JUDGMENT Material facts necessary for the adjudication of this petition are that the respondent-University has issued an advertisement No. 04 of 1988 in the month of December, 1988, whereby it has been decided to fill up the posts of Field Assistants. Petitioner also participated in the selection process and was interviewed on 17th & 18th August, 1989. The respondent-University prepared the panel on 22.08.1989. Petitioner’s name figured at Sr. No. 8 of the panel. Eight appointments were made by the respondent-University. Petitioner instead of being appointed on regular basis as Field Assistant, was appointed on fixed salary on 21.08. 1990. The same was co-terminus with the Project. On completion of the project, the petitioner was appointed as Field Assistant in another Project known as ‘Plant-Soil Nutrient Correlation for Fertilizer Application in Apple and Peach’. He was given fixed salary of ` 1500/-per month. The project was to be terminated on 30.04.1995. The respondent-University issued another advertisement No. 2 of 1995, whereby it has decided to fill up 7 posts of Field Assistants. Petitioner approached this Court by way of C.W.P. No. 870 of 1995, seeking directions to the respondent for considering his case for appointment on regular basis as Field Assistant on the basis of earlier selection carried out pursuant to advertisement No. 4/1988. The same was disposed of by this Court on 22.04.1996. The operative portion of the judgment reads thus: “We find from the record that the decision not to appoint the petitioner on regular basis on the strength of the panel against the available vacancies lying with the University in the year 1989-90 has not been taken by the competent authority but by the Comptroller who is not a competent authority under the Act or the Statutes. The respondent-University in its reply has not specifically stated in its reply that 7 posts of Field Assistants advertised through advertisement No. 2 of 1995 (Annexure P-11) are new posts created after the expiry of panel of 1989-90.” 2. In sequel thereto, the Board of Directors of the respondent-University in its meeting held on 3rd September, 1996, decided to appoint the petitioner as Field Assistant against one of the vacant posts. Petitioner was offered appointment letter on 25th September, 1996. He joined his duties on 01.10.1996. He made a representation on 08.01.1997, seeking appointment to the post of Field Assistant from retrospective date alongwith due seniority. Petitioner was offered appointment letter on 25th September, 1996. He joined his duties on 01.10.1996. He made a representation on 08.01.1997, seeking appointment to the post of Field Assistant from retrospective date alongwith due seniority. The representation made by the petitioner was rejected by the respondent-University on 04.03.1997. Petitioner made another representation, which was also rejected by the respondent-University on 13th August, 1998. 3. Mr. K.D. Shreedhar, learned counsel for the petitioner has strenuously argued that petitioner was to be offered appointment pursuant to the directions issued by this Court in C.W.P. No. 870 of 1995, decided on 22.04.1996 with retrospective effect. In other words, his submission is that the petitioner should be deemed to have appointed from the date when the incumbents were appointed from the panel prepared by the respondent-University on 22.08.1989 to the post of Field Assistant. He also contended that once the name of the petitioner was included in the panel list and the vacancies were available, the action of the respondent not to issue appointment letter him on regular basis and to appoint him against the project at a fixed salary was violative of Articles 14 and 16 of the Constitution of India. 3. Mr. Onkar Jairath, learned counsel for the respondents has strenuously argued that the petitioner could only be appointed w.e.f. 25.09.1996. 4. I have heard the learned counsel for the parties and gone through the pleadings carefully. 5. What emerges from the facts enumerated hereinabove, is that the University had decided to fill up the posts of Field Assistants by issuing advertisement No. 04/1998. It is not in dispute that the respondent-University has not given the number of vacancies to be filled up. The interview was held on 17th /18th August, 1989. Panel was prepared on 22.08.1989. Petitioner’s name figured at Sr. No. 8. The Division Bench of this Court has given a specific finding in C.W.P. No. 870 of 1995 that the decision to appoint the petitioner on regular basis, on the basis of panel prepared against the available vacancies lying in the University in the year 1989-90 has not been taken into consideration by the competent authority. 6. The Division Bench of this Court has accepted the statement of the petitioner to be correct that four posts were lying vacant during the existence of the panel in the year 1989-90. These posts were included in the advertisement issued on 06.04.1995. 6. The Division Bench of this Court has accepted the statement of the petitioner to be correct that four posts were lying vacant during the existence of the panel in the year 1989-90. These posts were included in the advertisement issued on 06.04.1995. In these circumstances, the Division Bench of this Court had directed the University to consider the case of petitioner for appointment on regular basis. The University though had considered the case of petitioner for appointment vide decision of the Board of Directors dated 03.09.1996, however, he has been issued appointment letter only on 25.09.1996. He joined his duties on 01.10.1996. It is admitted fact that the petitioner has been continuously working in the Project w.e.f. 22.08.1990 onwards without any break, though on fixed salary. The petitioner ought to have been given deemed appointment on the basis of the panel prepared on 22.08.1989 against four vacancies, which were lying vacant. These vacancies were not to be included in the advertisement No. 02 of 1995. The action of the respondent-University to re-advertise the posts on 06.04.1995 without filling up the posts on the basis of panel prepared on 22.08.1989, was illegal. Respondent-University throughout knew that the petitioner and similarly situate persons were selected by a duly constituted Selection Committee, however, they were appointed at fixed salary in the Projects. 7. The stand taken by the respondent-University that the posts earlier advertised could not be filled up due to financial crunch, cannot be accepted. Respondent-University knew at the time when the advertisement was issued that these posts were required to be filled up and it has necessary funds to fill up the same. Respondent-University has not placed any tangible evidence on record to establish that any such decision was taken in writing not to fill up the posts due to financial crunch. It is no doubt true that no candidate has an indefeasible right to be appointed merely on the basis of selection or his name being included in the panel, however, it is equally settled by now that the appointment could not be denied arbitrarily and the decision not to offer appointment must be just and fair. 8. The action of the respondent-University not to offer appointment to the petitioner from back date was arbitrary. 8. The action of the respondent-University not to offer appointment to the petitioner from back date was arbitrary. What is arbitrary has been explained by their Lordships of the Hon’ble Supreme Court in East Coast Railway and another Versus Mahadev Appa Rao and others, (2010) 7 Supreme Court Cases 678. In this case also, the Court was dealing with the aspect where a candidate has passed the examination and his name had appeared in the select list. In this case, their Lordships have held that though a candidate who has passed an examination or whose name appears in select list does not have an indefeasible right to be appointed, yet appointment cannot be denied arbitrarily, nor can selection test be cancelled without giving proper justification. Their Lordships have held as under: “13. A Constitution Bench of this Court in Shankarsan Dash v. Union of India (1991) 3 SCC 47 had an occasion to examine whether a candidate seeking appointment to a civil post can be regarded to have acquired an indefeasible right to appointment again such post merely because his name appeared in the merit list of candidates for such post. Answering the question in the negative this Court observed: "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. 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; Neelima Shangla (Miss) v. State of Haryana 1986(4) SCC 268 or Jitender Kumar v. State of Punjab 1985 (1) SCC 122." 14. It is evident from the above that while no candidate cquires an indefeasible right to a post merely because he has appeared in the examination or even found a place in the select list, yet the State does not enjoy an unqualified prerogative to refuse an appointment in an arbitrary fashion or to disregard the merit of the candidates as reflected by the merit list prepared at the end of the selection process. The validity of the State's decision not to make an appointment is thus a matter which is not beyond judicial review before a competent Writ court. If any such decision is indeed found to be arbitrary, appropriate directions can be issued in the matter. 15. To the same effect is the decision of this Court in Union Territory of Chandigarh v. Dilbagh Singh and Ors. (1993) 1 SCC 154, where again this Court reiterated that while a candidate who finds a place in the select list may have no vested right to be appointed to any post, in the absence of any specific rules entitling him to the same, he may still be aggrieved of his non-appointment if the authority concerned acts arbitrarily or in a malafide manner. That was also a case where selection process had been cancelled by the Chandigarh Administration upon receipt of complaints about the unfair and injudicious manner in which the select list of candidates for appointment as conductors in CTU was prepared by the Selection Board. An inquiry got conducted into the said complaint proved the allegations made in the complaint to be true. An inquiry got conducted into the said complaint proved the allegations made in the complaint to be true. It was in that backdrop that action taken by the Chandigarh Administration was held to be neither discriminatory nor unjustified as the same was duly supported by valid reasons for cancelling what was described by this Court to be as a "dubious selection". 16. Applying these principles to the case at hand there is no gainsaying that while the candidates who appeared in the typewriting test had no indefeasible or absolute right to seek an appointment, yet the same did not give a licence to the competent authority to cancel the examination and the result thereof in an arbitrary manner. The least which the candidates who were otherwise eligible for appointment and who had appeared in the examination that constituted a step in aid of a possible appointment in their favour, were entitled to is to ensure that the selection process was not allowed to be scuttled for malafide reasons or in an arbitrary manner. 17. It is trite that Article 14 of the Constitution strikes at arbitrariness which is an anti thesis of the guarantee contained in Articles 14 and 16 of the Constitution. Whether or not the cancellation of the typing test was arbitrary is a question which the Court shall have to examine once a challenge is mounted to any such action, no matter the candidates do not have an indefeasible right to claim an appointment against the advertised posts. 18. What then is meant for arbitrary/arbitrariness and how far can the decision of the competent authority in the present case be described as arbitrary? 19. Black's Law Dictionary describes the term "arbitrary" in the following words: "Arbitrary-1. Depending on individual discretion; specif., determined by a judge rather than by fixed rules, procedures, or law. 2. (Of a judicial decision) founded on prejudice or preference rather than on reason or fact. This type of decision is often termed arbitrary and capricious." 20. 19. Black's Law Dictionary describes the term "arbitrary" in the following words: "Arbitrary-1. Depending on individual discretion; specif., determined by a judge rather than by fixed rules, procedures, or law. 2. (Of a judicial decision) founded on prejudice or preference rather than on reason or fact. This type of decision is often termed arbitrary and capricious." 20. To the same effect is the meaning given to the xpression "arbitrary" by Corpus Juris Secundum which explains the term in the following words: "ARBITRARY - Based alone upon one's will, and not upon any course of reasoning and exercise of judgment; bound by no law; capricious; exercised according to one's own will or caprice and therefore conveying a notion of a tendency to abuse possession of power; fixed or done capriciously or at pleasure, without adequate determining principle, no rational, or not done or acting according to reason or judgment; not based upon actuality but beyond a reasonable extent; not founded in the nature of things; not governed by any fixed rules or standard; also, in a somewhat different sense, absolute in power, despotic, or tyrannical; harsh and unforbearing. When applied to acts, "arbitrary" has been held to connote a disregard of evidence or of the proper weight thereof; to express an idea opposed to administrative, executive, judicial, or legislative discretion; and to imply at least an element of bad faith, and has been compared with "willful". 21. There is no precise statutory or other definition of the term "arbitrary". In Kumari Shrilekha Vidyarthi and Ors.v. State of U.P. and Ors. (AIR 1991 SC 537), this Court explained that the true import of the expression "arbitrariness" is more easily visualized than precisely stated or defined and that whether or not an act is arbitrary would be determined on the facts and circumstances of a given case. This Court observed: "36. The meaning and true import of arbitrariness is more easily visualized than precisely stated or defined. The question, whether an impugned act is arbitrary or not, is ultimately to be answered on the facts and in the circumstances of a given case. An obvious test to apply is to see whether there is any discernible principle emerging from the impugned act and if so, does it satisfy the test of reasonableness. The question, whether an impugned act is arbitrary or not, is ultimately to be answered on the facts and in the circumstances of a given case. An obvious test to apply is to see whether there is any discernible principle emerging from the impugned act and if so, does it satisfy the test of reasonableness. Where a mode is prescribed for doing an act and there is no impediment in following that procedure, performance of the act otherwise and in a manner which does not disclose any discernible principle which is reasonable, may itself attract the vice of arbitrariness. Every State action must be informed by reason and it follows that an act uninformed by reason, is arbitrary. Rule of law contemplates governance by laws and not by humour, whims or caprices of the men to whom the governance is entrusted for the time being. It is trite that `be you ever so high, the laws are above you'. This is what men in power must remember, always." 22. Dealing with the principle governing exercise of official power Prof. De Smith, Woolf & Jowell in their celebrated book on "Judicial Review of Administrative Action" emphasized how the decision-maker invested with the wide discretion is expected to exercise that discretion in accordance with the general principles governing exercise of power in a constitutional democracy unless of course the statute under which such power is exercisable indicates otherwise. One of the most fundamental principles of rule of law recognized in all democratic systems is that the power vested in any competent authority shall not be exercised arbitrarily and that the power is exercised that it does not lead to any unfair discrimination. The following passage from the above is in this regard apposite: "We have seen in a number of situations how the scope of an official power cannot be interpreted in isolation from general principles governing the exercise of power in a constitutional democracy. The courts presume that these principles apply to the exercise of all powers and that even where the decision-maker is invested with wide discretion, that discretion is to be exercised in accordance with those principles unless Parliament clearly indicates otherwise. One such principle, the rule of law, contains within it a number of requirements such as the right of the individual to access to the law and that power should not be arbitrarily exercised. One such principle, the rule of law, contains within it a number of requirements such as the right of the individual to access to the law and that power should not be arbitrarily exercised. The rule of law above all rests upon the principle of legal certainty, which will be considered here, along with a principle which is partly but not wholly contained within the rule of law, namely, the principle of equality, or equal treatment without unfair discrimination." 23. Arbitrariness in the making of an order by an authority can manifest itself in different forms. Non-application of mind by the authority making the order is only one of them.Every order passed by a public authority must disclose due and proper application of mind by the person making the order. This may be evident from the order itself or the record contemporaneously maintained. Application of mind is best demonstrated by disclosure of mind by the authority making the order. And disclosure is best done by recording the reasons that led the authority to pass the order in question. Absence of reasons either in the order passed by the authority or in the record contemporaneously maintained is clearly suggestive of the order being arbitrary hence legally unsustainable.” 9. Accordingly, in view of the observations made hereinabove, the petition is allowed. Annexures A-14 and A-15, dated 04.03.1997 and 13.08.1998 are quashed and set aside. The appointment of the petitioner should be considered as “deemed appointment” as Field Assistant on regular basis from the date the persons were appointed on the basis of earlier selection process initiated pursuant to advertisement No. 04 of 1988. It is further made clear that the petitioner shall not be entitled to any arrears of salary. However, the respondent-University is directed to grant notional seniority to the petitioner for all intents and purposes. No costs.