Gujarat High Court Case Information System
Print
SCA/5921/2010 13/ 21 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 5921 of 2010
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
PUSHPABEN
JAIDEEPBHAI MORI - Petitioner(s)
Versus
INDIAN
OIL CORPORATION LTD & 1 - Respondent(s)
=========================================================
Appearance
:
MR
ANSHIN H DESAI for
Petitioner(s) : 1,
NOTICE SERVED BY DS for Respondent(s) : 1,
MRS
MAUNA M BHATT for Respondent(s) : 1 -
2.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 15/07/2010
ORAL
ORDER
1. Heard
learned advocate Mr.A.H.Desai for petitioner and learned Senior
Advocate Mr.M.R.Bhatt for learned advocate Mrs.Mauna Bhatt on behalf
of respondents.
2. Brief
facts of present case are that on 31.3.2009, the respondent
Corporation vide public advertisement dated 31.7.2009 published in
the Times of India, declared that, for 15 locations, retail outlet
dealership was to be given in the State of Gujarat of different
categories. The petitioner belongs to ST category. As per the
procedure, the respondent Corporation also called for verification of
the caste certificate of the petitioner from the Mamlatdar, Mamlatdar
office, Bhanvad vide communication dated 25.1.2010. On 3.2.2010, the
Mamlatdar, Bhanvad vide communication confirmed the same by replying
in writing to the respondent Corporation. Vide Regd.A.D.
Communication dated 26.11.2009, the petitioner was communicated that
the petitioner shall have to appear before the Selection Committee
for interview at Rajkot on 22.12.2009 at 15.00 hrs. along with the
documents. As the petitioner was declared on merit panel No.1 on
22.12.2009 and because for a period of almost two months, no letter
of intent / final order of allotment of the retail outlet dealership
was issued to the petitioner, the petitioner complained to the Member
of Parliament, Jamnagar and vide communication dated 20.2.2010, the
complaint of the petitioner was forwarded to the respondent
Corporation by the Member of Parliament,Jamnagar. The reply dated
16.3.2010 given to the Member of Parliament by the respondent
Corporation, it is stated that re-interviews are to be held because
there were some lapses in ‘initial scrutiny’ and some of the
applicants were wrongly denied an opportunity to appear in the
interview, and therefore, selection process has been cancelled, and
re-interviews of all the eligible applicants have been planned. The
petitioner again sent a communication dated 21.2.2010 to the
respondent No.2 complaining about the inaction on the part of the
respondent Corporation, wherein it is also stated that the FIR is
also completed on 25.2.2010 and inspite of that, no letter of intent
/ order has been sent to the petitioner.
3. Against
that, affidavit-in-reply is filed by respondents which is at Page-65.
Relevant averments are in Para.2 to 5, which are quoted as under :
2. At
the outset, I most respectfully submit that merely because in the
outlet list, the petitioner has been at placed at Sr.No.1, ipso facto
does not entitle the petitioner for award of dealership. I humbly
submit that no fundamental rights of the petitioners have been
violated and on this limited ground alone, the petition is not
maintainable and may kindly be rejected summarily with costs.
3. I
further humbly submit that none of the averments made in the memo of
the petition, not specifically dealt with in the present affidavit or
forming part of the record may be treated as admitted and I
specifically deny the averments not specifically dealt with in the
present affidavit or forming part of the record.
4. I
humbly submit that as will be demonstrated hereinafter, in order to
maintain complete transparency in the selection procedure, the
respondents have acted strictly in consonance with the terms and
conditions of the public notice. I submit that as per clause(10)(1),
this was only an application and not an offer of dealership. I
further submit that as per clause10(n), grievance having been
received for two locations namely Lathi and Amreli within the time
frame and upon further investigation carried out, it was found that
similar irregularities occurred for Hadala, Dist Surendranagar
also and hence it was thought fit to even cancel the selection for
the Hadala location. I submit that malafides not having been alleged
and proved, this Hon’ble Court may be pleased not to entertain the
petition on this ground also.
5. I
submit that interviews for the retail outlet locations at Lathi,
Dist.Amreli and Hadala. Dist. Surendranagar were undertaken. A
complaint from one Shri Umath Dhansukhbhai Merubhai for the location
at Lathi, which was advertised under the ST category was received. In
the said complaint, it was stated that his application was rejected
on the ground that the signature in the application form and
affidavit did not tally. A representation was received by the
Executive Director of the Gujarat State Office of IOC from the said
applicant stating that his application had been rejected as he had
signed in the application in English and in the affidavit in
Gujarati. I submit that based on the said representation, the
Executive Director sought for a report for the said rejection on
frivolous grounds. I submit that thereupon, a report was submitted,
in which it was recorded that the above referred applicant had signed
in all places in the application (except affidavit) in English
whereas in the affidavit, he had signed in Gujarati. It was stated
that since the affidavit was signed in Gujarati and the said document
was important, the Selection Committee had decided to reject the
application. The Executive Director of IOCL, noting that this was a
frivolous ground for rejecting the application, gave a decision that
the stand taken by the Selection Committee was not correct and that
the said candidate had been denied the chance to appear for the
interview. Further inquires were made about the number of locations
in which the Selection Committee had followed the same methodology.
It was ascertained that the said Selection Committee had followed the
same methodology of rejecting the application form on the ground of
difference in signature for three locations, viz. Lathi, Hadala and
Malia. The Executive Director, being the final authority in the
Gujarat State Office, therefore formed an opinion that rejection of
the applications on the above referred ground had affected selection
process for all the three locations. The decision was therefore taken
in public interest to cancel the merit panel and for re-interview
for all the three locations. I submit that the above referred
sequence of events would demonstrably go to show that the merit panel
has been cancelled as the respective candidates had been put at
disadvantage in view of the Selection Committee’s action of rejecting
otherwise eligible applications on the sole ground that the said
candidates having signed in English and Gujarati language. As this
was a hyper technical view taken by the Selection Committee, in the
interest of all the candidates, the decision for cancelling the merit
panel and for re-interview has been taken.
4. Against
that, affidavit-in-rejoinder is filed by petitioner reiterating the
same allegations against respondent Corporation. Learned advocate
Mr.Desai submitted that on that basis, it seems that there are no
valid, genuine and bonafide reasons for the respondent Corporation to
call for fresh selection and petitioner presumed that some
applicant/s who were desirous of having the retail outlet dealership
for the location of Hadala, Dist.-Surendranagar having failed in such
ranking system, have tried to use the pressure on the officers of the
Corporation and have sought for fresh selection and therefore, the
Law Officer of the respondent Corporation has sat tight lipped about
the reasons for which the fresh selection is sought for by the
respondent Corporation. He also submitted that affidavit of
respondent is silent on the important points, viz. who is the
complainant, on what basis the decision is taken, is any notice is
issued, is any hearing afforded, what are the grounds on which fresh
selection is sought for. Therefore, these are the points and for
that, affidavit of respondent remained silent. Therefore, allegation
which has been made by petitioner in petition amounts to accepting by
respondent. He relied upon in rejoinder, certain procedure
prescribing in brochure for selection of petrol/diesel outlet
dealership.
5. Before
this Court, learned advocate Mr.Desai again emphasizes his
submissions that in respect to Hadala, no complaint received by
respondent. Let these facts may be disclosed while scrutinizing
application and what happened. He submitted that first they have to
scrutinize application submitted by all the applicants in respect to
Hadala and thereafter, they have to consider marks given in oral
interview and if any of the candidate who having higher marks
comparison to petitioner, some mistake is committed, then they can
hold the fresh interview. For that, there is no such averments made
by respondent in affidavit-in-reply. In short, the petitioner is
challenging decision of respondent cancelling selection list in
respect of three places (i) Hadala (ii) Lathi and (iii) Maliya. The
learned Senior Advocate Mr.M.R.Bhatt submitted that the petitioner is
belonging to ST category at Hadala. The decision which has been taken
by respondent for re-interview the same candidates those who appeared
earlier removing certain discrepancies occurred due to signature in
application form in Gujarati / English. The detail reason has been
given by respondent Corporation in affidavit-in-reply which can be
considered to be objective decision of respondent to cancel entire
select list in three places and decided to have fresh selection where
the present petitioner is also to be called for interview.
6. Learned
Senior Advocate Mr.M.R.Bhatt submitted that in procedure, there are
two stages; one is for scrutiny of application and second is for oral
interview. Therefore, petitioner will be called once again for
interview straightway by respondent in the re-interview as and when
scheduled by respondent.
7. I
have considered submissions made by both learned advocates and
averments made in petition, affidavit-in-reply as well as
affidavit-in-rejoinder of petitioner. I failed to understand the
submission made by learned advocate Mr.Desai. Merely in oral
interview petitioner has been selected at Serial No.12, is not giving
any right which can be enforced against respondent Corporation.
Merely name is included in select list, it cannot give any legal
vested or statutory right for appointment or offered dealership.
Such selection list cannot be enforced against respondent once entire
select list is cancelled by respondent Corporation. In certain cases,
when malpractice has been adopted by some of the persons or some
technical difficulties or lapse on administrative side is occurred,
in such circumstances, entire select list is required to be cancelled
so that it can be given reasonable opportunity to each candidate, who
have not been given opportunity at the relevant time because of some
discrepancies arise in scrutinizing the application form. Therefore,
according to my opinion, the contentions which have been raised by
learned advocate Mr.Desai cannot be accepted.
8. Learned
Senior Advocate Mr.M.R.Bhatt has relied upon one decision of this
Court in SCA No.3537 of 2010 decided on 21.4.2010 where identical /
similar question has been examined by this Court. Relevant
observations are in Para.21 to 28 are quoted as under :
21. Having
heard learned advocates appearing for the parties and having
considered their rival submissions in light of the provisions
contained in the advertisement inviting applications for awarding
Retail Outlet Dealership for various places including Palanpur and
also in light of the Policy Circular No.90-10/2005 in respect of
evaluation for dealer selection and also in light of the decided
case law on the subject, the Court is of the view that the moot
question before the Court is to decide as to whether the awarding of
zero marks for the Project Report when it is not signed by the
candidate is justified and on complaint being made by the aggrieved
party, to cancel the select list is in violation of the Policy
framed by the respondent Corporation. Before addressing these two
questions, it is necessary to take into consideration the other
provisions of the advertisement as well as the Policy Circular
No.90-10/2005. Clause 10 (l) of advertisement makes it clear that
this was merely an application and not an offer of Dealership. Once
the selection list having been prepared, it is to be displayed.
However, this final select list would not confer any right on the
candidate so selected as the aggrieved party shall have right to
make complaint against such final selection list within 30 days from
the date of display of such selection list. When such a complaint
is made by the aggrieved party within the period of 30 days, it is
required to be investigated as per the procedure laid down and if
the grievance raised in the complaint is found to be justified, such
a final list may be cancelled and fresh selection list is required
to be prepared. Thus, simply because petitioner stood at Sr. No.1
in the selection list, this fact by itself does not confer any right
on the petitioner as the candidate at Sr. No.2 has raised a
complaint within the period of 30 days from the date of display of
the selection list and he has raised the grievance that he has been
wrongly awarded zero mark for the Project Report. The whole
question, therefore, depends upon the issue as to whether awarding
of zero mark to the candidate at Sr. No.2 and others who have not
signed the Project Report is justified. In support of the original
decision of the respondent authorities of awarding zero mark to the
candidates for the Project Report submitted by them, without
affixing their signature on such Project Report, reliance is placed
by the petitioner on Clause 10 (e) of the selection of Petrol /
Diesel Retail Outlet Dealers framed by the respondent Corporation
which clearly indicates that the originals of the affidavits and
self-attested copies of the other supporting documents should be
submitted along with complete application form, duly signed. The
prima facie reading of this Clause would normally make any one to
believe that all the documents which are submitted along with the
application are required to be signed by the candidates and if any
document is not signed by the candidate, the same shall not be
considered by the Selection Committee and if any marks are to be
given against the said document, the same will be zero marks as per
the Policy contained in Circular No.90-10/2005 dated 10.10.2005.
However, before accepting this interpretation, two issues arise for
Court’s determination. Firstly, what is the interpretation put
forward by the Investigating Officer and accepted by the respondent
Corporation and whether such an interpretation is correct in the eye
of law. The Investigating Officer in his report dated 22.01.2010
has taken the view that as per Clause 10 of the advertisement, all
documents / certificates are to be self-attested and copies thereof
are to be attached with the application. In the Gujarati version of
the advertisement, for document, the word used is Dastavej ,
which in common parlance means documents / papers issued by /
authenticated by Government or some other authorities. Since the
Project Report is prepared by the applicant himself, he may not have
considered this as a document or ‘Dastavej’. The Investigating
Officer further observed that no where in the advertisement, it is
clearly stated that all papers attached with the application are to
be signed by the applicant. Since the complainant who stood at Sr.
No.2 in the selection list has included Project Report in the duly
signed application form, the check list of documents to be
submitted, giving page numbers, it will be unfair to ignore the
Project Report. Considering all these aspects of the matter, the
Investigating Officer took the view that the Project Report should
have been considered and marks should have been awarded. He has,
therefore, recommended that the decision of the Level 1 Committee of
awarding zero mark to the Project Report which was not signed by the
candidate would amount to unfair practice and hence, the merit panel
is required to be cancelled and fresh interview process of Palanpur
location is required to be again undertaken. This recommendation of
the Investigating Officer was approved by the Executive Director of
Gujarat State Office and accordingly, decision to conduct fresh
interview for Palanpur location was taken.
22. Clause
4 of the Policy Circular No.90-10/2005 deals with basis for marking.
It states that Level Committee 1 will scrutinize the applications
and award marks to the candidates in respect of the parameters,
which are based on documents. The details are as under :-
Parameter
Max
MarksEvaluation
Capability
to provide land and infrastructures / facilities.
35
Based
on documentsCapability
to provide finance.
25
Based
on documentsEducational
Qualification15
Based
on documentsAge
04
Based
on documentsCapability
to generate businessTie
up with prospective customer.
Project
Report for realizing sales potential.
05
03
Production
of documents and affidavit from prospective customers.
Project
ReportExperience
Retail
trade of petroleum products.
Other
/ related petroleum trade/transport / automobiles.
Hospitality
/ Service industry / FMCGOthers
04
04
03
02
01
Based
on furnishing of documentary evidence to establish the relevant
service of minimum 1 year.
Total
91
23. In
the above Chart, against all columns, except the column of Project
Report, parameters are to be judged and evaluation is to be made on
the basis of the documents produced. Only against Project Report
for releasing sales potential, evaluation is to be made only on the
basis of the Project Report. Clause 5 further makes it clear that
the above marks will have to be awarded on the basis of attested
copies, documents submitted along with the application as original
documents are to be brought by the candidates at the time of
interview. All the documents enclosed with the application will be
serially numbered and signed by each Level 1 Committee Member.
Clause 11 further makes it clear that the original documents brought
by the applicants are to be seen by the Officer deputed by the
Divisional Office and verified with the attested copies submitted by
them. In cases where there is a discrepancy in the attested copy as
compared to the original documents, such candidates will be declared
ineligible. Various clauses of the Policy Circular give separate
identification to the Project Report and it is something different
from the document. This would, therefore, lead to believe that when
the Project Report is submitted as it is, it may not be required to
be signed and if such a Project report is not signed, the same shall
not be considered as furnishing of an unsigned document. The
reasonable belief of the candidate when he has submitted an unsigned
Project Report that this being not a document, meaning thereby not a
copy of the original document, it is not required to be signed and
when the Investigating Officer took the view that it is not
justified to ignore such Project Report, which is not signed, the
Court should not interfere in such decision.
24. It
is also necessary to deal with one more contention raised by the
petitioner challenging the cancellation of select list on the ground
that such a procedure is adopted only with regard to Palanpur
location whereas in other locations also, zero marks are awarded for
the Project Reports when they are submitted by the candidates
without affixing their signature and despite this fact, no such
action was taken by the respondent Corporation in respect of those
areas.
25. There
is no much substance in this argument as the complaints are made
within stipulated time only in respect of Palanpur location. The
respondents, on their own, will not initiate any inquiry and cancel
the select list. As per the guidelines, only when some complaints
are received within the stipulated period and on inquiry, if it is
found that the complainant is justified in making such complaints,
then only, inquiry is made and after investigation, appropriate
decision is taken. Thus, even if zero marks are allotted to the
Project Reports in other locations, there is nothing wrong if those
selection lists were not cancelled by the respondent Corporation.
26. Even
if it is assumed that the Project Report is also a document and it
is to be signed and since the said document is not signed by any
particular candidate, whether the respondent Corporation is
justified in awarding zero marks for such Project Report. The
Clauses in the Policy Circular are to be divided into two parts,
some of the clauses are substantive clauses whereas some of the
clauses are procedural clauses. When a particular paper or document
is not signed with the bonafide belief that it is not required to be
signed and on that basis, if the said document is not considered,
the respondent authorities cannot be held to be justified in taking
decision as it is mainly a procedural irregularity and simply on
that basis, zero mark should not have been awarded who have
submitted such Project Report. It should have been evaluated on its
own merit subject to further clarification from the candidate at the
time of oral interview. The Courts have also time and again made
such distinction and in a given case, appropriate directions are
issued. In Jagdish Mandal (Supra), the Apex Court in a very
categorical term held that if the decision relating to award of
contract is bona fide and is in public interest, courts will not, in
exercise of power of judicial review, interfere even if a procedural
aberration or error in assessment or prejudice to a tenderer, is
made out. Here in the present case, it is a bonafide decision of
the respondent authorities, based on the investigation report and
approved by the Executive Director of Gujarat State Office of the
respondent Corporation. At the most, it can be said to be a
procedural aberration or may amount to error in reassessment on
investigation by the Investigating Officer or it may cause some
prejudice to the petitioner. Despite this, the Court should not
exercise its power of judicial review in such matter and interfere
in the decision taken by the respondent authorities for cancellation
of the selection list and conducting re-interview for Palanpur
location. There is no basis for accepting the allegation that the
whole exercise was undertaken only with a view to favour the
candidate at Sr. No.2.
27. The
entire procedure undertaken by the respondent Corporation is
transparent and proper accountability is fixed at every stage. Even
after canceling the selection list, the Retail Outlet is not awarded
to the candidate at Sr. No.2. Fresh interview is ordered to be held
and by adopting this course, only direction issued was to examine
the Project Report and award appropriate marks and thereafter
consider the same on merits. No prejudice would be caused to any
one. The petitioner has also a chance to again prove herself and
only after fresh interview, whosoever gets the highest number of
marks, will get the award of Retail Outlet for Palanpur location.
The whole idea is to get the best out of the lot and one should not
be declared best only on the basis of default by someone if it is
not a default of very substantive nature.
28. In
view of the above discussion, the Court is of the view that there is
no substance or merit in the challenge of the petitioner against
cancellation of the selection list and conducting fresh interview for
Retail Outlet for Palanpur location. Even the decisions relied upon
by the petitioner are not of any assistance to the petitioner as the
Court has not found any arbitrariness or any malafide exercise of
power in the decision making process of the respondent authorities.
The petition is, therefore, dismissed. Notice discharged without any
order as to costs.
8.1 In
similar situation, the legal aspect has been examined by Apex Court
in number of decisions that in case of selection list prepared for
appointment to the candidate in respect of any post, whether such
selected candidate having any legal vested right or not for getting
appointment. Though these decisions are of service matter but,
equally it applies considering the same principle which has been
involved in determining the contentions raised by learned advocate
Mr.Desai. In case of State of UP & Others v. Rajkumar Sharma &
Others, reported in (2006) 3 SCC 330. Relevant Para.14 is quoted as
under :
14. Selectees
cannot claim the appointment as a matter of right. Mere inclusion of
candidates name in the list does not confer any right to be
selected, even if some of the vacancies remained unfilled and the
concerned candidates cannot claim that they have been given a hostile
discrimination. (See: Shankarsan Dash v. Union of India, (AIR 1991
SC 1612), Smt. Asha Kaul and Another v. State of Jammu & Kashmir
and another (1993 (2) SCC 573), Union of India v. S.S. Uppal (AIR
1996 SC 2346), Hanman Prasad v. Union of India (1996 (10) SCC 742),
Bihar Public Service Commission & Ors. v. State of Bihar &
Ors. (AIR 1997 SC 2280), Syndicate Bank & Ors. v. Shankar Paul &
Ors. (AIR 1997 SC 3091), Vice Chancellor, University of Allahabad v.
Dr. Anand Prakash Mishra and Ors. (1997 (10) SCC 264), Punjab State
Electricity Board v. Seema (1999 SCC (L&S) 629); All India SC &
ST Employees Association v. A Arthur Jeen, (AIR 2001 SC 1851),
Vinodan T. v. University of Kalikut, (2002 (4) SCC 726), S. Renuka v.
State of Andhra Pradesh and Ors. (AIR 2002 SC 1523), and Baitariani
Gramiya Bank v. Pallab Kumar & Ors. (AIR 2000 SC 4248).
8.2 The
Apex Court has examined aforesaid aspect, in case of Punjab State
Electricity Board & Others v. Malkiat Singh, reported in 2006 SCC
(L&S) 235. Relevant Para.4 and 5 is quoted 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 vs. Union of India [(1991)
3 SCC 47] which reads:-
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 ((1974) 3 SCC 220 : 1973 SCC (L&S) 488 : (1974) 1
SCR 165), Neelima Shangla v. State of Haryana ((1986) 4 SCC 268 :
1986 SCC (L&S) 759), or Jatendra Kumar v. State of Punjab ((1985)
1 SCC 122 : 1985 SCC (L&S) 174 : (1985) 1 SCR 899) .
5. The
same position is reiterated and followed by this Court in All India
SC & ST Employees Assn. & Anr. vs. A. Arthur Jeen &
Ors. [(2001) 6 SCC 380] and State of Orissa and Ors. Vs. Bhikari
Charan Khuntia and Ors. [(2003) 10 SCC 144].
8.3 This
Hon’ble Court has in case of Vaja Mehulkumar Pitabhai & Anr. v.
State of Gujarat & Others, reported in 2007 I CLR 1012 SCC (L&S)
235 held in Para.20 as under :
This
aspect has been examined by the Apex Court in Case of Rani Lakshmibai
Kshetriya Gramin Bank Vs. Chand Beharia Kapoor and others reported in
AIR 1998 S.C. Page 3104, the relevant paras 9 and 12 are quoted as
under:
9. Coming
to the second question, it requires no detailed scrutiny and it is
well established that inclusion of name in the list of successful
candidates does not confer an indefeasible right to be appointed. It
has been so held in the Constitution Bench decision of this Court in
case of Shankarsan Dash Vs. Union of India, said case the Court has
gone to the extent of following (at p. 1586 of AIR SCW):
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 can not be legitimately denied. Ordinarily the notification
merely amounts to an invitation to qualified selection they do not
acquire any right to the post, the State is under no legal duty to
fill up all or any of the vacancies.
12. Though
the panel ordinarily remains alive for one year but in accordance
with the guidelines of the Government of India, Ministry of Finance
it would be open to Board to extend the said period under intimation
to the Government in Banking Division. In the case in hand the
resolution of the Board dated 28/3/1985 indicates that the life of
the panel had been extended by for a further period of six months,
and therefore, after expiry of the said period it was not open for
the Court to issue direction to appoint people from the said panel.
Therefore,
there is no substance, in the present petition which required any
interference by this Court. Accordingly, present petition is
dismissed.
8.4 The
Apex Court has examined aforesaid aspect, in case of Union of India
& Others v. K.V.Vijeesh, reported in (1996) 3 SCC 139. Relevant
Para.6 is quoted as under :
6. In
the context of the facts of the instant case the only question
which falls for determination in this appeal is whether a candidate
whose name appears in the select list on the basis of a competitive
examination acquires a right of appointment in Government service in
an existing or a future vacancy. The above question has been
answered by a Constitution Bench of this Court in Shjankarsan
Dash vs. Union of India (AIR 1991 SC 1612); [(1991) 3 SCC 47]
with the following words:-
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.
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 had to be taken bona fide for appropriate 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. (emphasis supplied)
8.5 Recently,
the Apex Court has examined aforesaid aspect, in case of State of
Orris & Anr. v. Rakishness Nada & Others, reported in 2010
(6) Scale 126. Relevant Para.13 and 14 is quoted as under :
13. A
person whose name appears in the select list does not acquire any
indefeasible right of appointment. Empaneling at the best is a
condition of eligibility for 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.
14. A
Constitution Bench of this Court in Shankarsan Dash Vs. Union of
India, AIR 1991 SC 1612, held that appearance of the name of a
candidate in the select list does not give him a right of
appointment. Mere inclusion of candidate s name in the select list
does not confer any right to be selected, even if some of the
vacancies remain unfilled. The candidate concerned cannot claim that
he has been given a hostile discrimination. (see also Asha Kaul &
Anr. Vs. State of J & K & Ors., (1993) 2 SCC 573; Union of
India Vs. S.S.Uppal, AIR 1996 SC 2340; Bihar Public Service
Commission Vs. State of Bihar AIR 1997 SC 2280; Simanchal Panda Vs.
State of Orissa & Ors., (2002) 2 SCC 669; Punjab State
Electricity Board & Ors. Vs. Malkiat Singh (2005) 9 SCC 22; Union
of India & Ors. Vs. Kali Dass Batish & Anr. AIR 2006 SC 789;
Divisional Forests Officers & Ors. Vs. M. Ramalinga Reddy AIR
2007 SC 2226; Subha B. Nair & Ors. Vs. State of Kerala &
Ors., (2008) 7 SCC 210; Mukul Saikia & Ors. Vs. State of Assam &
Ors., (2009) 1 SCC 386; and S.S. Balu & Anr. Vs. State of Kerala
& Ors., (2009) 2 SCC 479).
15. Select
list cannot be treated as a reservoir for the purpose of
appointments, that vacancy can be filled up taking the names from
that list as and when it is so required. ….
9. The
aforesaid decision is given by this Court in respect to retail outlet
for Palanpur location where same and similar circumstances have been
examined by this Court and petition filed by petitioner having same
grievance against the cancellation of select list has been rejected.
In view of above decision given by this Court in identical and
similar circumstances and decisions of Apex Court as referred above,
therefore, the contention raised by learned advocate Mr.Desai cannot
be accepted. It is merely a selection, which cannot give any legal
vested right to enforce when entire select list in respect of three
places Hadala, Lathi and Maliya has been cancelled by respondent.
For that, respondent Corporation is entitled to cancel such selection
if some irregularities and lapse on the part of administration have
been found from the record on the basis of report received from
concerned officer. Therefore, decision which has been taken by
respondent cancelling the selection list in respect of aforesaid
three places cannot consider to be an arbitrary decision or malafide
to favour some candidates, who have not been selected in earlier
selection. There is no specific instance pointed out by petitioner
before this Court that such selection has been cancelled to favour
particular person. Therefore, in light of this entire facts and
circumstances, according to my opinion, decision which has been taken
by respondent Corporation being an objective decision, cannot
consider to be arbitrary or malafide in respect to favour any person,
such selection has been cancelled. The entire procedure undertaken by
respondent Corporation is transparent and proper accountability is
fixed at every stage. Even after cancelling the selection list, the
retail outlet is not awarded to any other candidate. No prejudice
would be caused to any one. The petitioner has also a chance to
again prove herself and only after fresh interview, whosoever gets
highest number of marks will get the award of retail outlet for
Hadala location. The whole idea is to get the best out of the lot and
one should not be declared best only on the basis of default
committed in scrutinizing applications by department which cannot be
considered to be merely default but such lapse is very substantive in
nature which denied legal right of applicants whose applications are
rejected and not call for interview only on that ground. The whole
petition based on vague allegations. For that, in support of it, no
cogent and convincing documents have been placed on record by
petitioner. Against which, respondent Corporation has given correct
reason on the basis of report received from concerned officer for
cancellation of select list. Therefore, there is no substance in
present petition. Accordingly, present petition is dismissed. Notice
discharged.
(H.K.RATHOD,J.)
(vipul)
Top