IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No. 5908 of 2008
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Union of India through Inder Mohan ... Petitioner
-Versus-
Ram Nandan Singh & another. ... Respondents
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CORAM : HON'BLE MR. JUSTICE M.Y.EQBAL
HON'BLE MRS. JUSTICE JAYA ROY
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For the Petitioner : Mr. Md. Mokhtar Khan
For the Respondents : M/s Rajiv Ranjan & A.K.Tiwari.
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Date of CAV :17.8.2009 Date of pronouncement:21.8.2009
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M.Y.Eqbal,J: By this writ petition, the petitioner, Union of India, Central
Ground Water Board Division has challenged the order dated
15.5.2008
passed by the Central Administrative Tribunal, Patna
Bench (Circuit Court, Ranchi) in O.A.No.194/2005, whereby the
Tribunal allowed the application filed by the respondents and
issued direction to the petitioner to complete the process of
selection initiated under Notification dated 2/8th January,1999 for
the post of Technical Operator and Cleaner and if the respondents
have been found suitable, they should further be considered for
appointment to the post in question.
2. The facts of the case lie in a narrow compass.
The petitioner, by advertisement published in the year 1999,
invited applications from eligible candidates for appointment to the
post of technical operator and cleaner. After screening of the
applications the respondents and other candidates were
interviewed. However, in the meantime, by letter issued by the
Central Headquarter, Central Ground Water Board, Faridabad, the
recruitment of the above posts were withdrawn. Hence further
recruitment process was kept in abeyance. The respondents
approached the Tribunal by filing O.A.No.232/2001, which was
disposed of on 18.9.2003 with a direction to the petitioner to
2
reconsider their respective cases. By subsequent application filed
by the respondents, liberty was given to approach the Tribunal by
filing a fresh application. Therefore, the respondents moved the
Tribunal again by filing the aforementioned O.A.No.194/2005.
3. The case of the petitioner, Union of India is that the Central
Authority put a ban on filling up all the vacant post without the
approval of Ministry of Finance. Subsequently by letter dated
16.4.2004 the Central Headquarter informed that all the vacant
posts pertaining to the period prior to 16.5.2000 were abolished by
the Ministry and formal order was issued on 1.4.2004. The
respondents were accordingly informed in 2004 about abolition of
the post. The Tribunal held that the petitioner simply stopped the
further process of appointment, already initiated and persons were
interviewed. Accordingly, the Tribunal issued direction by the
impugned order to publish the result and to make appointment. For
better appreciation concluding para 6 of the impugned order is
reproduced herein below:-
“6. Coming to the reliance place by the respondents
on Government of India, Ministry of Finance, Department
of Expenditure, Office Memorandum dated 5.8.1999, we
note that the ban was put on creation of Plan and Non-Plan
Posts by Para 1 of the said OM. However, para 2 of the said
OM, which stipulates with “Ban on filling up of vacant
posts”, clarifies that till the review as desired under the said
OM was completed, no vacant posts should be filled up
except with the approval of the Ministry of Finance
(Department of Expenditure). It is thus evident from the
reading of the above said OM dated 5.8.1999 that the
process of selection which was started by the respondents,
on their own showing on 2/8 January 1999, could have
been very well continued with the approval of Ministry of
Finance. Admittedly, this has not been done by the
respondents in the present case and they have simply
stopped the further process of appointment which was
initiated under the said notification dated 2/8 January 1999
before the OM dated 5.8.1999 by the Ministry of Finance
was issued. In the circumstances, we quash and set aside
the impugned order dated 7.5.2004 which has been passed
by the respondents pursuant to order dated 18.09.2003
passed by this Tribunal in OA No.24/2002 and 232/2001
filed by both the applicants respectively. We further direct
the respondents to complete the process of selection
initiated under the Notification dated 2/8 January 1999 for
3the post of Technical Operator (M) and Cleaner, as far as,
two posts meant for the general category are concerned by
publishing the result and in case the applicants are found
suitable and fit, they should be further considered for
formal appointment to the post in question. This exercise
shall be done within a period of three months from the date
of receipt of certified copy of this order.”4. We have heard Mr. Mokhtar Khan, learned Standing counsel
Central Government, appearing for the petitioner and Mr. Rajiv
Ranjan, learned counsel for the respondents.
5. In the background of the aforesaid fact, the only question
that falls for consideration is as to whether the Tribunal was
justified in issuing such direction upon the respondents for
publishing the result and for making appointments.
6. The law with regard to the aforesaid question is no longer
res intengra. A candidate, making application for a post pursuant to
an advertisement, does not acquire any vested right of selection
and a court or Tribunal cannot issue mandamus directing the
authority to make appointment.
7. In the case of Union Territory of Chandigarh v. Dilbagh
Singh, [(1993) 1 SCC 154] the Supreme Court observed:
” 12. If we have regard to the above enunciation that a
candidate who finds a place in the select list as a candidate
selected for appointment to a civil post, does not acquire an
indefeasible right to be appointed in such post in the
absence of any specific rule entitling him for such
appointment and he could be aggrieved by his non-
appointment only when the Administration does so either
arbitrarily or for no bona fide reasons, it follows as a
necessary concomitant that such candidate even if has a
legitimate expectation of being appointed in such posts due
to his name finding a place in the select list of candidates,
cannot claim to have a right to be heard before such select
list is cancelled for bona fide and valid reasons and not
arbitrarily. ..”8. In the case of All India SC and ST Employees Association vs.
A.Arthur Jeen, 2001 AIR SCW 1720, the Supreme Court observed :
4“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 (1991) 3 SCC 47: (1991 AIR SCW 1583 : AIR
1991 SC 1612 : 1991 Lab IC 1460). 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 (1974) 3
SCC220 : (AIR 1973 SC 2216 : 1974 Lab IC 1212; Neelima
Shangla v. State of Haryana (1986)4 SCC 268: (AIR 1987 SC
169 : 1987 Lab IC 34 or Jatinder Kumar v. State of Punjab
(1985) 1 SCC 122 : (AIR 1984 SC 1850).”
9. In the instant case, it appears that the Government of India,
Ministry of Personnel Department, elaborately assigned reasons for
putting ban on appointment to such post. It further appears that
the petitioner earlier approached the Tribunal for the self same
relief and the Tribunal in stead of issuing any direction for making
appointment, simply directed the petitioner to look into the matter
and take a decision by intimating the concerned local officers for
communication to the candidates. In compliance of the aforesaid
direction the petitioner, Union of India, by assigning reasons,
informed the officers of the concerned Department that
appointment could not be made without the approval of the
Finance Department. In such circumstances, we are of the view
that the Tribunal exceeded its jurisdiction in issuing direction to the
petitioner, Union of India to complete the process of selection and
5to make appointment. Hence, the said direction given in the
impugned order cannot be sustained in law.
10. For the reasons aforesaid, this application is allowed and the
impugned order passed by the Tribunal is set aside. However, it is
observed that in the event any advertisement is made in future for
appointment to the said post, the cases of the respondents shall
also be considered along with others.
( M.Y.Eqbal, J. )
(Jaya Roy,J:) ( Jaya Roy, J. )
Pandey