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2008 DIGILAW 776 (RAJ)

Rajeev Tiwari v. State of Rajasthan

2008-03-13

GUMAN SINGH, SHIV KUMAR SHARMA

body2008
Honble SHARMA, J.–Core question emerges for consideration in this intra court appeal is as to whether the appellant herein had any legal right for being appointed against the post of Lab. Assistant (Radio and Television) advertised by the respondent District Education Officer (Boys) Dholpur (Rajasthan). (2). Contextual facts, which are not in dispute, depict that an advertisement was issued for appointment to the post of Lab. Assistant (Radio and Television). The appellant applied and selected by the Selection Committee headed by the District Education officer. The Select List was published on the Notice Board on March 15, 1995. The appellant however was not offered any appointment. He filed writ petition questioning his non appointment. Learned Single Judge vide order dated October 28, 1998 dismissed the writ petition. (3). The appellant is, thus, before us. (4). We have heard learned counsel for the parties. (5). In the reply to the writ petition filed by the respondents the only reason for withholding the appointment was narrated as "for certain administrative reasons." In the additional affidavit, however, it was stated that the post of Lab. Assistant was made surplus. (6). It is well settled that 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. The selectee does not have any legal right of appointment, subject, inter alia, to bonafide action on the part of the State. (7). In Shankarsan Dash vs. Union of India (1991) 3 SCC 47 the Apex Court indicated thus:- (Para 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 bonafide for appropriate reasons..." (8). 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 bonafide for appropriate reasons..." (8). In R.S. Mittal vs. Union of India 1995 Supp (2) SCC 230, their Lordships of the Supreme Court held as under:- (Para 10) "...It is not 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. Where 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, than, 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 on the select panel." (9). In Food Corporation of India vs. Bhanu Lodh (2005) 3 SCC 618 , the Apex Court observed thus:- (Para 14) "Merely because vacancies are notified the State is not obliged to fill up all the vacancies unless there is some provision to the contrary in the applicable rules. However, there is no doubt that the decision not to fill up the vacancies, has to be taken bonafide and must pass the test of reasonableness so as not to fail on touchstone of Article 14 of the Constitution." (10). In Director SCTI for Medical Science and Technology vs. M. Pushkaran (2008) 1 SCC 448 , the Supreme Court observed as under:- (Para 18) "The application of law would, therefore, depend upon the fact situation obtaining in each case. The judgment of the High Court in view of the aforementioned authoritative pronouncements cannot be said to be perverse. The respondent was to be offered with the appointment at a point of time when no policy decision was taken. There was, thus, no reason not to offer any appointment in his favour. Why the select panel was ignored has not been explained. Even the purported policy decision was not in their contemplation. The respondent was to be offered with the appointment at a point of time when no policy decision was taken. There was, thus, no reason not to offer any appointment in his favour. Why the select panel was ignored has not been explained. Even the purported policy decision was not in their contemplation. We, therefore, do not see any reason to interfere with the impugned judgment." (11). From the afore quoted decisions following principles may be deducted:- (i) Merely because the name of candidates were included in the panel indicating their provisional selection, they did not acquire any indefeasible right for appointment. (ii) The State however, 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. (iii) The decision not to fill up the vacancies, has to be taken bonafide and just pass the test of reasonableness so as not to fail on the touchstone of Article 14 of the Constitution. (iv) The State has to act fairly and the whole exercise cannot be reduced to a farce. (v) The State cannot ignore the select panel or decline to make the appointment on its whims. (12). Keeping these principles in mind when we proceed to scan the fact situation of the instant matter we notice that the District Education Officer is the appointing authority to appoint Lab. Assistant under the Rajasthan Educational Subordinate Service Rules, 1971 (for short `1971 Rules) and the Secretary or the Director Primary and Secondary Education had no authority to interfere with the matter. The posts of Lab. Assistant had to be filled up 100% on the basis of merit alone. The appointment of the appellant, who was selected by the Selection Committee headed by the District Education Officer could not have been withheld "for certain administrative reasons". Even the posts of Lab. Assistant could not have been declared surplus without amending 1971 Rules. (13). The respondents have failed to show any justifiable reason to decline to appoint the appellant, who was on the select panel, on the post of Lab. Assistant. The action on the part of the respondents in not giving appointment to the appellant appears to us as malafide. Impugned judgment of learned Single Judge in view of aforementioned authoritative pronouncements, thus, cannot be sustained. (14). Assistant. The action on the part of the respondents in not giving appointment to the appellant appears to us as malafide. Impugned judgment of learned Single Judge in view of aforementioned authoritative pronouncements, thus, cannot be sustained. (14). For these reasons, we allow the appeal and set aside the impugned judgment of learned Single Judge. We direct the respondents to appoint the appellant on the post of Lab. Assistant in pursuance of the Select List. The appointment shall be issued within thirty days of the receipt of certified copy of this order. We however make it clear that the appointment shall be prospective in nature. There shall be no order as to costs.