Madhya Pradesh High Court
Vikas Tiwari vs The State Of Madhya Pradesh on 4 March, 2025
Author: Vishal Mishra
Bench: Vishal Mishra
NEUTRAL CITATION NO. 2025:MPHC-JBP:32060
1 WP-18448-2019
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VISHAL MISHRA
ON THE 4 th OF MARCH, 2025
WRIT PETITION No. 18448 of 2019
VIKAS TIWARI
Versus
THE STATE OF MADHYA PRADESH AND OTHERS
Appearance:
Shri Ram Sharan Rathore - Advocate for petitioner.
Shri Satyam Agrawal - Advocate for respondent No.2.
ORDER
This petition has been filed challenging the letter dated 15.10.2018 passed by the respondent No.2 whereby the vacancy of Human Resources and DEIC Unit has been stayed and a subsequent order dated 29.01.2021 whereby the entire selection process has been cancelled.
2. The case of the petitioner is that the respondent No.2 issued a letter directing all the Chief Medical and Health Officers in the State of Madhya Pradesh for filling up vacancies of Physiotherapist at District Early Intervention Centre (DEIC) of different Districts within the State of Madhya Pradesh. In pursuance to the same, an advertisement was issued in newspaper 'Nav Bharat' on 19.01.2018 inviting applications for appointment of Physiotherapist at DEIC, Sidhi. The petitioner and four other candidates applied for the same as they were fulfilling the requirement in terms of the advertisement. The respondent authorities after following the due procedure has prepared the merit list in which the petitioner was placed at Serial No.1. He was called for personal interview vide letter dated 20.06.2018 for which an interview was scheduled on 28.06.2018. Again he Signature Not Verified Signed by: TAJAMMUL HUSSAIN KHAN Signing time: 23-07-2025 13:28:57 NEUTRAL CITATION NO. 2025:MPHC-JBP:32060 2 WP-18448-2019 acquired 12 marks and stood first in the merit list. Another advertisement was published by the District Medicine and Health Officer, Panna and Satna. Thereafter, the respondent No.2 by order dated 15.10.2018 has stayed the compliance of letter issued with respect to filling up vacancies of Human Resources and DEIC Unit in all the Districts of the State of Madhya Pradesh. During the pendency of the petition, another letter has been issued by the authorities which was challenged by way of amendment in the writ petition, dated 29.01.2021 wherein they have set aside the entire selection drive as well as order dated 15.10.2018. It is argued that no reasons were assigned in the impugned order. The petitioner duly participated in the entire selection process and was declared successfully and obtained the first position, but despite of the same he was not appointed and subsequently the entire drive has been cancelled without assigning any reason by order dated 29.01.2021. Counsel appearing for the petitioner has relied upon a judgment passed by this Court in the case of Ms. Kritika Mandloi and others ss. State of Madhya Pradesh and others, WP 12082 of 2024 dated 09.01.2025 in support of his case.
3. Counsel appearing for the respondents has vehemently opposed the contentions pointing out the fact that the entire recruitment drive has been cancelled by the authorities. The same is applicable to all the candidates who have participated in the drive. No prejudice is caused to the petitioner once the entire selection drive has been cancelled. Therefore, he has prayed for dismissal of the writ petition.
4. Heard the counsels for the parties and perused the record.
5. From the perusal of the record, it is seen that the petitioner participated in the selection drive in pursuance to the advertisement issued on 19.01.2018. He was obtained first position in the merit list. Thereafter, there was stay on the Signature Not Verified Signed by: TAJAMMUL HUSSAIN KHAN Signing time: 23-07-2025 13:28:57 NEUTRAL CITATION NO. 2025:MPHC-JBP:32060 3 WP-18448-2019 recruitment drive by order dated 15.10.2018 which was initially put to challenge in the writ petition. Subsequently, vide order dated 29.01.2021 the entire selection drive has been cancelled by the authorities. Counsel appearing for the petitioner has argued that as the petitioner is the selected being one of the most meritorious candidate is being adversely affected by the cancellation of the recruitment drive. There are no reasons assigned for cancellation of the entire selection drive by the authorities, therefore, interference is sought for in the writ petition, however, the fact remains that no prejudice is caused to the petitioner as the entire selection drive has been cancelled by the authorities. No right accrues to the candidate who finds place in the merit list in case a decision is taken to cancel the entire selection drive as the same is appliable to all.
6. The Hon'ble Supreme Court in the case of Employees State Insurance Corporation & Anr. Vs. Vinay Kumar & Ors, decided on 18.05.2022 in Civil Appeal No. 4150/2022 has held as under:-
"(6) The cardinal principle we must bear in mind is that this is a case of direct recruitment. A candidate who has applied does not have a legal right to insist that the recruitment process set in motion be carried to its logical end. Even inclusion of a candidate in the select list may not clothe the candidate with such a right. This is, however, different, no doubt, from holding that the employer is free to act in an arbitrary manner. But, at the same time, in the first place, direction which is given by the High Court to conclude the recruitment within 45 days is clearly untenable. This is for the reason that, as noticed, the advertisement dated 01.03.2018 was put on hold on 21.03.2018 before the last date indicated for filing the application by advertisement dated 01.03.2018. As the very advertisement was put on hold, it is quite likely that any candidate who may have being desirous of applying, may not have applied being discouraged by the fact that the advertisement has been put on hold. Therefore, the direction to conclude the proceedings within 45 days is unsupportable.
(7) Question would arise as to whether the direction could be given to proceed with the recruitment process by giving peremtory direction to the appellant. Here again, we cannot be oblivious to the Signature Not Verified Signed by: TAJAMMUL HUSSAIN KHAN Signing time: 23-07-2025 13:28:57 NEUTRAL CITATION NO. 2025:MPHC-JBP:32060 4 WP-18448-2019 first principle which we have indicated viz., the absence of any legal right with the candidate who has merely made an application.
At the same time, we do feel trammeled by the fact that the case which is sought to be set up viz., that there may not be any need for filling up the post, was not as such set up before the High Court or the Tribunal. Such an attempt is being made before this Court. In such circumstances, we are of the view that a fair and time bound decision must be taken by the appellants not oblivious to the fact that persons have applied and they would also look forward to a fair treatment at the hands of the body like the appellant. Accordingly, we allow the appeal. We set aside the judgment and we direct the appellants to take a decision bearing in mind all relevant aspects within a period of two months from today and if it is decided to fill up the post in question, the needful shall be done within such time so that all interested parties may apply pursuant thereto."
7. The Supreme Court in the case of Dinesh Kumar Kashyap and Others Vs. South East Central Railway and Others, reported in 2019 (12) SCC 798 has held as under:-
"6. Our country is governed by the rule of law. Arbitrariness is an anathema to the rule of law. When an employer invites applications for filling up a large number of posts, a large number of unemployed youth apply for the same. They spend time in filling the form and pay the application fees. Thereafter, they spend time to prepare for the examination. They spend time and money to travel to the place where written test is held. If they qualify the written test they have to again travel to appear for the interview and medical examination, etc. Those who are successful and declared to be passed have a reasonable expectation that they will be appointed. No doubt, as pointed out above, this is not a vested right. However, the State must give some justifiable, non-arbitrary reason for not filling up the post. When the employer is the State it is bound to act according to Article 14 of the Constitution. It cannot without any rhyme or reason decide not to fill up the post. It must give some plausible reason for not filling up the posts. The courts would normally not question the justification but the justification must be reasonable and should not be an arbitrary, capricious or whimsical exercise of discretion vested in the State. It is in the light of these principles that we need to examine the contentions of SECR.
26. The next question is as to whether a candidate acquires any right to appointment being in the merit list. Such question has been examined in a number of judgments time and again by this Court. In a judgment reported as State of Haryana v. Subash Signature Not Verified Signed by: TAJAMMUL HUSSAIN KHAN Signing time: 23-07-2025 13:28:57 NEUTRAL CITATION NO. 2025:MPHC-JBP:32060 5 WP-18448-2019 Chander Marwaha [(1974) 3 SCC 220 : 1973 SCC (L&S) 488] , it has been held that the State has a right not to appoint a candidate even if his name appears in the merit list. The Court held as under:
(SCC p. 224, para 7) "7. In the present case it appears that about 40 candidates had passed the examination with the minimum score of 45 per cent.
Their names were published in the Government Gazette as required by Rule 10(1) already referred to. It is not disputed that the mere entry in this list of the name of candidate does not give him the right to be appointed. The advertisement that there are 15 vacancies to be filled does not also give him a right to be appointed. It may happen that the Government for financial or other administrative reasons may not fill up any vacancies. In such a case the candidates, even the first in the list, will not have a right to be appointed. The list is merely to help the State Government in making the appointments showing which candidates have the minimum qualifications under the Rules. The stage for selection for appointment comes thereafter, and it is not disputed that under the Constitution it is the State Government alone which can make the appointments."
27. In a judgment reported as Jatinder Kumar v. State of Punjab [(1985) 1 SCC 122 : 1985 SCC (L&S) 174], this Court held that the process for selection and selection for the purpose of recruitment against anticipated vacancies does not create a right to be appointed to the post which can be enforced by a mandamus. The Court held as under: (SCC p. 128, para 12) "12. ... This, however, does not clothe the appellants with any such right. They cannot claim as of right that the Government must accept the recommendation of the Commission. If, however, the vacancy is to be filled up, the Government has to make appointment strictly adhering to the order of merit as recommended by the Public Service Commission. It cannot disturb the order of merit according to its own sweet will except for other good reasons viz. bad conduct or character. The Government also cannot appoint a person whose name does not appear in the list. But it is open to the Government to decide how many appointments will be made. The process for selection and selection for the purpose of recruitment against anticipated vacancies does not create a right to be appointed to the post which can be enforced by a mandamus. We are supported in our view by the two earlier decisions of this Court in A.N. D'Silva v. Union of India [AIR 1962 SC 1130] and State of Haryana v. Subash Chander Marwaha [(1974) 3 SCC 220 : 1973 SCC (L&S) 488] . The contention of Mr Anthony to the contrary cannot be accepted."
Signature Not Verified Signed by: TAJAMMUL HUSSAIN KHAN Signing time: 23-07-2025 13:28:57NEUTRAL CITATION NO. 2025:MPHC-JBP:32060 6 WP-18448-2019
28. In Shankarsan Dash v. Union of India [(1991) 3 SCC 47 :
1991 SCC (L&S) 800], a Constitution Bench of this Court held that the notification for an appointment 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. It was held as under: (SCC pp. 50-51, para 7) "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 [(1974) 3 SCC 220 : 1973 SCC (L&S) 488] , Neelima Shangla v. State of Haryana [(1986) 4 SCC 268 : 1986 SCC (L&S) 759] and Jatinder Kumar v. State of Punjab [(1985) 1 SCC 122 : 1985 SCC (L&S) 174] ."
29. In a judgment reported as S.S. Balu v. State of Kerala [(2009) 2 SCC 479 : (2009) 1 SCC (L&S) 388], it was held that the State as an employer has a right to fill up all the posts or not to fill them up. A candidate will have no legal right for claiming a writ in the nature of mandamus unless there is discrimination or arbitrariness in regard to the filling up of the vacancies. The Court held as under:
(SCC pp. 483-84, paras 12 & 14) "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. Narasaiah Zangiti [(2006) 10 SCC 261 : (2007) 1 SCC (L&S) 92] .) The State as an employer has a right to fill up all the posts or not to fill them up. Unless a discrimination is made in regard to 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 Signature Not Verified Signed by: TAJAMMUL HUSSAIN KHAN Signing time: 23-07-2025 13:28:57 NEUTRAL CITATION NO. 2025:MPHC-JBP:32060 7 WP-18448-2019 Gramiya Bank v. Pallab Kumar [(2004) 9 SCC 100 : 2004 SCC (L&S) 715].) In Shankarsan Dash v. Union of India [(1991) 3 SCC 47 : 1991 SCC (L&S) 800] a Constitution Bench of this Court held:
(SCC pp. 50-51, para 7) '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.' ***
14. In Pitta Naveen Kumar v. Narasaiah Zangiti [(2006) 10 SCC 261 : (2007) 1 SCC (L&S) 92] , this Court held: (SCC p. 273, para
32) '32. ... A candidate does not have any legal right to be appointed. He in terms of Article 16 of the Constitution of India has only a right to be considered therefor. Consideration of the case of an individual candidate although ordinarily is required to be made in terms of the extant rules but strict adherence thereto would be necessary in a case where the rules operate only to the disadvantage of the candidates concerned and not otherwise.'"
30. In another judgment in Kulwinder Pal Singh v. State of Punjab [(2016) 6 SCC 532 : (2016) 2 SCC (L&S) 102] , this Court held that the name of a candidate may appear in the merit list but he has no indefeasible right to seek an appointment. It was held as under:
(SCC pp. 537-38, paras 10-12) "10. It is fairly well settled that merely because the name of a candidate finds place in the select list, it would not give him indefeasible right to get an appointment as well. The name of a candidate may appear in the merit list but he has no indefeasible right to an appointment (vide Food Corporation of India v. Bhanu Lodh [(2005) 3 SCC 618 : 2005 SCC (L&S) 433] , All India SC & ST Employees' Assn. v. A. Arthur Jeen [(2001) 6 SCC 380 : (2007) 2 SCC(L&S) 362] and UPSC v. Gaurav Dwivedi [(1999) 5 SCC 180 : 1999 SCC (L&S) 982]).
11. This Court again in State of Orissa v. Rajkishore Nanda [(2010) Signature Not Verified Signed by: TAJAMMUL HUSSAIN KHAN Signing time: 23-07-2025 13:28:57 NEUTRAL CITATION NO. 2025:MPHC-JBP:32060 8 WP-18448-2019 6 SCC 777 : (2010) 2 SCC (L&S) 313] , held as under: (SCC p.
783, paras 14 & 16) '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.
***
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.'
12. In Manoj Manu v. Union of India [(2013) 12 SCC 171 : (2014) 2 SCC (L&S) 706] , it was held that (SCC p. 176, para 10) merely because the name of a candidate finds place in the select list, it would not give the candidate an indefeasible right to get an appointment as well. It is always open to the Government not to fill up the vacancies, however such decision should not be arbitrary or unreasonable. Once the decision is found to be based on some valid reason, the Court would not issue any mandamus to the Government to fill up the vacancies. As noticed earlier, because twentytwo other candidates were declared [High Court of P&H v. State of Punjab, (2010) 11 SCC 684 : (2011) 1 SCC (L&S) 769] successful by the Supreme Court pertaining to the selection of the years 1998, 1999, 2000 and 2001 as Civil Judges (Junior Division), they were to be accommodated, as rightly resolved by the Administrative Committee in the meeting dated 6-7-2011. The three resultant vacancies of the year 2007-2008 stood consumed with the joining of the said seventeen candidates and the same could not be filled up from the select list of that year. The decision of the Administrative Committee observing that the three resultant vacancies stood consumed is based on factual situation arising there and cannot be said to be arbitrary."
31. The stand of the Railways before the Tribunal was that the 20 per cent extra candidates were called to take care for eventualities such as the unfitness of the candidates at the stage of medical examination or not turning up of the candidates for document verification, etc. It is also averred that in spite of vacancies remaining unfilled due to non-joining of selected candidates, no appointment from the extra candidates can be claimed in view of the instructions of the Railway Board. The stand of the Railways in reply before the Tribunal was not that there was simultaneous selection process for Group-D posts and for which 2839 candidates Signature Not Verified Signed by: TAJAMMUL HUSSAIN KHAN Signing time: 23-07-2025 13:28:57 NEUTRAL CITATION NO. 2025:MPHC-JBP:32060 9 WP-18448-2019 were appointed but the fact remains that such an averment has been made before this Court and such an assertion has not been controverted.
33. However, in the present case, the appellants were called in for the verification of documents as extra candidates to replace the candidates selected who do not join for one or the other reason. Such candidates were called to meet out the necessity to fill up of posts if the meritorious selected candidates do not join. In terms of Shankarsan Dash case [Shankarsan Dash v. Union of India, (1991) 3 SCC 47 : 1991 SCC (L&S) 800] , the State has a right not to appoint candidates even if they are in merit list. The appellants do not possess indefeasible right of appointment. It is not the case, that any candidate lower in merit has been appointed or the appointments have been made by pick and choose method ignoring merit. The reason given by the Railways in the counter-affidavit is that the requirement to fill 624 posts was not felt in pursuance of an advertisement in question as there were two simultaneous selection processes in which 2839 candidates were appointed. Such reason cannot be said to be wholly arbitrary which warrants a mandate to the respondents to appoint the appellants who are not in merit list but at best in the waiting list. The State has right not to fill up any vacancy advertised. The stand that the requirement to fill up 624 vacant posts was not felt cannot be said to be arbitrary warranting a mandamus to appoint the appellants. The State cannot be directed to appoint candidates, when it does not require the posts to be filled up. The decision not to fill up vacancies has been taken for appropriate reasons and is neither arbitrary nor discriminatory.
34. Still further, in exercise of power of judicial review, this Court is not to substitute the decision of the Railways and to direct candidates in the waiting list to be appointed. In a three-Judge Bench judgment reported as Kali Dass Batish case [Union of India v. Kali Dass Batish, (2006) 1 SCC 779 : 2006 SCC (L&S) 225] , it has been held that mere inclusion of a candidate's name in the selection list gave him no right, and if there was no right, there could be no occasion to maintain a writ petition for enforcement of a non-existing right. It has been also held that however wide the power of judicial review under Article 226 or 32 of the Constitution, there is self-recognised limit to exercise such power. The Court held as under: (SCC pp. 788-90, paras 15, 17-19) "15. In this matter, the approach adopted by the Jharkhand High Court commends itself to us. The Jharkhand High Court [Ram Kishore Prasad v. Union of India, 2003 SCC OnLine Jhar 492 :
Signature Not Verified Signed by: TAJAMMUL HUSSAIN KHAN Signing time: 23-07-2025 13:28:57NEUTRAL CITATION NO. 2025:MPHC-JBP:32060 10 WP-18448-2019 2004 AIR Jhar R 2552] approached the matter on the principle that judicial review is not available in such a matter. The Jharkhand High Court also rightly pointed out that mere inclusion of a candidate's name in the selection list gave him no right, and if there was no right, there could be no occasion to maintain a writ petition for enforcement of a non-existing right.
***
17. In K. Ashok Reddy v. Union of India [K. Ashok Reddy v.
Union of India, [(1994) 2 SCC 303], this Court indicated that however wide the power of judicial review under Article 226 or 32 there is a recognised limit, albeit selfrecognised, to the exercise of such power. This Court reiterated a passage from Craig's Administrative Law (2nd Edn., p. 291), vide SCC p. 315, para 21, as under:
'The traditional position was that the courts would control the existence and extent of prerogative power, but not the manner of exercise thereof. ... The traditional position has however now been modified by the decision in GCHQ case [Council of Civil Service Unions v. Minister for the Civil Service, 1985 AC 374 : (1984) 3 WLR 1174 (HL)]. Their Lordships emphasised that the reviewability of discretionary power should be dependent upon the subjectmatter thereof, and not whether its source was statute or the prerogative. Certain exercises of prerogative power would, because of their subject-matter, be less justiciable, with Lord Roskill compiling the broadest list of such forbidden territory....' The observations of Lord Roskill, referred to above, are from Council of Civil Service Unions v. Minister for the Civil Service [1985 AC 374 : (1984) 3 WLR 1174 (HL)] (GCHQ case) as under:
(All ER p. 956d-e) 'But I do not think that that right of challenge can be unqualified. It must, I think, depend on the subject-matter of the prerogative power which is exercised. Many examples were given during the argument of prerogative powers which as at present advised I do not think could properly be made the subject of judicial review. Prerogative powers such as those relating to the making of treaties, the defence of the realm, the prerogative of mercy, the grant of honours, the dissolution of Parliament and the appointment of ministers as well as others are not, I think, susceptible to judicial review because their nature and subjectmatter is such as not to be amenable to the judicial process.'
18. Finally, this Court emphasised judicial restraint by citing with approval a passage in de Smith's Judicial Review of Administrative Action (vide K. Ashok Reddy case [K. Ashok Reddy v. Union of India, (1994) 2 SCC 303] SCC p. 316, para 23) as under:
'Judicial self-restraint was still more marked in cases where Signature Not Verified Signed by: TAJAMMUL HUSSAIN KHAN Signing time: 23-07-2025 13:28:57 NEUTRAL CITATION NO. 2025:MPHC-JBP:32060 11 WP-18448-2019 attempts were made to impugn the exercise of discretionary powers by alleging abuse of the discretion itself rather than alleging non-
existence of the state of affairs on which the validity of its exercise was predicated. Quite properly, the courts were slow to read implied limitations into grants of wide discretionary powers which might have to be exercised on the basis of broad considerations of national policy.' Based on this reasoning, it was acknowledged that the transfer of a Judge of the High Court based on the recommendation of the Chief Justice of India would be immune from judicial review as there is 'an inbuilt check against arbitrariness and bias indicating absence of need for judicial review on those grounds. This is how the area of justiciability is reduced....
[Ibid., para 24]'
19. We, respectfully, reiterate these observations, and expect them to be kept in mind by all courts in this country invested with the power of judicial review."
8. Once the authorities have taken a decision to cancel the entire selection drive including the appointment orders owing to certain illegalities/irregularities committed in making the appointments, no prejudice will be caused to the petitioner because the decision is taken to cancel the entire recruitment drive. Under these circumstances, no relief can be extended to the petitioner.
9. The writ petition sans merit and is accordingly dismissed. No order as to costs.
(VISHAL MISHRA) JUDGE THK Signature Not Verified Signed by: TAJAMMUL HUSSAIN KHAN Signing time: 23-07-2025 13:28:57