While 1st Rank Cannot Claim Right To Post, Appointment Of 2nd Ranker By State Also Illegal, Arbitrary, Violative Of Art. 14: Utt. HC

 

                 It is most heartening to note that the Uttarakhand High Court has just recently on June 23, 2020 in a latest, landmark and extremely laudable judgment titled Professor GS Tomar Vs State of Uttarakhand and others in Writ Petition (S/B) No. 423 of 2019 most remarkably and most rightly held that while the holder of first rank in a selection process cannot claim the right to be appointed, the appointment of the second-ranker is arbitrary and violative of Article 14 of the Constitution. The Chief Justice-led Bench held that the failure of the respondent-state authorities to intimate the petitioner that he had stood first in the merit-list of selected candidates, pursuant to the selection process undertaken in terms of the advertisement issued in March 2015 and in offering appointment to the second candidate in the merit list is ex-facie arbitrary and illegal. Very rightly so!

To start with, this latest, landmark and extremely laudable judgment authored by Chief Justice Ramesh Ranganathan for himself and Justice Ramesh Chandra Khulbe sets the ball rolling by first and foremost pointing in para 1 that, “The jurisdiction of this Court has been invoked by the petitioner herein seeking a writ of mandamus directing respondent no. 1 – Additional Chief Secretary, Technical Education, Government of Uttarakhand to issue an order appointing the petitioner as the Director of the Govind Ballabh Pant Institute of Engineering and Technology, Pauri Garhwal (for short the “GBPIET”) since he had secured the highest marks based on the recruitment process that was completed by the Government of Uttarakhand; in the alternative, for a writ of mandamus directing the State Government to conduct interviews for the recruitment process initiated earlier, for which screening of applications had been completed and the selection process is underway, within a specified time frame under the supervision of the Court; for a writ of mandamus directing the State Government to initiate appropriate inquiry and consequent disciplinary proceedings against errant officials/individuals, who were responsible for having denied the petitioner his rightful due of being appointed as the Director way-back in the year 2016, and yet again in the year 2019, under the supervision of this Court; and for a writ of certiorari to quash the government decision to invite more applications for the post of Director, Pauri Engineering College as the same is patently in violation of the law.”

While dwelling on the facts of the case, it is then stated in para 2 that, “Facts to the limited extent necessary, are that an advertisement was issued in March, 2015, inviting applications from eligible candidates for appointment to the post of the regular Director of the GBPIET, Pauri Garhwal. The petitioner and others submitted their applications pursuant thereto. The petitioner had also applied for the post of Director, Tehri Hydro Development Corporation Institute and was selected and appointed to the said post in February 2016. The tenure of Office of the Director, THDC Institute was also for a period of three years. On conclusion of the selection process, for appointment to the post of Director, GBPIET, Professor SP Pandey was appointed as its Director for a period of three years from August, 2016 till August, 2019.”

Truth be told, it is then brought out in para 3 that, “In his affidavit dated 04.09.2019, filed in support of this Writ Petition, the petitioner alleges that, though he stood first in the merit list of candidates selected for the post of Director, GBPIET, he was neither intimated of his result nor was he offered appointment to the post of Director, GBPIET and, instead, Professor S.P. Pandey who stood second in the merit list, was appointed as its Director in August, 2016.”

While continuing in the same vein, it is then stated in para 4 that, “To continue the narration further, even before completion of his three year tenure as Director, GBPIET, Professor SP Pandey resigned from the said office and left on 03.02.2018. The second respondent-Institute was then placed under the control of an In-charge Director and a fresh advertisement was issued (hereinafter referred as the ‘second advertisement’) on 02.06.2018 inviting applications afresh for the post of Director, GBPIET. The petitioner again applied and participated in the selection process held in terms of the second advertisement. While 80 marks were allotted for several other criteria, 20 marks were allotted for interview. The petitioner was awarded more than 64 marks from out of 80, and the next most meritorious candidate, i.e. Prof RB Patel, was awarded only 31.42 marks.”

To be sure, it is then pointed out in para 5 that, “Mr Abhijay Negi, learned counsel for the petitioner, would contend that, if interviews had been held and the petitioner had been awarded zero marks out of 20, and Prof RB Patel had been awarded 20 marks out of 20, even then it is the petitioner who would have stood first in merit, and ought to have been appointed as the Director, GBPIET. The fact, however, remains that the selection process, pursuant to the second advertisement dated 02.06.2018, was discontinued, and a third advertisement was issued on 23.01.2019.”

As it turned out, after hearing both the parties, the Bench most importantly then minced no words in para 14 to clearly convey that, “Failure of the respondents to intimate the petitioner that he stood first in the merit-list of selected candidates, pursuant to the selection process undertaken in terms of the advertisement issued in March, 2015, and in offering appointment to the second candidate in the merit list, is ex-facie arbitrary and illegal. The respondents’ contention that the petitioner had already been appointed as the Director of the THDC Institute (another State Government Institution) by then, did not absolve them of their obligation to inform the petitioner that he was entitled to be appointed as the Director, GBPIET for the choice, whether to continue as the Director, THDC Institute or to join the office of Director, GBPIET, was for the petitioner to make, and not for the respondents to impose. If the petitioner had been intimated of his selection, it was then open to him to exercise his option to either resign as the Director, THDC Institute and join the office of Director, GBPIET, or to continue as the Director of the THDC Institute. By their failure to so intimate the petitioner, the respondents have acted in violation of Article 14, as the petitioner has been arbitrarily and illegally deprived of his right to be appointed as the Director, GBPIET though he stood first in the order of merit.”

Needless to say, the Bench then also makes it clear in para 20 that, “It is true that no candidate, by mere selection, has a legal right to be appointed. In terms of Article 16 of the Constitution of India, he has only a right to be considered for selection and appointment. (Pitta Naveen Kumar and Ors. v. Raja Narasaiah Zangiti and Ors. (2006) 10 SCC 261). Ordinarily, notification of posts is merely an invitation to the 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 provide, the State is under no legal duty to fill up all or any of the vacancies. Notification of vacancies for appointment, and a candidate being found fit for selection, does not mean that the successful candidate can claim to be appointed as of right. (Laxmibai Kshetriya v. Chand Behari Kapoor and Ors. (1998) 7 SCC 469; Shankarsan Dash (1991) 3 SCC 47; State of Bihar and Ors. v. Md. Kalimuddin and Ors. (1996) 2 SCC 7; Mahadev Appa Rao (2010) 7 SCC 678; and Punjab State Electricity Board and Ors. v. Malkiat Singh (2005) 9 SCC 22). By his mere selection, the candidate acquires no indefeasible right for appointment even against existing vacancies. (All India SC & ST Employees’ Association and Anr. v. A. Arthur Jeen and Ors. (2001) 2 SCR 1183; Aryavrat Gramin Bank v. Vijay Shankar Shukla (2007) 12 SCC 413; State of Rajasthan and Ors. v. Jagdish Chopra (2007) 8 SCC 161; State of M.P. and Ors. v. Sanjay Kumar Pathak and Ors. (2008) 1 SCC 456 and Asha Kaul (Mrs.) and Anr. v. State of Jammu and Kashmir and Ors. (1993) 2 SCC 573).”

To put things in perspective, it is then made absolutely clear in para 22 that, “Ordinarily a Superior Court, in the exercise of its powers of judicial review, would not interfere with the decision of the employer in making appointment, unless its action or inaction is found to be so arbitrary as to offend Article 14 of the Constitution of India. (Aryavrat Gramin Bank v. Vijay Shankar Shukla (2007) 12 SCC 413). While a candidate, who finds a place in the select list, may have no vested right to be appointed to any post, in the absence of any specific rules entitling him thereto, he may still be aggrieved by his non-appointment if the authority concerned acts arbitrarily or in a mala fide manner (UT of Chandigarh v. Dilbagh Singh AIR 1993 SC 16 and Mahadev Appa Rao (2010) 7 SCC 678).”

To sum up, this well balanced, well reasoned and well analyzed judgment leaves no room for doubt that while 1st rank cannot claim right to post, appointment of 2nd ranker by State also illegal, arbitrary and violative of Article 14 of the Constitution! All courts must follow this! There can be no denying or disputing it!

Sanjeev Sirohi

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