Madhya Pradesh High Court
Anil Kumar Sharma vs State Of M.P. And Ors. on 29 October, 1999
Equivalent citations: 2000(2)MPHT429
Author: C.K. Prasad
Bench: C.K. Prasad
ORDER C.K. Prasad, J.
1. By this writ petition, filed under Articles 226 and 227 of the Constitution of India, petitioner prays for issuance of a writ in the nature of Mandamus commanding respondent No. 1 the State Government to appoint the petitioner as Managing Director of M.P. State Seed & Farm Development Corporation in terms of the recommendation of the Selection Committee. Further prayer made by the petitioner is to quash the order dated 2-4-1997 (Annexure P-13) of the State Govt. whereby respondent No. 3 has been appointed as the Managing Director of the respondent-Corporation.
2. Facts necessary for the decision of the present writ petition are that the State Govt. issued an advertisement, which was published in the daily news paper M.P. Chronicle on 18-2-1995, inviting applications for the appointment to the post of Managing Director of M.P. Seed & Farm Development Corporation, hereinafter referred to as the 'Corporation'. A Selection Committee was constituted for making recommendation for appointment to the post of Managing Director. Interview for the said purpose was held on 29th & 30th January, 1997. In the interview, besides the petitioner, six other candidates were called for interview. However, three candidates who appeared in the interview failed to submit the necessary no objection certificate from their respective employers. The Selection Committee on assessment of inter-se merits of the candidates submitted a panel of two candidates in order of merit in which the name of the petitioner was placed at serial No. 2; below one Shri R.R. Karsolia. However before any appointment could be made a criminal case was registered against aforesaid Karsolia by the Deputy Inspector General, Special Police Establishment (Lok Ayukta) under Section 7(d) read with Section 13(2) of the Prevention of Corruption Act, 1988. It is the stand of the petitioner that the aforesaid Karsolia being disqualified, having been involved in a criminal case, he being below him, is entitled to be appointed to the post of Managing Director.
3. It is relevant here to state that one B.N. Arya filed W.P. No. 786/96 inter alia praying for issuance of a writ in the nature of Mandamus directing the State Govt. to complete the process of selection and appointment to the post of Managing Director in pursuance of the advertisement published in the daily news paper dated 18th February, 1995. In the said writ petition R.R. Karsolia was impleaded as respondent No. 3 who was acting as the Incharge Managing Director. By order dated 29-2-1996 the writ petition was disposed of with a direction to the State Govt. to expedite the process of selection and appointment to the post of Managing Director expeditiously in the larger interest of the Corporation and public in general. In the said writ petition the Chief Secretary was not impleaded as a party. Complaining purported disobedience of the aforesaid order, B.N. Arya filed contempt petition No. 333/96 and interestingly respondent No. 3 of the said writ petition i.e., Ramraj Prasad Karsolia joined as petitioner No. 2 in the contempt application. In the contempt application the Chief Secretary of the State was also impleaded as party. Said contempt petition was placed for consideration before this Court on 6-11-1996 and notice was directed to be issued to respondent No. 1 i.e., the Chief Secretary, who was not a party in the writ petition, to show-cause as to why contempt proceeding be not initiated against him for acting in wilful disregard and disobedience of the orders of this Court dated 29-2-1996 passed in W.P. No. 786/96. Contempt petition was placed for consideration on 5-12-1996 and it was stated on behalf of the Chief Secretary that petitioner No. 2 of the contempt application has been appointed as Incharge Managing Director of the Corporation and has taken over the charge also. On the aforesaid ground the contempt proceeding was dropped. Later on by impugned order dated 2-4-1997, respondent No. 4 an officer of the Indian Administrative Service has been posted as Managing Director.
4. Mr. Rajendra Tiwari appears on behalf of the petitioner whereas respondents No. 1, 2 and 4 are represented by Shri Dinesh Agrawal, Govt. Advocate Mr. Ajay Mishra appears for respondent No. 3. Mr. Tiwari, appearing on behalf of the petitioner contends that once the State Govt. has decided to make appointment to the post of Managing Director by direct recruitment; later on they cannot fill up the post by posting an officer of the Indian Administrative Service to the said post. He submits that R.R. Karsolia having been involved in a criminal case, name of the petitioner goes at the top of the list prepared by the Selection Committee and as such petitioner has right to be appointed to the post of Managing Director. He further points out that State Govt. issued the advertisement for appointment to the post of Managing Director, by direct recruitment to appoint aforesaid R.R. Karsolia and he having been involved in a criminal case, State Govt. does not want to make appointment by direct recruitment. Hence by order dated 2-4-1997 posted respondent No. 4, an officer from the Indian Administrative Service as the Managing Director of the Corporation. He submits that the name of the petitioner is now at the top of the list and hence the State Govt. cannot refuse to make appointment. In support of his submission, he has placed reliance on a Judgment of the Division Bench of this Court in the case of Dr. Ram Singh v. University of Sagar and Ors. (1973 MPLJ 561) and my attention has been drawn to the following passage from paragraph 6 of the Judgment which reads as follows :
"But we do not also accept the extreme contention raised by the learned counsel for the respondents that the Executive Council may decline to accept the recommendation of the Selection Committee and refuse to make any appointment in its absolute discretion for whatever reason it may be. Every power or discretion conferred under a statute has to be honestly exercised in furtherance of the object for which the discretion or power is conferred. As stated by Prof. S.A. de Smith, an authority on whom discretionary power is conferred "must not seek to promote purposes alien to the latter or to the spirit of the legislation that gives it power to act and must not act arbitrarily or capriciously." Judicial Review of Administrative Act, 2nd Edition, p. 271. The scheme of Section 47A and the object behind it clearly show that the Executive Council cannot refuse to accept the recommendation of the committee simply on the ground that the person recommended is not acceptable to the Executive Council, or that the person recommended is not suitable, or that a person rejected should have been recommended."
5. Mr. Dinesh Agrawal as also Mr. Ajay Mishra appearing on behalf of respondents No. 1, 2 and 4 and 3 respectively contend that the whole object of the State Govt. to make appointment to the post of Managing Director by direct recruitment was to invite best talent to fill-up the post of Managing Director but only four candidates fulfilling the minimum eligibility conditions were available before the Selection Committee. It has been further pointed out that out of four candidates person placed at S. No. 1 by the Selection Committee, later on got involved in a criminal case before appointment could be made, hence State Govt. decided to post an officer of the Indian Administrative Service and abandoned its decision to make appointment to the post of Managing Director by direct recruitment. They contend that nothing prevented the State Govt. to take a decision at a later stage, not to make appointment by direct recruitment although at one stage it had decided to make appointment by direct recruitment. They further point out that the petitioner is not entitled for issuance of a writ in the nature of Mandamus commanding the State Govt. to appoint him to the post of Managing Director only on the ground that the name of the petitioner happens to be at the top of the list after R.R. Karsolia, as according to them mere placement of the person in the list does not create an indefeasible right. In support of their submission, reliance has been placed on a decision of the Supreme Court in the case of Shankarsan Dash v. Union of India, AIR 1991 SC 1612.
6. Respondent-Corporation has been established by an Act of the State Legislature namely Madhya Pradesh Rajya Beej Evam Farm Vikas Nigam Adhiniyam, 1980, hereinafter referred to as the 'Act'. Section 11 of the Act inter alia provides for appointment of a Managing Director by the State Govt., which reads as follows :--
"11. Managing Director.-- (1) The Managing Director shall be appointed by the State Government and he shall--
(i) be a whole time officer of the Nigam;
(ii) exercise such powers and perform such duties as the Board may delegate or entrust to him;
(iii) receive such salary and allowances and be governed by such terms and conditions of service as the Nigam may, with the approval of the State Government, determine :
Provided that the first Managing Director shall receive such salary and allowance and shall be governed by such terms and conditions of service as the State Government may determine.
(2) The State Government may at any time remove the Managing Director from office without assigning any reason therefor."
A plain reading of the aforesaid Section makes it clear that although the power of appointment has been conferred on the State Govt., but the aforesaid provision has not provided for the mode which the State Government is obliged to adopt in making the appointment. The State Govt. at one stage decided to fill-up the post of Managing Director by direct recruitment and accordingly issued advertisement in the newspaper. Four candidates were considered by the Selection Committee. Person placed at serial No. 1 by the Selection Committee got involved in a criminal case. Name of the petitioner was below him. In a circumstance like this the State Govt. decided to abandon its earlier decision to make appointment to the post of Managing Director by posting an officer of the Indian Administrative Service. In a situation like this, nothing prevented the State Govt. from taking the decision not to make appointment to the post of Managing Director in pursuance of the advertisement.
7. Petitioner's name was below Karsolia and although on account of disqualification of Karsolia, his position goes to the top but this itself shall not give him any right for appointment to the post of Managing Director. In the case of Dr. Ramsingh (supra), on which heavy reliance has been placed by Shri Tiwari, does not as a proposition of law holds that the person who has been selected, has right to be appointed. In the said case it has been held as follows :--
"6. Next comes the question as to how far the Executive Council is bound to accept the recommendation of the Committee when only one name is recommended by the Selection Committee. The combined effect of Sub-sections (1) and (4) in case when only one name is recommended is that only that person and no one else can be selected by the Executive Council. In such a case the words "shall make the final selection" in Sub-section (4) will mean that the person recommended alone can be selected. But we are not inclined to accept the argument of the learned counsel for the petitioner that the Executive Council in every case is bound to accept the recommendation of the Selection Committee when only one name is recommended and that is bound to make the appointment as recommended. It has to be taken notice of that the Executive Council is the executive authority of the University in whom all the powers of the University, not otherwise specifically provided for, are vested. It is quite possible that by the time the recommendations of the Selection Committee reach the Executive Council it may not be advisable to fill up the post advertised for various administrative reasons, e.g. lack of funds or want of students. If an honest administrative decision is taken not to appoint a person recommended, in our opinion, the Executive Council and the University cannot be compelled to accept the recommendation of the Selection Committee and to make the appointment, though if an appointment is made, the person appointed must be one recommended by the committee."
8. Further, in the case of Shankarsan Dash (supra) a Constitution Bench of the Supreme Court has clearly held that a candidate whose name appears in the merit list does not acquire indefeasible right of appointment. In the said case it has been observed as follows :--
"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 bene consistently followed by this Court, and we do not find any discordant note in the decisions in the State of Haryana v. Subhash Chander Marwaha, (1974) 1 SCR 165 : (AIR 1973 SC 2216), Miss Neelima Shangla v. State of Haryana, (1986) 4 SCC 268 : (AIR 1987 SC 169), or Jitendra Kumar v. State of Punjab, (1985) 1 SCR 899 : (AIR 1984 SC 1850)."
As stated earlier, only four persons appeared before the Selection Committee. For the reason of involvement in a criminal case of Karsolia whose name was placed at the top of the list he could not have been appointed. Name of the petitioner is below Karsolia. Section 11 of the Act has given wide discretion to the State Govt. to adopt any mode for appointment. In my opinion, in a situation like this, the decision of the State Govt. to fill up the post by appointment of an officer of the Indian Administrative Service and not to make appointment of the petitioner is an honest administrative decision and the State Govt. cannot be compelled to make appointment to the post of Managing Director only by direct recruitment and to appoint the petitioner to the said post by issuance of a writ in the nature of Mandamus.
9. Mr. Tiwari, appearing on behalf of the petitioner lastly contends that the action of the State Govt. to fill-up the post by appointment of a person from Indian Administrative Service and not to fill up the post in pursuance of the advertisement is in the teeth of the order of this Court dated 29-2-1996 passed in W.P. No. 786/96. While disposing of the aforesaid writ petition, this Court directed the State Govt. to expedite the process of selection and appointment to the post of Managing Director. The order of this Court cannot be construed to mean that once such direction was issued, the State Govt. is precluded from taking any other honest administrative decision. Here in the present case, I have found that the decision of the State Govt. not to fill up the post by direct recruitment and not to make appointment of the petitioner are honest administrative decision which cannot be interfered with by this Court in exercise of its writ jurisdiction.
10. In the result, I do not find any merit in the writ petition and it is dismissed accordingly. In the facts and circumstances of the case, there shall be no order as to cost.