Gujarat High Court
Pushpaben vs Indian on 15 July, 2010
Author: H.K.Rathod
Bench: H.K.Rathod
Gujarat High Court Case Information System
Print
SCA/5921/2010 13/ 21 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 5921 of 2010
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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, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
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PUSHPABEN
JAIDEEPBHAI MORI - Petitioner(s)
Versus
INDIAN
OIL CORPORATION LTD & 1 - Respondent(s)
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Appearance
:
MR
ANSHIN H DESAI for
Petitioner(s) : 1,
NOTICE SERVED BY DS for Respondent(s) : 1,
MRS
MAUNA M BHATT for Respondent(s) : 1 -
2.
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CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 15/07/2010
ORAL
ORDER
1. Heard learned advocate Mr.A.H.Desai for petitioner and learned Senior Advocate Mr.M.R.Bhatt for learned advocate Mrs.Mauna Bhatt on behalf of respondents.
2. Brief facts of present case are that on 31.3.2009, the respondent Corporation vide public advertisement dated 31.7.2009 published in the Times of India, declared that, for 15 locations, retail outlet dealership was to be given in the State of Gujarat of different categories. The petitioner belongs to ST category. As per the procedure, the respondent Corporation also called for verification of the caste certificate of the petitioner from the Mamlatdar, Mamlatdar office, Bhanvad vide communication dated 25.1.2010. On 3.2.2010, the Mamlatdar, Bhanvad vide communication confirmed the same by replying in writing to the respondent Corporation. Vide Regd.A.D. Communication dated 26.11.2009, the petitioner was communicated that the petitioner shall have to appear before the Selection Committee for interview at Rajkot on 22.12.2009 at 15.00 hrs. along with the documents. As the petitioner was declared on merit panel No.1 on 22.12.2009 and because for a period of almost two months, no letter of intent / final order of allotment of the retail outlet dealership was issued to the petitioner, the petitioner complained to the Member of Parliament, Jamnagar and vide communication dated 20.2.2010, the complaint of the petitioner was forwarded to the respondent Corporation by the Member of Parliament,Jamnagar. The reply dated 16.3.2010 given to the Member of Parliament by the respondent Corporation, it is stated that re-interviews are to be held because there were some lapses in 'initial scrutiny' and some of the applicants were wrongly denied an opportunity to appear in the interview, and therefore, selection process has been cancelled, and re-interviews of all the eligible applicants have been planned. The petitioner again sent a communication dated 21.2.2010 to the respondent No.2 complaining about the inaction on the part of the respondent Corporation, wherein it is also stated that the FIR is also completed on 25.2.2010 and inspite of that, no letter of intent / order has been sent to the petitioner.
3. Against that, affidavit-in-reply is filed by respondents which is at Page-65. Relevant averments are in Para.2 to 5, which are quoted as under :
2. At the outset, I most respectfully submit that merely because in the outlet list, the petitioner has been at placed at Sr.No.1, ipso facto does not entitle the petitioner for award of dealership. I humbly submit that no fundamental rights of the petitioners have been violated and on this limited ground alone, the petition is not maintainable and may kindly be rejected summarily with costs.
3. I further humbly submit that none of the averments made in the memo of the petition, not specifically dealt with in the present affidavit or forming part of the record may be treated as admitted and I specifically deny the averments not specifically dealt with in the present affidavit or forming part of the record.
4. I humbly submit that as will be demonstrated hereinafter, in order to maintain complete transparency in the selection procedure, the respondents have acted strictly in consonance with the terms and conditions of the public notice. I submit that as per clause(10)(1), this was only an application and not an offer of dealership. I further submit that as per clause10(n), grievance having been received for two locations namely Lathi and Amreli within the time frame and upon further investigation carried out, it was found that similar irregularities occurred for Hadala, Dist Surendranagar also and hence it was thought fit to even cancel the selection for the Hadala location. I submit that malafides not having been alleged and proved, this Hon'ble Court may be pleased not to entertain the petition on this ground also.
5. I submit that interviews for the retail outlet locations at Lathi, Dist.Amreli and Hadala. Dist. Surendranagar were undertaken. A complaint from one Shri Umath Dhansukhbhai Merubhai for the location at Lathi, which was advertised under the ST category was received. In the said complaint, it was stated that his application was rejected on the ground that the signature in the application form and affidavit did not tally. A representation was received by the Executive Director of the Gujarat State Office of IOC from the said applicant stating that his application had been rejected as he had signed in the application in English and in the affidavit in Gujarati. I submit that based on the said representation, the Executive Director sought for a report for the said rejection on frivolous grounds. I submit that thereupon, a report was submitted, in which it was recorded that the above referred applicant had signed in all places in the application (except affidavit) in English whereas in the affidavit, he had signed in Gujarati. It was stated that since the affidavit was signed in Gujarati and the said document was important, the Selection Committee had decided to reject the application. The Executive Director of IOCL, noting that this was a frivolous ground for rejecting the application, gave a decision that the stand taken by the Selection Committee was not correct and that the said candidate had been denied the chance to appear for the interview. Further inquires were made about the number of locations in which the Selection Committee had followed the same methodology.
It was ascertained that the said Selection Committee had followed the same methodology of rejecting the application form on the ground of difference in signature for three locations, viz. Lathi, Hadala and Malia. The Executive Director, being the final authority in the Gujarat State Office, therefore formed an opinion that rejection of the applications on the above referred ground had affected selection process for all the three locations. The decision was therefore taken in public interest to cancel the merit panel and for re-interview for all the three locations. I submit that the above referred sequence of events would demonstrably go to show that the merit panel has been cancelled as the respective candidates had been put at disadvantage in view of the Selection Committee's action of rejecting otherwise eligible applications on the sole ground that the said candidates having signed in English and Gujarati language. As this was a hyper technical view taken by the Selection Committee, in the interest of all the candidates, the decision for cancelling the merit panel and for re-interview has been taken.
4. Against that, affidavit-in-rejoinder is filed by petitioner reiterating the same allegations against respondent Corporation. Learned advocate Mr.Desai submitted that on that basis, it seems that there are no valid, genuine and bonafide reasons for the respondent Corporation to call for fresh selection and petitioner presumed that some applicant/s who were desirous of having the retail outlet dealership for the location of Hadala, Dist.-Surendranagar having failed in such ranking system, have tried to use the pressure on the officers of the Corporation and have sought for fresh selection and therefore, the Law Officer of the respondent Corporation has sat tight lipped about the reasons for which the fresh selection is sought for by the respondent Corporation. He also submitted that affidavit of respondent is silent on the important points, viz. who is the complainant, on what basis the decision is taken, is any notice is issued, is any hearing afforded, what are the grounds on which fresh selection is sought for. Therefore, these are the points and for that, affidavit of respondent remained silent. Therefore, allegation which has been made by petitioner in petition amounts to accepting by respondent. He relied upon in rejoinder, certain procedure prescribing in brochure for selection of petrol/diesel outlet dealership.
5. Before this Court, learned advocate Mr.Desai again emphasizes his submissions that in respect to Hadala, no complaint received by respondent. Let these facts may be disclosed while scrutinizing application and what happened. He submitted that first they have to scrutinize application submitted by all the applicants in respect to Hadala and thereafter, they have to consider marks given in oral interview and if any of the candidate who having higher marks comparison to petitioner, some mistake is committed, then they can hold the fresh interview. For that, there is no such averments made by respondent in affidavit-in-reply. In short, the petitioner is challenging decision of respondent cancelling selection list in respect of three places (i) Hadala (ii) Lathi and (iii) Maliya. The learned Senior Advocate Mr.M.R.Bhatt submitted that the petitioner is belonging to ST category at Hadala. The decision which has been taken by respondent for re-interview the same candidates those who appeared earlier removing certain discrepancies occurred due to signature in application form in Gujarati / English. The detail reason has been given by respondent Corporation in affidavit-in-reply which can be considered to be objective decision of respondent to cancel entire select list in three places and decided to have fresh selection where the present petitioner is also to be called for interview.
6. Learned Senior Advocate Mr.M.R.Bhatt submitted that in procedure, there are two stages; one is for scrutiny of application and second is for oral interview. Therefore, petitioner will be called once again for interview straightway by respondent in the re-interview as and when scheduled by respondent.
7. I have considered submissions made by both learned advocates and averments made in petition, affidavit-in-reply as well as affidavit-in-rejoinder of petitioner. I failed to understand the submission made by learned advocate Mr.Desai. Merely in oral interview petitioner has been selected at Serial No.12, is not giving any right which can be enforced against respondent Corporation. Merely name is included in select list, it cannot give any legal vested or statutory right for appointment or offered dealership. Such selection list cannot be enforced against respondent once entire select list is cancelled by respondent Corporation. In certain cases, when malpractice has been adopted by some of the persons or some technical difficulties or lapse on administrative side is occurred, in such circumstances, entire select list is required to be cancelled so that it can be given reasonable opportunity to each candidate, who have not been given opportunity at the relevant time because of some discrepancies arise in scrutinizing the application form. Therefore, according to my opinion, the contentions which have been raised by learned advocate Mr.Desai cannot be accepted.
8. Learned Senior Advocate Mr.M.R.Bhatt has relied upon one decision of this Court in SCA No.3537 of 2010 decided on 21.4.2010 where identical / similar question has been examined by this Court. Relevant observations are in Para.21 to 28 are quoted as under :
21. Having heard learned advocates appearing for the parties and having considered their rival submissions in light of the provisions contained in the advertisement inviting applications for awarding Retail Outlet Dealership for various places including Palanpur and also in light of the Policy Circular No.90-10/2005 in respect of evaluation for dealer selection and also in light of the decided case law on the subject, the Court is of the view that the moot question before the Court is to decide as to whether the awarding of zero marks for the Project Report when it is not signed by the candidate is justified and on complaint being made by the aggrieved party, to cancel the select list is in violation of the Policy framed by the respondent Corporation. Before addressing these two questions, it is necessary to take into consideration the other provisions of the advertisement as well as the Policy Circular No.90-10/2005. Clause 10 (l) of advertisement makes it clear that this was merely an application and not an offer of Dealership. Once the selection list having been prepared, it is to be displayed.
However, this final select list would not confer any right on the candidate so selected as the aggrieved party shall have right to make complaint against such final selection list within 30 days from the date of display of such selection list. When such a complaint is made by the aggrieved party within the period of 30 days, it is required to be investigated as per the procedure laid down and if the grievance raised in the complaint is found to be justified, such a final list may be cancelled and fresh selection list is required to be prepared. Thus, simply because petitioner stood at Sr. No.1 in the selection list, this fact by itself does not confer any right on the petitioner as the candidate at Sr. No.2 has raised a complaint within the period of 30 days from the date of display of the selection list and he has raised the grievance that he has been wrongly awarded zero mark for the Project Report. The whole question, therefore, depends upon the issue as to whether awarding of zero mark to the candidate at Sr. No.2 and others who have not signed the Project Report is justified. In support of the original decision of the respondent authorities of awarding zero mark to the candidates for the Project Report submitted by them, without affixing their signature on such Project Report, reliance is placed by the petitioner on Clause 10 (e) of the selection of Petrol / Diesel Retail Outlet Dealers framed by the respondent Corporation which clearly indicates that the originals of the affidavits and self-attested copies of the other supporting documents should be submitted along with complete application form, duly signed. The prima facie reading of this Clause would normally make any one to believe that all the documents which are submitted along with the application are required to be signed by the candidates and if any document is not signed by the candidate, the same shall not be considered by the Selection Committee and if any marks are to be given against the said document, the same will be zero marks as per the Policy contained in Circular No.90-10/2005 dated 10.10.2005. However, before accepting this interpretation, two issues arise for Court's determination. Firstly, what is the interpretation put forward by the Investigating Officer and accepted by the respondent Corporation and whether such an interpretation is correct in the eye of law. The Investigating Officer in his report dated 22.01.2010 has taken the view that as per Clause 10 of the advertisement, all documents / certificates are to be self-attested and copies thereof are to be attached with the application. In the Gujarati version of the advertisement, for document, the word used is Dastavej , which in common parlance means documents / papers issued by / authenticated by Government or some other authorities. Since the Project Report is prepared by the applicant himself, he may not have considered this as a document or 'Dastavej'. The Investigating Officer further observed that no where in the advertisement, it is clearly stated that all papers attached with the application are to be signed by the applicant. Since the complainant who stood at Sr. No.2 in the selection list has included Project Report in the duly signed application form, the check list of documents to be submitted, giving page numbers, it will be unfair to ignore the Project Report. Considering all these aspects of the matter, the Investigating Officer took the view that the Project Report should have been considered and marks should have been awarded. He has, therefore, recommended that the decision of the Level 1 Committee of awarding zero mark to the Project Report which was not signed by the candidate would amount to unfair practice and hence, the merit panel is required to be cancelled and fresh interview process of Palanpur location is required to be again undertaken. This recommendation of the Investigating Officer was approved by the Executive Director of Gujarat State Office and accordingly, decision to conduct fresh interview for Palanpur location was taken.
22. Clause 4 of the Policy Circular No.90-10/2005 deals with basis for marking. It states that Level Committee 1 will scrutinize the applications and award marks to the candidates in respect of the parameters, which are based on documents. The details are as under :-
Parameter Max Marks Evaluation Capability to provide land and infrastructures / facilities.35
Based on documents Capability to provide finance.25
Based on documents Educational Qualification 15 Based on documents Age 04 Based on documents Capability to generate business Tie up with prospective customer.
Project Report for realizing sales potential.05 03
Production of documents and affidavit from prospective customers.
Project Report Experience Retail trade of petroleum products.
Other / related petroleum trade/transport / automobiles.
Hospitality / Service industry / FMCG Others 04 04 03 02 01 Based on furnishing of documentary evidence to establish the relevant service of minimum 1 year.
Total 91
23. In the above Chart, against all columns, except the column of Project Report, parameters are to be judged and evaluation is to be made on the basis of the documents produced. Only against Project Report for releasing sales potential, evaluation is to be made only on the basis of the Project Report. Clause 5 further makes it clear that the above marks will have to be awarded on the basis of attested copies, documents submitted along with the application as original documents are to be brought by the candidates at the time of interview. All the documents enclosed with the application will be serially numbered and signed by each Level 1 Committee Member.
Clause 11 further makes it clear that the original documents brought by the applicants are to be seen by the Officer deputed by the Divisional Office and verified with the attested copies submitted by them. In cases where there is a discrepancy in the attested copy as compared to the original documents, such candidates will be declared ineligible. Various clauses of the Policy Circular give separate identification to the Project Report and it is something different from the document. This would, therefore, lead to believe that when the Project Report is submitted as it is, it may not be required to be signed and if such a Project report is not signed, the same shall not be considered as furnishing of an unsigned document. The reasonable belief of the candidate when he has submitted an unsigned Project Report that this being not a document, meaning thereby not a copy of the original document, it is not required to be signed and when the Investigating Officer took the view that it is not justified to ignore such Project Report, which is not signed, the Court should not interfere in such decision.
24. It is also necessary to deal with one more contention raised by the petitioner challenging the cancellation of select list on the ground that such a procedure is adopted only with regard to Palanpur location whereas in other locations also, zero marks are awarded for the Project Reports when they are submitted by the candidates without affixing their signature and despite this fact, no such action was taken by the respondent Corporation in respect of those areas.
25. There is no much substance in this argument as the complaints are made within stipulated time only in respect of Palanpur location. The respondents, on their own, will not initiate any inquiry and cancel the select list. As per the guidelines, only when some complaints are received within the stipulated period and on inquiry, if it is found that the complainant is justified in making such complaints, then only, inquiry is made and after investigation, appropriate decision is taken. Thus, even if zero marks are allotted to the Project Reports in other locations, there is nothing wrong if those selection lists were not cancelled by the respondent Corporation.
26. Even if it is assumed that the Project Report is also a document and it is to be signed and since the said document is not signed by any particular candidate, whether the respondent Corporation is justified in awarding zero marks for such Project Report. The Clauses in the Policy Circular are to be divided into two parts, some of the clauses are substantive clauses whereas some of the clauses are procedural clauses. When a particular paper or document is not signed with the bonafide belief that it is not required to be signed and on that basis, if the said document is not considered, the respondent authorities cannot be held to be justified in taking decision as it is mainly a procedural irregularity and simply on that basis, zero mark should not have been awarded who have submitted such Project Report. It should have been evaluated on its own merit subject to further clarification from the candidate at the time of oral interview. The Courts have also time and again made such distinction and in a given case, appropriate directions are issued. In Jagdish Mandal (Supra), the Apex Court in a very categorical term held that if the decision relating to award of contract is bona fide and is in public interest, courts will not, in exercise of power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out. Here in the present case, it is a bonafide decision of the respondent authorities, based on the investigation report and approved by the Executive Director of Gujarat State Office of the respondent Corporation. At the most, it can be said to be a procedural aberration or may amount to error in reassessment on investigation by the Investigating Officer or it may cause some prejudice to the petitioner. Despite this, the Court should not exercise its power of judicial review in such matter and interfere in the decision taken by the respondent authorities for cancellation of the selection list and conducting re-interview for Palanpur location. There is no basis for accepting the allegation that the whole exercise was undertaken only with a view to favour the candidate at Sr. No.2.
27. The entire procedure undertaken by the respondent Corporation is transparent and proper accountability is fixed at every stage. Even after canceling the selection list, the Retail Outlet is not awarded to the candidate at Sr. No.2. Fresh interview is ordered to be held and by adopting this course, only direction issued was to examine the Project Report and award appropriate marks and thereafter consider the same on merits. No prejudice would be caused to any one. The petitioner has also a chance to again prove herself and only after fresh interview, whosoever gets the highest number of marks, will get the award of Retail Outlet for Palanpur location. The whole idea is to get the best out of the lot and one should not be declared best only on the basis of default by someone if it is not a default of very substantive nature.
28. In view of the above discussion, the Court is of the view that there is no substance or merit in the challenge of the petitioner against cancellation of the selection list and conducting fresh interview for Retail Outlet for Palanpur location. Even the decisions relied upon by the petitioner are not of any assistance to the petitioner as the Court has not found any arbitrariness or any malafide exercise of power in the decision making process of the respondent authorities. The petition is, therefore, dismissed. Notice discharged without any order as to costs.
8.1 In similar situation, the legal aspect has been examined by Apex Court in number of decisions that in case of selection list prepared for appointment to the candidate in respect of any post, whether such selected candidate having any legal vested right or not for getting appointment. Though these decisions are of service matter but, equally it applies considering the same principle which has been involved in determining the contentions raised by learned advocate Mr.Desai. In case of State of UP & Others v. Rajkumar Sharma & Others, reported in (2006) 3 SCC 330. Relevant Para.14 is quoted as under :
14. Selectees cannot claim the appointment as a matter of right. Mere inclusion of candidates name in the list does not confer any right to be selected, even if some of the vacancies remained unfilled and the concerned candidates cannot claim that they have been given a hostile discrimination. (See: Shankarsan Dash v. Union of India, (AIR 1991 SC 1612), Smt. Asha Kaul and Another v. State of Jammu & Kashmir and another (1993 (2) SCC 573), Union of India v. S.S. Uppal (AIR 1996 SC 2346), Hanman Prasad v. Union of India (1996 (10) SCC 742), Bihar Public Service Commission & Ors. v. State of Bihar & Ors. (AIR 1997 SC 2280), Syndicate Bank & Ors. v. Shankar Paul & Ors. (AIR 1997 SC 3091), Vice Chancellor, University of Allahabad v.
Dr. Anand Prakash Mishra and Ors. (1997 (10) SCC 264), Punjab State Electricity Board v. Seema (1999 SCC (L&S) 629); All India SC & ST Employees Association v. A Arthur Jeen, (AIR 2001 SC 1851), Vinodan T. v. University of Kalikut, (2002 (4) SCC 726), S. Renuka v. State of Andhra Pradesh and Ors. (AIR 2002 SC 1523), and Baitariani Gramiya Bank v. Pallab Kumar & Ors. (AIR 2000 SC 4248).
8.2 The Apex Court has examined aforesaid aspect, in case of Punjab State Electricity Board & Others v. Malkiat Singh, reported in 2006 SCC (L&S) 235. Relevant Para.4 and 5 is quoted 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 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) .
5. The same position is reiterated and followed by this Court in All India SC & ST Employees Assn. & Anr. vs. A. Arthur Jeen & Ors. [(2001) 6 SCC 380] and State of Orissa and Ors. Vs. Bhikari Charan Khuntia and Ors. [(2003) 10 SCC 144].
8.3 This Hon'ble Court has in case of Vaja Mehulkumar Pitabhai & Anr. v. State of Gujarat & Others, reported in 2007 I CLR 1012 SCC (L&S) 235 held in Para.20 as under :
This aspect has been examined by the Apex Court in Case of Rani Lakshmibai Kshetriya Gramin Bank Vs. Chand Beharia Kapoor and others reported in AIR 1998 S.C. Page 3104, the relevant paras 9 and 12 are quoted as under:
9. Coming to the second question, it requires no detailed scrutiny and it is well established that inclusion of name in the list of successful candidates does not confer an indefeasible right to be appointed. It has been so held in the Constitution Bench decision of this Court in case of Shankarsan Dash Vs. Union of India, said case the Court has gone to the extent of following (at p. 1586 of AIR SCW):
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 can not be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified 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.
12. Though the panel ordinarily remains alive for one year but in accordance with the guidelines of the Government of India, Ministry of Finance it would be open to Board to extend the said period under intimation to the Government in Banking Division. In the case in hand the resolution of the Board dated 28/3/1985 indicates that the life of the panel had been extended by for a further period of six months, and therefore, after expiry of the said period it was not open for the Court to issue direction to appoint people from the said panel.
Therefore, there is no substance, in the present petition which required any interference by this Court. Accordingly, present petition is dismissed.
8.4 The Apex Court has examined aforesaid aspect, in case of Union of India & Others v. K.V.Vijeesh, reported in (1996) 3 SCC 139. Relevant Para.6 is quoted as under :
6. In the context of the facts of the instant case the only question which falls for determination in this appeal is whether a candidate whose name appears in the select list on the basis of a competitive examination acquires a right of appointment in Government service in an existing or a future vacancy. The above question has been answered by a Constitution Bench of this Court in Shjankarsan Dash vs. Union of India (AIR 1991 SC 1612); [(1991) 3 SCC 47] with the following words:-
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. 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 had to be taken bona fide for appropriate 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. (emphasis supplied) 8.5 Recently, the Apex Court has examined aforesaid aspect, in case of State of Orris & Anr. v. Rakishness Nada & Others, reported in 2010 (6) Scale 126. Relevant Para.13 and 14 is quoted as under :
13. A person whose name appears in the select list does not acquire any indefeasible right of appointment. Empaneling at the best is a condition of eligibility for 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.
14. A Constitution Bench of this Court in Shankarsan Dash Vs. Union of India, AIR 1991 SC 1612, held that appearance of the name of a candidate in the select list does not give him a right of appointment. Mere inclusion of candidate s name in the select list does not confer any right to be selected, even if some of the vacancies remain unfilled. The candidate concerned cannot claim that he has been given a hostile discrimination. (see also Asha Kaul & Anr. Vs. State of J & K & Ors., (1993) 2 SCC 573; Union of India Vs. S.S.Uppal, AIR 1996 SC 2340; Bihar Public Service Commission Vs. State of Bihar AIR 1997 SC 2280; Simanchal Panda Vs. State of Orissa & Ors., (2002) 2 SCC 669; Punjab State Electricity Board & Ors. Vs. Malkiat Singh (2005) 9 SCC 22; Union of India & Ors. Vs. Kali Dass Batish & Anr. AIR 2006 SC 789;
Divisional Forests Officers & Ors. Vs. M. Ramalinga Reddy AIR 2007 SC 2226; Subha B. Nair & Ors. Vs. State of Kerala & Ors., (2008) 7 SCC 210; Mukul Saikia & Ors. Vs. State of Assam & Ors., (2009) 1 SCC 386; and S.S. Balu & Anr. Vs. State of Kerala & Ors., (2009) 2 SCC 479).
15. Select list cannot be treated as a reservoir for the purpose of appointments, that vacancy can be filled up taking the names from that list as and when it is so required. ....
9. The aforesaid decision is given by this Court in respect to retail outlet for Palanpur location where same and similar circumstances have been examined by this Court and petition filed by petitioner having same grievance against the cancellation of select list has been rejected. In view of above decision given by this Court in identical and similar circumstances and decisions of Apex Court as referred above, therefore, the contention raised by learned advocate Mr.Desai cannot be accepted. It is merely a selection, which cannot give any legal vested right to enforce when entire select list in respect of three places Hadala, Lathi and Maliya has been cancelled by respondent. For that, respondent Corporation is entitled to cancel such selection if some irregularities and lapse on the part of administration have been found from the record on the basis of report received from concerned officer. Therefore, decision which has been taken by respondent cancelling the selection list in respect of aforesaid three places cannot consider to be an arbitrary decision or malafide to favour some candidates, who have not been selected in earlier selection. There is no specific instance pointed out by petitioner before this Court that such selection has been cancelled to favour particular person. Therefore, in light of this entire facts and circumstances, according to my opinion, decision which has been taken by respondent Corporation being an objective decision, cannot consider to be arbitrary or malafide in respect to favour any person, such selection has been cancelled. The entire procedure undertaken by respondent Corporation is transparent and proper accountability is fixed at every stage. Even after cancelling the selection list, the retail outlet is not awarded to any other candidate. No prejudice would be caused to any one. The petitioner has also a chance to again prove herself and only after fresh interview, whosoever gets highest number of marks will get the award of retail outlet for Hadala location. The whole idea is to get the best out of the lot and one should not be declared best only on the basis of default committed in scrutinizing applications by department which cannot be considered to be merely default but such lapse is very substantive in nature which denied legal right of applicants whose applications are rejected and not call for interview only on that ground. The whole petition based on vague allegations. For that, in support of it, no cogent and convincing documents have been placed on record by petitioner. Against which, respondent Corporation has given correct reason on the basis of report received from concerned officer for cancellation of select list. Therefore, there is no substance in present petition. Accordingly, present petition is dismissed. Notice discharged.
(H.K.RATHOD,J.) (vipul) Top