Gujarat High Court
Kuldeep Muljibhai Solanki vs Institute Of Hotel Managment Catering ... on 9 February, 2023
NEUTRAL CITATION
C/SCA/8216/2018 JUDGMENT DATED: 09/02/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 8216 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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KULDEEP MULJIBHAI SOLANKI
Versus
INSTITUTE OF HOTEL MANAGMENT CATERING TECHNOLOGY AND
APPLIED NUTRITION GANDHINAGAR & 3 other(s)
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Appearance:
MR DJ BHATT(164) for the Petitioner(s) No. 1
MR SIRAJ R GORI(2298) for the Respondent(s) No. 1,2
NOTICE SERVED for the Respondent(s) No. 3,4
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CORAM:HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE
Date : 09/02/2023
ORAL JUDGMENT
1. Rule, returnable forthwith. Learned advocate Mr. Siraj Gori appearing on behalf of respondent Nos.1 and 2 waives service of rule.
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2. The present Special Civil Application is filed praying for the following reliefs :-
"(A) your lordships may be pleased to issue appropriate the order and direction and there by quash and set aside the order dated 4/1/2017 and 9/3/2018 of the respondent number 2 of cancellation of selection procedure for the post of UDC at IHM-
Ahmedabad and thereby direct the respondents to conclude the selection procedure and to give appointment to the deserving candidates on the post of UDC at IHM-Ahmedabad in the interest of justice.
(B) your lordships may be please to issue appropriate the order and direction and thereby quash and set aside the order of the respondent number 2 of cancellation of selection procedure dated 4/1/2017 and 9/3/2018 for the post of UDC at IHM-Ahmedabad and thereby direct the respondents to conclude the selection procedure and to give appointment to the petitioner on the post of UDC at IHM- Ahmedabad in the interest of justice.
(C) Your lordships may be pleased to quash and set aside the action of the respondents to promote LDC (lower division clerk) as UDC (upper division clerk) on ad-hoc basis in the interest of justice.
(D) pending hearing and final disposal of this petition, your lordships may be please to stay the fresh recruitment procedure for the post of UDC at IHM- Ahmedabad i.e. in the respondent number 1 Institute till the hearing and final disposal of this petition in the interest of justice.
(E) such other and further relief which your lordships deem fit may kindly be granted in the interest of justice."
3. The factual matrix in the present case is as follows :-
3.1 That respondent No.2 gave an advertisement for recruitment to the post of Upper Division Clerk (hereinafter referred to as "UDC" for short) for two posts on 24.06.2016. The petitioner herein made an application for the said post. The Page 2 of 12 Downloaded on : Sun Sep 17 21:37:16 IST 2023 NEUTRAL CITATION C/SCA/8216/2018 JUDGMENT DATED: 09/02/2023 undefined application of the petitioner was accepted and he was called for the written test. The petitioner came to be intimated about the schedule of various stages of selection procedure by communication dated 06.06.2016. The petitioner appeared in the written test and secured 81.75 marks and thereby, successfully cleared the same. He was accordingly shortlisted for the skill test.
The petitioner thereafter successfully completed computer based typing master typing test also. Thereafter, the petitioner appeared in essay writing test also. It is the case of the petitioner that thereafter, there was no communication whatsoever from respondent No.2. So, the petitioner approached respondent Nos.1 and 2 and made a request under Right to Information Act about the result of selection process. In reply to RTI query, respondent Nos.1 and 2 stated that since the performance of the shortlisted candidates in the written test and skill test was not up to the desired standards, hence the entire procedure for the recruitment to the post of the UDC was cancelled by the competent authority.
3.2 Aggrieved, the petitioner has filed the present Special Civil Application.
4. Learned advocate Mr. D. J. Bhatt appearing on behalf of the petitioner submitted that the reason given by the respondents for cancelling the recruitment process to the post of UDC is not tenable. He submitted that at the time of advertisement and even after and during the recruitment process, at no point of time, the respondents had declared or communicated any minimum standards and therefore, the action of the respondent authority in cancelling the selection process is illegal and cannot be justified. He submitted that once the process is complete, it was an Page 3 of 12 Downloaded on : Sun Sep 17 21:37:16 IST 2023 NEUTRAL CITATION C/SCA/8216/2018 JUDGMENT DATED: 09/02/2023 undefined obligation on the respondent authorities to declare the result of the successful candidates. He further alleged that the authorities were interested in selecting one existing employee in LDC cadre who had failed in clearing the written test examination and therefore, for that reason, the authorities have cancelled the recruitment process. He submitted that the purpose of recruitment is to find out and recruit best candidate amongst those who have applied and therefore, the action of the respondents in cancelling the selection process after its conclusion is nothing but mala fide. He further submitted that it has come to the knowledge of the petitioner that those employees who were working as LDC in the institution and had appeared in the recruitment process of UDC and who had failed in clearing the examination, were appointed by way of ad-hoc promotion to the post of UDC by the respondents. He therefore submitted that the said action mala fide on the part of the respondents. He further submitted that earlier also, the recruitment process for the post of UDC was undertaken in the year 2015 which came to be cancelled and thereafter, the second advertisement was given in the year 2016 pursuant to which the petitioner had applied. Even in this selection process, the entire procedure was cancelled and no appointments were made. He submitted that once the selection procedure has commenced and concluded, the same should not be cancelled unless there is irregularity in conducting the same or there is some reason to justify such a cancellation. He submitted that in the present case, there is no justification for cancellation and at no point of time, cut- off marks were also declared and therefore, the reason given for cancellation that the performance of the shortlisted candidates in the written test and skill test was not up to the desired standards, is frivolous. He therefore submitted that orders dated 04.01.2017 Page 4 of 12 Downloaded on : Sun Sep 17 21:37:16 IST 2023 NEUTRAL CITATION C/SCA/8216/2018 JUDGMENT DATED: 09/02/2023 undefined and 09.03.2018 of respondent No.2 with respect to cancellation of selection procedure for the post of UDC at IHM-Ahmedabad be quashed and set aside and the present petition be allowed with a direction to give appointment to the deserving candidate on the post of UDC. It was further prayed that this Court may also quash and set aside the action of the respondents to promote existing LDC as UDC on ad-hoc basis in the interest of justice.
5. Per contra, learned advocate Mr. Siraj Gori appearing on behalf of respondent Nos.1 and 2 submitted that the present petition is thoroughly misconceived in law and facts. He submitted that as per the Recruitment and Promotion Rules, the post of UDC is a promotional post also. The feeder cadre of LDC is eligible to get promotion to the post of UDC, if eligible. He further submitted that the advertisement was published for recruitment of two posts of UDC as the serving LDCs did not have the requisite length of service i. e. 5 years for considering them for the promotion during the relevant time. He further submitted that the first advertisement was published on 26.05.2015 and the same came to be cancelled as the selection procedure could not be completed within six months as prescribed under the rules. He submitted that thereafter, the present advertisement was published on 13.03.2016 and accordingly, the written test and skill test was conducted on 24.06.2016 and 25.06.2016 respectively. 12 candidates appeared for the test. The first and second ranked candidates performance in the written test and the skill test was not up to the desired standards and hence, the Selection Committee decided to cancel the recruitment to the post of UDC. The cancellation of the recruitment was also notified in the newspaper "Sandesh" on 15.08.2016. He further submitted that the petitioner has no right, Page 5 of 12 Downloaded on : Sun Sep 17 21:37:16 IST 2023 NEUTRAL CITATION C/SCA/8216/2018 JUDGMENT DATED: 09/02/2023 undefined much less any fundamental right under Article 226 of the Constitution of India. He submitted that the petitioner has not successfully cleared all the tests. He further submitted that since none of the candidates who took part in the selection procedure was found to be having desired standard, therefore the respondent authority, after duly taking into consideration all the relevant aspects, decided to cancel the entire procedure for recruitment to the post of UDC. He submitted that the cancellation of recruitment process is an administrative decision and the same has been taken after considering the various aspects. He has denied that with a view to accommodate its existing employees, the recruitment process came to be cancelled. He submitted that such allegation is totally frivolous and baseless and is being made by the petitioner with a view to prejudice this Court. He submitted that the petitioner may be put to strict proof thereof. He submitted that the petitioner had only appeared in the test, but it is denied that the petitioner was second in the merit-list as per the record of the respondent in the recruitment procedure. He submitted that the claim of the petitioner is misleading and incorrect. He submitted that the petitioner was very much communicated in the call letter dated 06.06.2016 regarding the cut-off marks in the written test and he was further intimated that minimum five candidates will be shortlisted against one vacancy for possible consideration. He further submitted that the entire test for the recruitment of UDC was conducted and evaluated by respondent No.4 - National Council for Hotel Management, Noida. He submitted that the allegation of the petitioner that the Institute was trying to promote its employees, is totally baseless as the recruitment process was not conducted by it. It is denied that the cancellation of the selection procedure is colourable exercise and misuse of power and Page 6 of 12 Downloaded on : Sun Sep 17 21:37:16 IST 2023 NEUTRAL CITATION C/SCA/8216/2018 JUDGMENT DATED: 09/02/2023 undefined submitted that the same has been undertaken in the interest of the Institution. He submitted that the decision was taken as per the Recruitment and Promotion Rules, 2003 framed by the Ministry of Tourism, Govt. of India. He submitted that as per the rules, the post of UDC is a promotional post and in case of non-availability from LDC cadre, direct recruitment can be undertaken by the Institute. He therefore submitted that the petitioner is incorrect in stating that the post of UDC is not a promotional post from LDC cadre. It is denied that the impugned action has been taken to deny appointment to the petitioner. It is submitted that the petitioner is making reckless allegations on the strength of unsubstantiated and bald assertions apropos unfair practice and victimization. The respondents were well within their right and have acted within the rules to cancel the selection procedure. He therefore submitted that the present writ petition is devoid of any merits as the petitioner has absolutely no right for appointment to the post of UDC in the respondent Institute. He submitted that the petition be dismissed with costs.
6. Heard learned advocates for the respective parties and perused the documents on record.
7. In the present case, respondent Nos.1 and 2 have placed on record the Recruitment and Promotion Rules, 2003 framed by the Ministry of Tourism, Govt. of India. As per the said Rules, the method of recruitment to the post of UDC is by promotion from the grade of LDC with minimum five years of regular service in the grade, failing which, by direct recruitment. It is also clarified that the said post is to be filled up by selection-cum- seniority. It has been stated by the respondents that the advertisement was published for the first time on 26.05.2015 for Page 7 of 12 Downloaded on : Sun Sep 17 21:37:16 IST 2023 NEUTRAL CITATION C/SCA/8216/2018 JUDGMENT DATED: 09/02/2023 undefined recruitment of two posts of UDC by direct recruitment at the relevant point of time since the serving LDCs of the Institute did not have requisite length of service i. e. five years of regular service in the grade. The said advertisement came to be cancelled as the selection process could not be completed within a period of six months as stipulated under the Rules. As per DOPT (Department of Personal & Training) Regulations, the recruitment procedure was undertaken by respondent No.4 - National Council for Hotel Management, Noida - an independent agency. All the candidates were evaluated by the said agency and the results were submitted to respondent Nos.1 and 2 for further consideration. It has also come on record that respondent Nos.1 and 2 have taken the impugned decision of cancellation of recruitment procedure since no suitable candidate could be shortlisted. It was revealed from the test results that the performance of the candidates who had appeared in the subjective test (letter writing and note sheet) and skill test (computerized English typing) was not up to the desired standard. It has been emphasized that such types of tests are important in the job description of UDC.
8. Further, the petitioner has made allegations against respondent Nos.1 and 2 in respect of favouring its employee one Shri Sagar Prakashkumar Maganbhai for appointment to the post of UDC and that since the said person could not clear the written test, therefore the respondent Nos.1 and 2 have cancelled the entire selection procedure. It is pertinent to note here that except the bald allegations, nothing has been brought on record to substantiate the same. In the affidavit-in-reply filed by respondent No.1, it has been stated that in the year 2018, two posts of UDC were filled up by way of promotion to the employees who had become eligible for the said posts from the feeder cadre of LDC. It Page 8 of 12 Downloaded on : Sun Sep 17 21:37:16 IST 2023 NEUTRAL CITATION C/SCA/8216/2018 JUDGMENT DATED: 09/02/2023 undefined is stated that one Shri Devang Kurani and Shri Renish Vaghela have already been promoted to the post of UDC in January, 2018. it is further specifically stated by the respondents that Shri Sagar Prakashkumar Maganbhai has not been selected or appointed to the post of UDC. It is further seen from the record that the petitioner has filed the present petition after a period of two years, more particularly after appointment to the post of UDC by promotion. It has also come on record that father of the petitioner is working as Class-IV employee in the respondent Institute. The petitioner has deliberately suppressed the said facts in the writ petition while making such unsubstantiated and bald allegations. The petitioner has not approached this Court with clean hands.
9. The learned advocate for the petitioner has relied upon the decision of the Hon'ble Supreme Court in case of Ramesh Kumar vs. High Court of Delhi and anr. [AIR 2010 SC 3714] wherein it has been held that in absence of prescribing requirement of securing minimum marks in the interview, the fixation of criteria after commencement of the process is improper. In the present case, the selection procedure had prescribed cut-off marks and no fresh criteria has been prescribed during the selection procedure. It is not the case of the petitioner that the selection criteria came to be changed during the selection procedure. Hence, the said decision will not come to the aid of the petitioner in the facts and circumstances of the present case. On the same legal proposition, the decision of the Hon'ble Supreme Court in case of Hemani Malhotra vs. High Court of Delhi [AIR 2008 SC 2103] is relied upon by the learned advocate for the petitioner, which will also not come to the aid of the petitioner in the facts and circumstances of the present case.
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10. The learned advocate appearing for the respondents has relied upon the decision of the Hon'ble Supreme Court in case of Mohd. Rashid vs. Director, Local Bodies, New Secretariat [AIR 2020 SC 1075] wherein it has been held that the appellants who are aspirants for direct recruitment have no right for appointment merely because at one point of time the vacancies were advertised. Such candidates cannot claim any right of appointment merely for the reason that they responded to the advertisement so published. Even after completion of the selection process, the candidates even on the merit-list do not have any vested right to seek appointment only for the reason that their names appear on the merit-list.
11. The Constitution of Bench of Hon'ble Supreme Court in case of Shankarsan Dash vs. Union of India [1991 3 SCC 47] has held 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 the State of Haryana v. Subhash Chander Marwaha [(1974) 3 SCC 220 : 1973 SCC (L&S) 488 : (1974) 1 SCR Page 10 of 12 Downloaded on : Sun Sep 17 21:37:16 IST 2023 NEUTRAL CITATION C/SCA/8216/2018 JUDGMENT DATED: 09/02/2023 undefined 165] ; Neelima Shangla (Miss) v. State of Haryana [(1986) 4 SCC 268 : 1986 SCC (L&S) 759] or Jitender Kumar v. State of Punjab [(1985) 1 SCC 122 :1985 SCC (L&S) 174 : (1985) 1 SCR 899] ." 6 (1991) 3 SCC 47"
12. Further, this Court, by order dated 26.10.2021 passed in Letters Patent Appeal No.915 of 2021, has held as under :-
"5. It is trite position of law that candidate does not acquire any right until he is actually appointed. Even the placement in the select list or wait list will not result into any enforceable right to be appointed. Here the process of recruitment was cancelled for the reasons which the authorities deemed appropriate to act upon. The employer is the master of conducting the recruitment process. It is entirely his discretion if for some reason, the process is to be stopped. We find in this case that for valid reasons the process of recruitment came to be discontinued at the stage obtained above when only the list of candidates qualified for computer proficiency test was notified.
5.1 The Court cannot force the employer to proceed and complete the process when no rights of the any of the candidates have accrued, nor any final list was published in the recruitment process."
13. This Court is of the considered view that the petitioner is not entitled to any relief as prayed for in the present Special Civil Application since he has no right to dispute the action of the respondents to fill up the post by way of promotion as prescribed under the Rules. It is open to respondent Nos.1 and 2 to fill up the vacant posts of UDC by way of direct recruitment or by way of promotion if such posts are not filled up either on the basis of recruitment process already initiated or to be initiated afresh. Further, the reason as disclosed in the affidavit-in-reply by the respondents for cancellation of the present recruitment process is bona fide and cannot be termed as colourable exercise of power or discriminatory. The respondents were well within their legal duty Page 11 of 12 Downloaded on : Sun Sep 17 21:37:16 IST 2023 NEUTRAL CITATION C/SCA/8216/2018 JUDGMENT DATED: 09/02/2023 undefined to cancel the recruitment process in absence of any suitable candidate being shortlisted.
14. In view of aforesaid observations and the settled legal position, the present Special Civil Application is devoid of merits and the same is accordingly dismissed. Rule is discharged. No order as to costs.
(ANIRUDDHA P. MAYEE, J.) cmk Page 12 of 12 Downloaded on : Sun Sep 17 21:37:16 IST 2023