State
of Rajasthan & Ors Vs. Jagdish Chopra [2007]
Insc 889 (30 August
2007)
S.B.
Sinha & Harjit Singh Bedi
CIVIL
APPEAL NO. 3987 OF 2007 (Arising out of SLP (C) No.18940 of 2005) S.B. Sinha,
J.
1.
Leave granted.
2.
Appellant-State employs teachers on yearly basis. Vacancies for each year are
separately determined. Recruitment of teachers is made in terms of Rajasthan
Education Subordinate Services Rules, 1971 (the Act). It remains valid for one
year that is from the first day of April to 31st March. Rule 9(3) of the said
Rules read thus ;
"Rule
9(3) Whether vacancies can be determined more than once in a year.
Vacancies
shall be determined only once a year:
Vacancies
occurring after the Departmental Promotion Committee meeting has been held
shall be treated as the vacancies of the next year.
Variation
in the vacancies that may crop up between the date of requisitioning the
Department Promotion Committee and the date of Departmental Promotion Committee
meeting held shall be taken into account at the Departmental Promotion
Committee meeting."
3. For
the year 1995-96, there were 33 vacancies and advertisements were issued therefor.
Respondent herein was one of the applicants for the said post. The Selection
Committee prepared a select list. The respondent's name figured at serial No.10
of the said list. Out of 33 vacancies, 19 posts were to be filled up by
Teachers (Physical Education) and 14 posts were meant for Teachers (Grade-III).
Out of 19 posts of Teachers (Physical Education), 9 posts were for General
Category candidates; 5 posts were reserved for OBC candidates; 2 posts for
Scheduled Castes candidate and one post for Scheduled Tribes candidate. One
post was to be filled on the vacancies arising out of appointment on
compassionate grounds. The date of joining was fixed on 12.04.1996. The
candidate placed at serial No.8 in the merit list did not join. The vacant post
was said to have been carried forward to 1996-97. Respondent had also applied
for the post of Teacher (Physical Education) in the said year but he was been
placed at serial No.23 in the merit list and, thus, was not found fit to be
appointed in 1996-97 also.
He
filed a writ petition before the Rajasthan High Court. On the premise that the
validity of the merit list had expired, a learned Single Judge of the said High
Court opined that he had no legal right to be appointed stating :
"Since,
respondent prepares a new panel every year and it will remain effective prior
to the end of that session, i.e., till March. Hence, after the expiry of
duration of panel, the candidates included in that panel, will not have
remained any legal right to be appointed. In the present case also, the
duration of the panel has been expired and appointments have already been made
in accordance with the same..."
4. An
intra-court appeal was preferred thereagainst. A Division Bench of the High
Court, however, reversed the said decision without adverting to the question as
to whether the select list has remained valid or not. It was held :
"Taking
into consideration all the facts and circumstances of the case, the defence
taken that till 31st of March, 1996 there was no post vacant in the Department,
is difficult to accept. The Petitioner did all whatever he could have done at
the relevant time to protect his right of consideration for appointment. The
ground on which the writ petition was dismissed is not tenable.
As a
result of the aforesaid discussion this appeal succeeds and the same is
allowed. The order dated 1.9.1997 of the learned Single Judge in S.B. Civil
Writ Petition No.4599/1996, impugned in this appeal, is quashed and set aside.
The writ petition is allowed and declared post of Teacher (Physical Education)
fallen vacant due to non- joining of the appointed candidate stood at serial
No.8 of the merit list. The Respondents are directed to give appointment to the
Petitioner on the post of Teacher (Physical Education), within a period of one
month from the date of receipt of the copy of this judgment. The appointment
shall relate back to the date on which the appointment candidate stood at
serial No.9 of the merit list, ought to have joined the post.
The
Petitioner appellant shall not be entitled for the actual monetary benefits for
the intervening period i.e. the date on which he would have joined the service
and the date of his actual joining, however, this period shall be counted for
other service and retrial benefits."
5. The
State is, thus, in appeal before us.
Mr. Aruneshwar
Gupta, Additional Advocate General, appearing on behalf of the appellant submitted
that the respondent did not have any legal right to be appointed, particularly,
when the validity of a merit list is confined only to one year.
6. Mr.
Aishwarya Bhati, learned counsel appearing on behalf of the respondent, on the
other hand, urged that as the candidates were to join their posts on 12.4.1996,
the State itself did not adhere to the period during which of the vacancies
were required to be filled up. According to the learned counsel, respondent has
already joined his services.
Learned
counsel submitted that Rule 9(3) does not fix the period of validity of the
panel and in that view of the matter, the respondent, who was on the wait list,
should have been appointed as one of the selected candidates could not join.
7.
Recruitment for teachers in the State of Rajasthan is admittedly governed by the statutory rules. All recruitments,
therefore, are required to be made in terms thereof. Although Rule 9(3) of the
Rules does not specifically provide for the period for which the merit list
shall remain valid but the intent of the legislature is absolutely clear as
vacancies have to be determined only once in a year. Vacancies which arose in
the subsequent years could be filled up from the select list prepared in the
previous year and not in other manner. Even otherwise, in absence of any rule,
ordinary period of validity of select list should be one year. In State of Bihar & Ors. v. Amrendra Kumar Mishra
[2006 (9) SCALE 549], this Court opined :
"In
the aforementioned situation, in our opinion, he did not have any legal right
to be appointed.
Life
of a panel, it is well known, remains valid for a year. Once it lapses, unless
an appropriate order is issued by the State, no appointment can be made out of
the said panel."
It was
further held:
"The
decision noticed hereinbefore are authorities for the proposition that even the
waitlist must be acted upon having regard to the terms of the advertisement and
in any event cannot remain operative beyond the prescribed period."
8. The
learned single Judge of the High Court was, therefore, correct in holding that
the second respondent has no legal right to be appointed.
It is
well settled principle of law that even selected candidates do not have legal
right in this behalf. [See Shankarasan Dash v. Union of India - 1991 (2) SCR 567, Asha Kaul
(Mrs.) and Another v. State of Jammu and Kashmir and Others (1993) 2 SCC 577] In K. Jayamohan v. State of Kerala and Another [(1997) 5 SCC 170],
this court held:
"5.
It is settled legal position that merely because a candidate is selected and
kept in the waiting list, he does not acquire any absolute right to
appointment.
It is
open to the Government to make the appointment or not. Even if there is any
vacancy, it is not incumbent upon the Government to fill up the same. But the
appointing authority must give reasonable explanation for non- appointment.
Equally,
the Public Service Commission/recruitment agency shall prepare waiting list
only to the extent of anticipated vacancies. In view of the above settled legal
position, no error is found in the judgment of the High Court warranting
interference."
[See
also Munna Roy v. Union of India and Others, (2000) 9 SCC 283]
In All
India SC & ST Employees' Association and Another v. A. Arthur Jeen and
Others [(2001) 6 SCC 380], it was opined:
"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 reads thus :- "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 vs. Subhash Chander Marwaha,
Neelima Shangla vs. State of Haryana or Jatendra Kumar vs. State of
Punjab."
9. The
principles laid down in the aforementioned cases have been followed by this
Court in Food Corporation of India and Others v. Bhanu Lodh and Others [(2005)
3 SCC 618] stating:
"14.
Merely because vacancies are notified, the State is not obliged to fill up all
the vacancies unless there is some provision to the contrary in the applicable
rules. However, there is no doubt that the decision not to fill up the
vacancies, has to be taken bona fide and must pass the test of reasonableness
so as not to fail on the touchstone of Article 14 of the Constitution. Again,
if the vacancies are proposed to be filled, then the State is obliged to fill
them in accordance with merit from the list of the selected candidates. Whether
to fill up or not to fill up a post, is a policy decision, and unless it is
infected with the vice of arbitrariness, there is no scope for interference in
judicial review"
10. In
Pitta Naveen Kumar and Others v. Raja Narasaiah Zangiti and Others (2006) 10
SCC 261], this Court observed :
"The
legal position obtaining in this behalf is not in dispute. A candidate does not
have any legal right to be appointed. He in terms of Article 16 of the
Constitution of India has only a right to be considered therefor.
Consideration
of the case of an individual candidate although ordinarily is required to be
made in terms of the extant rules but strict adherence thereto would be
necessary in a case where the rules operate only to the disadvantage of the
candidates concerned and not otherwise"
11.
Furthermore, the Division Bench was not at all justified in directing grant of
service benefits to the respondent from the date on which the appointed
candidate at serial No.9 in the merit list ought to have joined the post. Such
a direction, in our opinion, is wholly unwarranted.
We,
however, cannot set aside the impugned judgment because of the fact that the
State has appointed the respondent during the pendency of this Special Leave
Petition. We may furthermore notice that even a stay of further proceedings in
the contempt petition has been passed by this Court by an order dated
16.05.2007. We, therefore, are of the opinion that it will not be proper for
this Court now at this juncture to set aside the said appointment as the
appointment granted in favour of the respondent by the State was not by reason
of his merit in the select list but by reason of the orders of the High Court.
We, therefore, in exercise of our jurisdiction under Article 142 of the
Constitution of India and keeping in view the fact that the matter is pending
for a long time, are of the opinion that a direction should be issued that the
appointment of the respondent may be directed to be continued as if he was
appointed on and from the date he joined the service.
12.
The appeal is allowed to the afore mentioned extent. Parties are left to bear
their own costs.
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