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Madhya Pradesh High Court · body

2011 DIGILAW 1056 (MP)

Pallavi Shukla v. State Of M. P.

2011-09-06

S.C.SHARMA

body2011
JUDGMENT ( 1. ) The petitioner before this Court has filed this present writ petition being aggrieved by the select list prepared by respondent No.3 ? M P Public Service Commission dt. 28/10/2010 (Annexure P/1) for the post of Dy. Superintendent of Police (MP State Police Services). ( 2. ) The contention of the petitioner is that she has obtained a Degree of Bachelors in Engineering and from GSITS, Indore and an advertisement was issued by the M P Public Service Commission on 11th August, 2008 (Annexure P/4) inviting applications for various services and the petitioner submitted her application in the prescribed form. Petitioner has further stated that in the initial advertisement the post of Dy. Superintendent of Police was not included and later on a corrigendum was issued on 23/2/09 including 12 posts of Dy. Superintendent of Police. Petitioner has further stated that a preliminary examination was held, followed by a main examination and interviews were finally held on 7/9/10. A select list was declared by the M.P. Public Service Commission on 28/10/10 and the name of the petitioner was placed in the select list as she scored 1432 marks out of 2350. Petitioner has further stated that subsequently the select list was changed and respondent No. 4 ? Alok Kumar Sharma was included in the select list though he was over age and therefore the selection of respondent No.4 for the post of Dy. Superintendent of Police is bad in law. Learned counsel for the petitioner has prayed for the following reliefs: (i) Issue appropriate writ of certiorari or any other writ, direction or order quashing the revised list of respondent No.3 published vide (Annexure P/3) so far as it relates to inclusion of the name of respondent No.4. (ii) Issue appropriate writ of mandamus or any other writ or direction or order directing the respondents to incorporate the name of the petitioner again in the select list of DSPs and be treated as Dy. Superintendent of Police by the State Government. (iii) Issue appropriate writ of mandamus, wherein the respondents No.1 to 3 may kindly be directed to create one more post of Dy. Superintendent of Police and petitioner be placed in the post according to her merit and performance in the examination. (iv) Any other relief deemed fit and proper in the facts and circumstances of the case. ( 3. (iii) Issue appropriate writ of mandamus, wherein the respondents No.1 to 3 may kindly be directed to create one more post of Dy. Superintendent of Police and petitioner be placed in the post according to her merit and performance in the examination. (iv) Any other relief deemed fit and proper in the facts and circumstances of the case. ( 3. ) The first ground raised by the learned counsel for the petitioner is that the petitioner was selected for the post of Dy. Superintendent of Police by the M P Public Service Commission as per original list which was displayed on internet as well as on the Notice Board and therefore she cannot be thrown out by respondent No.3 in the manner and method it has been done by the respondents. It has also been argued before this court that the petitioner has undergone medical examination as per directions of the Home Department and therefore she is entitled for an appointment to the post of Dy. Superintendent of Police. The other ground raised in the present writ petition is that the petitioner was selected and was included in the main list issued by the M P Public Service Commission on the basis of her performance and her selection cannot be set aside and a new candidate cannot be included in the select list. ( 4. ) Petitioner has further stated that she belongs to "Female Category (General)" and she was included in the select list after following the appropriate roaster and the revised select list is bad in law as the provision in respect of reservation have not been adhered to by the respondents. Learned counsel for the petitioner has also argued before this court that the Governor in exercise of powers conferred by virtue of proviso to Art. 309 of the Constitution of India has framed Rules known as MP State Civil Services Examination Rules, 2008 and the aforesaid Rules provides for maximum age limit for the service. The petitioner's contention is that as per the Rules the prescribed age limit is 21 to 30 years and therefore as under the Rules of 2008, the upper age limit is of 30 years, the respondent No.4 cannot be permitted to join the post of Dy. Superintendent of Police. The petitioner's contention is that as per the Rules the prescribed age limit is 21 to 30 years and therefore as under the Rules of 2008, the upper age limit is of 30 years, the respondent No.4 cannot be permitted to join the post of Dy. Superintendent of Police. The petitioner has also filed rejoinder and it has been argued before this court that the M P Public Service Commission has not done the change in the select list in a fair and proper manner and the exercise has been done in order to favour respondent No.4. Other examples alleging irregularities on behalf of M P Public Service Commission have also been furnished by the petitioner, however, they are not relating to the post of Dy. Superintendent of Police and the irregularities and illegalities on the part of the M P Public Service Commission are in respect of Civil Services Examination. The contention of the petitioner is that once a select list is prepared by the M P Public Service Commission, the same cannot be changed by any stretch of imagination keeping in view the provisions of Rules of 2008 and her contention is that respondent No.4 is more than 30 years of age and is not entitled to the post of Dy. Superintendent of Police. Learned counsel for the petitioner has placed reliance upon a judgment delivered in the case of State of UP Vs. Rafiquddin and others ( AIR 1988 SC 162 ). ( 5. ) He has placed reliance upon para 30 of the aforesaid judgment and his contention is that the select list prepared by the M P Public Service Commission cannot be altered or changed as it creates a confusion in the people and people will loose faith in the institution of M P Public Service Commission and the authenticity of the selection. Learned counsel for the petitioner has also placed reliance upon a judgment delivered by the apex court in the case of Centre for PIL and another Vs. Union of India and another reported in (2011) 4 SCC 1 on the question of institutional integrity. ( 6. ) He has placed heavy reliance upon para 43 of the aforesaid judgment and has finally prayed for quashing of the subsequent select list dt. 28/10/10 (Annexure P/1). Union of India and another reported in (2011) 4 SCC 1 on the question of institutional integrity. ( 6. ) He has placed heavy reliance upon para 43 of the aforesaid judgment and has finally prayed for quashing of the subsequent select list dt. 28/10/10 (Annexure P/1). Learned counsel for the petitioner has also argued before this Court the MP Civil Services Examination Rules will supersede the Recruitment Rules of 2008 by virtue of Rule 6(3) and as maximum age limit provided is 30 years the question of appointing the respondent No.4 as a Dy. Superintendent of Police, does not arise. He has prayed for quashing of the select list. A reply has been filed on behalf of respondent No.3 ? M P Public Service Commission and it has been argued by the learned Sr. counsel Mr. G. M.Chaphekar, assisted by Mr. V.P. Khare, Advocate that an advertisement was issued on 11/8/08 in Rojgar Nirman Weekly Newspaper in the week commencing from 18/8/08 inviting applications from eligible candidates for the State Civil Service Examination, 2008 for filling up the posts as mentioned in the advertisement. The respondents have also stated that Corrigendums were issued from time to time on receiving requisitions from the concerned Department of the State of MP which is permissible as per Clause (5) of the advertisement and the petitioner as well as respondent No.4 applied for the same. A preliminary examination was held. ( 7. ) The result of the main examination was declared on 28/6/10, thereafter the candidates who were successful in the main examination and keeping in view the statement of posts were called for interviews. The candidates were also directed to submit the order of preference in respect of the posts at the time of the interview. It has been further argued that the petitioner as well as respondent No.4 participated in the process of interview along with other candidates and also submitted their order of preferences. The respondents have enclosed the order of preference submitted by the petitioner as well as by the respondent No.4 and that of one Abhishek Kumar Tiwari. The order of preference enclosed along with the return reveals that the respondent No.4 and one Abhishek Kumar Tiwari have opted for Dy. Superintendent of Police also at No.3 of the Format. The respondents have enclosed the order of preference submitted by the petitioner as well as by the respondent No.4 and that of one Abhishek Kumar Tiwari. The order of preference enclosed along with the return reveals that the respondent No.4 and one Abhishek Kumar Tiwari have opted for Dy. Superintendent of Police also at No.3 of the Format. The respondents have further stated that the result of the examination was finalised and it was declared on 28/10/2010 on the website of M P Public Service Commission and mark sheet of unsuccessful and successful candidates were also uploaded on the website. It has also been stated that after declaring the result of the State Civil Services Examination, 2008, two candidates namely respondent No. 4 ? Alok Kumar Sharma and Abhishek Kumar Tiwari submitted an applications, and informed the M P Public Service Commission that they have received more marks than the candidates who are included in the select list for the post of Dy. Superintendent of Police and thereafter the matter was enquired by the M P Public Service Commission. THE M P Public Service Commission after scrutinising all minute details including the order of preference and the application form submitted by the respondent No. 4 ? Alok Kumar Sharma and Abhishek Kumar Tiwari arrived at a conclusion that respondent No.4 was not selected for the post of Dy. Superintendent of Police because in the data entry made in the computer the word "Y" was not entered on account of a clerical / computer mistake and he was considered as a General Candidate instead of a Government servant. THE respondent M P Public Service Commission has also stated that the maximum age limit for General Candidate is 25 years and the maximum age limit for permanent Government servant is 33 years as per the provisions of the Rules of 2008 and therefore the mistake was immediately corrected and as the respondent No. 4 ? Alok Kumar Sharma and Abhishek Kumar Tiwari were Government servants and they were not given the benefit of upper age limit and they were included in the select list and therefore the respondent No.4 was later on included in the select list for the post of Dy. Superintendent of Police and Ditt. Excise Officer. In the case of Distt. Excise Officer, the maximum age limit was 30 years. Superintendent of Police and Ditt. Excise Officer. In the case of Distt. Excise Officer, the maximum age limit was 30 years. Abhishek Tiwari was not included in the select list again on account of the mistake committed by the computer operator and as he was more than 25 years of age. ( 8. ) The respondents have also stated that after considering the representations of the respondent No.4, his marks were looked into and it is a matter of record that the name of the petitioner finds place at Sl. No. 43 of the merit list as she has obtained 1432.00 marks out of 2350.00 and after correcting mistake the respondent No.4 was placed at Sl.No.40 of the merit list as he has obtained 1438.00 marks out of 2350, meaning thereby, the respondent No.4 is more meritorious than the petitioner and as he was entitled to participate in the process of selection upto the age of 35 years being a Government Servant and therefore keeping in view the preference opted by him in respect of a particular service he was included in the select list prepared for Dy. Superintendent of Police. Learned Sr. counsel has argued vehemently before this court that mistake if any which took place in the matter is on the part of M P Public Service Commission and it was not a mistake committed by any particular individual candidate and therefore a candidate on account of some clerical mistake or on account of some mistake while feeding the data in the computer cannot be made to suffer. Learned counsel for the respondent M P Public Service Commission has placed reliance on a judgment delivered in the case of Ramesh Gajendra Jadhav Vs. Secretary, Late S.G.S.P. Mandal and others reported in ( AIR 2010 SC 3502 ) and the contention of the learned counsel for the respondent is that a mistake can be corrected the moment it comes to the notice of the authorities and it is a mistake of fact which has been committed by the M P Public Service Commission and the same was immediately corrected and they have finally forwarded the matter to the State Government and the State Government has issued appointment order to respondent No.4. Learned counsel for the respondent M P Public Service Commission has also placed reliance upon a judgment delivered by the Division Bench of this Court in the case of Rani Durgawati Vishwavidyalaya, Jabalpur and another Vs. Santosh Kumar and another reported in 2004 (3) MPLJ 113 . He has also placed reliance upon a judgment delivered in the case of Mohan Kumar Gole Vs. Indian Oil Corporation and others reported in 2011 (1) MPLJ 161 and his contention is that such types of mistakes in the selection process can be cured by the management / employer. Learned counsel for the respondent has prayed for dismissal of the writ petition. Mr. Mukesh Parwal, learned counsel for the respondent State has argued before this court that a mistake was committed by the M P Public Service Commission and the same was rectified by the M P Public Service Commission by treating the respondent No.4 as a Government servant meaning thereby granting age relaxation upto 35 years of age. Respondent / State has further stated that they have also issued an appointment order in favour of a candidate who was a more meritorious and qualified as per the provisions of the Recruitment Rules. Learned counsel for the respondent / State has prayed for dismissal of the writ petition. There is no appearance of respondent No.4 though he has been duly served. ( 9. ) Heard learned counsel for the parties at length and perused the record and the matter is being disposed of at the motion hearing stage itself with the consent of the parties. ( 10. ) In the present case, it is an admitted fact that an advertisement was issued by the M P Public Service Commission on 11/8/2010 inviting applications for MP Civil Services Examination 2008. The post of Dy. Superintendent of Police was not initially included in the advertisement. However, by issuing a corrigendum dt. 23/2/09, twelve posts of Dy. Superintendent of Police were included. The same was permissible as per clause (5) of the initial advertisement dt. 11/8/2010. The aforesaid clause empowers the M P Public Service Commission to include posts on receiving requisitions from the concerned Departments of the State of MP. Petitioner and respondent No.4 participated in the preliminary examination, main examination as well as in the interview conducted by the M P Public Service Commission. 11/8/2010. The aforesaid clause empowers the M P Public Service Commission to include posts on receiving requisitions from the concerned Departments of the State of MP. Petitioner and respondent No.4 participated in the preliminary examination, main examination as well as in the interview conducted by the M P Public Service Commission. A candidate at the time of interview was also required to submit an order of preference for the post they have applied for and the petitioner, respondent No. 4 ? Alok Kumar Sharma and one Abhishek Kumar Tiwari also submitted order of preferences which are enclosed as Annexure R/3-1, R/3-2 and R/3-3 along with the return of the M P Public Service Commission. It is true that initially a select list was prepared by the M P Public Service Commission reflecting the name of the petitioner for the post of Dy. Superintendent of Police and the name of respondent No.4 was not included. The respondent No.4 submitted a representation to the M P Public Service Commission, informing the M P Public Service Commission that he is a Government Servant and has scored more than the petitioner, he should be included for the post of Dy. Superintendent of Police. The application of respondent No.4 is also on record as Annexure R ?). The M P Public Service Commission after receiving the application of respondent No. 4 ? Alok Kumar Sharma and Abhishek Kumar Tiwari and after scrutinising their application forms as well as the order of preferences found that while making an entry of the data in computer in respect of column informing the status of a candidate, whether he is a Government servant or not, the word "Y" was not entered and respondent No.4 was treated as a General Category candidate though he was a Government servant entitled for age relaxation upto 35 years of age. The mistake was rectified by recasting the select list in which the name of the petitioner was omitted and name of respondent No.4 was included. It is pertinent to note that the name of the petitioner is at Sl.No.43 and name of respondent No.4 is at Sl.No.40. Petitioner has received 1432.00 marks and respondent No.4 has received 1438 marks which means he has received more marks than the petitioner. It is also an admitted fact that respondent No.4 is a permanent government servant. It is pertinent to note that the name of the petitioner is at Sl.No.43 and name of respondent No.4 is at Sl.No.40. Petitioner has received 1432.00 marks and respondent No.4 has received 1438 marks which means he has received more marks than the petitioner. It is also an admitted fact that respondent No.4 is a permanent government servant. It is true that Governor of the State of MP in exercise of powers conferred in the proviso to Article 309 has framed Rules known as MP State Services Examination Rules 2008. The Rule 6 of the aforesaid Rules provide for eligibility conditions and Rule 6(3) provides for upper age limit for the post of Home (Police Department and Jail Department) upto 30 years. The Aforesaid Rules also provides for age relaxation as granted by the State Government from time to time. It is noteworthy to mention that even prior to 2008 the upper age limit was 33 years and at present also in respect of the advertisement issued in the year 2010 the upper age limit is 33 years. Not only this, the advertisement which issued under Rules of 2008 also included a clause in respect of relaxation in age and clause 6(3) reads as under : ...[VERNACULAR TEXT OMMITED]... The aforesaid clause makes it very clear that the age prescribed under the Rules shall be applicable in respect of posts under the Excise Department, Jail Department and Home Department. The recruitment Rules relating to the post of Dy. Superintendent of Police are also on record as Annexure R 3/6 framed by the Governor. Rule 8 of the aforesaid Rules reads as under : 8. Conditions of eligibility for direct recruitment.- In order to be eligible for competing in the examination a candidate shall have to satisfy following conditions, namely:- (1) Age . - (a) He must have attained the age as specified in column 4 of Schedule III and not attained the age specified in column 5 of the said schedule on the first day of January next following the date of commencement of the examination. (b) The upper age limit shall be relaxable upto a maximum of five years if a candidate belonging to Scheduled Caste, Scheduled Tribe or other Backward Class. (b) The upper age limit shall be relaxable upto a maximum of five years if a candidate belonging to Scheduled Caste, Scheduled Tribe or other Backward Class. (c) The upper age limit shall also be relaxable in respect of candidates who are or have been employees of the Madhya Pradesh Government to the extent and subject to the conditions specified below : (i) A candidate who is a permanent Government Servant should not be more than 33 years of age. (ii) A candidate holding a post temporarily and applying for another post should not be of more than 33 years of age. This concession shall also be admissible to the contingency paid employees work charged employees and employees working in the Project Implementation Committee. (iii) A candidate who is a retrenched Government Servant shall be allowed deduct frm his age the period of all temporary service previously rendered by him upto a maximum of 7 years even if it represents more than one spell provided that the resultant age does not exceed the upper age limit by three years. ( 11. ) The aforesaid recruitment Rules dealing with the recruitment to the post of Dy. Superintendent of Police provide for a maximum age limit of 33 years in case of a Government servant. THE contention of the petitioner is that under the Rules of 2008, age limit should be treated as 30 years though it was 33 years prior to 2008 and it is again 33 years after 2008. THE aforesaid proposition cannot be accepted simply for the reason that the recruitment Rules provides for 33 years of age as upper age limit. Resultantly as the recruitment Rules governing the field provide for 33 years in case of a permanent Government Servant the respondent No.4 who was a permanent Government servant, was certainly entitled to be considered for appointment to the post of Dy. Superintendent of Police as he was within the upper age limit. Merely because some mistake has been committed, it does not mean that he should be thrown out for no fault on his part. This Court has carefully gone through the affidavit submitted by the M P Public Service Commission and the forms of order of preference submitted by the respondent No.4 and is of the considered opinion that on account of a computer mistake respondent No.4 who has been appointed to the post of Dy. This Court has carefully gone through the affidavit submitted by the M P Public Service Commission and the forms of order of preference submitted by the respondent No.4 and is of the considered opinion that on account of a computer mistake respondent No.4 who has been appointed to the post of Dy. Superintendent of Police cannot be thrown out. Learned counsel for the petitioner has placed reliance on a judgment delivered by the apex court in the case of State of UP Vs. Rafiquddin and others reported in ( AIR 1988 SC 162 ) and the aforesaid case was a case of interse seniority of candidates appointed by way of competitive examinations held in different years and the apex court in that backdrop has held that once the Commission determines the norms and make selections on conclusion of the competitive examinations, the Public Service Commission cannot revise the result by changing the norms. The apex court in para 30 has held as under : 30. Before we close we would like to refer to certain aspects which came to our notice during the hearing of the case relating to the functioning of the Public Service Commission, selection of candidates and their appointment to the Judicial Service. We were distressed to find that the Public Service Commission has been changing the norms fixed by it for considering the suitability of candidates at the behest of the State Government after the declaration of results. We have noticed that while making selection for appointment to the U.P. Judicial Service the Commission had initially fixed 40 per cent aggregate marks and minimum 35 per cent marks for viva voce test and on that basis it had recommended list of 46 candidates only. Later on at the instance of the State Government it reduced the standard of 40 per cent marks in aggregate to 35 per cent and on that basis it forwarded a list of 33 candidates to the Government for appointment to the service. Again at the behest of the State Government and with a view to implement the decision of the high level committee consisting of Chief Justice, Chief Minister and the Chairman of the Commission forwarded names of 37 candidates in 1974 ignoring the norms fixed buy it for judging the suitability of candidates. THE Commission is an independent expert body. Again at the behest of the State Government and with a view to implement the decision of the high level committee consisting of Chief Justice, Chief Minister and the Chairman of the Commission forwarded names of 37 candidates in 1974 ignoring the norms fixed buy it for judging the suitability of candidates. THE Commission is an independent expert body. It has to act in an independent manner in making the selection on the prescribed norms. It may consult the State Government and the High Court in prescribing the norms for judging the suitability of candidates if no norms are prescribed in the Rules. Once the Commission determines the norms and makes selection on the conclusion of the competitive examination and submits list of the suitable candidates to the Government it should not reopen the selection by lowering down the norms at the instance of the Government. If the practice of revising the result of competitive examination by changing norms is followed there will be confusion and the people will lose faith in the institution of Public Service Commission and the authenticity of selection. The State Government had made a preposterous suggestion to the Commission that unsuccessful candidates of 1967, 1968, 1969 should be selected and recommended for appointment by ignoring the marks obtained by them in viva voce test. If the Commission had accepted the Government's suggestion and forwarded the list and appointments had been made in 1975 as was done in the case of unplaced candidates of 1970 examination, it would have made a mockery of the entire system. We are of opinion that the Commission should take firm stand in these matters in making the selection in accordance with the norms fixed by law or fixed by it in accordance with law uninfluenced by the directions of the State Government unsupported by the Rules. ( 12. ) In the present case, the Public Service Commission has not at all changed the norms of examination at any point of time. The upper age limit prior to 2008 was 33 years in case of a Government servant it was 33 years again after 2008 and therefore the norms were certainly not at all changed by the M P Public Service Commission and therefore the judgment relied upon by the learned counsel is of no help to the petitioner. The upper age limit prior to 2008 was 33 years in case of a Government servant it was 33 years again after 2008 and therefore the norms were certainly not at all changed by the M P Public Service Commission and therefore the judgment relied upon by the learned counsel is of no help to the petitioner. Reliance has also been placed upon a judgment delivered by the apex court in the case of Centre for PIL and another Vs. Union of India and another reported in (2011) 4 SCC 1 and heavy reliance has been placed upon para 43 which reads as under : 43. Appointment to the post of Central Vigilance Commissioner must satisfy not only the eligibility criteria of the candidate but also the decision making process of the recommendation. The decision to recommend has got to be an informed decision keeping in mind the fact that the CVC as an institution has to be perform an important function of vigilance administration. If a statutory body like the HPC for any reason whatsoever fails to look into the relevant material having nexus to the object and purpose of the 2003 Act or takes into account a relevant circumstances then its decision would stand vitiated on the ground of official arbitrariness, the HPC had to take into consideration what is good for the institution and not what is good for the candidate. When institutional integrity is in question the touchstone should be "public interest" which has got to be taken into consideration by the HPC and in such cases the HPC may not insist upon proof. Keeping in view the aforesaid as in the present case, it is a fact that the mistake was committed by the M P Public Service Commission while entering data in the computer and the fact that respondent No.4 is a Government servant was omitted, the question of institutional integrity in the peculiar facts and circumstances of the case does not arise. It is a case of sheer negligence on the part of the M P Public Service Commission while entering the data in the Computer and the mistake has been rectified and a more meritorious candidate has been appointed on the recommendations of the M P Public Service Commission to the post of Dy. It is a case of sheer negligence on the part of the M P Public Service Commission while entering the data in the Computer and the mistake has been rectified and a more meritorious candidate has been appointed on the recommendations of the M P Public Service Commission to the post of Dy. Superintendent of Police and therefore the judgment relied upon by the learned counsel is again of no help to the petitioner. ( 13. ) The respondents have placed reliance upon a judgment delivered by the apex court in the case of Ramesh Gajendra Jadhav Vs. Secretary, Late S.G.S.P. Mandal and others reported in ( AIR 2010 SC 3502 ) and in the aforesaid case an employee selected on the basis of recommendations of the Commission was terminated as he was appointed to the post by mistake without cancelling the advertisement which was strictly for Scheduled Caste candidates. The apex court in the aforesaid case has held that any irregularities can be corrected and an employee illegally appointed irrespective of the fact whether the fault in that regard lies with the employer or the employee, can be terminated. It has also been further observed that a mistake does not create any right in favour of a person to be appointed or deemed to have been appointed against the reserved category. The respondents have also placed reliance in the case of Rani Durgawati Vishwavidyalaya, Jabalpur and another Vs. Santosh Kumar and another 2004 (3) MPLJ 113 . Paragraph 29 of the aforesaid judgment reads as under : 29. Even if an authority makes a promise contrary to law, the doctrine of promissory estoppel cannot be invoked. The University cannot be compelled to go against the rules. A person cannot be allowed to continue his education contrary to rules. It is beyond the powers of University to allow such candidate to continue his studies. ( 14. ) Keeping in view the aforesaid the question of granting any relief to the petitioner by applying the principles of promissory estoppel does not arise. Respondents have also placed reliance in the case of Chairman, All India Railway Recruitment Board and another Vs. K. Shyam Kumar and others (2010) 6 SCC 614 , the apex court in para 36 and 49 of the same reads as under : 36. Respondents have also placed reliance in the case of Chairman, All India Railway Recruitment Board and another Vs. K. Shyam Kumar and others (2010) 6 SCC 614 , the apex court in para 36 and 49 of the same reads as under : 36. Wednesbury applies to a decision which is so reprehensible in its defiance of logic or of accepted moral or ethical standards that no sensible person who had applied his mind to the issue to be decided could have arrived at it. Proportionality as a legal test is capable of being more precise and fastidious than a reasonableness test as well as requiring a more intrusive review of a decision made by a public authority which requires the courts to "assess the balance or equation" struck by the decision-maker. Proportionality test in some jurisdictions is also described as the "least injurious means" or "minimal impairment" test so as to safeguard the fundamental rights of citizens and to ensure a fair balance between individual rights and public interest. Suffice it to say that there has been an overlapping of all these tests in its content and structure, it is difficult to compartmentalise or lay down a straitjacket formula and to say that Wednesbury has met with its death knell is too tall a statement. Let us, however, recognise the fact that the current trend seems to favour proportionality test but Wednesbury has not met with its judicial burial and a State burial, with full honours is surely not to happen in the near future. 49. The writ petitioners, in our view, have also no legal right to insist that they should be appointed to Group D posts. Final merit list was never published. No appointment orders were issued to the candidates. Even if a number of vacancies were notified for appointment and adequate number of candidates were found successful, they would not acquire any indefeasible right to be appointed against the existing vacancies. This legal position has been settled by a catena of decisions of this Court. Reference can be made to the judgment of this Court in Shankarsan Dash v. Union of India and B. Ramanjini v. State of A.P. The apex court in the aforesaid case has held that the petitioner therein have no legal right to insist that they should be appointed. Reference can be made to the judgment of this Court in Shankarsan Dash v. Union of India and B. Ramanjini v. State of A.P. The apex court in the aforesaid case has held that the petitioner therein have no legal right to insist that they should be appointed. The apex court has also dealt with the principles of Wednesbury in the aforesaid case. ( 15. ) Keeping in view the aforesaid judgments delivered by the apex court and keeping in view the admitted fact that the respondent No.4 was a permanent Government servant and the recruitment rules provide for appointment upto 33 years of age and respondent no.4 was within the upper age limit, this Court is of the considered opinion, that the respondent M P Public Service Commission was justified in revising the select list and forwarding its to recommendations to the State of MP. The consequential action of the State of MP in issuing the appointment order and forwarding the candidature of respondent No.4 for training is also in accordance with law. The writ petition is dismissed. No order as to costs.