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2014 DIGILAW 10 (JHR)

Mantu Kumar Singh v. State of Jharkhand

2014-01-03

SHREE CHANDRASHEKHAR

body2014
Order : The petitioner has approached this Court seeking a direction for considering his case for appointment on the post of Constable. 2. Heard the learned counsel appearing for the parties and perused the documents on record. 3. Pursuant to advertisement no. 01 of 2010, the petitioner participated in the selection process and he qualified in the physical as well as written Test. However, since he has not been offered appointment on the post of Constable, the present writ petition has been filed. 4. A counter-affidavit has been filed stating as under: - “12. That in reply to para 25 it is stated that the statement is incorrect. The process adopted by the selection board is justified and there is no illegality in the same. It is as per the guidelines for recruitment process. 13. That in reply to para 26 it is stated that the age of the petitioner is within the age limit as on 1.1.2010 but as his name is lower down the merit list of the general category. Hence he was not selected. The last selected candidate had secured 31 points whereas the petitioner had secured only 30 points.” 5. The learned counsel appearing for the petitioner has submitted that, the minimum qualifying mark was fixed at 21 marks which admittedly the petitioner secured. The petitioner participated in physical as well as the written test and he qualified in both the tests. The petitioner has obtained 30 marks and though, there are unfilled advertised vacancies, the respondents have illegally denied the petitioner appointment on the post of constable. Relying on a decision of the Hon'ble Supreme Court, in “Food Corpn. of India and Others Vs. Bhanu Lodh and Others”, reported in (2005) 3 SCC 618 , the learned counsel appearing for the petitioner has submitted that, even though the petitioner may not have a right for appointment however, since there are advertised vacant posts and no reason has been disclosed by the respondent-authority for stopping the process of appointment which appears to be unreasonable, a direction may be issued to the respondent authority for considering appointment of the petitioner on the post of constable. He has relied on information revealed through R.T.I, copies of which have been filed with the writ petition as annexure-3 and 4 which would indicate that the petitioner has obtained 30 marks and there are vacancies still lying vacant however, no appointment has been made. He has further submitted that, without any rational 31 marks has been fixed as cut-off mark by the respondent-authority, which is patently illegal. 6. As against the above, the learned counsel appearing for the respondents has reiterated the stand taken in the counter-affidavit and submitted that, since the candidate last selected, had obtained 31 marks whereas, the petitioner could obtain 30 marks only therefore, he was not appointed on the post of constable. 7. A perusal of annexure-3 would indicate that the petitioner secured 30 marks whereas, the appointment process has been stopped after selection of a candidate who secured 31 marks. Referring to the contention raised by the learned counsel appearing for the petitioner that 31 marks has been fixed as cut-off mark by the respondent-authority without any rational, I am of the opinion that no such cut-off mark has been fixed by the respondent-authority rather, this is the case in which the selection process has been stopped after the candidate who secured 31 marks was appointed. The petitioner has not been able to demonstrate any unreasonableness and illegality in the decision taken by the respondent authority and therefore, I am of the opinion that no direction can be issued to the respondent authority for offering appointment to the petitioner on the post of constable. Further, I find that the advertisement was issued on 25.03.2010 and the present writ petition was filed on 30.11.2012 therefore, after lapse of about 4 years no direction can be issued to the respondent-authority, even if advertised vacancies are still lying vacant, for offering the appointment to the candidates who qualified in the physical as well as the written test. 8. “Shankarsan Dash Vs. 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. 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) 7SCC 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 result, the writ petition fails and accordingly, it is dismissed.