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Jharkhand High Court · body

2017 DIGILAW 2070 (JHR)

Pintu Kumar v. Union of India

2017-12-01

S.N.PATHAK

body2017
JUDGMENT : S.N. PATHAK, J. 1. The petitioner has approached this Hon'ble court with a prayer for direction upon the respondents to issue letter of appointment in favour of the petitioner and allow him to join as a Junior Engineer (Civil) in the pay scale of Rs. 9300-34.600/- with grade pay of Rs. 4,200/-. Further prayer has been made for quashing the order and decision dated 28.6.2016 with reference to C.B.R. passed by the respondents specifically respondent Nos. 4 and 5 wherein the appointment of Jr. Engineer (Civil) has been cancelled as the advertisement was published only for the General Category. Further prayer has also been made for staying of the advertisement No. 28/83 dated 7.10.2017. 2. Factual exposition• as has been delineated in the writ petition is that the petitioner is a Diploma Holder and has passed Civil Engineering Course from the Government Polytechnic Latehar in 1st Class. 3. The petitioner being eligible applied against the vacancy as advertised under the signature of Sri V.K Bhatia, IDES, Chief Executive Officer, Ramgarh for the recruitment of Assistant Programmer and Junior Engineer (Civil), Cantonment Board. Ramgarh published in the Employment News dated 7 to 14 August, 2015. 4. The application form and all the certificates duly submitted by the petitioner were verified by the office of the respondents and after finding the application form duly submitted by the petitioner as just and proper, an admit card was issued to him showing the date and time of the written test. In the admit card also, certain instructions were given to the candidates. The result of the written test was declared in which the petitioner was declared successful and after the result of the written test all the candidates who were declared successful were called for and directed to appear for the interview which was scheduled to be held on 23.2.2016. As per the schedule, the interview held on 23.2.2016 and after completion of the written test as well as the interview the final result was published by and under the joint signature of the four members of the committee. It is submitted that on observation of the result it appears that the petitioner overall obtained highest marks among all the successful candidates and was declared 1st on merit. 5. It is submitted that on observation of the result it appears that the petitioner overall obtained highest marks among all the successful candidates and was declared 1st on merit. 5. It is the case of the petitioner that he waited for a considerable period for issuance of appointment letter in his favour and on non-issuance of the same, he made representation on 18.4.2016 before the respondent No. 5 giving the details of his case and requested him to look into matter and take steps for issuance of the letter of appointment in his favour. 6. It is further case of the petitioner e that in spite of the representation dated t 18.4.2016 nothing was done by the respondents, then the petitioner personally visited the office of the respondent No. 5 where he received information from the concerned officials of the office of the respondent No. 5 that the process of issuance of letter of appointment is in progress and it will be issued soon. On receipt of such information the petitioner again waited for further considerable period but no letter of appointment was issued in favour of the petitioner Having no option he again made representation on 28.6.2016 before the respondent No.5 again requesting him to look into the matter and take early steps for issuance of letter of appointment in his favour. 7. It is specific case of the petitioner that in spite of the representations given by the petitioner nothing has been done by the respondents and as such this writ petition has been preferred. 8. Learned counsel for the petitioner Ms. Khalida Haya Rashmi submits though the petitioner fulfils all the criteria and stood 1st in merit but the respondents are not issuing him the letter of appointment. It is contrary to the provisions of Article 14, 16 and 300-A of the Constitution of India. 9. Learned counsel for the petitioner Ms. Khalida Maya Rashmi strenuously urges that the advertisement published on August, 2015 for two posts namely Assistant Computer Programmer and Junior Engineer (Civil) and the vacancy was one for each of the posts. But surprisingly. only the post for junior engineer was cancelled by the respondents and simultaneously came out with a new advertisement published on 7.10.2017 for the post of Junior Engineer only and not for Assistant Computer Programmer wherein advertisement for both the posts were being published together since 2013 advertisement. 10. But surprisingly. only the post for junior engineer was cancelled by the respondents and simultaneously came out with a new advertisement published on 7.10.2017 for the post of Junior Engineer only and not for Assistant Computer Programmer wherein advertisement for both the posts were being published together since 2013 advertisement. 10. It was further argued that petitioner succeeded in written as well as interview for the post of Junior Engineer conducted by the authorities on 21.2.2016 and 23.2.2016 respectively and the result for the same was published at the office of Ramgarh Cantonment Board's Office Notice Board on the same day which is admitted by the respondents. 11. Learned counsel further argued that instead of issuing appointment letter, the respondents cancelled the entire selection on 28.6.2016 without assigning any valid reason and decision for cancellation of the same. 12. Learned counsel brought to the knowledge of the Court, that in earlier three advertisements dated November, 2013; June, 2014; March, 2015 a clause for age relaxation was mentioned at point No.5 of the respective advertisements but no such clause was mentioned in the advertisement of August, 2015 which clearly goes to show that the respondents have acted illegally to give age relaxation. The petitioner is at no fault and no age relaxation is given to the, petitioner. Therefore, the petitioner should not suffer for the mistake of the respondents. 13. Lastly. it was argued by the learned counsel for the petitioner that the respondents should have decided the criteria of application before publication of advertisement and the rules are not to be decided after selection process has come to an end and when the name of the petitioner figures at the top of the merit list, the issuance of appointment letter cannot be denied in view of settled principle of law. 14. In order to buttress her argument, learned counsel places heavy reliance on : I. Director, SCTI for Medical Science & Technology and another v. M. Pushkaran, reported in (2008) 1 SCC 448 . II. Asha Kaul v. State of J&K, reported in 1993 SCC (L & S) 637. III. A.P. Aggarwal v. Government of NCT of Delhi, reported in 2000 SCC (L & S) 206. IV. A.P. Public Service Commission v. P. Chandra Mouleesware Reddy and others, reported in 2006 (8) SCC 330 V. Kshama Mandal and others v. State of Jharkhand & others (W.P. (S) No. 3165/2016) VI. III. A.P. Aggarwal v. Government of NCT of Delhi, reported in 2000 SCC (L & S) 206. IV. A.P. Public Service Commission v. P. Chandra Mouleesware Reddy and others, reported in 2006 (8) SCC 330 V. Kshama Mandal and others v. State of Jharkhand & others (W.P. (S) No. 3165/2016) VI. Amar Nath Singh and others v. Union of India and others, reported in (1998) 3 UPLBEC 1885 15. Summing up her argument, learned counsel argued that in view of the aforesaid judicial pronouncements; it squarely covers the case of the petitioner. The order of cancellation dated 28.6.2016 be quashed and set aside and also advertisement dated 7.10.2017 be stayed. 16. Per contra counter-affidavit has been filed. 17. Mr. Kalyan Roy, Advocate assisted by Mr. Shidhartha Roy, Advocate-appearing for the respondent No.5 vehemently opposes the contention of the learned counsel for the petitioner. 18. Mr. Kalyan Roy argued that admittedly the petitioner has obtained the highest marks but he was not considered for appointment as advertisement itself stood cancelled. The entire selection process stood cancelled and thereafter a fresh advertisement has been issued and as such this writ petition has become infructuous. 19. Justifying the impugned order, learned counsel argued that inadvertently the then Chief Executive Officer had invited application for appointment of Assistant Computer Programmer and Junior Engineer (Civil) in the Cantonment Board Ramgarh for the general candidates whereas the advertisement was to be published for appointment of other categories viz. O.B.C., S.C., S.T. and Ex-serviceman candidates also. The Board in its resolution has taken decision to rectify the said defect and in pursuance to the aforesaid direction received from the higher authorities, the Board vide resolution No. C.B.R. 5 dated 28.6.2016 has cancelled the (sic) Engineer (Civil). 20. It was further argued that although the petitioner has obtained the highest marks but the appointment could not be given to any candidates, on the post of Junior Engineer (Civil) due to cancellation of advertisement, however, the Board decided to publish fresh advertisement for filling up of the post of Junior Engineer (Civil). 21. Learned counsel further argued that there is no illegality or any infirmity in the cancellation of the advertisement as well as the entire selection process and also in view of the fact that a fresh advertisement has been issued the present writ petition has become infructuous and as such fit to be dismissed. 22. 21. Learned counsel further argued that there is no illegality or any infirmity in the cancellation of the advertisement as well as the entire selection process and also in view of the fact that a fresh advertisement has been issued the present writ petition has become infructuous and as such fit to be dismissed. 22. Learned counsel draws the attention of the Court towards supplementary counter-affidavit dated 2.8.2017 and refers to paragraph Nos. 4, 5, 6, 7, 8, 10, 11 and 12 which are quoted hereunder: "4. That the deponent states that as a matter of fact all exercise in respect of appointment of Junior Engineer (Civil) has been and the post was a general one, and therefore no age relaxation was admissible for reserved categories i.e. S.C. S.T. and OBC candidates, and since the Board inadvertently accepted applications from S.T. S.C. and OBC category of candidates, hence the entire selection process was cancelled by the Board vide resolution No. 5 dated 28.6.2016 (Already annexed as Annexure-A of the counter-affidavit filed by the Board) since the Board is competent authority to cancel the entire selection process. 5. That the deponent states that as soon as the aforesaid ambiguity came to the knowledge of the Board, in order to rectify the defect the Board had to issue the aforesaid resolution and the entire advertisement was cancelled. 6. That due to cancellation of the advertisement the petitioner although obtained the highest marks could not be appointed nor any candidate was given appointment. 7. That the deponent states that since the advertisement itself was cancelled, hence the prayer of the petitioner itself has become infructuous and the writ petition is liable to be dismissed on the said score alone. 8. That the deponent states that so far cancellation of previous advertisements are concerned it is stated that for the first tune the advertisement was published in November, 2013 and due to administrative reasons the same was cancelled. 10. That the third advertisement that was Published in March, 2015 was also cancelled due to administrative reasons and the said fact is evident from the recent advertisement of the month August, 2015 itself which is a part of Annexure-1 to the writ petition. 11. 10. That the third advertisement that was Published in March, 2015 was also cancelled due to administrative reasons and the said fact is evident from the recent advertisement of the month August, 2015 itself which is a part of Annexure-1 to the writ petition. 11. That the deponent states that so far as the earlier advertisements are concerned, the petitioner is no way affected with the cancellation of the same either directly or indirectly as he r was not an applicant at that point of time. 12. That the deponent states that I since the recent advertisement published in the month of August, 2015 I was also cancelled owing to the reasons already stated in the aforesaid paragraphs, the petitioner has no right to be appointed in the post of Junior Engineer (Civil) and hence the writ petition is liable to be dismissed. Justifying the impugned order, learned counsel submits that earlier advertisements were published for the same post in November, 2013 and June, 2014 and the 3rd advertisement published in March, 2015 was also cancelled due to administrative reasons. 23. Learned counsel argued that reasons for Cancellation was the ambiguity and for the administrative reasons and hence there is no illegality and any infirmity in the order of cancellation and as such the writ petition is fit to be dismissed. 24. To strengthen his argument, learned counsel for the respondents heavily placed reliance on the judgment of "Shankarsan Dash v. Union of India", reported in 1991 (3) SCC 47 ; State of A.P. and others v. D. Dastagiri and others, reported in (2003) 5 SCC 373 . 25. Be that as it may, having gone through the rival submissions of the parties, this Court is of the considered view that the case of the petitioner needs consideration. From perusal of the entire records brought on Board by way of different affidavits including the writ petition it is clear that earlier also Cantonment Board came out with advertisement in the year 2013-2014 and again in 2015 which stood cancelled for administrative reasons. No administrative reasons have been assigned. It is only mentioned that inadvertently the advertisements were issued and for the reasons the age relaxation could not be given to reserved category. The advertisement of 2015 was also cancelled. 26. No administrative reasons have been assigned. It is only mentioned that inadvertently the advertisements were issued and for the reasons the age relaxation could not be given to reserved category. The advertisement of 2015 was also cancelled. 26. From perusal of the records it is apparent that the post of Junior Engineer (Civil) was advertised along with the post of Assistant Computer Programmer. For both the posts. the number of posts advertised was only one for general category candidate but it is surprising that the post advertised for Junior Engineer (Civil) only was cancelled by the respondents. 27. The respondents have continuously advertised the said post for three times and for the same reason i.e. for administrative reasons all have been cancelled. The reasons are not acceptable to this Court as nowhere it has been mentioned that what were the administrative reasons and why the same ambiguity continued. It appears that the respondents continuously cancelled the process of selection awaiting for a candidate of their own choice to be selected. The contention of the learned counsel for the respondents is that recruitment process was not complete on the ground that results were not published is not tenable as the said result was published at the office of the Ramgarh Cantonment Board i.e. Notice Board and certified copy of the said resolution dated 23.2.2016 was supplied to the petitioner under Right to Information Act which is evident from Annexure-8 of the reply to the counter-affidavit filed by the petitioner dated 28.6.2017. The Hon’ble Apex Court in case of "Md. Sohrab Khan v. Aligarh Muslim University and others. reported in JT 2009 (2) SC 666 has held that "Selection Committee cannot go behind advertisement. No interference with the impugned judgment called for." The petitioner was selected in view of the advertisement as he fulfilled all the criteria and conditions laid down in the advertisement and it was only after his selection process all selection was cancelled. The Hon'ble Apex Court in case of "K. Manjusree v. State of A.P. and others, reported in AIR 2008 SC 1470 has observed that it is a settled principle of law that rules of game cannot be changed, when the game is over. The said view was also reiterated in case of "Tej Prakash Pathak and others v. Rjasthan High Court and others, reported in (2013) 4 SCC 540 . The said view was also reiterated in case of "Tej Prakash Pathak and others v. Rjasthan High Court and others, reported in (2013) 4 SCC 540 . In the instant case, when the selection process was complete, the respondents have come out with a new Rule floating a fresh advertisement which is not permitted in the eyes of law. In view of the settled propositions of law and in view of the admitted fact that the petitioners have duly been selected in accordance with law and their names find place in the merit list, there is no occasion for the respondents to deny the issuance of appointment letters to the petitioners. The Hon'ble Apex Court in case of "A.P. Public Service Commission v. P. Chandra Mouleesware Reddy and others", reported in (2006) 8 SCC 330 observed: "The candidates, therefore, in our opinion, should not suffer owing to a mistake on the part of the State. The Tribunal, we have noticed hereinbefore, directed the Commission to notify the remaining nine candidates in the merit order following the "Rule of Reservation". It was categorically stated that those who would be appointed in terms thereof would be able to claim any right only with prospective effect i.e. from the date of their actual joining of service. It, therefore, cannot be said that the order of the Tribunal was in any manner unjustified, arbitrary or unreasonable. The High Court, thus. In our opinion, tightly refused to exercise its jurisdiction under Article 226 of the Constitution of India." 28. In case of R.S. Mittal v. Union of India, reported in 1995 Supp (2) SCC 230 the Court held : "10. It is no doubt correct that a person on the select panel has no vested right to be appointed to the post for which he has been selected. He has a right to be considered for appointment. But at the same time, the appointing authority cannot ignore the select panel or decline to make the appointment on its whims. When a person has been selected by the Selection Board and there is a vacancy which can be offered to him, keeping in view his merit position, then, ordinarily, there is no justification to ignore him for appointment. There has to be a justifiable reason to decline to appoint a person who is on the select panel. When a person has been selected by the Selection Board and there is a vacancy which can be offered to him, keeping in view his merit position, then, ordinarily, there is no justification to ignore him for appointment. There has to be a justifiable reason to decline to appoint a person who is on the select panel. In the present case, there has been a mere inaction on the part of the Government. No reason whatsoever, not to talk of a justifiable reason, was given as to why the appointments were not offered to the candidates expeditiously and in accordance with law. The appointment should have been offered to Mr. Murgad within a reasonable time of availability of the vacancy and thereafter to the next candidate. The Central Government's approach in this case was wholly unjustified." 29. In "Asha Kaul v. State of J & K". reported in (1993) 2 SCC 573 the Hon'ble Apex Court held : "8. It is true that mere inclusion in the select list does not confer upon the candidates included therein an indefeasible right to appointment (State of Haryana v. Subash Chander Marwaha; Mani subrat Jain v. State of Haryana; State of Kerala v. A. Lakshmikutty) but that is only one aspect of the matter. The other aspect is the obligation of the Government to act fairly. The whole exercise cannot be reduced to a farce. Having sent a requisition/request to the Commission to select a particular number of candidates for a particular category, in pursuance of which the Commission issues a notification, holds a written test, conducts interviews, prepares a select list and then communicates to the Government the Government cannot quietly and without good and valid reasons nullify the whole exercise and tell the candidates when they complain that they have no legal right to appointment. We do not think that any Government can adopt such a stand with any justification today." 30. The respondents heavily relied in the case of "Shankarsan Dash v. Union of India", reported in (1991) 3 SCC 47 and argued that In view of the ratio laid down in the case of Shankarsan Das the petitioner is not entitled for any relief. The said contention of the learned counsel for the respondents does not come to his help in view of the aforesaid decisions. 31. The said contention of the learned counsel for the respondents does not come to his help in view of the aforesaid decisions. 31. There can be no quarrel about the law, laid down by the Constitution Bench of the Supreme Court in Shankarsan Dash's case (supra), in which it has been held that 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 do indicate, the State has no legal duty to fill up all or any of the vacancies. Though this is the ratio of the case in Sankarsan Dash, the fact remains that it is hedged with certain further observations which cannot be overlooked. The Constitution Bench was conscious of the fact that there may be certain circumstances in which recruitment process may not be required to be cancelled or a decision of the competent authority may not be only arbitrary but capricious. Conscious of this fact, the Constitution Bench further observed that though ordinarily notification merely amounts to an invitation and the candidates who apply for recruitment do not acquire any right, to the post it does not mean that the State has the licence of acting in an arbitrary manner. The decision 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 merits of the candidates as reflected at the recruitment test, and no discrimination can be permitted, With reference to the decisions in State of Haryana v. Subhas Chander Marwah, AIR 1973 SC 2216 ; Miss Neelma Shangla v. State of Haryana, AIR 1987 SC 169 and Jitendra Kumar v. State of Punjab, AIR 1984 SC 1850 . The Constitution Bench observed that no discordant note is to be found in the three aforesaid decisions. Therefore, the muck, which has been created on the basis of Shankarsan Dash's case (supra), that the order of cancellation of the recruitment process is sacrosanct and the candidates who have applied for the various posts have no right to claim appointment merely because the advertisement tantamount to an offer, stands exploded. Therefore, the muck, which has been created on the basis of Shankarsan Dash's case (supra), that the order of cancellation of the recruitment process is sacrosanct and the candidates who have applied for the various posts have no right to claim appointment merely because the advertisement tantamount to an offer, stands exploded. In Dil Bagh Singh's, case (supra), Supreme Court found that a 'dubious select list, was prepared in an unfair and injudicious manner; similarly in Preetpal Singh's case (supra), selection was not objective and fair, and in Hanuman Prasad's case (supra), mass copying and mal-practices were resorted to and there was a preliminary report of C.B.I. that indicated that mal-practices had been committed, and consequently, the orders for cancellation of the results/recruitment were upheld. The Supreme Court has not upheld the cancellation of selection of the recruitment process on the ground that it was beyond the pale of challenge before the Courts even though the concerned authority has acted arbitrarily or is an unfair manner, but on proof of the facts, of failure to adopt common eligibility criterion, charges or corruption levelled against the members of the Selection Board and blatant and flagrant disregard of the procedure prescribed and the like. In some of the cases, the Supreme Court has gone even to the extent of observing that in' case of mass copying, corruption and other serious irregularities and illegalities, the principles of natural justice are not required to be followed by issuing notices to the affected persons and hearing them. A reference in this regard may be made to the case of Maharashtra State Board of Secondary Education v. K.S. Gandhi and others, JT 1991 (2) SC 296 and Bishwaranjan Sahoo (supra). 32. The law, therefore, is well settled that mere inclusion in the select list does not confer upon the candidates included therein an indefeasible right to appointment, but that is only one aspect of the matter. The other aspect is the obligation of the State to act fairly. The whole exercise cannot be reduced to a farce. The observations made in Asha. Kaul (Mrs.) and another v. State of Jammu and Kashmir and others, (1993) 2 SCC 573 , may profitably be adverted to In that case, the select list prepared by the Public Service. Commission was sent for approval of the Government. The whole exercise cannot be reduced to a farce. The observations made in Asha. Kaul (Mrs.) and another v. State of Jammu and Kashmir and others, (1993) 2 SCC 573 , may profitably be adverted to In that case, the select list prepared by the Public Service. Commission was sent for approval of the Government. The list was kept pending by the Government on being prima facie satisfied with some of the complaints received against the selection process. Subsequently, the State Government asked for the list of 20 candidates and appointed them. Names of rest of the 7 candidates in the list were not approved. It was held that the Government has no absolute discretion in the manner, it must act fairly; it cannot pick and choose or approve a part of it and reject the other part and must record reasons for disapproval of one set of candidates and approval of other candidates. When selection list is sent in accordance with the requisition of the Government, it must accord its sanction irrespective of the number of vacancies. The Government's action in rejecting a part of the list was found to be unsustainable. The most striking observation in Asha Kaul's case (supra), is that "the Government cannot quietly and without good and valid reasons nullify the whole exercise and tell the candidates when they complain that they have no legal right to appointment. No Government can adopt such a stand with any justification today." Even in K.S. Gandhi's case (supra), in which the order of cancellation of result on account of mass copying was cancelled, the Supreme Court held that if the order canceling the examination came to be passed, the record should indicate the reason though the order may not contain. reasons. Every candidate who has applied for a particular post in pursuance of the advertisement and who has gone through the rigor of the entire process of selection, in my view, is entitled to have a legitimate expectation for being considered for appointment, may be that he is ultimately not appointed. Appointment on a post is one thing while consideration for appointment is another. Both the things cannot be mixed up and the confusion, if any, in the mind of all and sundry, must be clear with reference to these two aspects of the matter, which are quite separate and distinct. Appointment on a post is one thing while consideration for appointment is another. Both the things cannot be mixed up and the confusion, if any, in the mind of all and sundry, must be clear with reference to these two aspects of the matter, which are quite separate and distinct. The order of cancellation of the recruitment process cannot be attached with that much of sanctity as it may render it inviolable or beyond the pale of scrutiny. The law is that if an order has been passed to set at naught the entire selection process, it has to conform to the test of reasonableness and fairness. The order should be passed bona fide and must be passed on some concrete and tangible material and certainly it cannot be the outcome of an arbitrary act imbued with subjectively. 33. The Courts certainly have the power and authority to consider the efficacy and sufficiency of the grounds and the material in the wake of which an order of cancellation came into being. 34. In the backdrop of the above legal position, I am conscious of the fact that a selection process is not sacrosanct. It can be cancelled, scrapped or annulled if there is concrete and reliable evidence of large scale bungling, mal-practice, corruption, favoritism and nepotism of the like of if there is a violation of fundamental procedural requirements. It is true that fabrication would obviously either be not known or no one could come forward to bear the burnt. Nevertheless, there should be wealth of material to take the extreme and drastic step of scrapping the whole recruitment process, particularly when it has reached the final stage. The cancellation or scrapping of the recruitment has very serious repercussions and impact not only on the candidates who have undergone the rigors of the test but on the general public and the Department itself. It also casts aspersions on the members of the Recruitment Committee. I am constrained to observe that the order of scrapping of the recruitment by the respondents may not be mala-fide but is in utter violation of the established norms and devoid of the considerations, fairness and reasonableness. 35. As a cumulative effect of the aforesaid Rules, Guidelines and Judicial Pronouncements the writ petition is allowed. I am constrained to observe that the order of scrapping of the recruitment by the respondents may not be mala-fide but is in utter violation of the established norms and devoid of the considerations, fairness and reasonableness. 35. As a cumulative effect of the aforesaid Rules, Guidelines and Judicial Pronouncements the writ petition is allowed. As a result cancellation of entire selection process dated 28.6.2016 is hereby quashed and set aside and further the subsequent, advertisement No. 28/83 dated 7.10.2017 is also hereby quashed and set aside. 36. The respondents are directed to declare the result within a period of eight weeks from the date of receipt of a copy of this order. 37. Let it be made clear that in pursuance to the quashment of the order, an offer of appointment be issued to the petitioner to the post of Junior Engineer (Civil) within a further period of two weeks. Writ petition allowed.