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2013 DIGILAW 1366 (JHR)

Balram Giri v. State of Jharkhand

2013-12-17

SHREE CHANDRASHEKHAR

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ORDER By the Court - The petitioners have approached this Court seeking a direction upon the respondents for appointment on the post of Police Constable. 2. Heard learned counsel appearing for the parties and perused the documents on record. 3. Pursuant to advertisement no. 1/2010, the petitioners participated in the selection process and they qualified in the physical as well as written test. However, they were not offered appointment on the post of Constable and therefore, the petitioners have approached this Court. 4. The learned counsel appearing for the petitioners has submitted that, though there are more than 200 posts lying vacant, the respondents have not offered appointment to the petitioners, which cannot be justified in law. He has further submitted that once the petitioners qualified in the physical as well as written test, in view of the fact that, there are still more than 200 vacancies, the respondents are under a duty to fill up the notified vacancies and offer appointment to the petitioners. 5. The learned counsel appearing for the respondent-State has controverted the claim of the petitioners and submitted that after lapse of about 4 years when the selection process was initiated, no direction can be given for appointment of the petitioners on the post for which vacancy was notified in the year, 2010. 6. On perusal of the documents on record, I find that the petitioner no. 4 has sought information from the respondents through Right to Information Act and the communication dated 01.11.2012, which has been filed as Annexure-3 to the present writ petition would disclose that the petitioner no. 4 has got less marks than the marks secured by the last candidate appointed and therefore, he was not appointed on the post of Constable. In the writ petition, I do not find any material in support of the claim made by the petitioners that persons having lesser marks than the petitioners have been selected. On the contrary, letter dated 01.11.2012 would indicate that the petitioner no.4 has secured less marks than the marks obtained by the candidate last selected and therefore, he was not offered appointment on the post of Constable. 7. It is settled law that even the candidates included in the merit list have no indefeasible right to appointment, even if the vacancy exists. 7. It is settled law that even the candidates included in the merit list have no indefeasible right to appointment, even if the vacancy exists. In “Shankarsan Dash v. Union of India”, reported in (1991) 3 SCC 47 , the Hon'ble Supreme Court 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 State of Haryana v. Subash Chander Marwaha, Neelima Shangla v. State of Haryana, or Jatinder Kumar v. State of Punjab. 8. In “State of Haryana v. Subash Chander Marwaha” 15 vacancies of Subordinate Judges were advertised, and out of the selection list only 7, who had secured more than 55 per cent marks, were appointed, although under the relevant rules the eligibility condition required only 45 per cent marks. Since the High Court had recommended earlier, to the Punjab Government that only the candidates securing 55 per cent marks or more should be appointed as Subordinate Judges, the other candidates included in the select list were not appointed. They filed a writ petition before the High Court claiming a right of being appointed on the ground that vacancies existed and they were qualified and were found suitable. The writ application was allowed. They filed a writ petition before the High Court claiming a right of being appointed on the ground that vacancies existed and they were qualified and were found suitable. The writ application was allowed. While reversing the decision of the High Court, it was observed by this Court that it was open to the government to decide how many appointments should be made and although the High Court had appreciated the position correctly, it had “somehow persuaded itself to spell out a right in the candidates because in fact there were 15 vacancies”. It was expressly ruled that the existence of vacancies does not give a legal right to a selected candidate. Similarly, the claim of some of the candidates selected for appointment, who were petitioners in Jatinder Kumar v. State of Punjab, was turned down holding that it was open to the government to decide how many appointments would be made. The plea of arbitrariness was rejected in view of the facts of the case and it was held that the candidates did not acquire any right merely by applying for selection or even after selection. It is true that the claim of the petitioner in the case of Neelima Shangla v. State of Haryana, was allowed by this Court but, not on the ground that she had acquired any right by her selection and existence of vacancies. The fact was that the matter had been referred to the Public Service Commission which sent to the government only the names of 17 candidates belonging to the general category on the assumption that only 17 posts were to be filled up. The government accordingly made only 17 appointments and stated before the court that they were unable to select and appoint more candidates as the Commission had not recommended any other candidate. In this background it was observed that it is, of course, open to the government not to fill up all the vacancies for a valid reason, but the selection cannot be arbitrarily restricted to a few candidates notwithstanding the number of vacancies and the availability of qualified candidates; and, there must be a conscious application of mind by the government and the High Court before the number of persons selected for appointment is restricted. The fact that it was not for the Public Service Commission to take a decision in this regard was emphasised in this judgment. The fact that it was not for the Public Service Commission to take a decision in this regard was emphasised in this judgment. None of these decisions, therefore, supports the appellant.” 8. In “Subha B. Nair and Others v. State of Kerala and Others” reported in (2008) 7 SCC 210 the Hon'ble Supreme Court has observed as under: 19. “The question as to whether there existed 7 vacancies or 16 vacancies in the aforementioned situation loses all significance. We would assume that as per the requisition, 9 more vacancies could be filled up but it is trite that if the employer takes a policy decision not to fill up any existing vacancy, only because a person’s name is found in the select list, the same by itself would be a ground to compel the Bank to fill them up.” 9. In the present case, I find that it is not the case of the petitioners that a panel was prepared in which their names were included. The petitioners have not be able to indicate any arbitrariness on the part of the respondents. Merely because there are vacancies, it would not confer a right to be appointed, to the petitioners. The advertisement was issued in the year, 2010 and therefore, I am of the opinion that no direction can be given to the respondent-State for making appointment of the petitioners, even though they had qualified in the physical as well as written test. 10. In view of the aforesaid, I find no merit in the writ petition and accordingly, this writ petition is dismissed.