Patna High Court
Smt. Rata Kumari, Neelima Verma, Urmila ... vs The State Of Bihar And Ors. on 5 March, 1993
Equivalent citations: 1993(2)BLJR1110
Author: S.B. Sinha
Bench: S.B. Sinha
JUDGMENT S.B. Sinha, J.
1. These writ applications involving common question of law and fact were taken for hearing together and are being disposed of by this common judgment.
2. The fact involved in these writ applications in short, is as follows:
An advertisement was issued by Vidyalaya Seva Board on 26-1-1987, in terms whereof applications were invited from eligible candidates for filling up the posts of Lecturers in various Govt. Schools, As the petitioners fulfilled the requirements mentioned in the said advertisment, they applied for appointment in the said posts. On our sbout 28-12-1989 interview letters were issued and pursuant thereto the petitioners appeared before the Interview Board.
It is also admitted that the names of the petitioners had been recommended by the Vidyalaya Seva Board. The petitioners have contended that the State has adopted a policy decision in terms whereof various posts were created for imparting education in 40+2 cources and for that purpose the aforementioned advertisement had been issued.
The petitioners further contention is that the requirement of the State is 160 (one hundred and sixty) candidates for each subject mentioned in the aforementioned advertisement dated 26-1-1987
3. In C.W.J.C. No. 2296 of 1991, a of 1991, a counter affidavit as also supplementary counter affidavit have been filed on behalf of the State. In the said counter affidavit, it has inter alia been contended that no appointment could be made owing to the fact that the State had not accorded sanction in respect of the aforementioned posts.
4. It has further been contended that the Vidyalaya Seva Board had recomended names for filling up posts in four subjects and the State having sanctioned four posts in each school without naming a particular subject, teachers had been appointed from the said panels. It has also been submitted that the recommendations for appointment in the posts of Mathematics, Physics etc. were received by State between the period 1987-89. So far as panel of teachers who were to be appointed against the vacancies for Home Science and other subjects are concerned, the same were received in March, 1990.
5. It has further been submitted that in view of the fact that there had been paucity of fund, the appointments could not be made. It has further been contended therein that the panel has outlived its life and in this view of this matter, this Court should not issue any writ of mandamus.
6. It is, however, admitted at the Bar that a fresh advertisement has been issued for filling up the said posts which according to the petitioners is wholly illegal; whereas according to the State, the same became necessary in view of lapse of time, it is, however, admitted that the persons who had already applied for and whose names had been recommended by the Board are not required to apply for the said posts again.
7. The main argument was advanced by Sri Madan Mohan prasad who appeared for the petitioners in C.W.J.C. No. 2296/91, 3771/91 and 3766/91.
8. Mr. Prasad inter alia has raised the following contentions:
(a) A panel validly prepared cannot be cancelled unless the same is exhausted.
Reliance in this connection has been placed upon Harish Chandra and Ors. v. State of UP. and Ors. reported in 1992 Labour and Industrial Cases 2700.
(b) Even assuming that the Govt. has right to cancel the appointment, the said purported order has been made without complying with the principles of natural justice and without existence of any sufficient cause and without assigning cogent reasons therefor.
The learned Counsel submitted that the 'decision of the State must be informed by reason and cannot be arbitrary.
Reliance has been placed in this connection upon - S.G. Jaisinghani v. Union of India and Ors. 1986 (2) Service Law Reporter 326-S. Govtndaraju v. K.S.R.T.C. and Ors..
(c) In view of the fact that the names of the petitioners have been recommended by Vidyalaya Seva Board, they have acquired a right which is enforceable in a court of law and thus, this Court should issue a writ of mandamus as prayed for.
Reliance in support or this contention is made on ; Prem Prakash v. Union of India 1991 Labour & Industrial Cases 1904 : P. K. Bhasin v. Union of India and Ors. 1992 (2) PLJR, 103 : The Secretariat Assistant Successful Examinees Union and Ors. v. State of Bihar and Ors. 1991 (2) PLJR, 54 : Syed Md. Sahfique Ahmad and Anr. v. State of Bihar and Ors. 1993 (1) PLJR, 16 at page 18 : Suresh Naryan Sharma and Ors. v. State of Bihar and Ors. and an unreported decision of the Supreme Court in SLP (Civil) No. 1650/90.
(d) The State cannot take the plea of paucity of fund inasmuch as a fresh advertisement has been directed to issued and further action of the state is mala fide inasmuch as whereas the State has revalidated outher panels, it has failed to do so in this case.
Reliance in this connection has been placed on State of U.P. and Anr. v. Ram Gopal Shukla.
9. Mr. Sharma appearing for the petitioner in C.W.J.C. No. 889/92 submitted that the action of the State is discriminatory and arbitrary in so far as the panels of the subjects in which the petitioners are interested have not been revalidated nor any reason has been assigned therefore.
Learned Counsel in this connection has relied upon Narsingh Das Achint v. State of Haryana and Ors. reported in 1987 (2) Service Law Journal 51 at page 54 and : International Airport Authority of India v. Union of India.
It has further been submitted that the action of the state is barred under the principles of Promissory Estoppel inasmuch as the petitioners have altered their position pursuant to the recommendations made by Vidyalaya Seva Board. It has been submitted that the appointment of teachers in different subjects was of executive necessity.
Learned Counsel in this connection relied on (D. Navinchandra and Co. and Anr. v. Union of India and Ors.).
10. Mr. Chandra Shekhar learned Counsel appearing for the writ petitioner in C.W.J.C. No. 8792/92, submitted that it is not a faces that the State has-not accorded any sanction as has been stated in the adverisement as according to the learned Counsel, the sanction accorded by the State becomes evident in view of the posts created in the concerned schools and thus it. must be presumed that sanction had been granted by the State for the said posts in the schools which had been selected for imparting 10+2 education, subject-wise and number of teachers as would be evident from Annexure 4 to the writ application.
It was further submitted that although the petitioners do not have an absolute right to be appointed, but such a right can be denied only on cogent reasons and not upon the ipse dixit of the State.
11. Mr. Ram Balak Mahto, the learned Advocate General appearing for the respondents however, has taken me through the supplementary counter affidavit and submitted that in the facts of the case, the State's action must be held to be reasonable as the advertisement was made subject to accord of sanction by the State. It was submitted that subsequently the State accorded sanction in respect of only four posts in each school and in view of the fact that panels for four subjects had been received all the sanctioned posts have been filled up from those panels. It was further contended that in view of the fact that panel of Home Science was received in March, 1990, the said panel could not be acted upon in absence of any vacancy as no sanction therefore was granted-by the State. It has also been contended that a fresh advertisement has been directed to be issued in anticipation of the sanction of the State of Bihar.
It has been pointed out that so far as C.W.J.C. Nos. 3766/91 and 3771/91 are concerned, the same involve the cases where the application for appointment of teachers were invited for secondary education and in all the rest cases viz. C.W.J.C. 2296/91, 889/92 and 8792/92 advertisement was issued for appointment in the schools imparting 10+2 education. According to the learned Counsel so far as matters relating to appointments in secondary schools are concerned, the same is covered by a judgment of a Division Bench of this Court in Arvind Kumar Sharma v. State of Bihar C.W.J.C. No. 933 of 1991, wherein this Court following the decision of the Supreme Court in Shankarasan Dash v. Union of India repotted in has held that no mandamus can be issued to exhaust a panel.
12. Learned Advocate General further submitted that a mere recommendation does not create any right for appointment. Reliance in this connection, has been placed upon - Dr. Rai Shivendra Bahadur v. Governing Body of Nalanda College , The State of Haryana v. Subash Chandra Marwaha and - Mjm Neelima Shangla v. State of Haryana and Ors.
It has been submitted that creation of posts depends upon the policy of the State and as the same involves financial liability of the State, no writ of mandamus can be issued by applying the doctrine of promissory estoppel or otherwise. Learned Advocate General in this connection has relied upon in Jitendra Kumar v. State of Punjab .
It has further been sumitted that in view of the fact that posts are to be created in 1993, no writ of mandamus can be issued for appointment from old panels inasmuch as creation of posts cannot be directed by this Court by issuing a writ of mandamus.
According to the learned Advocate General, even now the posts have not been sanctioned by the State. However, it has been clarified by the State that those persons who are eligible to be considered therefor need not apply afresh and their cases shall also be taken into consideration and this action of the State being in consonance with law as also in consonance with the principles contained in Article 16 of the Constitution of India, the same cannot be termed to be either arbitrary or unreasonable.
13. In terms of the advertisement dated 26-9-1987 applications were invited for appointment in the posts of teachers for teaching in various subjects in Government schools which includes the school taken over under the provisions of Bihar Non Government Secondary School (Taking Over of Management and Control) Act, 1980 (Act 72 of 1981). So fir as appointment in the post of teachers of such schools are concerned, the same is governed by the provisions of Section 10 of the said Act and the Rules framed under Section 15 of the Act known as Bihar Nationalised Schools (Conditions of Service) Rules, 1983.
14. So far as other schools are concerned, procedure for appointment and the conditions of service of teachers are different being governed by various circulars, rules issued by the State from time to time.
15. However, both under the provisions of 1981 Act as also the policy decision of the State in order to fill up the vacant posts of teachers, the recommendation of Vidyalaya Seva Board is mandatory. It is not and cannot he disputed that the selections made by Vidyalaya Seva Board are recommendary in nature.
16. It, however, does not appeal to any reason as to why Vidyalaya Seva Board took more than 3 years' time in sending the panel of Home Science and other subjects ; whereas it had sent the panel in respect of teachers of other subjects much earlier.
17. It is true that the State even in the matter of appointment is bound to act reasonably, The State's action must conform to the provisions of Articles Hand 16 of the Constitution of India.
18. It is now well known that a person does not have any right to be appointed but has merely a right to be considered for appointment.
19. In Shankarsan Dash v. Union of India the Constitution Bench was considering the question as to whether the candidate whose names appear in the merit list on the basis of competitive examinaton acquire indifeassible right of appointment as a Government servant, if a vacancy exists.
L. M. Sharma, J. (as his Lordship then was) speaking for the Constitution Bench upon taking into consideration the earlier decisions of the Supreme Court . The State of Haryana v. Subash Chandra Marwaha and Ors. ; Miss Neelima Shangla v. State of Haryana and Ors. ; Jatinder Kumar and Ors. v. State of Punjab and Anr. and A.I.R. 1987 SC 1697, held as follows:
Ordinarily the notification amounts to an invitation for 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 a vacancy is to be taken bonafide for appropiate reasons and if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of candidates as reflected at the recruitment test and no discrimination can be permitted.
20. In that case, the Supreme Court observed:
From the materials produced before us, it is fully established that there has not been any arbitrariness whatsoever on the part of the respondents in filling up the vacancy in question or the other vacancies referred to by the learned Counsel for the appellants. The process of final selection had to be closed at some stage as was actually done. A decision in this regard was accordingly taken and the process for further allotment to any vacancy arising later was closed.
The Supreme Court further observed:
It Is not material if in pursuance of a decision already taken before closing the process of final selection, the formal appointments were concluded. What is relevant is to see as to when the process of final selection was closed. Mere completing the formalities cannot be of any help to the appellant.
21. A Division Bench of this Court in Ashok Kumar Sharma v. State of Bihar being CWJC No. 933/91 disposed of an identical case.
Another Division Bench of this Court of which I was a member in Afshan Yasmin and Ors. v. The State of Bihar and Ors. has taken an identical view. The said Division flinch decision being related to the same advertisement which is the subject-matter of the present writ petition I am bound thereby.
22. In Dr. K. P. Jaiswal v. Ms. Debi Mukharjee and Ors. repotted in , the Supreme Court held that the selection by the commission is recommendary in nature and a final authority for appointment and if the Government declines to accept the recommendation, the Constitution enjoins the Government to record its reasons for so doing. The Supreme Court held:
although thereby the Government is answerable to the elected representative, the same does not cloth the selectee with any right for appointment, that is to say, that he cannot force the Government to accept the recommendation of the Commission. But the Government has to make the appointment strictly in accordance with the recruitment rules and merits as determined by the commission and it cannot disturb the list at the sweet will.
It was observed:
It is obvious from the ratio of these two decisions to which our attention was pointedly drawn that if a Commission issues an Advertisement at the behest of the Government and pursuant thereto, calls a candidate for interview, the candidate has a right to be considered for selection but not right to be selected or appointed, to the post in question.
23. In this view of the matter there cannot be any doubt that an empanelled candidate has no legal right to be appointed and thus it logically follows that no writ of mandamus can be issued unless the Court comes to a conclusion that the selectee has been discriminated against and the action of the Government is violative of Articles 14 and 16 of the Constitution of India.
24. In Prem Prakash v. Union of India , upon which strong reliance has been placed by Mr. Prasad, the Supreme Court was considering a policy decision of the State in the matter of appointment in Delhi Judicial Service as incorporated in a notification, dated 5th February, 1982 and in the context of Article 233 of the Constitution it was held:
It is clear from this notification that if selected candidates are available from the previous list there should either be no further recruitment until those candidates are absorbed or in the alternative vacancies which are declared for the subsequent years should take into account the number of persons who are already in the list of selected candidates who are still awaiting appointment. The notification further shows that there should be no limit on the period of validity of the list of selected candidates prepared to the extent of declared vacancies. Once a person is declared successful according to merit list of selected candidates the appointing authority has the responsibility to appoint even if the number of vacancies undergoes a change after his name is included in the list of selected candidates.
25. In P. K. Bhasin v. Union of India reported in 1991 Labour and Industrial Cases 1904 Delhi High Court was again considering a matter of appointment to the post of Delhi Higher Judicial Service and in that context distinguishing the decision of the Supreme Court in Prem Prakash's case (supra), as also the subsequent decision on the ground that therein the policy of reservation was involved, it was held:
This only affects evaluation of the policy by the concerned Department to show that constitutional provision of reservation of Scheduled Castes and Scheduled Tribe does not become meaningless by convenient mode of deresevation as has been hither to done.
These two decisions, therefore, have no application to the facts of the present case.
26. In Harish Chandra and Ors. v. State of U. P. and Ors. reported in 1992 LIC. 2200, a learned single Judge of the Allahabad High Court held as follows:
As regards the contention that the select list did not survive after 3-7-1988, in my opinion there is no force in this submission of the respondents in view of the judgment of this Court in Ram Naresh v. State of U. P. Writ Petition No. 15243 of 1984 decided on 5-4-1985, followed in Rajesh Kumar Kesanant v. State of U.P. writ petition No. 6332 of 1989 decided on 28-1-1988 and Kapil Asthma v. State of U. P. Writ' Petition No. 5003 of 198 (sic) decided on 23-2-1987. In these decisions it has been stated that the select list will not lapse on the expiry of one year of the declaration of the resist.
However, ratio from the said decision can be deciphered from the reported judgment inasmuch as the same was based on earlier decision of the said court which are unreported.
27. The decision of this Court in Syed Md. Shafique Ahmad and Anr. v. State of Bihar and Ors. reported in 1991 (2) PLJR 54, is not relevant inasmuch as in that case this Court merely held that the Government order dated 1 MM 991 was not applicable to the case of the petitioners thereof.
28. In Madan Mohan Singh and Anr. v. State of Bihar and Ors. reported in 1992(1) PUR 547, a Division Bench of this Court was again considering a matter relating to appoinment in Superior Judicial service pursuant to a selection made by a Full Court of this High Court. The Division Bench in that case itself distinguished the decision of the Supreme Court in Sankarasan Dash v. Union of India , holding that the decision of the State in not making appointments from the panel prepared by the High Court was not bona fide. The Division Bench observed:
The present one is not such a case where the merit list continued for a longer period so as to deny equal opportunity.
The Division Bench then observed:
It is true that a candidate does not get any right to the post by merely making an application for this, but the right is created in his favour for being considered for the post in accordance with the terms and conditions of the advertisement and the existing recruitment rules.
The Division Bench passed the said judgment inter alia, on the ground that prior to taking a policy decision, the High Court was not consulted which was in the teeth of Article 233(2) of the Constitution. The Bench held that when no appointment has been made pursuant to a penal prepared after compliance with all the procedures in the following terms:
As early as on 24-11-1990, the Full Court had unanimously adopted a resolution that any further vacancy in the quota of the direct recruits from the Bar is required to be filled up with a period of one year from that date. The same would be filled by recommending candidates in order of merit from amongst the remaining candidates in the merit list.
Such is not the position here. In this case a fresh advertisement has been directed to be issued after a long lapse of six years.
29. Similarly, the decision of the Punjab and Haryana High Court in Narsingh Das Achint v. The. State of Haryana and Ors. reported in 1987(2) SLJ, 51 no application in the facts and circumstances of this case, which again relied upon Prem Prakash's case while considering a matter of appointment as would evident from the following:
The petitioner's appointment, contended the learned Counsel for the petitioner, cannot be denied by the respondents on the ground that since lesser number of candidates from the general category were being appointed, so the quota of backward classes category would not be filled up even though qualified persons were available in that category.
In our opinion, there is merit in the contention advanced on behalf of the petitioner. The petitioner is duly qualified. The number of posts available in his quota, admittedly, cones to 5, on the basis of the 52 vacancies that were required to be filled up, as observed by their lordships in Miss Neelima Shangla's Case (supra).
In view of the above, we dispose of the petition with the direction that the petitioner be appointed in the same terms as ordered by their lordships in Miss Neelima Sangla's Case (supra). There would, hawever, be no order as to costs.
30. Reliance placed by Mr. Prasad in S. Govindraju v. Karnataka S.R.T.C. and Anr. reported in 1986(3) SCC 276 is also misplaced. In that case not only the name of the petitioner thereof was included in the select list but he was in fact appointed, Thereafter his name was removed from the select list as a result whereof he forfeited his right of employment in future In that situation, it was held that principles of natural justice would be attracted.
31. Such is not the position here inasmuch as in this case the petitioners have neither been appointed nor their names have been removed from the Select List as a consequance whereof they have forfeited the right of appointment in future.
In fact, as noticed hereinbefore, it has categorically been stated in the supplementary counter affidavit that the persons who had applied earlier, which included the petitioners, need not apply again.
Even in that decision, it has been held:
Once a candidate is selacted and his name is included in the select list in accordance with the regulations, he gets a right to be considered for appointment as and when vacancies arise. Thus a person whose name has been included in the select list does not derive a right to be considered therefore if and when vacancy arises.
32. Such a right for consideration for appointment can only, however, be claimed during which the panel remains valid.
The submission of learned Counsel for the petitioners to the effect that a discrimination has been committed by the State in so far as on other, occasions, the life of the expired panel had been revalidated, has no force. The matter relating to revalidation of panel depends on the policy decision of the State. Such policy decision depends on various facts and circumstances.
33. On the other hand, the Supreme Court in (supra) has held that nobody has right of appointment in any post. Similar views have been taken in , and (supra).
This matter has again recently been considered by the Supreme Court in Union Territory of Chandigarh v. Dilbaghsingh and Ors. wherein the Supreme Court after taking into consideration a large number of case including Miss Neelima Sangla's Case and Shankarasan Dash's (supra) held as follows:
If we have regard to the above enunciation that a candidate who finds a place in the select list as a candidate selected for appointment to a civil post, does not acquire an indefeasible right to be appointed in such post in the absence of any specific rule entitling him for such appointment and be could be aggrieved by his non-appointment only when the; Administration does so either arbitrarily or for no bona fide reasons, it follows as a necessary concomitant that such candidate even if has a legitimate expectation of being appointed in such posts due to him name finding a place in the select list of candidates, cannot claim to have a right to be heard before such select list is cancelled for bonafide and valid reasons and not arbitrarily.
34. Another aspect of the matter can also not be lost sight of. Evidently, the advertisement was made in the year 1985. The panel was sent by the Vidyalaya Seva Board to the State in March, 1990.
In terms of the Circular Letter dated 5th April, 1955 issued by the Appointment Department of the Government of Bihar, it has been laid down as follows:
(1) Where posts fall vacant, or are likely to fall vacant, at intervals throughout the year and have to be filled as soon as they fall vacant, appointment may be made from a list of approved candidates prepared after consultation with the Public Service Commission, which may be considered valid up to a date not exceeding one year from the date on which the recommendation was made by the Commission, (ii) Where recruitment is made to a service at one time during the year, the Public Service Commission will be consulted once a year. If during the year an unforeseen vacancy occurs in such a service, and it has to be filled immediate by, the latest list of candidates approved by the Commission may be used for filling the vacancy.
In absence of any Statute or Rules, the aforementioned executive decision must be held to have force of law. It is therefore, clear that the life of the panel is only one year. In Rakesh Ranjan Verma and Ors. v. The State of Bihar and Ors. reported in A.I.R. 1992 SC 1388, the Supreme Court has held as follows:
It is not in dispute that the life of the panel was one year which came to an end on 13-9-1985 and that being so, no right can be claimed by the appellant after 13-9-1985 on the basis of inclusion of their names in the panel list of 1984 for the post of Junior Electrical Engineers.
35. In this case, as noticed hereinbefore, the State has categorically stated that no sanction had been accorded for the appointment in the said post and a requisition was issued by the Vidyalaya Seva Board in anticipation of sanction by the State.
36. The submission of learned Counsel appearing on behalf of the petitioners to the effect that the action on the part of the State is arbitrary and discriminatory cannot also be accepted for the simple reason that if appointment is to be made now in terms of the advertisement which has been issued in the year 1985, the persons who have become eligible by now would be left out. Consideration of cases of all eligible candidates will be more reasonable than to make appointments on the posts for which advertisement had been issued six years back. Further for filling up the posts which have now been created qt which may be created hence forth, no writ of mandamus can be issued for which advertisement was issued six years back unless their exists a policy decision to the effect that even future vacancies would be filled up from the existing panel. Such is not the case of the petitioners.
37. Learned Counsel appearing on behalf of the petitioners, however, have submitted that the State was bound to appoint the petitioners in terms of the doctrine of promissory estoppel.
In my opinion, the said submission has no force. The doctrine of promissory estoppels may be made applicable only in a case where a person alters his position pursuant to any promise made by the State. A promise made by the State can also be terminated either by way of notice. The Court may also refuse to enforce a promise on equitable grounds. When an advertisement is issued, only an offer for appoint me. it is invited from the eligible candidates and only when their names find place in the select list and if they come within the purview of zone of consideration keeping in view the existing number of vacancies they merely get a right to be considered for appointment as contradistinguished from the right to be appointed. No legal right as such is thus created by issuing an advertisement and by including the name of the candidates in the select list. Thus, no promise either in fact or in Law is made which binds the State. It is State's legal right to make appointment or not to make appointment.
38. It is true that the State's action must conform to the doctrine of 'equality before law and equal protection of law' as enshrined under Article 14 of the Constitution of India. But for that, the doctrine of promissory estoppel cannot be made applicable.
39. In Jatinder Kumar and Ors. v. State of Punjab and Ors. it has been held as follows:
An argument of desperation was further advanced about promissory estoppel stopping the State Government from acting in the manner it did in not appointing the appellants although their names had been recommended. The notification issued by the Board in this case was only an invitation to candidates possessing specified qualifications to apply for selection for recruitment for certain-posts. It did not hold out any promise that the selection would be made or if it was made the selected candidates would be appointed. The candidates did not acquire any right merely by applying for selection or for appointment after selection. When the proposal for disbandment of the Punjab Azad Police Battalian and instand excation of additional posts for the district police was turned down by the State Government, the appellants were duly informed of the situation and there was no question of any promissory estoppel against the State.
40. For the reasons aforementioned, there is no merit in these applications which are accordingly, dismissed. However, in the facts and circumstances of the case, there will be no order as to costs.