Allahabad High Court
Aadi Shakti Pandey And 34 Ors vs Union Of India And 5 Ors on 7 February, 2017
Author: Vivek Kumar Birla
Bench: Vivek Kumar Birla
HIGH COURT OF JUDICATURE AT ALLAHABAD RESERVED A.F.R. Court No. - 27 Case :- WRIT - A No. - 67077 of 2014 Petitioner :- Aadi Shakti Pandey And 34 Ors Respondent :- Union Of India And 5 Ors Counsel for Petitioner :- Siddharth Khare,Shri Ashok Khare Counsel for Respondent :- A.S.G.I.,Diptiman Singh,R.K. Jaiswal Connected with Case :- WRIT - A No. - 33852 of 2016 Petitioner :- Manish Sahu And 11 Ors. Respondent :- Union Of India And 5 Ors. Counsel for Petitioner :- Shantanu Khare,Shri Ashok Khare Counsel for Respondent :- A.S.G.I.,Diptiman Singh,Vijay Raj Pal Connected with Case :- WRIT - A No. - 37883 of 2016 Petitioner :- Sandip Kumar Respondent :- Union Of India And 5 Ors. Counsel for Petitioner :- Anwar Mehdi Zaidi Counsel for Respondent :- A.S.G.I.,Diptiman Singh Hon'ble Vivek Kumar Birla,J.
1. Heard Sri Ashok Khare, learned Senior Counsel assisted by Sri Siddharth Khare and Sri Suhail, learned counsel for the petitioners in the present writ petition and in writ petition no. 33852 of 2016 and Sri Anwar Mehdi Zaidi, learned counsel for the petitioner in writ petition no. 37883 of 2016 and Sri S.D. Singh, learned Senior Counsel assisted by Sri Diptiman Singh, Advocate appearing for the respondent no. 2 to 6 (Hindustan Aeronautics Ltd.).
2. Pleadings between the parties have been exchanged and with their consent, the present petition as well as connected writ petitions are being disposed of finally at this stage itself and as agreed between the parties facts of the leading case are being taken into consideration.
3. The present writ petition has been filed seeking following reliefs:
(a) a writ, order or direction of a suitable nature commanding the respondents to forthwith grant appointment to the petitioners as Technician Trainee/Diploma Trainee in appropriate Trade/Discipline for which the petitioners have been selected in pursuance to Advertisement No. 02/2011 issued by Deputy General Manager (Human Resource), Hindustan Aeronautics Ltd., Kanpur, within a period to be specified by this Hon'ble Court;
(b) a writ, order or direction of a suitable nature commanding the respondents to permit the petitioners to function as Technician Trainee/Diploma Trainee in appropriate trade/discipline for which the petitioners have been selected and to make regular payment of monthly salary to the petitioners on such posts regularly every month;
(c) any other writ, order or direction as this Hon'ble court may deem fit and proper in the circumstances of the case; and
(d) award cost of the petition to be paid to the petitioners.
4. Subsequently, after filing of the counter affidavit, an amendment application was filed whereby paragraphs 33A to 33T were added and following two prayers i.e. (e) and (f) were also added in the writ petition on the basis of the order of this Court dated 23.5.2016 allowing the amendment application filed by the petitioners.
(e) issue a writ, order or direction in the nature of certiorari quashing the circular letter dated 22.10.2013 issued by the General Manager (HR) as also circular letter dated 04.05.2016 issued by the Executive Director (HR) (Anneuxre 10&12 to the writ petition).
(f) issue a writ, order or direction in the nature of certiorari quashing the general notice released on the official website in the date of 11.05.2016 as also individual notice dated 13.05.2016 (Annexure 13&14 to the writ petition).
5. Necessary facts have already been noticed by this Court in its order dated 25.4.2016. The relevant extract whereof is quoted as under:
"As per record, this much is reflected that the Transport Aircraft Division, Hindustan Aeronautics Limited at Kanpur issued an advertisement No.02/2011 inviting applications for appointment on 48 posts of Technician Trainees in the trade of Fitter and 5 posts of Diploma Trainees in the trade of Computer. All the petitioners possess requisite qualifications. The petitioner nos. 1 to 32 applied for the post of Technician Trainee in the trade of Fitter; the petitioner no.33 applied for the post of Technician Training in the trade of Computer; the petitioner no.34 applied for the post of Diploma Trainee in Mechanical discipline and the petitioner no.35 applied for the post of Technician Trainee in the trade of Machinist. The petitioner nos.2,4,10,14,16,22,24,25 and 26 belong to Scheduled Caste Category; the petitioner nos. 6,8,9,12,15,17,18,20,21,23,27,30,32 and 35 belong to OBC category and the remaining petitioners belong to unreserved category. The written examination was held on 30.5.2012 against the aforesaid posts in which the petitioners were shown to be qualified. All the petitioners were subjected to practical examination held in the month of February/March, 2013 and thereafter they were called for appearing in the interview held on different dates in month of April, 2013 and they participated in the interview. At the end of the interview, the final select list was notified in which all the petitioners stood selected. When the appointment letter has not been issued in favour of the petitioners, they approached this Court by means of present writ petition.
6. Initially on 11.12.2014 when the matter was entertained, this Court directed the respondents to file counter affidavit. The counter affidavit was filed on 16.2.2015 annexing therewith a copy of the order dated 22.10.2013 by which the Division was advised to put on hold all recruitment in the workmen cadre till further orders and it was provided that no final offers of appointment to be issued/ interview to be carried out till clearance is given by the Corporate office. The aforesaid order dated 22.10.2013 is quoted as under:
"Clearance for completing the selection process in respect of workmen, wherein advertisements/notifications were issued before 6.4.13, by following the Rules prevailing prior to issue of the revised Recruitment Manual was given to the Divisions/Offices vide letter No. HAL/HR/27(30)/2013/01 dated 14.9.13.
2. The matter is reviewed. The Division is advised to put on hold all Recruitmments in the Workmen Cadre, till further orders.
3. No final Offers of Appointment to be issued/Interview to be carried out till clearance is given by Corporate Office."
7. By the order dated 24.5.2016, this Court granted time to the learned counsel for the respondents to seek instructions in the matter whether in pursuance of the aforesaid advertisement, the department has taken any decision in the light of the communication dated 22.10.2013.
8. In pursuance of the aforesaid order, supplementary affidavit (mentioned as first supplementary affidavit) was filed by the contesting respondent-Hindustan Aeronautics Limited (hereinafter referred to as the 'HAL') placing on record the letter/order dated 4.5.2016 whereby provisional offer of appointment issued to the candidates pursuant to the aforesaid advertisement was cancelled and it was provided that no further selection/appointment would be made based on the above advertisement. The order dated 4.5.2016 is quoted as under:
"Please refer to Corporate Office letter No. HAL/HR/27(30)/2013/1 dated 22.10.13, on the above subject, vide which the Division was advised to put on hold all Recruitments in the Workmen Cadre, till further orders.
2. The matter is reviewed keeping in view the existing Manpower and Work load of the Division. Projects like IJT & MTA, which are already delayed, would take longer time to get materialized. As such, there is no requirement for induction of additional Manpower in the Division.
3. As the Division does not require additional Manpower at present, the Division is advised to cancel the provisional offers of appointment issued to the candidates with reference to the advertisement issued during the year 2011. No further appointment/selection would be made based on the above advertisement, please."
9. Thereafter an amendment application was moved by the petitioners, which was allowed by this Court as noticed above. A counter affidavit to the amendment application has also been filed annexing therewith a copy of order dated 14.9.2013, which is also quoted as under:
"Divisions/Offices were advised vide letter No. HAL/HR/27(30/2013 dated 6.4.13 to put on hold all Recruitments in the Workman cadre, till further orders.
2. The matter is reviewed and the following decisions are taken:
i) In respect of Advertisements/Notifications issued before 6.4.13, Divisions/Offices can complete the selection process now, as per the Rules prevailing prior to issue of the revised Recruitment Manual vide letter No. HAL/HR/27(1)/2013/MRR dated 16.7.13. The weightage of Marks for Written Test and Interview will be 85% & 15% respectively, where interviews are to be conducted.
(ii) Revised Recruitment Manual is to be followed for future selections. Prior approval of Corporate Office is to be obtained before notification/advertisement of fresh vacancies.
(iii) Selection Committees are to be constituted with at least 2 members belonging to Corporate Office/other Complexes. Approval of Corporate Office will be taken for the constitution of the Committee.
(iv) Divisions/Offices need to ensure completion of filling up of backlog vacancies in the workmen cadre in SC/ST/OBC/PWD categories, in a time bound manner.
3. Divisions may process recruitment of workmen accordingly."
10. Submission of Sri Ashok Khare, learned Senior Counsel appearing for the petitioners is that there is no absolute right with the employer to give up selection, and that for cancellation of selection process, cogent reasons must be assigned, more so, when provisional appointment was offered to the petitioners. Elaborating the argument, it was emphatically submitted that even if the successful candidates do not require any indefeasible right to be appointed against the existing vacancy, still valid reasons must exist for cancellation of selection process, which do not exist in the present case. It was next submitted that the selection in question was conducted for making appointment on the post of Technician Trainees (T.T.) as also Diploma Trainees (D.T.). However insofar as the post of T.T. is concerned, none of the candidates so selected was issued appointment letters nor they have been permitted joining, however in regard to the candidates selected for the post of D.T., appointment letters were issued to approximately 10 selected candidates who have also been permitted to join and are also continuously working thereafter but petitioner no. 34 who was selected as D.T. was not issued any appointment letter, which is wholly arbitrary. It was further submitted that in case select list was to be utilized for granting appointment, it should have been utilized in order of merit by granting appointment to the candidates standing higher in merit whereas the appointments in the present case were offered to some of the persons who were lower in merit in D.T. Category. It was also submitted that there is no shortage of work or dearth of vacant post as several petitioners are still working and are doing same work as contract labour supplied by the service provider and discharging the same functions and duties for which the petitioners have been selected for grant of regular appointment. It is next submitted that the reason assigned in the communication dated 22.10.2013 for withholding the appointment was legally impermissible reasons as a new/revised recruitment manual having been published on 14.9.2013 and the same has not been given retrospective operation and therefore, such revised recruitment manual would apply to future vacancy and future recruitment only and will not nullify the selection proceedings that have already been initiated and concluded. It was further submitted that the order dated 4.5.2016 cancelling the selection process and cancelling the offer of appointment issued to the candidates pursuant to the advertisement is arbitrary and discriminatory and it offers no well reason for cancellation of such selection process. Elaborating the arguments, it was submitted that the delay in projects in IJT & MTA is a baseless recital, inasmuch as, as per newspaper report HAL has been awarded some works regarding production of Dhruva Helicopter, Dornier Aircraft and that out of the merit list persons finding place at serial no. 5, 6, 8, 24, 25, 29 and 30 from amongst the Diploma Trainee (Mechanical) and serial no. 3 and 4 from amongst the Diploma Trainee (Electrical) have been appointed and large number of petitioners are working on contract basis through service provider, therefore, submission is that the reasons assigned for cancelling the selection process is not valid in nature. In support of his submissions, learned Senior Counsel has placed reliance on the judgements of Hon'ble Apex Court rendered in the cases of Shankarsan Das vs. Union of India and others, (1991) 3 SCC 47; Asha Kaul vs. State of Jammu Kashmir & others, (1993) 2 SCC 573; Directors SCTI for Medical Science vs. M. Pushkaran, (2008) 1 SCC 488; and Manoj Manu and another vs. Union of India and others, (2013) 12 SCC 171.
Paragraph 7 of the case of Shankarsan Das (supra) is quoted 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, (1974) 1 SCR 165, Neelima Shangla v. State of Haryana, (1986) 4 SCC 268 or Jatendra Kumar v. State of Punjab, (1985) 1 SCR 899." (Emphasis supplied) In paras 6, 7 and 8 of the case Asha Kaul (supra); paras 11, 12, 13 and 16 of Directors SCTI for Medical Science (supra); and in paras 10, 11, 12 and 13 of Manoj Manu (supra), same view has been adopted, endorsed and expressed as noted above in the case of Shankarsan Das (supra); and following paragraphs are being quoted below.
Para 8 of the case of Asha Kaul (supra) is quoted as under:
"8. It is true that mere inclusion in the select list does not confer upon the candidates included therein an indefeasible right to appointment State of Haryana vs. Subhash Chandra Marwaha; IMS. Jain v. State of Haryana State of Kerala v. A Lakshmikutty but that is only one aspect of the matter. The other aspect is the obligation of the government to act fairly. The whole exercise cannot be reduced to a farce. Having sent a requisition/request to the commission to select a particular number of candidates for a particular category, -in pursuance of which the commission issues a notification, holds a written test, conducts interviews, prepares a select list and then communicates to the government - the government cannot quietly and without good and valid reasons nullify the whole exercise and tell the candidates when they complain that they have no legal right to appointment. We do not think that any government can adopt such a stand with any justification today. This aspect has been dealt with by a Constitution Bench of this Court in Shankarsan Dash v. Union of India when the earlier decisions of this Court are also noted. The following observations of the court are apposite:
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."
Paras 11, 13 and 16 of the case of Directors SCTI for Medical Science (supra) are quoted as under:
"11. The law operating in the field in this behalf is neither in doubt nor in dispute. Only because the name of a person appears in the select list, the same by itself may not be a ground for offering him an appointment. A person in the select list does not have any legal right in this behalf. The bona fide action on the part of the State. We may notice some of the precedents operating in the field.
13. Yet again in R.S. Mittal v. Union of India, 1995 Supp (2) SCC 230 this Court held:
"10....... It is no doubt correct that a person on the select panel has no vested right to be appointed to the post for which he has been selected. He has a right to be considered for appointment. But at the same time, the appointing authority cannot ignore the select panel or decline to make the appointment on its whims When a person has been selected by the Selection Board and there is a vacancy which can be offered to him, keeping in view his merit position, then, ordinarily, there is no justification to ignore him for appointment. There has to be a justifiable reason to decline to appoint a person who is one the select panel. In the present case, there has been a mere inaction on the part of the Government. No reason whatsoever, not to talk of a justifiable reason, was given as to why the appointments were not offered to the candidates expeditiously and in accordance with law. The appointment should have been offered to Mr Murgad within a reasonable time of availability of the vacancy and thereafter to the next candidate. The Central Government's approach in this case was wholly unjustified."
16. It is, therefore, evident that whereas the selectee as such has no legal right and the superior court in exercise of its power of judicial review would not ordinarily direct issuance of any writ in absence of any pleading and proof of mala fide or arbitrariness on the part of the employer. Each case, therefore, must be considered on its own merit."
Paras 10, 11 and 12 of the case of Manoj Manu (supra) are quoted as under:
"10. We are conscious of the legal position that merely because the name of a candidate finds place in the select list, it would not give him/her indefeasible right to get appointment as well. It is always open to the Government not to fill up all vacancies. However, there has to be a valid reason for adopting such a course of action. This legal position has been narrated by this Court in Ms. Neelima Shangla vs. State of Haryana (1986) 3 SCR 785. In that case:
"The appellant was the candidate for appointment to the post of Subordinate Judge in Haryana. Under the scheme of the Rules, the Public Service Commission was required to hold first a written test in subjects chosen by the High Court and next a viva voce test. Unless a candidate secures 45% of the marks in the written papers and 33% in the language paper, he will not be called for the viva voce test. All candidates securing 55% of the marks in the aggregate in the written and viva voce tests are considered as qualified for appointment. The appellant though secured 55% of the marks was not appointed as her name was not sent by the Public Service Commission to the Govt. The Supreme Court in such fact situation found that the Public Service Commission is not required to make any further selection from the qualified candidates and is, therefore, not expected to withhold the name of any qualified candidate. The duty of the Public Service Commission is to make available to the Govt., a complete list of qualified candidates arranged in order of merit. How should Govt., act is stated by the Supreme Court in the following words:
"2......Thereafter the Government is to make the selection strictly in the order in which they have been placed by the Commission as a result of the examination. The names of the selected candidates are then to be entered in the Register maintained by the High Court strictly in that order and appointments made from the names entered in that Register also strictly in the same order. It is, of course, open to the Government not to fill up all the vacancies for a valid reason. The Government and the High Court may, for example, decide that, though 55 per cent is the minimum qualifying mark, in the interests of higher standards, they would not appoint anyone who has obtained less than 60 per cent of the marks." (Emphasis supplied)
11. The Court after making reference to the decision of the Supreme Court in the case of State of Haryana vs. Subhash Chander Marwah reported in (1972) IILLJ266 SC further observed as under:
"2........However, as we said, the selection cannot arbitrarily be restricted to a few candidates, notwithstanding the number of vacancies and the availability of qualified candidates. There must be a conscious application of the mind of the Govt., and the High Court before the number of persons selected for appointment is restricted. Any other interpretation would make Rule 8 of Part D meaningless." (Emphasis supplied)
12. It is, thus, manifest that though a person whose name is included in the select list, does not acquire any right to be appointed. The Government may decide not to fill up all the vacancies for valid reasons. Such a decision on the part of the Government not to fill up the required/advertised vacancies should not be arbitrary or unreasonable but must be based on sound, rational and conscious application of mind. Once, it is found that the decision of the Government is based on some valid reason, the Court would not issue any Mandamus to Government to fill up the vacancies.
11. Per contra, Sri S.D. Singh, learned Senior Counsel assisted by Sri Diptiman Singh, Advocate appearing for the respondent no. 2 to 6-HAL has submitted that it is settled law that selected candidate has no vested right of appointment. It is submitted that vacancies were advertised keeping in view the availability of the project and as per the Clauses (v) and (ix) of the advertisement, management reserves the right to reschedule/cancel/suspend/terminate the recruitment process without assigning any reason and alter the terms and conditions at any time during the process due to any exigency. It is next submitted that in various paragraphs of the counter affidavit it has been categorically stated that no new project has been given to the division and no vacancy is in existence to provide the appointment to the selected candidates and there exists no need to provide training for new candidates. It was next submitted that reasons assigned in the order dated 4.5.2016 are valid reasons as the projects like IJT and MTA have also been delayed and there is no requirement for induction of additional manpower in the division. It was further submitted that an employer cannot be forced to give appointment to the selected persons and for this no employer can be forced to employ work force particularly when no work is available. It was submitted that HAL is a Company incorporated under the Companies Act, 1956 and is a public sector undertaking and deals in manufacture of aircrafts, helicopters and overhauling to manage defence need of India and the organization functions from its corporate office situated at Bangalore and the policies and guidelines for all the units of the organization are issued from the corporate office and that an appointment can be offered when work is available for such manufacture, repair or overhauling work sufficient enough to offer employment on regular basis to such selected candidates. It was next submitted that granting appointment to some of the candidates is not deliberate in nature and it is only by chance, before the process for recruitment was put on hold vide order dated 22.10.2013, some of the candidates had joined and they were lucky enough to join the post pursuant to the selection proceedings prior to the stay of further recruitment as provided by the corporate office vide order dated 22.10.2013 and was pointed out that subsequent to the said order not even a single appointment has been made and that final offer of appointment was discontinued pursuant to the order dated 22.10.2013. It was highlighted that there is no allegations of mala fide or arbitrariness whatsoever against the HAL for granting such few appointment and since they are working for several years and are very small in number and since selection was only put on hold in the year 2013, their services were not terminated and they continue to function as such and are still functioning for this reasons only. Insofar as the engagement of some of the petitioners on contract basis through service provider is concerned, it is submitted that they are not doing job of any specific nature and there is no continuous requirement of work warranting regular appointment and thus, exercising its right to cancel the selection process, the same has been cancelled. Insofar the submission that the selection process that has undertaken prior to the revised recruitment manual would be covered by the rules applicable at the time of selection process and would not be covered by revised recruitment manual is concerned, it was pointed out that in fact it is only to indicate the 'period', such words were used in the order dated 22.10.2013 i.e. in other words, they were used to identify the period and not regarding applicability of any revised manual, as even otherwise the so called revised recruitment manual is merely consolidation of the existing recruitment manual applicable to HAL and no new or additional rules were added in the revised recruitment manual. Even otherwise, it is not in dispute that no actions/proceedings have been undertaken even as per revised recruitment manual, which, as clarified in order dated 14.9.2013, is to be followed for future selection. It is thus, submitted that referring to revised recruitment manual is only to confuse the issue whereas it has no relevance in the present case. The persons who have been granted appointment before suspension of the recruitment process vide order dated 22.10.2013, there is no allegations of mala fide or arbitrariness or that the same were granted in improper manner. In support of his submissions, he has placed reliance on the judgements of Hon'ble Apex Court rendered in the cases of Vijoy Kumar Pandey vs. Arvind Kumar Rai and others, (2013) 11 SCC 611 and K. Lakshmi vs. State of Kerala and others, (2012) 4 SCC 115.
Paras 14, 15 and 16 of the case of Vijoy Kumar Pandey (supra) is quoted as under:
"14. In Shankarsan Dash vs. Union of India, (1991) 3 SCC 47 a Constitution Bench of this Court was examining whether candidates declared successful in a selection process acquire an indefeasible right to get appointed against available vacancies. The contention that they do acquire such a right was repelled in the following words:
"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."
The above decision has been followed in a long line of subsequent decisions of this Court including those rendered in Punjab SEB v. Malkiat Singh, (2005) 9 SCC 22, State of Bihar v. Secretariat Asstt. Successful Examinees Union 1986, (1994) 1 SCC 126, SCTI for Medical Science and Technology v. M. Pushkaran, (2008) 1 SCC 448, Union of India v. Kali Dass Batish, (2006) 1 SCC 779 (which is a three-Judge Bench decision).
15. In Rakhi Ray vs. High Court of Delhi, (2010) 2 SCC 637 a three-Judge Bench of this Court held:
"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." (Emphasis supplied)
16. Following the decision in Shankarsan Dash case (supra) this Court in State of Orissa v. Rajkishore Nanda, (2010) 6 SCC 777 held:
"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."
Para 28 of the case of K. Lakshmi (supra) is quoted as under:-
"28. In State of Haryana v. Subash Chander Marwaha, (1974) 3 SCC 220 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 vs. Union of India, (1991) 3 SCC 47, UPSC v. Gaurav Dwivedi, (1999) 5 SCC 180, All India SC & ST Employees' Assn. v. A. Arthur Jeen, (2001) 6 SCC 380 and Food Corporation of India v. Bhanu Lodh, (2005) 3 SCC 618 held that mere inclusion of a name in the select list for appointment does not create a right to appointment even against existing vacancies and the State has no legal duty to fill up all or any of the vacancies." (Emphasis supplied)
12. I have considered the rival submissions and have perused the record.
13. Before proceeding further, it may also be noticed that in a recent judgement of Hon'ble Apex Court in the case of Kulwinder Pal Singh and another vs. State of Punjab and others, (2016) 6 SCC 532, the Hon'ble Apex Court reiterated the same view. Relevant paragraphs 10, 11 and 12 are quoted as under:
"10. It is fairly well settled that merely because the name of a candidate finds place in the select list, it would not given 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, All India SC & ST Employees' Assn. v. A. Arthur Jeen, (2001) 6 SCC 380 and UPSC v. Gaurav Dwivedi, (1999) 5 SCC 180.
11. This Court again in State of Orissa v. Rajkishore Nanda, (2010) 6 SCC 777, held as under:
"14. A person whose name appears in the select list does not acquire any indefeasible right of appointment. Empanelment at 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, it was held that 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 twenty two other candidates were declared successfully by the Supreme Court pertaining to the selection of the years 1998, 1999, 2000 and 2011 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. (Emphasis supplied)
14. Before proceeding further, law on the issue can be profitably summarized as under:
(i) A person whose names appears in the select list does not acquire any indefeasible right of appointment, and 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. In other words, as a rule, a selected candidate does not acquire any indefeasible or vested right of appointment;
(ii) even if the vacancies are available, as a rule, the State (employer) has no legal duty to fill up all or any of the vacancies;
(iii) it is, thus, clear that until a letter of appointment is issued to a selectee and he joins in pursuance thereof, the recruitment proceedings are not concluded and as a rule, the State (employer) has a right to cancel such recruitment process and no right to get appointment accrues in favour of a selected candidate;
(iv) whereas the selectee as such has no legal right, the Superior Court in exercise of its power or judicial review would not ordinarily direct issuance of any writ in absence of any pleading and proof of mala fide or arbitrariness on the part of the employer, therefore, each case must be considered on its own merit;
(v) however, such rules are subject to certain exceptions, for example, (a) it does not mean that State (employer) has licence to act in an arbitrary manner. The decision not to fill up the vacancies is to be bona fide and for appropriate reasons: and (b) in case, if the vacancies are filled up, the State (employer) is bound to respect the comparative merit of the candidate and there should no discrimination.
15. From perusal of the judgement of the Hon'ble Apex Court, it is very much clear that to prove the exceptions, as against the general rule that selected candidate has no indefeasible or vested right, the burden lay heavily on the petitioners to prove that cancellation of such recruitment is without any valid reason or mala fide or is arbitrary or order of merit has been ignored for no valid reason in an arbitrary manner.
16. Now the facts of the present case are to be seen on the basis of the above noted settled principles. In the present case, learned counsel for the petitioners has not disputed the settled position of law that the petitioners have no indefeasible or vested right to get appointment. He has also not disputed the fact that it is the discretion of the respondent-HAL to cancel such selection process, however, submissions have been made to carve out a case that it is a case where exceptions to the general rule are attracted by submitting that there is no valid reason for cancellation of the selection process, and by refusing appointment to the petitioners, the petitioners have been discriminated as few persons have been granted appointment without following order of merit. These submissions, as already quoted, have been strongly refuted by the counsel for the respondent-HAL and crux of the submissions is that cancellation of recruitment process is an absolute right of HAL and it is not open to challenge as per the settled law; even otherwise cancellation of selection is for valid reasons; it is not a case where certain persons ignoring the order of merit have been granted appointment while cancelling the recruitment process; and therefore, exceptions to the general rule are not attracted.
17. The questions that fall for consideration, therefore, are that (i) as to whether there exists any valid reason in refusing appointment to the petitioners; and (ii) whether grant of appointment to few persons without following order of merit is discriminatory in nature and for this reason as to whether the petitioners are entitled for grant of appointment.
18. In the present case, it is not in dispute that the corporate office of HAL is situated at Bangalore and the policies and guidelines for all the units of the organization are issued from the corporate office, which HAL at Kanpur is bound to follow. The respondent-HAL is engaged in manufacture, repair or overhauling work of the projects related to defence of India and requirement of recruitment is assisted by the corporate office as per work/job/contract/projects to execute such work, which is available with the organization, therefore, in the opinion of the Court, it has to be noticed that under such circumstances, where the employer is engaged in broadly speaking manufacturing activity, the ground for interference would be even slower in comparison to the public employment or say employment in government service, which is broadly based on requirement of population, for example, health, education, administrative requirement, law and order, keeping of public records etc. In the manufacturing units, unless a job/contract of work, which is directly related to activities/functions of a particular employer and which is a subjective requirement that can be only ascertained by the employer and if the stand of the employer is that no work or even no permanent or long duration job is available, the Court cannot force the employer to grant appointment unless very strong reasons, as exceptions to the rule, are proved by the petitioners. Thus, distinction has to be drawn insofar as the law governing public employment of the nature as noted above and the employment in manufacturing units, such as of the respondent-HAL etc., is concerned.
19. At the very outset, submission of Sri Ashok Khare, learned Senior Advocate that the reasons assigned in the communication dated 22.10.2013 for withholding appointment was legally impermissible reason as a new/revised recruitment manual having been published on 14.9.2013 and thus, there has been change in rules of the game, are clearly not attracted in the present case as the order dated 14.9.2013 is clear on the issue. In paragraph 2(i) it has been provided that in respect of advertisements/notifications issued before 6.4.2013 (recruitment in pursuance whereof was put on hold vide order dated 6.4.2013), Divisions/Offices can complete the selection process now, as per the Rules prevailing prior to issue of the revised Recruitment Manual. Moreover, paragraph 2(ii) further clarifies that the revised manual is to be followed for future selection. Further, by the order dated 22.10.2013 the Division was advised to put on hold all recruitments in the Workmen Cadre till further orders and thus, it was only an order of stay and not of cancellation on that basis. The reason for cancellation of recruitment has been assigned in the order dated 4.5.2016 only that the matter is reviewed keeping in view the existing manpower and work load of the Division and the projects like IJT and MTA, which are already delayed, would take longer time to get materialized and as such, there is no requirement for induction of "additional" manpower in the division and therefore, the Division was advised to cancel the provisional offers of appointment issued to the candidates with reference to the advertisement issued during the year 2011. Thus, this argument that there is a change in rules of the game, is not at all attracted in the present case and is hereby rejected.
20. Now coming to the first question as to whether there exists any valid reason in refusing appointment is concerned, as already observed that the burden lay heavily on the petitioners to prove this point, the order dated 4.5.2016 has clearly assigned two reasons, which at the cost of repetition, are quoted as under:
"2. The matter is reviewed keeping in view the existing Manpower and Work load of the Division. Projects like IJT & MTA, which are already delayed, would take longer time to get materialized. As such, there is no requirement for induction of additional Manpower in the Division.
3. As the Division does not require additional Manpower at present, the Division is advised to cancel the provisional offers of appointment issued to the candidates with reference to the advertisement issued during the year 2011. No further appointment/selection would be made based on the above advertisement, please." (Emphasis supplied)
21. Therefore, clear reason assigned for cancellation is that projects like IJT & MTA, which are already delayed, would take longer time to get materialized and as such there is no requirement for induction of "additional" manpower in the division. As such, the Division does not require "additional" manpower at present and the Divisions are advised to cancel the provisional offers of appointment issued to the candidates. Thus, it appears that the advertisement was issued thoughtfully in the year 2011 in expectation of getting projects like IJT and MTA and the recruitment was for induction of "additional" manpower in the Division apparently for the reason that at the moment project is awarded in favour of HAL, there is no execution of delay and the time is not wasted in recruitment of "additional" manpower. It is in spite of lapse of about five years, the HAL was not able to get this job/contract/project and therefore, recruitment for such "additional" manpower was cancelled. This is a subjective satisfaction of an employer, which cannot be interfered with by this Court as a rule, however to dislodge this reason submission of Sri Ashok Khare, learned Senior Advocate is that delay in projects like IJT & MTA is baseless recital, inasmuch as, as per newspaper report HAL has been awarded some works regarding production of Dhruva Helicopter, Dornier Aircraft and that out of the merit list persons finding place at serial no. 5, 6, 8, 24, 25, 29 and 30 from amongst the Diploma Trainee (Mechanical) and serial no. 3 and 4 from amongst the Diploma Trainee (Electrical) have been appointed and that large number of petitioners are working on contract basis through service provider, therefore, submission is that reasons assigned for cancelling the selection is not valid reason.
22. Per contra, Sri S.D. Singh, learned Senior Advocate appearing for the respondent-HAL has submitted that the requirement of work particularly in manufacturing units like HAL is subjective satisfaction of the employer and cannot be scrutinized by this Court. Even otherwise, the newspaper cannot form basis for assessing requirement by this Court when the stand of the HAL is that no such job is available with the respondent-HAL. Insofar as engagement of few persons, as submitted by Sri Khare, is concerned, all such persons have joined before the such selection process was put on hold vide order dated 22.10.2013 and there is no allegation of mala fide and discrimination in permitting such persons to join before the stay of recruitment process on 22.10.2013. Submission, therefore, is that their appointment cannot form a basis for dislodging the reasons for cancelling the recruitment process.
23. Submission that HAL has engaged persons through outsourcing and some of the persons are working on contract basis through service provider is concerned, it nowhere reflects availability of permanent job/contract of work of long duration and does not indicate permanent or long term availability of work of any particular nature with the employer in manufacturing or maintenance work. It also does not indicate any violation of fundamental right of the petitioners, therefore, the reason that has been assigned by the HAL cannot be dislodged on this ground.
24. It may also be noticed that the order of cancelling the selection process was issued after a considerable gap of two and half years on 4.5.2016 and till then it was not known to anyone that such selection process would be cancelled in future, which was stayed vide order dated 22.10.2013. It could have proceeded further and the petitioners could have been appointed on the basis of their selection. Therefore, in the opinion of the court even after waiting for such a long period if the reason for cancellation of selection process is that work/job/contract as noticed above is not available, therefore, recruitment of "additional" manpower is being cancelled, is a valid reason and the petitioners have failed to discharge their burden that this case falls in exceptional cases where the order of cancellation of recruitment is liable to be set aside in absence of valid reason. Thus, in the opinion of the Court, use of word "additional" in the impugned order is of great significance and provides a valid reason for cancelling the recruitment process, which, according to the employer, was to recruit "additional" manpower in the light of the requirement of the projects like IJT & MTA which the HAL was expected to get.
25. Insofar as the second question as to whether grant of appointment to few persons without following order of merit is discriminatory, is concerned, as already noticed, the rule is that even some of the selected candidates can be granted appointment, however submission on behalf of the petitioners in the present case is that by granting appointment to few persons without following order of merit, as already noticed, is discriminatory.
26. Suffice it to note that all such persons have joined prior to the passing of the order dated 22.10.2013 whereby the Division was advised to put on hold all recruitments in the Workmen Cadre till further orders. There is no allegation of any mala fide or arbitrariness in grant of such appointment or joining to such persons by the HAL and in absence of any such pleading as well as proof of mala fide or arbitrariness in such appointment, no fault can be found in joining of such persons, who, according to the respondent-HAL, were lucky enough to join before 22.10.2013.
27. It may also be noticed that on the date i.e. 22.10.2013, on which such recruitment process was put on hold till further orders, neither the selected candidates nor the employer-HAL was aware that the recruitment process will eventually be cancelled due to non-award of work/project/business and it is only after a long gap of two and half years vide order dated 4.5.2016, it was found that in absence of availability of projects, there is no requirement for induction of "additional" manpower and therefore, the recruitment process was cancelled. Thus, till the passing of the order dated 4.5.2016 even this ground of discrimination or mala fide was not available to the petitioners as they could have eventually been granted appointment. This Court does not find anything unreasonable or arbitrary or discriminatory in permitting such persons continue to work who are working for the last more than two and half years as number of such persons is not very high and it would lead to further litigation.
28. It may also be noticed that it is not a case where while cancelling the recruitment process on 4.5.2016 some of the persons have been granted appointment without following order of merits. It is a case where some of the fortunate one have joined prior to the stay of recruitment process on 22.10.2013 and thereafter not even a single appointment has been made by the respondent-HAL. Thus, allegation of discrimination is found to be not proved. In the opinion of the Court, because of such long gap, in the interest of justice, continuance of such few persons is not liable to be disturbed.
29. Thus, insofar as the question no. 2 is concerned, this Court finds that in absence of pleading of any mala fide or discrimination, joining of some of the persons without following order of merits prior to the issuance of the order dated 22.10.2013 whereby all recruitments in Working Cadre were put on hold till further orders, was merely circumstantial and since it is not in dispute that thereafter not even a single appointment was made pursuant to the advertisement of the year 2011 and that it is not a case where, while cancelling recruitment process which was done vide order dated 4.5.2016 in the present case, some persons were granted appointment ignoring order of merits, therefore, this question is also decided against the petitioners.
30. Thus, it can safely be concluded that there exists a valid reason in refusing appointment to the petitioners as stated in the order dated 4.5.2016, which clearly indicates that the projects like IJT & MTA, which are already delayed, would take longer time to get materialized and as such, there is no requirement for induction of "additional" manpower in the Division and that the petitioners have failed to prove mala fide on the part of HAL or that HAL has practiced any discrimination against the petitioners in giving appointment or permitting some of the selectees to join before 22.10.2013 when all recruitment process was put on hold till further order. Thus, both the questions are decided against the petitioners.
31. The present bunch of writ petitions lacks merit and is accordingly dismissed. No order as to costs.
Order Date :- 7.2.2017 Abhishek