Chattisgarh High Court
Shiv Kumar Sahu vs South Eastern Coalfields Limited on 12 May, 2022
Author: P. Sam Koshy
Bench: P. Sam Koshy
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N/AFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
WRIT PETITION (SERVICE) NO. 540 OF 2022
1. Shiv Kumar Sahu, S/o Shri Bhagwan Sahu, aged about 41 years,
Electrician Cat-V, South Eastern Coalfields Limited, Deepika Area, Korba
District Korba, Chhattisgarh, NEIS 24906359.
2. Nitya Kumar Ekka, S/o Shri A. Ekka, aged about 46 years, Electrician
Cat-V Bishrampur Area, District Surajpur, Chhattisgarh, NEIS 92300061.
3. Shankh Dhwani Singh Banafar, S/o Shri Sita Ram Singh, aged about
51 years, Electrician Cat-VI, South Eastern Coalfields Limited, Bilaspur,
District Bilaspur, Chhattisgarh, NEIS 6307.
4. Krishna Kumar Tiwari, S/o Shri R.N. Tiwari, aged about 36 years,
Electrician Cat-VI, South Eastern Coalfields Limited, Kusmunda Area,
Korba, District Korba, Chhattisgarh, NEIS 24900428.
5. Sunil Kumar Sharma, S/o Shri J. Mistri, aged about 39 years,
Electrician Cat-V, South Eastern Coalfields Limited, Raigarh Area, District
Raigarh, Chhattisgarh, NEIS 21181516.
6. Shiv Kumar Singh, S/o R.K. Singh, aged about 46 years, Electrician
Cat-VI, South Eastern Coalfields Limited, Birsinghpur Pali, Johilla Area,
Umaria, District Umaria, Madhya Pradesh, NEIS 24562324.
7. Brindabasi Patel, S/o Shri K.P. Patel, aged about 48 years,
Electrician Cat-VI, South Eastern Coalfields Limited, Birsinghpur Pali,
Johilla Area, Umaria, District Umaria, Madhya Pradesh, NEIS 24660375.
8. Kheekram Khande, S/o Shri T.R. Khande, aged about 50 years,
Electrician Cat-VI, South Eastern Coalfields Limited, Birsinghpur Pali,
Johilla Area, Umaria, District Umaria, Madhya Pradesh, NEIS 24617011.
9. Rajesh Singh, S/o Shri Heeralal Singh, aged about 46 years,
Electrician Cat-V, South Eastern Coalfields Limited, Baikunthpur Area,
Korea, District Korea, Chhattisgarh, NEIS 22627020.
10. Satish Kumar Rathore, S/o Shri R.M. Rathore, aged about 47 years,
Electrician Cat-VI, South Eastern Coalfields Limited, Baikunthpur Area,
Korea, District Korea, Chhattisgarh, NEIS 22743611.
11. Satya Narayan Shrivas, S/o Shri N.L. Shrivas, aged about 39 years,
Category-I, South Eastern Coalfields Limited, Gevra Area, Korba, District
Korba, Chhattisgarh, NEIS 24913753.
12. Vijay Kumar Mudaliar, S/o Shri C. Mudaliar, aged about 45 years,
Sub- Station Attender, Cat-IV, South Eastern Coalfields Limited, Bilaspur,
District Bilaspur, Chhattisgarh. NEIS 21168125.
13. Naihar Sai Minz, S/o Shri Mohan Ram, aged about 41 years,
Electrician Cat-V, South Eastern Coalfields Limited, Raigarh Area, Raigarh,
District Raigarh, Chhattisgarh, NEIS 24858361.
14. Kulmeet Singh, S/o Shri Rajendra Singh, aged about 46 years,
Electrical Fitter, Cat-V, South Eastern Coalfields Limited, Bhatgaon Area,
Surajpur, District Surajpur, Chhattisgarh, NEIS 24900537.
15. Ramesh Kumar Kurrey, S/o Shri M.S. Kurrey, aged about 49 years,
Electrician Cat-VI, South Eastern Coalfields Limited, Bhatgaon Area,
District Surajpur, Chhattisgarh, NEIS 22925945.
16. Bhupal Prasad Kaivart, S/o Shri M.L. Kaivart, aged about 53 years,
Electrician Helper, Cat-II, South Eastern Coalfields Limited, Bhatgaon Area,
District Surajpur, Chhattisgarh, NEIS 22926638.
17. Shivram Dalai, S/o Shri Bairagi, aged about 45 years, Electrician
Category-VI, South Eastern Coalfields Limited, Chirimiri Area, District
Korea, Chhattisgarh, NEIS 92289503.
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18. Rupchand, S/o Shri Anamo, aged about 48 years, Electrician
Category-VI, South Eastern Coalfields Limited, Chirimiri Area, District
Korea, Chhattisgarh, NEIS 92290581.
19. Radheyshyam, S/o Shri Ramkishun, aged about 44 years, Sub
Station Attendant, Cat-VI, South Eastern Coalfields Limited, Chirimiri Area,
District Korea, Chhattisgarh, NEIS 22176375.
20. Madhav Singh, S/o Shri Sidheswar Singh, aged about 43 years,
Electrician, Category-VI, South Eastern Coalfields Limited, Korba Area,
District Korba, Chhattisgarh, NEIS 22176375.
21. Shyam Lal Kamal, S/o Shri Bhukhan Singh, aged about 43 years,
Dumper Operator, South Eastern Coalfields Limited, Kusmunda Area,
District Korba, Chhattisgarh, NEIS 24903908.
22. Punee Ram Dilawar, S/o Shri S.R. Dilawar, aged about 43 years,
Clerk Grade-III, South Eastern Coalfields Limited, Korba Area, District
Korba, Chhattisgarh, NEIS 21164884.
23. Mahettar, S/o Shri Kushwa, aged about 49 years, Electrician
Category-VI, South Eastern Coalfields Limited, Korba Area, District Korba,
Chhattisgarh, NEIS 21164348.
24. Dev Prasad Teli, S/o Shri Alakh Ram, aged about 48 years,
Electrician, Kusmunda Project, Kusmunda Area, District Korba,
Chhattisgarh, NEIS 21776745.
25. Ashok Kumar Kaiwart, S/o Shri Dilip Kumar, aged about 40 years,
Electrician Group-C, South Eastern Coalfields Limited, Gevra Area, Korba,
District Korba, Chhattisgarh, NEIS 2148920.
26. Dheeraj Kumar Khunte, S/o Shri R.P. Khunte, aged about 53 years,
Electrician Category-VI, South Eastern Coalfields Limited, Bhatgaon Area,
District Surajpur, Chhattisgarh, NEIS 24951089.
... Petitioners
versus
1. South Eastern Coalfields Limited, through Chairman-cum-Managing
Director, SECL, SECL Head Quarters, Seepat Road, Bilaspur,
Chhattisgarh, Police Station Sarkanda, District Bilaspur.
2. The Director (Personnel), SECL, SECL Head Quarters, Seepat Road,
Bilaspur, Chhattisgarh, Police Station Sarkanda, District Bilaspur.
3. The General Manager (Personnel and Administration), South Eastern
Coalfields Limited, SECL Head Quarters, Seepat Road, Police Station
Sarkanda, District Bilaspur, Chhattisgarh.
4. The General Manager (Commercial/NEE/PF/Pension), South Eastern
Coalfields Limited, SECL Head Quarters, Seepat Road, Police Station
Sarkanda, District Bilaspur, Chhattisgarh.
... Respondents
For Petitioners : Mr. Anurag Dayal Shrivastava, Advocate. For Respondents : Mr. Abhishek Sinha, Senior Advocate, Mr. Vinod Kumar Deshmukh, Advocate, Mr. Sudhir Kumar Bajpayee, Advocate, Mr. Aditya Pandey, Advocate, and Mr. Samrath Singh Marhas, Advocate.
Hon'ble Shri Justice P. Sam Koshy Order [Reserved on : 27/04/2022] [Pronounced on : 12/05/2022] 3
1. The present Writ Petition has been filed by the Petitioners assailing the two actions on the part of Respondents taken on the same date i.e. on 6.1.2022 vide Annexure P-1 and Annexure P-16 respectively.
2. Annexure P-1 is the Order and decision of the Respondents cancelling of the earlier recruitment process initiated by the Respondents for appointment to the post of Electrical Supervisor (T & S) Grade - B & C. Likewise, Annexure P-16 is an Advertisement consequently issued by the Respondents for the same post of Electrical Supervisor in the light of the amended provisions of the Cadre Scheme which deals with the recruitment under the Respondent Establishment.
3. Petitioners had previously preferred another Writ Petition i.e. W.P.(S) No.2148/2020 seeking for an appropriate direction to the Respondents for issuance of appointment orders on the basis of the select-list published on 9.11.2017 as per the Administrative Order dated 27.7.2016 and 24.9.2016.
4. Brief facts relevant for the disposal of the present Writ Petition are that the Petitioners are all employees working under the Respondents/SECL. The promotions and recruitments under the Respondents are governed by the Cadre Scheme framed in the Respondent Establishment. The Cadre Scheme is framed after a joint consultative meeting of the Joint Bipartite Committee for Coal Industry (JBCCI).
The whole issue involved in the present Writ Petition arose on account of the Minutes of the 13th meeting of the Standardization Committee of JBCCI-IX held on 5.4.2016 at New Delhi. In the said Meeting, certain recommendations were made regarding reformation of the existing Policy and Cadre Scheme for the purpose of meeting the shortage in the statutory post of Electrical Supervisor under the Respondents. 4
5. Based on the aforesaid recommendation made in the said Meeting, the Coal India Limited had issued an Administrative Order on 27.7.2016 introducing certain new guidelines deciding the eligibility criteria for filling up of the post of Electrical Supervisor (T & S) Grade-B. Based on the said Administrative Order dated 27.7.2016, a recruitment process was initiated vide Order dated 24.9.2016 (Annexure P-4). Based on the said recruitment drive, since the Petitioners were also eligible in terms of the Administrative Order dated 27.7.2016 and the procedural modalities framed thereunder, the results of which was published on 9.11.2017 wherein the Petitioners were also found meritorious and their names appeared in the merit-list.
6. As soon as the said recruitment process was initiated and the results were declared, there were few Petitions which were filed challenging the subsequent recruitment process, i.e., W.P.(S) No. 6847/2017, 7252/2017 & 2148/2020. There were also certain Interim Order passed by this Court and the said Interim Order subsequently at a later stage got vacated. In between, some of the Petitioners in those Writ Petitions have got their promotions in the usual course by virtue of their seniority and some of the Writ Petitions were withdrawn. Another Petition i.e. W.P.(S) No.7252/2017 is taken up for hearing along with the present Writ Petition. Petitioners in the present Writ Petition meanwhile also had filed W.P.(S) No.2148/2020 for appropriate direction to the Respondents for issuance of appointment orders based on the select-list that was published on 9.11.2017 wherein the names of the Petitioners also were reflected.
7. Pending those Writ Petitions before this Court, the Respondents recently have taken the two impugned decisions; one for cancelling the earlier recruitment process wherein the Petitioners were selected, Annexure P-1, and the second issuance of a new Advertisement, Annexure P-16, both issued on the same date i.e. on 6.1.2022.
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8. Contention of learned Counsel for Petitioners was that once when the recruitment process has been initiated under the then existing recruitment policy of the Respondents and the select-list also having been finalized, there was no reason why the Respondents should not have proceeded further and issued appointment orders in favour of the meritorious candidates. Further contention was that once when the Administrative Order has been passed by the Respondents pursuant to the Standardization Committee's recommendation, the decision taken by way of Administrative Order dated 27.7.2016 automatically became enforceable as it would thereafter form part of the policy of recruitment/promotion under the Respondent Establishment.
9. Learned Counsel for Petitioners further contended that since the Administrative Order dated 27.7.2016 was issued by the Coal India Limited, the Cadre Scheme operative under the Respondent Establishment automatically stood modified and unless a change is brought all, recruitments and promotions had to be carried out based on the said Administrative Order. According to learned Counsel for Petitioners, the Respondent Authorities failed to appreciate the fact that the effect of the issuance of the Administrative Order dated 27.7.2016 had to be treated as if the Cadre Scheme under the Respondents itself getting amended.
10. It was further contended by learned Counsel for Petitioners that the Respondent Authorities cannot be permitted to cancel the entire recruitment process earlier initiated without any strong, cogent and justifiable reason and the two actions on the part of the Respondents both deserves to be set aside/quashed. According to learned Counsel for Petitioners, when there is no dispute in respect of the issuance of the Administrative Order dated 27.7.2016, the Cadre Scheme till then applicable for recruitment to the post 6 of Electrical Supervisor stood modified and any recruitment which had to be taken was in the light of the Administrative Order dated 27.7.2016 and the reformations and modifications introduced by way of the said Administrative Order. Therefore, the Respondents should be restrained from enforcing the new Advertisement and the recruitment process should be dropped and the Respondents should be further directed to proceed further with the recruitment process of which the results were declared on 9.11.2017 wherein the Petitioners were found meritorious and have got a place in the select-list.
11. Learned Counsel for Petitioners has relied upon Section 6 of the General Clauses Act propounding that what has been done strictly under law, cannot be superseded subsequently by way of modification or amendments. In the instant case, since the entire process through which the Petitioners were placed in the select-list was in accordance with the then prevailing rules, the actions on the part of the Respondents would thus have the protection under Section 6 of the General Clauses Act.
12. Learned Counsel for Petitioners in support of his contentions has relied upon the following Judgments :-
i) AIR 1952 SC 16 - Commissioner of Police, Bombay Vs. Gordhandas Bhanji
ii) AIR 1967 SC 1742 - Hasan Nurani Malak Vs. M. Ismail
iii) AIR 1990 SC 1233 - N.T. Bevin Katti Vs. Karnataka Public Service Commission & Ors.
iv) AIR 2010 SC 2794 - East Coast Railway & Anr. Vs. Mahadev Appa Rao & Ors.
v) 2011 (6) SCC 570 - J.S. Yadav Vs. State of U.P. & Ors.
vi) 2022 SCC Online SC 28-Punjab State Cooperative Agricultural Development Bank Ltd. Vs. Registrar, Cooperative Societies & Ors.
13. Per contra, opposing the Petition, learned Senior Counsel appearing for Respondents/SECL submits that the Petitioners at the outset itself do not have an indefeasible right created in their favour for the Writ Petition to 7 be entertained. According to learned Senior Counsel, merely because the Petitioners' name appears in the select-list by itself does not create a right in their favour. They do not have an enforceable right for the High Court to exercise its extraordinary power of judicial review under Article 226 of the Constitution of India. Unless the orders of appointment are issued, the claim of the Petitioners and the relief sought for would not become enforceable.
14. Further contention of learned Senior Counsel for the Respondents is that the plain reading of the impugned Order dated 6.1.2022 itself would reflect that the reasons and the grounds under which the impugned Order was passed. That since reasons and grounds have been reflected in the impugned Order, the scope of interference by this Court under Article 226 of the Constitution of India also becomes too minimal.
15. Learned Senior Counsel for the Respondents further contended that what also led to the cancellation of the earlier recruitment and going in for a fresh recruitment was that the earlier recruitment was not in accordance with the existing Cadre Scheme applicable in the Respondent Establishment. Rather, the earlier recruitment process was initiated only on the basis of the Administrative Order which otherwise may not have a statutory force of law. It was for this reason that the same was recalled and in terms of the amended Cadre Scheme, a fresh recruitment drive has been initiated. Thus, according to learned Senior Counsel for the Respondents, the Writ Petition being totally devoid of merits deserves to be dismissed.
16. It was the further contention of the learned Senior Counsel for the Respondents that even after the new recruitment process was initiated, 21 out of 26 Petitioners have already applied and participated in the recruitment process without any protest or demur or any objection while applying for the same. That, since most of the Petitioners have already 8 applied without any objection the same would amount to the Petitioners having waived their right to challenge the action on the part of the Respondents, in cancelling the recruitment process earlier initiated. Petitioners would be estopped by their conduct for challenging the new recruitment process.
17. Having heard the contentions put forth on either side and on perusal of the records, what is an admitted factual position is that the Petitioners herein are the employees working under the Respondents. The recruitments and promotions under the Respondents are regulated by the Cadre Scheme framed by the Respondents through a Bipartite settlement i.e. JBCCI. Respondents, meanwhile, on the basis of an Administrative Order, initiated the recruitment process for filling up of the post of Electrical Supervisor from among the qualified departmental employees both, diploma and non-diploma holders having supervisory certificate for working as Electrical Supervisor in Mines. Petitioners also participated for the same and they were found suitable and their names reflected in the select-list dated 9.11.2017. After the select-list was published on 9.11.2017, there has been no further development on the same and finally the impugned Notice dated 6.1.2022 (Annexure P-1) was passed by the Respondents and it was decided to cancel the recruitment process initiated earlier vide the Administrative Order dated 27.7.2016 and a fresh recruitment process was ordered to be initiated in terms of the amended Cadre Scheme which was in force on the date of the issuance of the impugned Notice dated 6.1.2022.
18. From the aforesaid admitted factual matrix of the case, what is evident is that the Respondent Department did initiate a recruitment process for filling up of the post of Electrical Supervisor (T & S) Grade-C in the year 2017. Admittedly, the recruitment was not finalized. After the applications were invited, the lists of the eligible candidates were published 9 in which the names of the Petitioners were also reflected. Admittedly, yet again no orders of appointment were issued in favour of any of the Petitioners. The select-list was published on 9.11.2017 and by the time the impugned Notice was issued on 6.1.2022, more than four years had lapsed. Pending the finalization of the recruitment in which the Petitioners' names were reflected in the select-list, the Cadre Scheme in the Respondent establishment stood modified/amended with new qualifications being introduced for appointment to the post of Electrical Supervisor (T & S) Grade-C. In the light of the change in the essential qualification for the post of Electrical Supervisor, the change being brought by way of amendments to the Cadre Scheme itself and the previous recruitment process not being finalized in spite of more than four years having lapsed, the Respondents took a policy decision to cancel the earlier recruitment and go in for a fresh recruitment process in the light of the amended Cadre Scheme.
19. The Hon'ble Supreme Court in 1993 Supp (2) SCC 600 [Jai Singh Dalal & Others Vs. State of Haryana & Anr.] while deciding with the issue of the recruitment rules getting amended before the earlier recruitment was finalized and there was a change in the educational qualification for a particular post and thereafter canceling for earlier recruitment and going for a fresh recruitment altogether, in Para-7 has held as under:-
"7. It is clear from the above pleadings that in 1990 the State Government resolved to resort to special recruitment to the Haryana Civil Service (Executive Branch) invoking the proviso to Rule 5 of the Rules. Pursuant thereto, it issued the notifications dated December 20, 1990 and January 25, 1991. The names of the candidates were forwarded by the State Government to the HPSC for selection. The HPSC commenced the selection process and interviewed certain candidates. In the meantime, on account of an undertaking given by the Advocate-General to the High Court at the hearing of C.W.P. No. 1201 of 1991 and allied Writ Petitions, the State Government was required to forward the names of the candidate belonging to two other departments of the State Government. Before it could do so, the new Government came into power and it reviewed the decision of the earlier 10 Government and found the criteria evolved by the earlier Government unacceptable and also noticed certain infirmities in the matter of forwarding the names of eligible candidates. It, therefore, resolved to rescind the earlier notifications of December 20, 1990 and January 25, 1991. It will thus be-seen that at the time when the Writ Petition which has given rise to the present proceedings was filed, the State Government had withdrawn the aforesaid two notifications by the notification dated December 30, 1991. The stage at which the last mentioned notification came to be issued was the stage when the HPSC was still in the process of selecting candidates for appointment by special recruitment. During the pendency of the present proceedings the State Government finalised the criteria for special recruitment by the notification of March 9, 1992. Thus, the HPSC was still in the process of selecting candidates and had yet not completed and finalised the select list nor had it forwarded the same to the State Government for implementation. The candidates, therefore, did not have any right to appointment. There was, therefore, no question of the High Court granting a mandamus or any other writ of the type sought by the appellants. The law in this behalf appears to be well-settled. In the State of Haryana v. Subash Chander Marwaha and Ors. (1974) SCR 165, this Court held that the mere fact that certain candidates were selected for appointment to vacancies pursuant to an advertisement did not confer any right to be appointed to the post in question to entitle the selectees to a writ of mandamus or any other writ compelling the authority to make the appointment. In that case, an advertisement was issued stating that there were 50 vacancies in the Haryana Civil Service (Judicial Branch). An examination was held by the HPSC and 40 candidate passed the said examination with the required minimum 45% marks. Their names were published in the Government Gazette. The State Government, the appointing authority, made seven appointments out of the said list in the order of merit. Respondents, who ranked 8, 9 and 13 respectively in that list, did not get an appointment although there were vacancies. The reason for not appointing the respondents was that in the view of the State Government, which was incidentally identical to that of the High Court, candidates getting less than 55% marks in the examination should not be appointed as Subordinate Judge in the interest of maintaining high standards of competence in judicial/ service. Respondents 1 to 3 challenged this decision on the ground that the State Government was not entitled to pick and choose only seven out of them for appointment, because to do so Tanta mounted to prescribing a standard which was not contemplated. The State Government on the other hand contended that the rules did not oblige them to fill in all the vacancies and it was open to them to appoint the first seven candidates in the interest of maintaining high standards. It was further contended that there was no question of picking and choosing and since the rules did not preclude it from selecting from the list the candidates for appointment to set a higher standard, the State 11 Government could not be said to have infringed, any legal right of the selectees for appointment. In the background of these facts this Court came to the conclusion that the mere fact that the candidates were chosen for appointment in response to the advertisement did not entitle them to appointment. To put it differently, no right had vested in the candidates on their names having been entered on the select list and it was open to the Government for good reason not to make the appointments therefrom and fill in the vacancies.In a recent decision in Shankarsan Dash v. Union of India , the Constitution Bench of this Court reiterated that even if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates do/not acquire any indefeasible right to appointment against the existing vacancies, It was pointed out that 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. The State is under no legal duty to fill up all or any of the vacancies by appointing candidates selected for that purpose. Albeit, the State must act in good faith and must not exercise its power mala fide or in an arbitrary manner. The Constitution Bench referred with approval the earlier decision of this Court in Subash Chander's case. Therefore, the law is settled that even candidates selected for appointment have no right to appointment and it is open to the Slate. Government at a subsequent date not to fill up the posts or to resort to fresh selection and appointment on revised criteria. In the present case the selection was yet to be made by the HPSC. Therefore, the petitioners cannot even claim that they were selected for appointment by the HPSC. The selection process had not been completed and before it could be completed the State Government reviewed its earlier decision and decided to revise the eligibility criteria for appointment. It is, therefore, clear from the settled legal position that the petitioners had no right to claim that the selection process once started must be completed and the Government cannot refuse to make appointments of candidates duly selected by the HPSC."
20. Further, the Hon'ble Supreme Court in a series of decisions has delved with the issue as regards the right of a person whose name stands included in the select-list. Repeatedly, the Hon'ble Supreme Court has reiterated the fact that mere inclusion of the name of a person in the select- list would not give rise to an indefeasible right in his favour. A few of the decisions in this regards are being reproduced herein below :- 12
(1) In 2001 (6) SCC 380 [All India SC & ST Employees Association & Anr. Vs. A. Arthur Jeen & Ors.] in Para-10, the Hon'ble Supreme Court has held 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 Vs. Union of India [1991 (3) SCC 47]. Para 7 of the said judgment reads thus :-
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 vs. Subhash Chander Marwaha [(1974) 3 SCC 220], Neelima Shangla vs. State of Haryana [(1986) 4 SCC 268] or Jatendra Kumar vs. State of Punjab [(1985) 1 SCC 122]."
(2) Again in 2003 (5) SCC 373 [State of A.P. & Ors. Vs. D. Dastagiri & Ors.] in Para-4, the Hon'ble Supreme Court held as under:-
"4. In the counter affidavit filed on behalf of the respondents in Civil Appeal No. 915/2000, in paragraph 13 16 it is stated that the process of selection was cancelled at the last stage, i.e., before publishing the list of selected candidates on the sole ground that the State Government wanted to introduce prohibitor and obviously the Government felt that there was no need of Excise Constables during imposition of prohibition in the State. There is serious dispute as to the completion of selection process. According to the appellants, the selection process was not complete. No record has been placed before us to show that the selection process was complete, but, it is not disputed that the select list was not published. In paragraph 16 of the counter affidavit, referred above, the respondents themselves had admitted that the selection process was cancelled at the last stage. In the absence of publication of select list, we are inclined to think that the selection process was not complete. Be that as it may, even if the selection process was complete and assuming that only select list was remained to be published, that does not advance the case of the respondents for the simple reason that even the candidates who are selected and whose names find place in the select list, do not get vested right to claim appointment based on the select list. It was open to the State Government to take a policy decision either to have prohibition or not to have prohibition in the State. Certainly, the Government had right to take a policy decision. If pursuant to a policy decision taken to impose prohibition in the State there was no requirement for the recruitment of Constables in the Excise Department, nobody can insist that they must appoint the candidates as Excise Constables. It is not the case of the respondent that there was any malafide on the part of the appellants in refusing the appointment to the respondents after the selection process was complete. The only claim was that the action of the appellants, in not appointing the respondents as Excise Constables, was arbitrary. In the light of the facts that we have stated above, when it was open to the Government to take a policy decision, we fail to understand as to how the respondents can dub the action of the Government as arbitrary, particularly, when they did not have any right as such to claim appointments. In the absence of selection and publication of select list, mere concession or submission made by the learned Government Pleader on behalf of the appellant-State cannot improve the case of the respondents. Similarly, such a submission cannot confer right on the respondents, which they otherwise did not have."
(3) Similar view was further reiterated by the Hon'ble Supreme Court in 2005 (9) SCC 22 [Punjab State Electricity Board & Ors. Vs. Malkiat Singh] where also in Para-4 it was held as under:- 14
"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 vs. Union of India [(1991) 3 SCC 47] which reads:-
"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 ((1974) 3 SCC 220 : 1973 SCC (L&S) 488 : (1974) 1 SCR 165), Neelima Shangla v. State of Haryana ((1986) 4 SCC 268 : 1986 SCC (L&S) 759), or Jatendra Kumar v. State of Punjab ((1985) 1 SCC 122 : 1985 SCC (L&S) 174 : (1985) 1 SCR 899)"."
21. Admittedly, the Cadre Scheme was not amended in the light of the resolutions passed by the Respondents vide Administrative Order dated 27.7.2016 and it was merely an administrative instruction alone. There were a large number of objections and disputes that cropped up pursuant to the Administrative Order dated 27.7.2016 including various Writ Petitions also. After considering these disputes which arose because of the Administrative Order dated 27.7.2016, more particularly when the Cadre Scheme was not amended, the Department decided recalling of the administrative decision 15 and passed the impugned Notice under challenge in the present Writ Petition. If the earlier recruitment process, as is prayed for by the Petitioners, is permitted to be concluded and since the Cadre Scheme is not amended, the entire recruitment therefore would be in contravention to the existing Cadre Scheme and the entire recruitment would have been illegal. Without prejudice to the aforesaid legal position, if we permit the Respondents to conclude the departmental recruitment process initiated in the year 2017 only on the basis of the Administrative Order dated 27.7.2016, it would be permitting the Respondents to further perpetuate the illegality.
22. What is also necessary to be appreciated at this juncture is that there has been no allegation of any mala fide or arbitrariness on the part of the Respondents in the course of issuing the Notice under challenge, except for the bald allegation of the same being arbitrary and contrary to law. One must not forget that the recruitment process earlier initiated was of the year 2017 and it was not finalized till now. Meanwhile, the recruitment rules stood amended by way of amendment/modification to the Cadre Scheme and a considerable time having passed, since the earlier recruitment was not finalized, in all fairness, the Department thought of going in for a fresh recruitment in terms of the amended/modified Cadre Scheme presently in vogue. Thus, admittedly, the Respondents had a justifiable and plausible reason for cancelling the earlier recruitment which cannot be said to be in any manner illegal or arbitrary. Moreover, it is well within the prerogative and domain of the Employer to decide the method of the recruitment to be undertaken at a particular period of time. Under no circumstances can the said recruitment be contrary to the recruitment policy/rules/cadre scheme etc as may be applicable in the Establishment. In the instant case, the amended policy is not under challenge. In the absence of any challenge to 16 the amendment in the Cadre Scheme, the recruitment initiated under the existing Cadre Scheme cannot be held to be contrary to rules.
23. In 2007 (8) SCC 161 [Union of India & Ors. Vs. S. Vinodh Kumar & Ors.], the Hon'ble Supreme Court in very categorical terms held that it is the well settled position of law that even a selected candidate do not have any legal right for claiming employment. This view further stood reiterated in 2018 (7) SCC 260 [Gurmeet Pal Singh Vs. State of Punjab & Anr.] which has been further followed in 2020 (10) SCC 448 [Commissioner of Police & Anr. Vs. Umesh Kumar] where again in Para-19 it has been held as under :-
"19. The real issue, however, is whether the respondents were entitled to a writ of mandamus. This would depend on whether they have a vested right of appointment. Clearly the answer to this must be in the negative. In Punjab SEB vs. Malkiat Singh10, this Court held that the mere inclusion of candidate in a selection list does not confer upon them a vested right to appointment. The Court held:
"4. ...the High Court committed an error in proceeding on the basis that the respondent had got a vested right for (2005) 9 SCC 22 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 [(1991) 3 SCC 47 : 1991 SCC (L&S) 800 : (1991) 17 ATC 95] 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 17 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 [(1974) 3 SCC 220 : 1973 SCC (L&S) 488 : (1974) 1 SCR 165] , Neelima Shangla v. State of Haryana [(1986) 4 SCC 268 : 1986 SCC (L&S) 759] or Jatinder Kumar v. State of Punjab [(1985) 1 SCC 122 : 1985 SCC (L&S) 174 : (1985) 1 SCR 899]." (emphasis supplied)"
24. At the same time, the Judgments which have been cited by the learned Counsel for the Petitioners in support of his contentions, referred to in the preceding paragraphs, perusal of the facts of the said cases would reveal that those Judgments have been laid down under entirely different factual background and in exercise of altogether different jurisdictions.
25. Thus, for all the aforesaid reasons, this Court does not find any strong case made out by the Petitioners calling for an interference with the impugned Order/Notice dated 6.1.2022 (Annexure P-1).
26. Writ Petition therefore being bereft of merits and also since the Petitioners do not have any indefeasible right created in their favour, deserves to be and is accordingly dismissed. No orders as to cost(s).
Sd/-
(P. Sam Koshy) Judge /sharad/