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Madhya Pradesh High Court · body

2008 DIGILAW 284 (MP)

SHYAM MOHAN SRIVASTAVA v. STATE OF M. P

2008-02-21

S.K.GANGELE

body2008
Judgment S.K.Gangele, J. ( 1. ) The petitioner has filed this petition challenging the order, Annexure P-l dated 22.07.2005 and also his non-appointment on the post of Additional Assistant Development Commissioner in the Panchayat and Rural Development Department. ( 2. ) The petitioner was appointed as Assistant Development Extension Officer on 31.01.1984. Respondent No. 2 issued an advertisement on 26.09.1996 for total 250 posts of Additional Assistant Development Commissioner. The petitioner after getting permission from the department applied for the post and he received total 71 marks out of 110 marks. Petitioner was placed at serial No. 17 in the supplementary select list of General Category candidates, copy of the list has been filed as Annexure P-5. Subsequently, vide an order dated 06.08.2002 upto serial No. 6 of the supplementary select list of General Category candidates the persons were appointed, copy of the appointment order has been filed as Annexure P-8. Thereafter, one Mr. Ratan Kumar Shrivastava, who was placed at serial No. 7 of the supplementary select list, was appointed vide order dated 12.11.2002, copy of the order has been filed as Annexure P-10. Thereafter, further vide another order dated 3rd June 2004, copy of which has been filed as Annexure P-l 1, upto Mr. Rajendra Kumar Palanpure, who was placed at serial No. 16 in the supplementary select list had been appointed leaving the petitioner alone. It is also a fact that one Mr. Sanjay Agarwal did not join after his appointment. He was placed at Serial No.2 ,in the supplementary select list and the Deputy Commissioner requested the Secretary that one post of Mr. Sanjay Agarwal was vacant and another candidate could be appointed in his place. Thereafter, further clarification was sought vide letter dated 15.09.2004. Finally, vide impugned order, Annexure P-l the Public Service Commission stated that it was not in agreement to appoint any other person in place of Mr. Sanjay Agarwal because the validity of the select list could not be extended. ( 3. ) Respondent no.2 in the return stated that although Mr. Sanjay Agarwal did not join on his family ground but the validity of the select list had already been expired, hence the Public Service Commission did not grant permission and its consent to appoint another person in place of Mr. Sanjay Agarwal. ( 3. ) Respondent no.2 in the return stated that although Mr. Sanjay Agarwal did not join on his family ground but the validity of the select list had already been expired, hence the Public Service Commission did not grant permission and its consent to appoint another person in place of Mr. Sanjay Agarwal. It has further been stated that the Public Service Commission had taken a policy decision not to extend the validity of the selection list beyond a period of one year for general category candidates and eighteen months for reserved category candidates. ( 4. ) Learned counsel for the petitioner has submitted that petitioner was placed at serial No. 17 in the supplementary select list and amongst the aforesaid select list upto serial No. 16 persons were appointed upto the year 2004. At that time, there was one post vacant of Mr. Sanjay Agarwal, who refused to join, hence it was obligatory on the part of the respondents to appoint the petitioner also. The petitioner has been denied his appointment arbitrarily and illegally. In support of his contentions learned counsel relied upon judgments of Honble Supreme Court in Director, SCTI For Medical Science and Technology and another v. M. Pushkaran (2008) 1 SCC 448 ); Ashwani Kumar Singh v. U.P. Public Service Commission and others (2003) 11 SCC 584 and judgment of learned Single Judge of this Court in Kanchan Saxena v. State ofM.P. and another, 2006 (2) MPHT 447 . ( 5. ) Contrary to this, learned Senior Counsel appearing on behalf of respondent No.2 has contended that the validity of the select list had already been over. No junior person to the petitioner has been appointed hence the petitioner has no right for appointment and the writ petition filed by the petitioner is not maintainable. In support of his contentions learned Senior counsel relied upon the judgments of Honble the Supreme Court reported in State of U.P. and others v. Rajkumar Sharma and others, 2006 (3) SCC 330 ; Union of India and others v. Kali Dass Batish and another (2006) (1) SCC 779 and Union of India and others v. B. Valluvan and others, 2006 (8) SCC 686 . Learned Deputy Advocate General has submitted that the State Government had in fact supported the case because it had written to the Public Service Commission to grant permission to appoint the petitioner on the vacant post which could not be filled on account of non-acceptance of appointment by Mr. Sanjay Agarwal. ( 6. ) Undisputed facts of the case are that the petitioner appeared in the selection process for the post of Additional Assistant Development Commissioner in pursuance to the advertisement dated 26.09.1996. He was placed at serial No. 17 in the supplementary select list published by the Public Service Commission. For the first time vide order dated 6th August 2002 six persons including Mr. Sanjay Agarwal, who was at serial No.2 of the supplementary select list for general category candidates, were appointed. In pursuance to the aforesaid order Mr. Sanjay Agarwal refused to join the post this fact has been mentioned by the Under Secretary in his letter dated 12.03.2003 and before that vide another order dated 12.11.2002 Mr. Ratan Kumar Shrivastava, who was at serial No. 7 in the supplementary select list had also been appointed. Thereafter, vide another order dated 03.06.2004 other persons from the supplementary select list of general category candidates upto serial No. 16 Mr. Rajendra Kumar Palanpure had been appointed. Thereafter, the Under Secretary wrote a letter to the Secretary, Public Service Commission on 22.06.2004 that Mr. Sanjay Agarwal did not join and the post was vacant and in his place another person in accordance with merit list could be appointed. Finally, vide the impugned order the Public Service Commission refused to grant permission on the ground that the validity of the select list could not be extended. The petitioner was placed at serial No. 17 of the select list of general category candidates. ( 7. ) From the above facts it is clear that Mr. Sanjay Agarwal was appointed vide order dated 6th August 2002. He refused to join on the appointed post aforesaid fact is clear from the letter dated 12.03.2003, hence when the order dated 03.06.2004 was issued appointing Mr. Rajendra Kumar Palanpure, who was at serial No. 16 in the supplementary select list, one post was available with the department for appointment. It is not clear that why that post has not been filled up. Rajendra Kumar Palanpure, who was at serial No. 16 in the supplementary select list, one post was available with the department for appointment. It is not clear that why that post has not been filled up. If the Public Service Commission wanted to fill up the posts of Additional Assistant Development Commissioner, which were available from the supplementary select list of general category candidates, then it was obligatory on the part of respondents to appoint all the available persons and fill up all the posts. No reasons have been explained by respondent No.2 not to fill up one vacant post at the time of appointment of other candidates upto serial No. 16, who had been appointed vide order dated 03.06.2004. Subsequently, the Public Service Commissioner refused to grant permission to fill up that one post on the ground that the validity of the select list could not be extended. However, the Public Service Commission has not placed on record before this Court when the persons upto serial no. 16 of the supplementary selection list had been appointed when the validity of the select list was extended and who extended the period and why at that time one post which had been fallen vacant was not included. Had it been included certainly the petitioner could have been appointed because he was at serial No. 17 of the supplementary select list. ( 8. ) It is well settled principle of law that a selected candidate has no right for appointment, however, it is also a principle of law that there must be some rational for not appointing person and action of the employer and authority has to be in consonance with Article 14 of the Constitution. In the present case, no reason has been put forth by the Public Service Commission or the Government why the petitioner was not appointed at the time when the order of appointment upto serial No. 16 of the supplementary select list dated. 03.06.2004 was issued and at that time there was one post available for appointment. In such circumstances, the judgments cited by the learned Senior Counsel appearing for respondent no.2 are distinguishable. ( 9. 03.06.2004 was issued and at that time there was one post available for appointment. In such circumstances, the judgments cited by the learned Senior Counsel appearing for respondent no.2 are distinguishable. ( 9. ) The Honble Supreme Court in Ashwani Kumar Singh v U.P. Public Service Commission and others (2003) 11 SCC 584 after quoting various judgments has held as under with regard to applicability of the judgments passed by the Courts of law :- "10 Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of courts are not to be read as Euclids theorems nor as provisions of the statute. These observations must be read in the context in which they appear. Judgments of courts are not to be construed as statute. To interpret words, phrases and provisions of a statute, it may become necessary for Judges to embark upon lengthy discussions, but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes. In London Graving Dock Co. Ltd. v. Hoerton 1951 AC 737 (AC at p. 761) Lord McDermott observed : (All ER p. 14 C-D) "The matter cannot, of course, be settled merely by treating the ipsissima verba of Willes, J., as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished Judge...." 11. In Home Office v. Dorset Yacht Co. (1970) 2 All ER 294 : 1970 AC 1004 : (1970) 2 WLR 1140 (HL) Lord Reid said, "Lord Atkins speech... .is not to be treated as if it were a statutory definition. It will require qualification in new circumstances" (All ER p. 297 g-h). In Home Office v. Dorset Yacht Co. (1970) 2 All ER 294 : 1970 AC 1004 : (1970) 2 WLR 1140 (HL) Lord Reid said, "Lord Atkins speech... .is not to be treated as if it were a statutory definition. It will require qualification in new circumstances" (All ER p. 297 g-h). Megarry, J. in Shepherd Homes Ltd. v. Sandham (No. 2) (1971) 1 WLR 1062 : (1971) 2 All ER 1267 observed : (All ER p. 1274 d-e) "One must not, of course, construe even a reserved judgment of even Russeil, L.J. as if it were an Act of Parliament;" In Herrington v. British Rlys, Board{\91\) 2 WLR 537 : (1972) 1 All ER 749 : 1972 AC 877 (HL) Lord Morris said : (All ER p. 761 C) "There is always peril in treating the words of a speech or a judgment as though they were words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case." 12. Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper. 13. The following words of Lord Denning in the matter of applying precedents have become locus classicus : "Each case depends on its own facts and ;a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect.. In deciding such cases, one should avoid the temptation to decide cases (as said by Cordozo) by matching the colour of one case against the colour of another. To decide, therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive. * * * Precedent would be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches, else you will find yourself lost in thickets and branches. My plea is to keep the path to justice clear of obstructions which could impede it." The Honble Supreme Court further held as under with regard to fixing a cut off position :- "14. My plea is to keep the path to justice clear of obstructions which could impede it." The Honble Supreme Court further held as under with regard to fixing a cut off position :- "14. It is on record that a policy decision was taken to appoint candidates who had opted for Treasury Officer / Accounts Officer if their names were included in the first 40 of the merit list. Admittedly, appellant Ashwani Kumar was not so included and the position is worse in the case of the other appellant Brij Nath Srivastava.. It submitted that there is no logic for such fixation. Here again, the plea is without substance. If the employer fixes a cut-off position, same is not to be lightly tinkered with unless it is totally irrational or tainted with mala fides. Employer in its wisdom may consider a particular range of selection to be appropriate. It has not been shown as to how the fixation is irrational, much less mala fide. Additionally, it is noticed that the unfilled posts were carried forward to the next year and have been filled up on the basis of selection made by the Commission. Accepting the prayer of the appellants would mean that the position which has assumed a sort of finality for more than a decade would be unsettled." It is clear from the aforesaid judgment of the Honble Supreme Court that fixing cut off position must be rational or with some logic. As stated earlier in this case fixing of cut off position upto serial No. 16, in my opinion, was not rational because there was a post vacant at that time. Honble the Supreme Court further in Director, SCTI For Medical Science and Technology and another v. M. Pushkaran (2008) 1 SCC 448 ) has held as under with regard to power of the Court for issuing a direction for appointment on the basis of selection :- "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 selectees do not have any legal right of appointment subject, inter alia, to bona fide action on the part of the State. A person in the select list does not have any legal right in this behalf. The selectees do not have any legal right of appointment subject, inter alia, to bona fide action on the part of the State. 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." ( 10. ) Hence, in my opinion, the action of respondent no.2 in refusing to grant permission to the Government for appointment of the petitioner is arbitrary and illegal and based on irrational consideration. ( 11. ) Consequently, the petition of the petitioner is allowed. The impugned order, Annexure P-l dated 22.07.2005 is hereby quashed. The respondents are directed to appoint the petitioner on the post of Additional Assistant Development Commissioner from the day i.e. 03.06.2004 when other persons who were up to serial No. 16 of the supplementary select list had been appointed. The petitioner will be entitled all the consequential benefits treating his date of appointment as 03.06.2004 on the said post. However, looking to the facts of the case and looking to the factual position the petitioner will not be entitled arrears of salary on the principle of No work no pay No order as to costs. Petition allowed.