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2019 DIGILAW 1298 (ALL)

Dev Dutt Sharma v. State Of U. P.

2019-05-13

SAURABH LAVANIA

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JUDGMENT : Saurabh Lavania, J. Heard learned counsel for the petitioner, Sri Shishir Jain, learned counsel for the opposite party Nos. 2 and 3 and Sri Amit Sharma, learned counsel for the opposite party No. 1. 2. The present writ petition has been filed for the following main reliefs:- "(1) Issue a writ, order or direction in the nature of mandamus or a writ, order or direction in the nature of mandamus, directing the opposite parties to give an appointment on the post of Assistant Accountant to the petitioner on the basis of the recommendations made by the selection committee held on 18.11.1991 in view of the fact that 18 vacancies were lying vacant as on 31.03.1992; (2) Issue a writ, order or direction in the nature of mandamus, or a writ, order or direction restraining the opposite parties to process any further selection or regularization on the post of Assistant Accountant unless and until the remaining five persons whose names placed in the panel prepared by the Nigam on 18.11.1991 are given an appointment on the post of Assistant Accountant; (3) Issue a writ in the nature of mandamus or a writ, order or direction in the nature of mandamus, directing the opposite parties to pay the regular salary to the petitioner in regular pay scale of Rs. 1350-2200 which is being paid to the regular employees of the Nigam." 3. The brief facts, as borne out, from the writ petition, for the purposes of reliefs sought, are that the petitioner was appointed (not on regular basis) on the post of Assistant Account in U.P. Rajkiya Nirman Nigam (in short "U.P.R.N.N.") on 01.01.1987. Prior to it, the petitioner worked in U.P. State Sugar Cooperative as Assistant Accountant. In U.P.R.N.N regular selection for appointment on the vacant post of Assistant Accountant was held. A select list was prepared on 18.11.1991. In the select list, the name of the petitioner finds place at serial No. 10. Some persons were appointed but the petitioner was ignored. Being a selected candidate he ought to have been given appointment but in arbitrary manner the appointed was not given to the petitioner. Thus, the petitioner approached this Court for reliefs sought. 4. In response to the averments made in the writ petition, the contesting opposite party Nos. 2 to 3 have filed the counter affidavit. Being a selected candidate he ought to have been given appointment but in arbitrary manner the appointed was not given to the petitioner. Thus, the petitioner approached this Court for reliefs sought. 4. In response to the averments made in the writ petition, the contesting opposite party Nos. 2 to 3 have filed the counter affidavit. The contesting opposite parties-U.P.R.N.N. disputed the select list for want of record. In addition to it, the stand of the opposite parties in the counter affidavit is that a selected candidate that too a candidate put in waiting list has not right to claim appointment even if post are vacant. The name of the petitioner finds place at the bottom of the waiting list. The select list/waiting list (Annexure No. 8 to the writ petition), on the basis of which the petitioner is claiming the reliefs sought in the writ petition, has already lapsed and on the basis of the said list, no further appointment can be made. Accordingly, on the basis of the select list, the petitioner is not entitled to the reliefs, as prayed for in the writ petition. Prayer is accordingly to dismiss the writ petition. 5. In the rejoinder affidavit, the petitioner has not pointed out anything contrary to the averments made in the counter affidavit with respect to life of the select list and right of a candidate whose name finds place in select list/waiting list. 6. Submission of learned counsel for the petitioner is that the name of the petitioner finds place in the select list dated 18.11.1991 and from the select list appointments were made and in an arbitrary manner the candidature of petitioner was ignored. Being selected candidate the petitioner has right to get appointed. The prayer is to allow the writ petition with direction to provide appointment to the petitioner. 7. Per contra, the learned counsel for the opposite party No. 2 and 3, Sri Shishir Jain submitted that a selected candidate has no right to get an appointment. Mere inclusion of name in the select list does not confer any vested right to get an order of appointment. The selected candidate has no indefeasible right to be appointed. The petitioner is at the bottom of the waiting list and he is not entitled to appointment. The select list/waiting list has lapsed and can not be enforced. Mere inclusion of name in the select list does not confer any vested right to get an order of appointment. The selected candidate has no indefeasible right to be appointed. The petitioner is at the bottom of the waiting list and he is not entitled to appointment. The select list/waiting list has lapsed and can not be enforced. The petitioner has approached this Court for the reliefs sought after lapse of select list. The writ petition filed in the year 1995, for select list of 18.11.1991, suffers from latches. The prayer is accordingly to dismiss the writ petition. 8. The reliefs, quoted above, have been sought on the basis of the select list prepared by the opposite party No. 2 and 3, annexed as Annexure No. 8 to the writ petition. It appears from the select list that the name of the petitioner finds place at serial No. 10 of the waiting list. More particularly the name of the petitioner is at the bottom of the waiting list. 9. Considered the submissions of the counsels for the parties and perused the record. 10. Admittedly, the petitioner was engaged by the opposite party Nos. 2 and 3, as a daily wager on the post of Office Assistant, which was subsequently changed to Assistant Accountant and the petitioner has been regularized on the said post vide order dated 26th May, 2008. The order of regularization is on record, as Annexure No. R.A.-1 to the rejoinder affidavit. The writ petition, based on the select list dated 18.11.1991, for issuing the writ of mandamus in relation to providing appointment on the post of Assistant Accountant was filed in the year 1995 by the petitioner. The basis of the reliefs sought, i.e. select list dated 18.11.1991, has already lapsed. 11. The reliefs sought in the writ petition clearly indicates that the petitioner has approached this Court for issuance of the writ of mandamus. 12. It is settled law that a writ petition under Article 226 of the Constitution is maintainable for enforcing the statutory or legal right or when there is a complaint by an employee that there is a breach of a statutory duty on the part of the employer. Therefore, there must be a judicially enforceable right for the enforcement of which the writ jurisdiction can be resorted to. Therefore, there must be a judicially enforceable right for the enforcement of which the writ jurisdiction can be resorted to. The Court can enforce the performance of a statutory duty by public bodies through its writ jurisdiction at the behest of a person, provided such person satisfies the Court that he/ she has a legal right to insist on such performance. The existence of the said right is a condition precedent for invoking the writ jurisdiction. (Vide Calcutta Gas Company (Propriety) Ltd. v. State of West Bengal and Ors, (1962) AIR SC 1044; Mani Subrat Jain and Ors. v. State of Haryana, (1977) AIR SC 276; State of Kerala v. Smt. A. Lakshmi Kutty, (1987) AIR SC 331; State of Kerala v. K.G. Madhavan Pillai and Ors, (1989) AIR SC 49; Krishan Lal v. State of J & K, (1994) 4 SCC 422 ; State Bank of Patiala and Ors. v. S.K. Sharma, (1996) AIR SC 1669; Rajendra Singh v. State of M.P., (1996) AIR SC 2736; Rani Laxmibai Kshetriya Gramin Bank v. Chand Behari Kapoor and Ors., (1998) AIR SC 3104; Utkal University v. Dr. Nrusingha Charan Sarangi and Ors., (1999) AIR SC 943; State of Punjab v. Raghbir Chand Sharma and Anr., (2001) AIR SC 2900; and Sadhana Lodh v. National Insurance Co. Ltd. and Anr, (2003) AIR SC 1561). 13. On the right of a candidate in the select list, the view of the Apex Court is that a candidate whose name finds place in the select list has no legal right to get appointment. 14. The Hon'ble Supreme Court in the case of State of Haryana v. Subash Chander Marwaha, (1974) 3 SCC 220 , has observed as under: "10. One fails to see how the existence of vacancies give a legal right to a candidate to be selected for appointment. The examination is for the purpose of showing that a particular candidate is eligible for consideration. The selection for appointment comes later. It is open then to the Government to decide how many appointments shall be made. The mere fact that a candidate's name appears in the list will not entitle him to a mandamus that he be appointed. The examination is for the purpose of showing that a particular candidate is eligible for consideration. The selection for appointment comes later. It is open then to the Government to decide how many appointments shall be made. The mere fact that a candidate's name appears in the list will not entitle him to a mandamus that he be appointed. Indeed, if the State Government while making the selection for appointment had departed from the ranking given in the list, there would have been a legitimate grievance on the ground that the State Government had departed from the rules in this respect. The true effect of Rule 10 in Part C is that if and when the State Government propose to make appointments of Subordinate Judges the State Government (i) shall not make such appointments by travelling outside the list, and (ii) shall make the selection for appointments strictly in the order the candidates have been placed in the list published in the Government Gazette. In the present case neither of these two requirements is infringed by the Government. They have appointed the first seven persons in the list as Subordinate Judges. Apart from these constraints on the power to make the appointments, Rule 10 does not impose any other constraint. There is no constraint that the Government shall make an appointment of a Subordinate Judge either because there are vacancies or because a list of candidates has been prepared and is in existence. 11. It must be remembered that the petition is for a mandamus. This Court has pointed out in Dr Rai Shivendra Bahadur v. Governing Body of the Nalanda College, (1962) AIR SC 1210: 1962 Supp (2) SCR 144 : (1962) 2 SCJ 208 : (1962) 1 Lab LJ 247 : (1962) 4 FIR 507.] that in order that mandamus may issue to compel an authority to do something, it must be shown that the statute imposes a legal duty on that authority and the aggrieved party has a legal right under the statute to enforce its performance. Since there is no legal duty on the State Government to appoint all the 15 persons who are in the list and the petitioners have no legal right under the rules to enforce its performance the petition is clearly misconceived." 15. Since there is no legal duty on the State Government to appoint all the 15 persons who are in the list and the petitioners have no legal right under the rules to enforce its performance the petition is clearly misconceived." 15. The Hon'ble Supreme Court in the case of Shankarsan Dash v. Union of India, (1991) 3 SCC 47 , has observed 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. Subhash Chander Marwaha, Neelima Shangla v. State of Haryana, or Jatendra Kumar v. State of Punjab. 8. In State of Haryana v. Subhash 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 Jatendra 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." 16. The Hon'ble Supreme Court in the case of All India SC & ST Employees Assn. v. A. Arthur Jeen, (2001) 6 SCC 380 , has observed as under: "10. Merely because the names of the candidates were included in the panel indicating their provisional selection, they did not acquire any indefeasible right for appointment even against the existing vacancies and the State is under no legal duty to fill up all or any of the vacancies as laid down by the Constitution Bench of this Court, after referring to earlier cases in Shankarsan Dash v. Union of India. Para 7 of the said judgment reads thus: "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." 17. The Hon'ble Supreme Court in the case of Punjab State Electricity Board and Others v. Malkiat Singh, (2005) 9 SCC 22 , has observed as under: "4. The Hon'ble Supreme Court in the case of Punjab State Electricity Board and Others v. Malkiat Singh, (2005) 9 SCC 22 , has observed as under: "4. Having considered the respective submissions made by the learned counsel for the parties, we are of the view that the High Court committed an error in proceeding on the basis that the respondent had got a vested right for appointment and that could not have been taken away by the subsequent change in the policy. It is settled law that mere inclusion of name of a candidate in the select list does not confer on such candidate any vested right to get an order of appointment. This position is made clear in para 7 of the Constitution Bench judgment of this Court in Shankarsan Dash v. Union of India which reads: (SCC pp. 50-51) "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." 18. The Hon'ble Supreme Court in the case of Rakhi Ray v. High Court of Delhi, (2010) 2 SCC 637 , has observed as under: "24. A person whose name appears in the select list does not acquire any indefeasible right of appointment. The Hon'ble Supreme Court in the case of Rakhi Ray v. High Court of Delhi, (2010) 2 SCC 637 , has observed as under: "24. A person whose name appears in the select list does not acquire any indefeasible right of appointment. Empanelment at the best is a condition of eligibility for the purpose of appointment and by itself does not amount to selection or create a vested right to be appointed. The vacancies have to be filled up as per the statutory rules and in conformity with the constitutional mandate. In the instant case, once 13 notified vacancies were filled up, the selection process came to an end, thus there could be no scope of any further appointment." 19. In the case of Kulwinder Pal Singh v. State of Punjab, (2016) 6 SCC 532 , the following has been observed: "12. In Manoj Manu v. Union of India, (2013) 12 SCC 171 , it was held that (para 10) merely because the name of a candidate finds place in the select list, it would not give the candidate an indefeasible right to get an appointment as well. It is always open to the Government not to fill up the vacancies, however such decision should not be arbitrary or unreasonable. Once the decision is found to be based on some valid reason, the Court would not issue any mandamus to the Government to fill up the vacancies..." 20. In the case of U.P. Public Service Commission, Allahabad and another Vs. State of U.P. and another, (2007) 5 ADJ 280 (DB) in which rights of wait list candidate was considered by this Court, in para-15 of the judgment it held:- "A wait list candidate does not have any indefeasible right to get appointment merely for the reason that his name finds place in the wait list." This Court in taking the aforesaid view relied upon the decision in Ved Prakash Tripathi Vs. State of U.P., (2001) 1 ESC 317 and Surinder Singh and others vs. State of Punjab and another, (1997) 8 SCC 488 and held that even a select list candidate has no indefeasible right to claim appointment. State of U.P., (2001) 1 ESC 317 and Surinder Singh and others vs. State of Punjab and another, (1997) 8 SCC 488 and held that even a select list candidate has no indefeasible right to claim appointment. In para-31 of the judgment in U.P.Public Service Commission, Allahabad and another (supra) this Court has further held as under: "Moreover, even in the case of a select list candidate, the law is well settled that such a candidate has no indefeasible right to claim appointment merely for the reason that his name is included in the select list as the State is under no legal duty to fill up all or any of the vacancy and it can always be left vacant or unfilled for a valid reason." 21. The select list has already lapsed, as per the averments made in the counter affidavit, which has not been denied in the rejoinder affidavit. 22. In the case of Vijay Singh Charak v. Union of India, (2007) 2 SCC(L&S) 721, (L&S) it has been held that:- "12. A select list can only be prepared for a particular year, and only those who are eligible in that particular year alone can be considered for selection in the select list. Even if the select list is not prepared in that year, it will relate back to that particular year." 23. It is also settled legal proposition that no relief with regard to providing appointment can be granted to the candidate after expiry of the Select List. (Vide: J.Ashok Kumar v. State of Andhra Pradesh & Ors.,1996 3 SCC 225; State of Bihar & Ors. v. Md. Kalimuddin & Ors., (1996) AIR SC 1145; State of U.P. & Ors. v. Harish Chandra & Ors., (1996) AIR SC 2173; Sushma Suri v. Government of National Capital Territory of Delhi & Anr., (1999) 1 SCC 330 ; State of U.P. & Ors. v. Ram Swarup Saroj, (2000) 3 SCC 699 ; K. Thulaseedharan v. Kerala State Public Service Commission, Trivendrum & Ors., (2007) 6 SCC 190 ; Deepa Keyas v. Kerala State Electricity Board & Anr., (2007) 6 SCC 194 ; and Subha B. Naik & Ors. v. State of Kerala & Ors., (2008) 7 SCC 210 . 24. v. Ram Swarup Saroj, (2000) 3 SCC 699 ; K. Thulaseedharan v. Kerala State Public Service Commission, Trivendrum & Ors., (2007) 6 SCC 190 ; Deepa Keyas v. Kerala State Electricity Board & Anr., (2007) 6 SCC 194 ; and Subha B. Naik & Ors. v. State of Kerala & Ors., (2008) 7 SCC 210 . 24. The petitioner has otherwise approached this Court in the year 1995 for the reliefs sought, based on the select list dated 18.11.1991, thus the writ petition also suffers from latches. 25. Looking into the facts and circumstances of the case and reasons recorded hereinabove, this Court finds that the petitioner, whose name finds place at the bottom of the waiting list and who approached this Court much after expiry of select list/waiting list, has no legal/enforceable right to seek appointment on the basis of select list/waiting list dated 18.11.1991 and the present writ petition for the reliefs sought, based on select list/waiting list dated 18.11.1991, has no force 26. Accordingly, the writ petition is dismissed.