Gujarat High Court
Kailash Nath Mishra vs The Chairman, Board Of Governors, ... on 13 July, 2023
NEUTRAL CITATION
C/SCA/13777/2022 CAV JUDGMENT DATED: 13/07/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 13777 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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KAILASH NATH MISHRA
Versus
THE CHAIRMAN, BOARD OF GOVERNORS, SARDAR VALLABHBHAI
PATEL NATIONAL INSTITUTE OF TECHNOLOGY
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Appearance:
MS LILU K BHAYA(1705) for the Petitioner(s) No. 1
MS MEGHA JANI(1028) for the Respondent(s) No. 1,2
NOTICE SERVED for the Respondent(s) No. 3
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CORAM:HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 13/07/2023
CAV JUDGMENT
1. Rule returnable forthwith. Ms. Megha Jani, learned Page 1 of 22 Downloaded on : Sat Sep 16 21:22:10 IST 2023 NEUTRAL CITATION C/SCA/13777/2022 CAV JUDGMENT DATED: 13/07/2023 undefined advocate waives service of rule on behalf of respondent Nos. 1 and 2.
2. This petition is filed seeking writ of mandamus with a prayer to direct the respondents to declare the select list for the post of Dy. Registrar and to issue appointment order on or before 25.7.2022. It is also prayed to direct the Director, Sardar Vallabhbhai National Institute of Technology, Surat ("SVNIT" for short) to exercise powers of the Board as per first statute clause 14(iv) of National Institutes of Technology, Science, Education and Research Act, 2007 Act.
3. Brief facts necessary for the adjudication of this petition are as under:
On 2.3.2021, an advertisement was issued by SVNIT, Surat. The advertisement was for seven posts, which included advertisement for the post of Dy. Registrar. The petitioner applied for the post of Dy. Registrar. On 3.7.2021, the petitioner was called to appear for the written test. The communication was made through e- mail.
On 25.7.2021, the petitioner appeared in the written test and successfully cleared the same having secured 71.25%. 26.7.2021 and 27.7.2021, were the dates, when the Page 2 of 22 Downloaded on : Sat Sep 16 21:22:10 IST 2023 NEUTRAL CITATION C/SCA/13777/2022 CAV JUDGMENT DATED: 13/07/2023 undefined petitioner was called for personal interview before the Selection Committee.
After the interview, results were kept in sealed cover, and the same were to be placed before the Board of Governors of SVNIT for ratification to decide the selection.
On 16.8.2021, agenda for 59 th Board of Governors of SVNIT was circulated. In the said Agenda, item No.59.12 was in relation to ratifying the approval given by the selection committee SVNIT, Surat for the post in question. The said approval is to be given by Chairman, Board of Governors, panel of experts and nominee for direct recruitment for the post of Dy. Registrar. In the Agenda, it was stated that the meeting of Board of Governors of SVNIT, Surat is to be held to approve the recommendations of the Selection Committee meeting held during 25.7.2021 to 27.7.2021 for the post advertised on 2.3.2021.
Upon circulation of Agenda, one Shri Anil Kumar, Director (Finance) wrote a letter to the Registrar not to recommend since the period of Director on the post was less than two months due to retirement. The basis for the letter by Shri Anil Kumar, was a communication dated 13.8.2015 addressed to heads of all autonomous bodies, by Under Secretary to the Govt. Of India.Page 3 of 22 Downloaded on : Sat Sep 16 21:22:10 IST 2023
NEUTRAL CITATION C/SCA/13777/2022 CAV JUDGMENT DATED: 13/07/2023 undefined The letter of Anil Kumar dated 16.8.2021 was placed before the Board of Governors in the meeting held on 17.8.2021 and 18.8.2021.
On 17.8.2021 meeting was adjourned to 18.8.2021 and in the meeting held on 18.8.2021, it was recorded that the institution has received letter from IFD section dated 16.8.2021, for not recommending the agenda in relation to item No.59.12, as the Director had less than two months.
It is case of the petitioner that the 59th Board of Governors Meeting of SVNIT, Surat was held on 17.8.2021/18.8.2021, whereas, the date of superannuation of the then Director, Prof. S.R. Gandhi was due on 23.10.2021 and, therefore, a period of more than two months was available. Further, in no case there was violation of guidelines of the Vigilance section of the Ministry as also the communication of Shri Anil Kumar, Director IFD, Department of Higher Education, Ministry of Education and, therefore, the communication dated 16.8.2021 is baseless. As the petitioner was deprived from his right of consideration for appointment, aggrieved by the action of the respondents, present petition is filed.
4. Heard Ms. Lilu Bhaya, learned advocate for the petitioner and Ms. Megha Jani, learned advocate for the respondents.
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5. Ms. Lilu Bhaya, learned advocate for the petitioner made following submissions:
(i) That on 17.8.2021, meeting of Board of Governors SVNIT was adjourned to 18.8.2021. Though the letter from IFD section dated 16.8.2021 was for not recommending the agenda for item No. 59.12 (the appointment of Dy. Registrar) on the ground that period of service left for Director was less than two months, the institute had already replied that since the then Prof. S.R.Gandhi had assumed charge of SVNIT w.e.f.
24.10.2016 for a term of 5 years, therefore, the period of two months will have to be considered w.e.f. 24.08.2021. Despite that, decision was taken for not ratifying the recommendation in relation to the post in question.
(ii) The Selection Committee meetings were held on 26 th / 27th July, 2021. However, the Ministry representative advised not to take decision against the IFD remarks and requested to adjourn the meeting till 18.8.2021 which shows arbitrary action on the part of the respondents. The reason for adjournment to 18.8.2021 of 59th BoG meeting was that the representative from the Ministry of Education could join the meeting for discussion on this Agenda. Item No.59.12 was "resolved to ratify the approval given by the Institute Director, SVNIT, Surat as Chairman BoG for panel of Experts/ Page 5 of 22 Downloaded on : Sat Sep 16 21:22:10 IST 2023 NEUTRAL CITATION C/SCA/13777/2022 CAV JUDGMENT DATED: 13/07/2023 undefined Nominee for the Direct Recruitment of the posts of Dy. Registrar and Scientific/Technical Officer". The Selection Committee meetings held on 26.7.2021 and 27.7.2021 for the post of Dy. Registrar and Scientific/Technical Officer were kept on hold and decided to consider in a subsequent BoG meeting. It was also observed that till next date of meeting, recommendations of the Selection Committee shall be valid.
(iii) The letter dated 18.3.2015 of Under Secretary, Ministry of Human Resource Department, Govt. of India Vigilance section addressed to heads of all autonomous bodies stated that the competent authority has directed that the Heads/Chairperson of the organizations under the control of this department should refrain from initiating any action to make selections at least two months before the expiry of their term or retirement. The words used in the said letter dated 13.8.2015 is initiation and in the present case, initiation had started much prior in the month of March, 2021.
(iv) When the Director's term expired on 23.10.2021, Director S.R.Gandhi superannuated and Prof. R.V.Rao was appointed as Director vide order dated 8.10.2021 w.e.f 23.10.2021.
(v) Thereafter in March, 2022, Anupam Shukla was appointed as Director and he joined on 30.6.2022. Thus, the post of Director of SVNIT, Surat was filled immediately after Page 6 of 22 Downloaded on : Sat Sep 16 21:22:10 IST 2023 NEUTRAL CITATION C/SCA/13777/2022 CAV JUDGMENT DATED: 13/07/2023 undefined the retirement of Mr. Gandhi and, therefore, the recommendations of the Selection Committee ought to have been ratified by BoG, SVNIT, Surat which they did not do and thus, there is arbitrary action on the part of the respondents.
(vi) Upon joining of new Director, the petitioner made representation dated 8.7.2022, however, it was not considered and, therefore, the petitioner filed present petition where this Court permitted Direct Service on the very same day and also directed to serve copy of petition to learned advocate for the respondents, despite that, no action has been taken which is arbitrary.
(vii) The sole reliance placed by the respondents on letter dated 13.8.2015 is not supported by any statute and does not have any force of law.
(viii) Despite time having elapsed from 25.7.2021, no decision was deliberately taken by the respondents.
(ix) The meeting of BoG was only to ratify the recommendations of the Selection Committee which does not amount to initiation of process of selection as referred in the letter dated 13.8.2015 and, therefore, reliance placed on the letter dated 13.8.2015 is erroneous.
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(x) Decision was not taken on the recommendation of Selection Committee which is intentional and deliberate attempt on the part of respondents to see that the recommendations of the Selection Committee do not see the light of day and the candidates are not given appointment and, therefore, the action needs to be condemned.
(xi) In the very advertisement at Sr.No.7, the post of Medical Officers was published. The meeting of Selection Committee was held on 19.6.2021. The BoG at its 58 th Meeting held on 13.7.2021, decided to ratify the recommendations and consequently appointments were made. Thus, there is clear discrimination in relation to the appointment to be made for the post of Dy. Registrar which has caused injustice to the petitioner. There is intentional gross delay in convening 60 th Meeting of Board of Governors, so that, the entire recruitment process gets cancelled. Director, Mr. S.R. Gandhi superannuated on 23.10.2021 and Prof. R.V. Rao was appointed as Director vide order dated 8.10.2021. Thereafter, Anupam Shukla was appointed as Director and joined on 30.6.2022. Thus, despite the tenure of the then Director being valid till October, 2021, no meeting of BoG was called upto 26.7.2022 and upon completion of one year i.e 26.7.2022, the recommendation of the Selection Committee got cancelled as validity of the same is for one year. Petitioner is Page 8 of 22 Downloaded on : Sat Sep 16 21:22:10 IST 2023 NEUTRAL CITATION C/SCA/13777/2022 CAV JUDGMENT DATED: 13/07/2023 undefined not challenging any provision or Act or Rule, but challenges the arbitrary action in not ratifying the recommendation of the Selection Committee which has caused great prejudice to the petitioner. This petition is filed seeking directions to waive the period of one year of recommendation of the Selection Committee in the present case.
6. Opposing the petition, Ms. Megha Jani, learned advocate for the respondents made following submissions:
(i) It is true that respondent No.1 - University by an advertisement invited applications for direct recruitment for seven non-teaching staff out of which one post was for Dy.
Registrar, for which, present petitioner applied. The Institute thereafter by a corrigendum increased the post of Dy. Registrar from two to three with two unreserved posts instead of one. Out of seven posts, the ratification for the decision of appointing Medical officer was placed before 58 th Board of Governors meeting which took place four months before the then Director's date of retirement i.e. 23.10.2021 and, therefore, it is not correct that the petitioner has been discriminated.
(ii) The petitioner was permitted to appear in the written test and was short listed for verification and personal interview on 25.7.2021. Thereafter, the Integrated Finance Division (IFD), a Page 9 of 22 Downloaded on : Sat Sep 16 21:22:10 IST 2023 NEUTRAL CITATION C/SCA/13777/2022 CAV JUDGMENT DATED: 13/07/2023 undefined Department of Higher Education, Ministry of Education responded to the Agenda proposed for 59 th Board of Governor's meeting scheduled on 17.8.2021. The Agenda contained in item No.59.12 was to ratify recruitments for Dy. Registrar, Scientific/ Technical Officer and Assistant Professor. IFD advised not to recommend for Agenda No.59.12 relying upon communication dated 13.8.2015, from Under Secretary, Ministry of Higher Education, Ministry of Human Resources Development. It flagged a general convention not to conduct selection few months before concluding Director's term and, therefore, it was advised to the Chairperson of respondent No.1 to refrain from initiating action to make selection.
(iii) The 59th BoG, thereafter convened on 17.8.2021 and 18.8.2021 and it was resolved that since the Director had assumed office for five years on 24.10.2016, his two months period would be considered from 24.8.2021 and as 18.8.2021 is nearer to 24.8.2021, therefore, it was resolved to keep the post on hold till next BoG and it was also decided that the recommendations would be held valid till such time.
(iv) It is true that Prof. R.V.Rao was given additional charge of temporary Director w.e.f. 24.10.2021 and Prof. Anupam Shukla having been appointed in March, took charge on 30.6.2022.
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(v) Petitioner relying on the first statute Clause 23(13) made representations to consider and ratify the recommendations of Selection Committee as the period of recommendation is valid for one year. However, after joining of New Director, 60 th BoG meeting was convened on 29.7.2022. The earlier recommendations of Selection Committee pertaining to recruitment for the post of Dy. Registrar was placed before it. However, on account of period of one year elapsing between the interview and the 60th BoG meeting, the BoG resolved not to open the recommendations and re-advertise the vacant posts of non-faculty positions at the earliest. Thus, there is no illegality in the process. The University had acted as per the extant statute. The Institute thereafter vide notice dated 14.10.2022 cancelled the advertisement dated 2.3.2021 for all posts except Medical Officer who was appointed on 29.6.2021. She, therefore, submitted that there is no arbitrariness in the action of the respondents which warrants judicial interference of this Court.
(vi) She submitted that SVNIT (Institute) is an institute of national importance governed by the National Institutes of Technology, Science, Education and Research Act, 2007 ("the Act" for short) and its affairs are regulated by the First Statute issued under Section 26(1) of the Act. The decisions of the BoG are strictly in accordance with the Act and the Page 11 of 22 Downloaded on : Sat Sep 16 21:22:10 IST 2023 NEUTRAL CITATION C/SCA/13777/2022 CAV JUDGMENT DATED: 13/07/2023 undefined first statute and there being no illegality or arbitrariness in the action taken, judicial review of decision is not warranted. Referring to Section 23(13) of the First Statute of the National Institute of Technology Act, 2007, she submitted that the language of the said Statute is clear which refers that the recommendation of the Selection Committee shall remain valid for a period of one year from the date of interview and if for any reason, the recommendations are not approved by the competent authority or appointment orders not issued after the approval of the recommendations within the said period of one year, the recommendations shall lapse and fresh advertisement shall have to be issued. In this case, admittedly the interviews for the post in question were held on 25 th / 26th July, 2021 and, therefore, as the period lapsed on 26.7.2022, therefore, the decision of 60th BoG not to act upon earlier recommendation is in consonance with the Statute and there is no illegality.
(vii) Under the communication dated 13.8.2015, by the Ministry of Human Resource Development, Chairpersons of the organizations under the Dept. of Education were directed to refrain from initiating any action to make selections at least two months before the expiry of their term. In this case, two months are counted from 18.8.2021 and there is no violation of the advise because it refers to initiation of action to make Page 12 of 22 Downloaded on : Sat Sep 16 21:22:10 IST 2023 NEUTRAL CITATION C/SCA/13777/2022 CAV JUDGMENT DATED: 13/07/2023 undefined selection.
(viii) Thereafter new Director took charge on 30.6.2022 and 60th BoG meeting was convened on 29.7.2022 and as the time mandated under First Statute Clause 23(13) was over, it was decided not to act upon the advertisement and thereafter it was resolved to cancel the advertisement dated 02.03.2021. Thus, there is no malafide action as alleged. She submitted that from the chronology it is clear that respondent - Institute has acted in consonance with the Act and its Statute and there is no illegality or malafide action which warrants interference of this Court.
(ix) She further submitted that the recommendations of the Selection Committee are not known to anyone. It is not the case where the petitioner is put on the merit list and is assured of appointment and, therefore, as per the settled legal position, candidates who apply for recruitment do not acquire any right of selection. In support of her submissions, she relied upon the decision in the case of Shankarsan Dash vs. Union of India reported in (1991) 3 SCC 47 and Kulwinder Pal Singh and Anr. vs. State of Punjab and Ors. reported in (2016) 6 SCC 532.
(x) None of the legal and fundamental rights of the petitioner are violated which warrant interference for issuance Page 13 of 22 Downloaded on : Sat Sep 16 21:22:10 IST 2023 NEUTRAL CITATION C/SCA/13777/2022 CAV JUDGMENT DATED: 13/07/2023 undefined of writ of mandamus and the Institute had reserved its right not to fill any posts, advertise fresh and to reject any application and, therefore, petition being meritless deserves to be dismissed.
7. Heard learned advocates for the respective parties. The issue which needs consideration is, Whether the action of the respondents (Board of Governors) in not ratifying the recommendation of the Selection Committee can be said to be arbitrary and not in consonance with the extant rules? In that context it would be appropriate to revisit certain facts.
(i) Having appeared in the written test, the petitioner was called upon to participate in the personal interview before the Selection Committee. After interview, the results of Selection Committee were kept in sealed cover and it was to be placed before the Board of Governors (BOG) of SVNIT.
(ii) In 59th BOG meeting of SVNIT, one of the Agenda at item 59.12 was to ratify the approval given by Chairman, SVNIT, Surat as Chairman, BoG for the post of Dy. Registrar. This Agenda of item No.59.12 is in relation to the recommendations of the Selection Committee meeting held during 25.7.2021 to 27.7.2021.
(iii) The Agenda for 59th BOG was circulated on 16.08.2021.
Page 14 of 22 Downloaded on : Sat Sep 16 21:22:10 IST 2023NEUTRAL CITATION C/SCA/13777/2022 CAV JUDGMENT DATED: 13/07/2023 undefined The meeting of BOG was held on 17.8.2021 and thereafter it was adjourned to 18.8.2021. In the said meeting, it was decided not to ratify the recommendation of Selection Committee as the Director of SVNIT was to retire on 23.10.2021 and, nearly two months' time was left for him. Therefore, placing reliance on a letter dated 16.8.2021 of Director Finance, decision was taken. The basis of this letter is the communication dated 13.8.2015 from the Under Secretary, Ministry of Higher Education.
(iv) Thus, admittedly when the meeting was held on 18.8.2021, time of two months and few days were left with the Director, SVNIT, Surat. It is pertinent to note that in the minutes of the meeting of BoG dated 18.8.2021, it is recorded as under:
"Item 59.12 and Item No.59.13:
Regarding Agenda Item No.59.12 and 59.13, it was informed to the Board that the Institute received comments from IFD section vide letter No.F.No.3- 21/2013-IFD (Pt.) dated 16.8.2021 on Agenda Item No.59.12 and 59.13 for 'not recommending the Agenda as the period of Director left is less than 2 months'. The Institute has already replied the comments received from IFD vide this office letter No.E/1782 dated Page 15 of 22 Downloaded on : Sat Sep 16 21:22:10 IST 2023 NEUTRAL CITATION C/SCA/13777/2022 CAV JUDGMENT DATED: 13/07/2023 undefined 16.8.2021 indicating that, Prof. S.R. Gandhi, has assumed the charge of Director, SVNIT, Surat w.e.f. 24.10.2016 for a term of 5 years from the date of joining. Therefore, his two months' period will be considered w.e.f. 23.8.2021. The selection committee meetings were held on 26 & 27 July 2021 for Group 'A' Officers and during 1-9 August 2021 for special recruitment drive of SC/ST/OBC/EWS/PwD candidates for Assistant Professor Grade-II in the Institute. During discussion on 17th August 2021 the Ministry representative advised not to take any decision against the IFD remarks, and requested to adjourn the meeting till 18th August, 2021. Therefore, the Board decided to adjourn the 59th BOG meeting till 18th August 2021 at 11:00 a.m, so that representative from the Ministry of Education, (both Bureau and IFD) may join the meeting for discussion on this agenda The adjourned meeting continued on 18/08/2021 at 11:00 a.m onwards in the Conference Room of the Institute. All the members who were present on 17/08/2021 remained present through online/offline mode except Shri Indrajit Kuri, in his place, Shri Mrutyunjay Behera, Economic Adviser (HE), Ministry of Education, Govt. of India, New Delhi remained present Page 16 of 22 Downloaded on : Sat Sep 16 21:22:10 IST 2023 NEUTRAL CITATION C/SCA/13777/2022 CAV JUDGMENT DATED: 13/07/2023 undefined on 18/08/2021. The representative from IFD, Ministry of Education could not be present in the Meeting. The following Agendas were discussed: -
Item 59.12:To ratify the approval given by the Director, SVNIT, Surat as Chairman BOG for panel of Experts/nominee for direct recruitment for the post of Deputy Registrar & Scientific/Technical Officer and to consider & approve the recommendations of the Selection Committee meetings held on 26/07/2021 and 27/07/2021 for the above posts.
Reso 59.12: The Board was briefed that, the Advertisement for Group 'A' Officers posts was notified vide Advt NoEstt./2021/Gr_A/3051 dated 02/03/2021 which was published in the Employment News which resulted in good response from applicants against the said advertisement. The notification was reported in the 57th BoG Meeting held on 26/03/2021. The Written Test and Interview were held during 25-27 July, 2021 through offline mode. The Ministry representative opined that Institute Director who is also the Chairman of the BOG, is completing his tenure of five years in 2 Months & 1-week. Accordingly, he suggested to keep the recommendations of the Selection Committee on Page 17 of 22 Downloaded on : Sat Sep 16 21:22:10 IST 2023 NEUTRAL CITATION C/SCA/13777/2022 CAV JUDGMENT DATED: 13/07/2023 undefined hold as per the remark of IFD till the new Director joins the Institute. The recommendations of the Selection Committee for above posts will be valid and considered in BoG after joining of the New Director. He also indicated that the selection of new Director will be made shortly. After deliberation the Board adopted the following resolution: -
"Resolved to ratify the approval given by the Institute Director, SVNIT, Surat as Chairman BoG for panel of Experts / Nominee for the Direct Recruitment of the posts of Deputy Registrar and Scientific/Technical Officer."
"Further, resolved that the recommendations of the Selection Committee meetings held on 26/07/2021 and 27/07/2021 for the post of Deputy Registrar and Scientific/Technical Officer be kept on hold and be considered in subsequent BoG meeting after joining of the new Director in the Institute. Till such time the recommendations of the Selection Committee shall be valid."
(v) After remittance of office by Director, Shri S.R. Gandhi, Shri. R.V.Rao was appointed as temporary Page 18 of 22 Downloaded on : Sat Sep 16 21:22:10 IST 2023 NEUTRAL CITATION C/SCA/13777/2022 CAV JUDGMENT DATED: 13/07/2023 undefined director. On March, 2022, New Director Shri. Anupam Shukla was appointed and he joined on 30.6.2022. The respondent - University was aware about the fact that the recommendations as per the extant rules is valid till 27.7.2021 and prior to that the appointment of Mr. Anupam Shukla was made. Petitioner also made representation to decide the issue as he was aware about the fact that recommendations of Selection Committee would be valid for one year.
(vi) The petition was filed immediately and notice was also served to the respondents before 27.7.2022, despite that no action was taken.
(vii) On 29.7.2022, a decision was taken and it was decided not to act upon the recommendations of the selection committee and to cancel the advertisement since, one year was over from the date of interview on 26.7.2022 (date of interview 26.7.2021).
8. From the above facts, it is noticed that as per the extant rules of SVNIT, the recommendations of the selection committee are valid only for a period of one year. However, two aspects which this court cannot ignore is that when the 59th Board of Governors meeting was held on 18.8.2021, the period left for the Director on post was more than two Page 19 of 22 Downloaded on : Sat Sep 16 21:22:10 IST 2023 NEUTRAL CITATION C/SCA/13777/2022 CAV JUDGMENT DATED: 13/07/2023 undefined months. The instructions forwarded by Director, Finance was not to initiate action and to make selection atleast two months before conclusion of the tenure of Director. The initiation had already begun in the year 2021 and the only stage left was to ratify the recommendations of the selection committee. The adjournment of the BOG meeting from 16.08.2021 to 17.08.2021/ 18.08.2021, was on account of administrative reasons, and for which petitioner cannot be blamed. Further, in the minutes of 59th BoG meeting dated 18.08.2021, it was resolved that the recommendations of the selection committee meeting held on 26.07.2021 and 27.07.2021, for the post of Deputy Registrar was kept on hold till subsequent BoG meeting when new director joins the institute, and till such time the recommendations were kept valid. However, having fully aware of the same, the SVNIT, Surat did not held meeting till 29.07.2022.
9. Therefore, admittedly since, two months and few days were left of the tenure of Director of SVNIT, an appropriate decision could have been taken at the relevant time. Even appointment of new Director was done on or before 30.6.2022 and for new director also nearly one month time was left to take a decision in the matter, despite that no decision had been taken. It is nowhere on record that the new director appointed was not competent to take decision. Moreover, all Page 20 of 22 Downloaded on : Sat Sep 16 21:22:10 IST 2023 NEUTRAL CITATION C/SCA/13777/2022 CAV JUDGMENT DATED: 13/07/2023 undefined the respondents were aware of the petition filed and the issuance of notice dated 21.7.2022. Despite that, no decision was taken and the decision for cancelling the advertisement was taken on 29.7.2022. To that extent in the opinion of this court, the decision taken not to ratify the recommendations of the selection for the post in question, is arbitrary. Therefore, in the opinion of this court, the petitioner cannot be once again put to hardship by applying fresh and asking him to undergo the process of selection and interview another time, for no fault of the petitioner.
10. So far as decisions relied upon by Ms. Jani, learned advocate for the respondents in Shankarsan Dash vs. Union of India reported in (1991) 3 SCC 47 and Kulwinder Pal Singh and Anr. vs. State of Punjab and Ors. reported in (2016) 6 SCC 532, it has been held that merely because the name of a candidate finds place in the merit list, it does not give him indefeasible right of appointment. However, as held by Hon'ble Apex Court in the very same judgments, the decision should not be arbitrary or unreasonable.
11. In the present case, on the facts noted herein above, it is an arbitrary action not to take a decision despite the communication dated 13.08.2015 not being applicable, despite the then Director having more then two months tenure and in Page 21 of 22 Downloaded on : Sat Sep 16 21:22:10 IST 2023 NEUTRAL CITATION C/SCA/13777/2022 CAV JUDGMENT DATED: 13/07/2023 undefined any view of the matter, the successor Director having taken charge and having knowledge of the fact that the recommendation of the Selection Committee would be invalid on 26/27th July, 2022 and not taking any decision in furtherance of the same.
12. In view of the above following directions are issued:
(i) As and when, the fresh advertisement is issued for the post of Dy. Registrar (Pay Level 12) the case of the petitioner may be considered straightaway by the Board of Governors by opening the sealed cover which was recommended by the selection committee pursuant to the advertisement dated 2.3.2021.
(ii) If the petitioner is found selected then he may be considered with others.
13. With the above directions, present petition is disposed of. Rule is made absolute to the aforesaid extent.
(MAUNA M. BHATT,J) NAIR SMITA V. Page 22 of 22 Downloaded on : Sat Sep 16 21:22:10 IST 2023