Jharkhand High Court
Sajjad Khan vs The State Of Jharkhand on 29 June, 2018
Equivalent citations: 2018 (4) AJR 690, (2019) 2 JCR 347 (JHA) (2018) 159 FACLR 655, (2018) 159 FACLR 655
Author: D.N.Patel
Bench: Amitav K. Gupta, D.N.Patel
IN THE HIGH COURT OF JHARKHAND, RANCHI
I.A. No. 6898 of 2017
with
L.P.A. No. 445 of 2017
Sajjad Khan, son of late Ali Hasan Khan, resident of village Salgas,
P.O.- Sajalim, P.S. Panki, District-Palamau, Jharkhand ......Appellant
Versus
1. The State of Jharkhand
2. The Secretary, Human Resources Development Department,
Government of Jharkhand, Project Building, Dhurwa, P.S.-
Jagannathpur, P.O.- Dhurwa, District- Ranchi, Jharkhand
3. Deputy Commissioner, Palamau, P.O. and P.S.-Daltonganj, District-
Palamau, Jharkhand
4. District Superintendent of Education-cum-D.P.O Daltonganj,
Palamau, P.O. and P.S.- Daltonganj, District-Palamau, Jharkhand
5. Director, Jharkhand Education Project Council, Project Building,
Dhurwa, P.O. - Dhurwa, P.S.- Jagannathpur, District-Ranchi,
Jharkhand .. ... Respondents
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CORAM: HON'BLE THE ACTING CHIEF JUSTICE HON'BLE MR. JUSTICE AMITAV K. GUPTA
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For the Appellant : Mr. Praful Jojo Advocate
For the Respondent nos. 1 to 4 : Mr. Syed Ramiz Zafar (A.C. to A.G.)
For the Respondent no.5 : Mr. Saurav Arun, Advocate
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08/ Dated 29.06.2018:
(Oral Order)
Per D.N.Patel, A.C.J.
I.A. No. 6898 of 2017
1. This interlocutory application has been preferred under Section 5 of the Limitation Act for condonation of delay of 171 days in preferring this Letters Patent Appeal.
2. Having heard counsels for both the sides and looking to the reasons stated in this interlocutory application, especially in paras- 1,2 & 3 thereof, there are reasonable reasons for condonation of delay.
3. We therefore, condone the delay in preferring this Letters Patent Appeal.
4. I.A. No. 6898 of 2017, is allowed and disposed of.
L.P.A. No. 445 of 20175. This Letters Patent Appeal has been preferred by the -2- original petitioner whose writ petition being W.P.(S) No.200 of 2015 was dismissed by the learned Single Judge vide judgment and order dated 18.01.2017 and hence one of the original petitioners has preferred the present Letters Patent Appeal.
6. Having heard the counsel of both the sides and looking to the facts and circumstances of the case, it appears that the selection process was started and was completed by 'Aam Sabha' of a particular village in question.
7. None of the selected candidates have been appointed by the Government and the selection was never approved by the Government for the reasons at Annexure-1 to the memo of the writ petition which is dated 11.07.2012.
8. Much has been argued out about the reasons given by the Government not to give appointment to the selected candidates.
9. Be as it may, we are not concerned with the reasons given by the Government. There is no right vested in the selected candidates to be appointed. On the contrary, there is right vested in the employer, not to give appointment even to the selected candidate. The only exception is that there cannot be discrimination or arbitrariness.
10. No argument has been canvassed by the counsel for the appellant that others have been appointed leaving aside this appellant. There is no discrimination at all. In fact, none of the selected candidates has been appointed.
11. The employer has all right, power, jurisdiction and authority to say that selected candidates shall not be given appointment. There can be several reasons not to give appointment like-
(a) Insufficiency or lack of infrastructure, or
(b) Lack of availability of finance, or
(c) No need to appoint the selected candidate for any reason with the institution or employer etc.
12. Thus, for any reason whatsoever, the employer can -3- always say that now the employer do not want the selected candidates to be appointed. Thus, there is no vested right in this appellant to get appointment after his selection. The only exception is discrimination and arbitrariness, but, in the facts of the present case this exception is not present. Evenly, the yardstick has been applied to all the selected candidates. We are not concerned with the reasons for not to give the appointment, nonetheless, as stated at Annexure-1 to the memo of this Letters Patent Appeal. The reasons have been assigned which is for the consumption of the institution or employer himself or itself. We are not here to evaluate the reasons for not to give appointment. This aspect of the matter has been properly appreciated by the learned Single Judge while deciding W.P.(S) no. 200 of 2015 vide judgment and order dated 18.01.2017.
13. It has been held by the Hon'ble Supreme Court in the case of Rai Shivendra Bahadur (Dr) v. Nalanda College, reported in 1962 Supp (2) SCR 144 in paragraph 5 as under :-
"5. A great deal of controversy was raised before us as to whether the Statutes framed by the University under Section 20 of the University of Bihar Act have or have not the force of law and whether a writ under Article 226 of the Constitution can issue against the Governing Body of the College i.e. whether the appellant has a legal right to the performance of a legal duty by the respondents. In order that mandamus may issue to compel the respondents to do something it must be shown that the Statutes impose a legal duty and the appellant has a legal right under the Statutes to enforce its performance. It is, however, wholly unnecessary to go into or decide this question or to decide whether the Statutes impose on the Governing Body of the College a duty which can be enforced by a writ of mandamus because assuming that the contention of the appellant is right that the College is a public body and it has to perform a public duty in the appointment of a Principal, it has not been shown that there is any right in the appellant which can be enforced by mandamus. According to the Statutes all appointments of teachers and staff have to be made by the Governing Body and no person can be appointed, removed or demoted except in accordance with Rules but the appellant has not shown that he has any right entitling him to get an order for appointment or reinstatement. Our attention has not been drawn to any article in the Statutes by which the appellant has a right to be appointed or reinstated and if he has not that right he cannot come to court and ask for a writ to issue. It is therefore not necessary to go into any other question."
(Emphasis supplied)
14. It has been held by the Hon'ble Supreme court in the case of State of Haryana v. Subash Chander Marwaha, reported in (1974) 3 SCC 220 in paragraphs 10 and 11 as under:
-4-"10. One fails to see how the existence of vacancies give a legal right to a candidate to be selected for appointment. The examination is for the purpose of showing that a particular candidate is eligible for consideration. The selection for appointment comes later. It is open then to the Government to decide how many appointments shall be made. The mere fact that a candidate's name appears in the list will not entitle him to a mandamus that he be appointed. Indeed, if the State Government while making the selection for appointment had departed from the ranking given in the list, there would have been a legitimate grievance on the ground that the State Government had departed from the rules in this respect. The true effect of Rule 10 in Part C is that if and when the State Government propose to make appointments of Subordinate Judges the State Government (i) shall not make such appointments by travelling outside the list, and (ii) shall make the selection for appointments strictly in the order the candidates have been placed in the list published in the Government Gazette. In the present case neither of these two requirements is infringed by the Government. They have appointed the first seven persons in the list as Subordinate Judges. Apart from these constraints on the power to make the appointments, Rule 10 does not impose any other constraint. There is no constraint that the Government shall make an appointment of a Subordinate Judge either because there are vacancies or because a list of candidates has been prepared and is in existence.
11. It must be remembered that the petition is for a mandamus. This Court has pointed out in Dr. Rai Shivendra Bahadur v. Governing Body of the Nalanda College that in order that mandamus may issue to compel an authority to do something, it must be shown that the statute imposes a legal duty on that authority and the aggrieved party has a legal right under the statute to enforce its performance. Since there is no legal duty on the State Government to appoint all the 15 persons who are in the list and the petitioners have no legal right under the rules to enforce its performance the petition is clearly misconceived."
(Emphasis supplied)
15. It has been held by the Hon'ble Supreme court in the case of Shankarsan Dash v. Union of India , reported in (1991) 3 SCC 47, in paragraphs 7 to 9 as under :-
"7. It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in State of Haryana v. Subhash Chander Marwaha, Neelima Shangla v. State of Haryana, or Jatendra Kumar v. State of Punjab.-5-
8. In State of Haryana v. Subhash Chander Marwaha 15 vacancies of Subordinate Judges were advertised, and out of the selection list only 7, who had secured more than 55 per cent marks, were appointed, although under the relevant rules the eligibility condition required only 45 per cent marks. Since the High Court had recommended earlier, to the Punjab Government that only the candidates securing 55 per cent marks or more should be appointed as Subordinate Judges, the other candidates included in the select list were not appointed. They filed a writ petition before the High Court claiming a right of being appointed on the ground that vacancies existed and they were qualified and were found suitable. The writ application was allowed. While reversing the decision of the High Court, it was observed by this Court that it was open to the government to decide how many appointments should be made and although the High Court had appreciated the position correctly, it had "somehow persuaded itself to spell out a right in the candidates because in fact there were 15 vacancies". It was expressly ruled that the existence of vacancies does not give a legal right to a selected candidate. Similarly, the claim of some of the candidates selected for appointment, who were petitioners in Jatendra Kumar v. State of Punjab, was turned down holding that it was open to the government to decide how many appointments would be made. The plea of arbitrariness was rejected in view of the facts of the case and it was held that the candidates did not acquire any right merely by applying for selection or even after selection. It is true that the claim of the petitioner in the case of Neelima Shangla v. State of Haryana, was allowed by this Court but, not on the ground that she had acquired any right by her selection and existence of vacancies. The fact was that the matter had been referred to the Public Service Commission which sent to the government only the names of 17 candidates belonging to the general category on the assumption that only 17 posts were to be filled up. The government accordingly made only 17 appointments and stated before the court that they were unable to select and appoint more candidates as the Commission had not recommended any other candidate. In this background it was observed that it is, of course, open to the government not to fill up all the vacancies for a valid reason, but the selection cannot be arbitrarily restricted to a few candidates notwithstanding the number of vacancies and the availability of qualified candidates; and, there must be a conscious application of mind by the government and the High Court before the number of persons selected for appointment is restricted. The fact that it was not for the Public Service Commission to take a decision in this regard was emphasised in this judgment. None of these decisions, therefore, supports the appellant.
9. Mr. Goswami appearing in support of the appeal has contended that in view of the relevant statutory rules, the authorities were under a duty to continue with the process of filling up all the vacancies until none remained vacant. Reference was made to Rule 4 of the Indian Police Service (Cadre) Rules, 1954, Rules 3, 4, 6 and 7 of the Indian Police Service (Recruitment) Rules, 1954 and Regulations 2(1)(a), 2(1)(c), 8 and 13 of the Indian Police Service (Appointment by Competitive Examination) Regulations, 1965. We do not think any of these rules comes to the aid of the appellant. Rule 3 of the Cadre Rules directs constitution of separate cadres for States or group of States, and Rule 4 empowers the Central Government to determine the strength in consultation with the State Governments. The strength has to be re-examined at intervals of 3 years. Rule 3 of Recruitment Rules deals with the constitution of the Service, and Rule 4 the method of recruitment. Rules 6 and 7 give further details in this regard. The learned counsel could not point out any provision indicating that all the notified vacancies have to be filled up. Similar is the position -6- with respect to the Competitive Examination Regulations. Regulation 2(1)(a) defines available vacancies as vacancies determined by the Central Government to be filled on the results of the examination, described in Regulation 2(1)(a). Regulation 8 prescribes that the candidates would be considered for appointment to the available vacancies subject to provisions 9 to 12 and Regulation 13 clarifies the position that a candidate does not get any right to appointment by mere inclusion of his name in the list. The final selection is subject to satisfactory report on the character, antecedent and suitability of the candidates. We, therefore, reject the claim that the appellant had acquired a right to be appointed against the vacancy arising later on the basis of any of the rules."
(Emphasis supplied)
16. It has been held by the Hon'ble Supreme Court on the case of All India SC & ST Employees' Assn. v. A. Arthur Jeen, reported in (2001) 6 SCC 380, in paragraph 10 as under :-
"10. Merely because the names of the candidates were included in the panel indicating their provisional selection, they did not acquire any indefeasible right for appointment even against the existing vacancies and the State is under no legal duty to fill up all or any of the vacancies as laid down by the Constitution Bench of this Court, after referring to earlier cases in Shankarsan Dash v. Union of India. Para 7 of the said judgment reads thus:
"7. It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in State of Haryana v. Subash Chander Marwaha, Neelima Shangla v. State of Haryana or Jatinder Kumar v. State of Punjab."
(Emphasis supplied)
17. It has been held by the Hon'ble Supreme Court in the case of S.S. Balu v. State of Kerala, reported in (2009) 2 SCC 479, in paragraph 12 as under :-
"12. There is another aspect of the matter which cannot also be lost sight of. A person does not acquire a legal right to be appointed only because his name appears in the select list. (See Pitta Naveen Kumar v. Raja Narasaiah Zangiti.) The State as an employer has a right to fill up all the posts or not to fill them up. Unless a -7- discrimination is made in regard to the filling up of the vacancies or an arbitrariness is committed, the candidate concerned will have no legal right for obtaining a writ of or in the nature of mandamus. (See Batiarani Gramiya Bank v. Pallab Kumar.) In Shankarsan Dash v. Union of India a Constitution Bench of this Court held:
"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."
(Emphasis supplied)
18. It has been held by the Hon'ble Supreme Court in the case of Rakhi Ray v. High Court of Delhi, reported in (2010) 2 SCC 637, in paragraph 24 as under :-
"24. A person whose name appears in the select list does not acquire any indefeasible right of appointment. Empanelment at the best is a condition of eligibility for the purpose of appointment and by itself does not amount to selection or create a vested right to be appointed. The vacancies have to be filled up as per the statutory rules and in conformity with the constitutional mandate. In the instant case, once 13 notified vacancies were filled up, the selection process came to an end, thus there could be no scope of any further appointment."
(Emphasis supplied)
19. It has been held by the Hon'ble Supreme Court in the case of State of Orissa v. Rajkishore Nanda, reported in (2010) 6 SCC 777, in paragraphs 11 to 18 as under :-
"11. It is a settled legal proposition that vacancies cannot be filled up over and above the number of vacancies advertised as "the recruitment of the candidates in excess of the notified vacancies is a denial and deprivation of the constitutional right under Article 14 read with Article 16(1) of the Constitution", of those persons who acquired eligibility for the post in question in accordance with the statutory rules subsequent to the date of notification of vacancies. Filling up the vacancies over the notified vacancies is neither permissible nor desirable, for the reason, that it amounts to "improper exercise of power and only in a rare and exceptional circumstance and in emergent situation, such a rule can be deviated and such a deviation is permissible only after adopting policy decision based on some rational", otherwise the exercise would be arbitrary. Filling up of vacancies over the notified -8- vacancies amounts to filling up of future vacancies and thus, not permissible in law.
12. In State of Punjab v. Raghbir Chand Sharma this Court examined the case where only one post was advertised and the candidate whose name appeared at Serial No. 1 in the select list joined the post, but subsequently resigned. The Court rejected the contention that the post can be filled up offering the appointment to the next candidate in the select list observing as under:
"4. ... With the appointment of the first candidate for the only post in respect of which the consideration came to be made and select panel prepared, the panel ceased to exist and has outlived its utility and, at any rate, no one else in the panel can legitimately contend that he should have been offered appointment either in the vacancy arising on account of the subsequent resignation of the person appointed from the panel or any other vacancies arising subsequently."
13. In Mukul Saikia v. State of Assam this Court dealt with a similar issue and held that "if the requisition and advertisement was only for 27 posts, the State cannot appoint more than the number of posts advertised". The select list "got exhausted when all the 27 posts were filled". Thereafter, the candidates below the 27 appointed candidates have no right to claim appointment to any vacancy in regard to which selection was not held. The "currency of select list had expired as soon as the number of posts advertised were filled up, therefore, appointments beyond the number of posts advertised would amount to filling up future vacancies" and the said course is impermissible in law.
14. A person whose name appears in the select list does not acquire any indefeasible right of appointment. Empanelment at the best is a condition of eligibility for the purpose of appointment and by itself does not amount to selection or create a vested right to be appointed. The vacancies have to be filled up as per the statutory rules and in conformity with the constitutional mandate.
15. A Constitution Bench of this Court in Shankarsan Dash v. Union of India held that appearance of the name of a candidate in the select list does not give him a right of appointment. Mere inclusion of the 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.
16. A 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. It is the settled legal proposition that no relief can be granted to the candidate if he approaches the court after the expiry of the select list. If the selection process is over, select list has expired and appointments had been made, no relief can be granted by the court at a belated stage.
17. The instant case is required to be examined in view of the aforesaid settled legal proposition. The 1985 Rules provide for determining the number of vacancies and holding competitive examination ordinarily once in a year. The select list prepared so also is valid for one year. In the instant case, 15 vacancies were advertised with a clear stipulation that the number of vacancies may increase. The authorities had taken a decision to fill up 33 vacancies, thus, a select list of 66 persons was prepared. It is also evident from the record that some more appointments had been made over and above the 33 determined vacancies. Thus, once the selection process in respect of number of -9- vacancies so determined came to an end, it is no more open to offer appointment to persons from the unexhausted list.
18. It is the exclusive prerogative of the employer/State Administration to initiate the selection process for filling up vacancies occurred during a particular year. There may be vacancies available but for financial constraints, the State may not be in a position to initiate the selection process for making appointments. Bona fide decision taken by the appointing authority to leave certain vacancies unfilled, even after preparing the select list cannot be assailed. The courts/tribunals have no competence to issue direction to the State to initiate selection process to fill up the vacancies. A candidate only has a right to be considered for appointment, when the vacancies are advertised and selection process commences, if he possesses the requisite eligibility."
(Emphasis supplied)
20. It has been held by the Hon'ble Supreme Court in the case of K. Lakshmi v. State of Kerala and Others, reported in (2012) 4 SCC 115, in paragraphs 25 to 29 as under :-
"25. The legal position regarding the power of the Government to fill up vacancies that are notified is settled by several decisions of this Court. Mr. Rao relied upon some of those decisions to which we shall briefly refer.
26. In Rakhi Ray v. High Court of Delhi this court declared that the vacancies could not be filled up over and above the number of vacancies advertised as recruitment of the candidates in excess of the notified vacancies would amount to denial of equal opportunity to eligible candidates being violative of Articles 14 and 16 (1) of the Constitution of India. This court observed:
"It is settled law that vacancies cannot be filled up over and above the number of vacancies advertised as recruitment of the candidates in excess of the notified vacancies is a denial being violative of Articles 14 and 16(1) of the Constitution of India.
27. In the Hoshiar Singh v. State of Haryana also this court held that appointment to an additional post would deprive candidates, who were not eligible for appointment to the post on the last date for submission of the applications mentioned in the advertisement and who became eligible for appointment thereafter, of the opportunity of being considered for such appointment. This Court observed:
"10. ... The appointment on the additional posts on the basis of such selection and recommendation would deprive candidates, who were not eligible for appointment to the posts on the last date for submission of applications mentioned in the advertisement and who became eligible for appointment thereafter, of the opportunity of being considered for appointment on the additional posts ......"
28. In State of Haryana v. Subash Chander Marwaha this court held that the Government had no constraint to make appointments either because there are vacancies or because a list of candidates has been prepared and is in existence. So also this court in Shankarsan Dash v. Union of Inida, UPSC v. Gaurav Dwivedi, All India SC& ST Employees' Assn. v. A. Arthur Jeen and Food Corporation of India v. Bhanu Lodh held that mere inclusion of a name in the select list for appointment does not create a right to appointment even against -10- existing vacancies and the State has no legal duty to fill up all or any of the vacancies.
29. In the light of the above pronouncements the power vested in the Government under Rule 39 could not have been invoked for filling up the vacancies which had not been advertised and which had occurred after the issue of the initial advertisement, much less could that be done for the purposes of protecting the service of someone who had found a place in the merit list on account of additional marks given to him and who was bound to lose that place by reason of the judgment of the court.
(Emphasis supplied)
21. In view of the aforesaid facts, reasons, and judicial pronouncements, there is no substance in this Letters Patent Appeal as no error has been committed by the learned Single Judge while dismissing W.P.(S) no. 200 of 2015 vide judgment and order dated 18.01.2017 hence, this Letters Patent Appeal is, hereby, dismissed.
(D.N. Patel, A.C.J.) (Amitav K. Gupta, J.) NKC/Tarun