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2014 DIGILAW 1648 (DEL)

Anit Kumar v. Union of India

2014-05-23

G.ROHINI, RAJIV SAHAI ENDLAW

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Judgment : 1. This intra court appeal impugns the judgment dated 6th February, 2014 of the learned Single Judge of this Court of dismissal of W.P.(C) No.1022/2010 preferred by the appellant. 2. Though the appeal is accompanied with an application for condonation of 54 days delay in filing thereof and the reasons given therefor are vague but instead of giving option to the counsel for the appellant to file a better affidavit in support thereof, we have heard the counsels on the merits of the appeal. 3. The appellant, in pursuance to the notice published by the respondent No.3 Bharat Petroleum Corporation Ltd. (BPCL) in the newspaper of 2nd July, 2004, inviting applications for engagement as its retail outlet dealer in Delhi, applied under the Scheduled Caste Category. Upon not receiving any intimation from the respondent No.3 BPCL, the appellant, on enquiry, learnt that no appointment as a retail outlet dealer could be considered till the allotment of land and which had not been made available. The respondent No.3 BPCL ultimately vide letter dated 25th April, 2008 informed the appellant that since the land had not been made available for setting up of a retail outlet till then, the earlier notice inviting applications had been withdrawn. The application fee paid by the appellant was also refunded. 4. The appellant however requested the respondent No.3 BPCL to keep his application pending, for consideration as and when the land was made available. Upon the respondent No.3 BPCL not agreeing thereto, the writ petition from which this appeal arises, was filed. The appellant, at the time of hearing, confined the relief in the writ petition to, the respondent No.3 BPCL conducting interviews for appointment/allotment, even if no appointment/allotment was to be immediately made and was to be made only when the land was so made available though in the writ petition, allegations of arbitrariness and discrimination were also made, contending that one Ms. Jaya Rashmi had been appointed/allotted in pursuance to the notice in response to which the appellant had applied. 5. The learned Single Judge held that the allegations of arbitrariness and discrimination were not made out as the aforesaid Ms. Jaya Rashmi was also not appointed/allotted. It was further held that no direction could be issued to the respondent No.3 BPCL to make a selection when appointment/allotment was not to be made then, owing to the admitted non-availability of land. The learned Single Judge held that the allegations of arbitrariness and discrimination were not made out as the aforesaid Ms. Jaya Rashmi was also not appointed/allotted. It was further held that no direction could be issued to the respondent No.3 BPCL to make a selection when appointment/allotment was not to be made then, owing to the admitted non-availability of land. The learned Single Judge held that mere publication of the notice by the respondent No.3 BPCL inviting applications did not create any rights in favour of the appellant. 6. The counsel for the appellant before us also has confined the relief only to directing the respondent No.3 BPCL to proceed with the selection process and if the appellant is so selected, to make his appointment/allotment, subject to availability of land. 7. We are unable to agree. Admittedly, there is to be no appointment/allotment as of today, due to non-availability of land or for whatever reason. We fail to see, as to under what law, we can direct the respondent No.3 BPCL to make a selection for appointment/allotment which is not possible today. No direction to any authority to make a selection, say for a post which is non-existent, can be issued. What the appellant is wanting us to do is to compel the respondent No.3 BPCL to make a wait list and for which no provision is shown. 8. There is another aspect of the matter. The respondent No.3 BPCL is entitled to evolve a policy for such appointment/allotment and to change such policy from time to time. As is obvious, ten years have already passed since the notice, in pursuance to which the appellant had applied, was published. To direct the respondent No.3 BPCL to, in pursuance to the said notice, make a selection when no post is available, would amount to restraining the respondent No.3 BPCL from changing the policy for appointment/allotment of dealers for retail outlet and which the respondent No.3 BPCL may otherwise in law be entitled to. No such ground even has been urged by the appellant that the respondent No.3 BPCL is not entitled to change the policy in pursuance to which the notice inviting applications was published. No such ground even has been urged by the appellant that the respondent No.3 BPCL is not entitled to change the policy in pursuance to which the notice inviting applications was published. Moreover, though the appellant may have met the qualifications if any prescribed in the notice inviting applications for appointment, at the time when the same was published, the appellant may not be complying with the same today and/or may not be complying therewith, when the occasion for actual appointment/allotment arises. For this reason also no such direction can be issued. 9. The learned Single Judge is correct also in observing that publication of an advertisement inviting applications does not create any right in favour of those making the application. Reference if any required in this regard can be made to the judgment of the Constitution Bench in Shankarsan Dash Vs. Union of India (1991) 3 SCC 47 laying down that the notification merely amounts to an invitation to qualified candidates to apply for recruitment and or their selection; they do not acquire any right to the post and that unless the relevant Recruitment Rules so indicate, the State is under no legal duty to fill up, all or any of the vacancies. It was however held that the same does not imply that the State has the license of acting arbitrarily. It is not the case here that the decision of the respondent No.3 BPCL to scrap the notice inviting applications is arbitrary. In fact, the appellant also agrees that no appointment/allotment can be made as of now owing to non-availability of land. In fact, the Supreme Court in R.S. Mittal Vs. Union of India 1995 Supp. (2) SCC 230 has held that even a selected candidate has no vested right. Similarly, in State of U.P. Vs. Rajkumar Sharma (2006) 3 SCC 330 it was held that mere inclusion in the select list does not confer any right to be selected, even if some of the vacancies remain unfulfilled. To the same effect is the judgment in Ashwani Kumar Singh Vs. U.P. Public Service Commission (2003) 11 SCC 584 . 10. There is thus no merit in the appeal which is dismissed. We refrain from imposing any costs on the appellant for bringing a frivolous lis, devoid of any legal basis, before the Court.