behest of a person, provided such person satisfies the Court that he/ she has a legal right to insist on such performance. The existence of the said right is a condition precedent for invoking the writ jurisdiction. (Vide Calcutta Gas Company (Propriety) Ltd. v. State of West Bengal and Ors.,AIR 1962 SC 1044; Mani Subrat Jain and Ors. v. State of Haryana,AIR 1977 SC 276; State of Kerala v. Smt. A. Lakshmi Kutty,AIR 1987 SC 331; State of Kerala v. K.G. Madhavan Pillai and Ors.,AIR 1989 SC 49; Krishan Lal v. State of J & K,(1994) 4 SCC 422; State Bank of Patiala and Ors. v. S.K. Sharma,AIR 1996 SC 1669; Rajendra Singh v. State of M.P.,AIR 1996 SC 2736; Rani Laxmibai Kshetriya Gramin Bank v. Chand Behari Kapoor and Ors., AIR 1998 SC 3104; Utkal University v. Dr. Nrusingha Charan Sarangi and Ors.,AIR 1999 SC 943; State of Punjab v. Raghbir Chand Sharma and Anr.,AIR 2001 SC 2900 ; and Sadhana Lodh v. National Insurance Co. Ltd. and Anr (AIR 2003 SC 1561).
Needless to say that on the right of a candidate in the select list, the view of the Apex Court is that a candidate whose name finds place in the select list has no legal right to get appointment.
The Hon'ble Supreme Court in the case of State of Haryana v. Subash Chander Marwaha, reported in (1974) 3 SCC 220, has observed as under:-
"10. One fails to see how the existence of vacancies give a legal right to a candidate to be selected for appointment. The examination is for the purpose of showing that a particular candidate is eligible for consideration. The selection for appointment comes later. It is open then to the Government to decide how many appointments shall be made. The mere fact that a candidate's name appears in the list will not entitle him to a mandamus that he be appointed. Indeed, if the State Government while making the selection for appointment had departed from the ranking given in the list, there would have been a legitimate grievance on the ground that the State Government had departed from the rules in this respect. The true effect of Rule 10 in Part C is that if and when the State Government propose to make appointments of Subordinate Judges the State Government (i) shall not make such appointments by travelling outside the list, and (ii) shall make the selection for appointments strictly in the order the candidates have been placed in the list published in the Government Gazette. In the present case neither of these two requirements is infringed by the Government. They have appointed the first seven persons in the list as Subordinate Judges. Apart from these constraints on the power to make the appointments, Rule 10 does not impose any other constraint. There is no constraint that the Government shall make an appointment of a Subordinate Judge either because there are vacancies or because a list of candidates has been prepared and is in existence.
11. It must be remembered that the petition is for a mandamus. This Court has pointed out in Dr Rai Shivendra Bahadur v. Governing Body of the Nalanda College [AIR 1962 SC 1210 : 1962 Supp (2) SCR 144 : (1962) 2 SCJ 208 : (1962) 1 Lab LJ 247 : (1962) 4 FIR 507.] that in order that mandamus may issue to compel an authority to do something, it must be shown that the statute imposes a legal duty on that authority and the aggrieved party has a legal right under the statute to enforce its performance. Since there is no legal duty on the State Government to appoint all the 15 persons who are in the list and the petitioners have no legal right under the rules to enforce its performance the petition is clearly misconceived."
The Hon'ble Supreme Court in the case of Shankarsan Dash v. Union of India , reported in (1991) 3 SCC 47, has observed as under:
"7. 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 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. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in State of Haryana v. Subhash Chander Marwaha, Neelima Shangla v. State of Haryana, or Jatendra Kumar v. State of Punjab.
8. In State of Haryana v. Subhash Chander Marwaha 15 vacancies of Subordinate Judges were advertised, and out of the selection list only 7, who had secured more than 55 per cent marks, were appointed, although under the relevant rules the eligibility condition required only 45 per cent marks. Since the High Court had recommended earlier, to the Punjab Government that only the candidates securing 55 per cent marks or more should be appointed as Subordinate Judges, the other candidates included in the select list were not appointed. They filed a writ petition before the High Court claiming a right of being appointed on the ground that vacancies existed and they were qualified and were found suitable. The writ application was allowed. While reversing the decision of the High Court, it was observed by this Court that it was open to the government to decide how many appointments should be made and although the High Court had appreciated the position correctly, it had "somehow persuaded itself to spell out a right in the candidates because in fact there were 15 vacancies". It was expressly ruled that the existence of vacancies does not give a legal right to a selected candidate. Similarly, the claim of some of the candidates selected for appointment, who were petitioners in Jatendra Kumar v. State of Punjab, was turned down holding that it was open to the government to decide how many appointments would be made. The plea of arbitrariness was rejected in view of the facts of the case and it was held that the candidates did not acquire any right merely by applying for selection or even after selection. It is true that the claim of the petitioner in the case of Neelima Shangla v. State of Haryana, was allowed by this Court but, not on the ground that she had acquired any right by her selection and existence of vacancies. The fact was that the matter had been referred to the Public Service Commission which sent to the government only the names of 17 candidates belonging to the general category on the assumption that only 17 posts were to be filled up. The government accordingly made only 17 appointments and stated before the court that they were unable to select and appoint more candidates as the Commission had not recommended any other candidate. In this background it was observed that it is, of course, open to the government not to fill up all the vacancies for a valid reason, but the selection cannot be arbitrarily restricted to a few candidates notwithstanding the number of vacancies and the availability of qualified candidates; and, there must be a conscious application of mind by the government and the High Court before the number of persons selected for appointment is restricted. The fact that it was not for the Public Service Commission to take a decision in this regard was emphasised in this judgment. None of these decisions, therefore, supports the appellant."
The Hon'ble Supreme Court in the case of All India SC & ST Employees' Assn. v. A. Arthur Jeen , reported in (2001) 6 SCC 380, has observed as under:
"10. Merely because the names of the candidates were included in the panel indicating their provisional selection, they did not acquire any indefeasible right for appointment even against the existing vacancies and the State is under no legal duty to fill up all or any of the vacancies as laid down by the Constitution Bench of this Court, after referring to earlier cases in Shankarsan Dash v. Union of India. Para 7 of the said judgment reads thus:
"7. 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 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. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in State of Haryana v. Subash Chander Marwaha, Neelima Shangla v. State of Haryana or Jatinder Kumar v. State of Punjab."
The Hon'ble Supreme Court in the case of Punjab State Electricity Board and Others v. Malkiat Singh , reported in (2005) 9 SCC 22, has observed as under:
"4. Having considered the respective submissions made by the learned counsel for the parties, we are of the view that the High Court committed an error in proceeding on the basis that the respondent had got a vested right for appointment and that could not have been taken away by the subsequent change in the policy. It is settled law that mere inclusion of name of a candidate in the select list does not confer on such candidate any vested right to get an order of appointment. This position is made clear in para 7 of the Constitution Bench judgment of this Court in Shankarsan Dash v. Union of India which reads: (SCC pp. 50-51) "7. 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 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. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in State of Haryana v. Subash Chander Marwaha, Neelima Shangla v. State of Haryana or Jatinder Kumar v. State of Punjab."
The Hon'ble Supreme Court in the case of Rakhi Ray v. High Court of Delhi, reported in (2010) 2 SCC 637, has observed as under:
"24. A person whose name appears in the select list does not acquire any indefeasible right of appointment. Empanelment at the best is a condition of eligibility for the purpose of appointment and by itself does not amount to selection or create a vested right to be appointed. The vacancies have to be filled up as per the statutory rules and in conformity with the constitutional mandate. In the instant case, once 13 notified vacancies were filled up, the selection process came to an end, thus there could be no scope of any further appointment."
In the case of Kulwinder Pal Singh v. State of Punjab, (2016) 6 SCC 532, the following has been observed:
"12. In Manoj Manu v. Union of India, (2013) 12 SCC 171, it was held that (para 10) merely because the name of a candidate finds place in the select list, it would not give the candidate an indefeasible right to get an appointment as well. It is always open to the Government not to fill up the vacancies, however such decision should not be arbitrary or unreasonable. Once the decision is found to be based on some valid reason, the Court would not issue any mandamus to the Government to fill up the vacancies..."
In the case of U.P. Public Service Commission, Allahabad and another Vs. State of U.P. and another, 2007(5) ADJ 280 (DB) in which rights of wait list candidate was considered by this Court, in para-15 of the judgment it held:-
"A wait list candidate does not have any indefeasible right to get appointment merely for the reason that his name finds place in the wait list." This Court in taking the aforesaid view relied upon the decision in Ved Prakash Tripathi Vs. State of U.P., 2001(1) ESC 317 and Surinder Singh and others vs. State of Punjab and another, (1997) 8 SCC 488 and held that even a select list candidate has no indefeasible right to claim appointment. In para-31 of the judgment in U.P.Public Service Commission, Allahabad and another (supra) this Court has further held as under:
"Moreover, even in the case of a select list candidate, the law is well settled that such a candidate has no indefeasible right to claim appointment merely for the reason that his name is included in the select list as the State is under no legal duty to fill up all or any of the vacancy and it can always be left vacant or unfilled for a valid reason."
The select list has already lapsed, as per the averments made in the counter affidavit, which has not been denied in the rejoinder affidavit.
In the case of Vijay Singh Charak v. Union of India (2007) 2 SCC (L&S) 721, it has been held that:-
"12. A select list can only be prepared for a particular year, and only those who are eligible in that particular year alone can be considered for selection in the select list. Even if the select list is not prepared in that year, it will relate back to that particular year."
For the foregoing reasons, we do not find any merit in the writ petition. Hence, dismissed.
Order Date :- 3/September/2019 Arun/-