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Madhya Pradesh High Court · body

2016 DIGILAW 103 (MP)

Una Devi Dhurve v. State of M. P.

2016-02-09

SUJOY PAUL

body2016
ORDER : Sujoy Paul, J. The petitioner has filed this petition under Article 226 of the Constitution to challenge the order dated 6-8-2012 Annexures P/7 and P/8 whereby the respondents have advertised the post of Gram Rojgar Sahayak afresh. 2. Brief facts for adjudication of this matter are that an advertisement dated 22-3-2012 Annexure P/2 was issued whereby candidature of eligible candidates were invited for the post of Gram Rojgar Sahayak. The petitioner submitted his application with relevant documents. In turn, the Gram Panchayat prepared a merit list Annexures P/4 and P/5. The petitioner’s name finds place at No. 1 in the said merit list. She secured highest marks i.e. 88.88 whereas respondent No. 7 secured only 55.33 marks. 3. Shri Narendra Sharma, counsel for the petitioner contends that petitioner being more meritorious has a preferential right of selection and appointment on the post of Gram Rojgar Sahayak. It is further submitted that action of respondents in issuing another advertisement is bad in law. Learned counsel for the petitioner submits that new advertisement/selection process initiated pursuant to order dated 6-8-2012 Annexure P/7 and P/8 be set aside. It is submitted that once petitioner is selected being No. 1 in the merit list, the respondents cannot arbitrarily cancel the said selection. 4. Shri Piyush Jain, learned Panel Lawyer opposed the said prayer. By taking this Court to various paragraphs of the returns, it is contended by Shri Jain that although petitioner was selected for the post in question, before she could be appointed, a new policy/guidelines for contract appointment for the post of Gram Rojgar Sahayak was circulated vide memo dated 2-6-2012. Since new guidelines came into being, the Collector thought it proper to cancel the existing selection. Attention is drawn on order dated 27-7-2012 whereby Collector and District Programme Co-coordinator, District Annuppur has cancelled the earlier selection process and decided to proceed as per new circular dated 2-6-2012. Shri Jain submits that selection does not confer any right and therefore petitioner cannot pray for enforcement of the merit list in this petition filed under Article 226 of the Constitution. 5. No other point is raised by the learned counsel for the parties. 6. I have bestowed my anxious consideration on rival contentions and perused the record. The fact that petitioner was selected and secured first position in the merit list is not disputed by learned counsel for the State. 5. No other point is raised by the learned counsel for the parties. 6. I have bestowed my anxious consideration on rival contentions and perused the record. The fact that petitioner was selected and secured first position in the merit list is not disputed by learned counsel for the State. Thus, the core issue is whether the respondents were chosen in cancelling the earlier advertisement upon receiving the fresh guidelines dated 2-6-2012 ? No doubt normally selection does not confer a right of appointment but at the same time selection cannot be cancelled in an arbitrary or capricious manner. The Apex court in 2010 (7) SCC 678 , East Coast Railway and another v. Mahadev Appa Rao and others held that while no candidate acquires an indefeasible right to a post merely because he has appeared in the examination or even found 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 found to be arbitrary, appropriate directions can be issued in the matter. 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 mala fide reasons or in an arbitrary manner. 7. The Apex Court in 2010 (13) SCC 467 , State of Bihar and others v. Mithilesh Kumar held that after commencement of selection process, change of policy cannot be a ground to cancel the selection. The judgment of Division Bench of the High Court was upheld whereby action of department was disapproved in cancelling the selection process because of introduction of a new policy. This is trite law that rule of game cannot be permitted to be changed after game begins. The respondents have assigned a singular reason for cancellation of selection i.e. introduction of new policy. Thus, I am unable to approve the said decision of Collector, Annuppur. This is trite law that rule of game cannot be permitted to be changed after game begins. The respondents have assigned a singular reason for cancellation of selection i.e. introduction of new policy. Thus, I am unable to approve the said decision of Collector, Annuppur. Shri Sharma, learned counsel for the petitioner during the course of arguments contended that the respondents have not proceeded with the advertisement Annexure P/7 and P/8. In other words, Shri Sharma contended that nobody has been appointed pursuant to new impugned advertisement. 8. In the aforesaid backdrop, in my view, the singular reason for cancelling the selection process cannot sustain judicial scrutiny. It runs contrary to the aforesaid judgments of Supreme Court. The action of respondents is declared as bud in law. Resultantly, the cancellation of selection vide orders dated Annexure R/l and R/2 and advertisement is set aside. If petitioner is otherwise eligible, she be considered and appointed on the post of Gram Rojgar Sahayak. The petition is allowed. No cost.