Gujarat High Court
Dipendrasingh Ashoksingh Thakur vs Oil And Natural Gas Corporation Limited on 8 December, 2023
Author: Nikhil S. Kariel
Bench: Nikhil S. Kariel
NEUTRAL CITATION
C/SCA/3532/2022 JUDGMENT DATED: 08/12/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 3532 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 4437 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 7123 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 7516 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ? YES
2 To be referred to the Reporter or not ?
YES
3 Whether their Lordships wish to see the fair copy
of the judgment ? NO
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution NO
of India or any order made thereunder ?
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DIPENDRASINGH ASHOKSINGH THAKUR
Versus
OIL AND NATURAL GAS CORPORATION LIMITED
==========================================================
Appearance:
(in SCA No. 3532/2022)
MR VIKAS NAIR with RAJVI PATEL(9620) for the Petitioner(s) No.
1,2,3,4,5,6,7,8
MR RITURAJ M MEENA(3224) for the Respondent(s) No. 1,2
(in SCA No. 4437/2022)
MR EKRAMA QURESHIfor the Petitioner(s) No. 1,2,3
MR RITURAJ M MEENA(3224) for the Respondent(s) No. 1,2
(in SCA No.7123/2022)
MR ZUBN BHARDA with MS DIXA U PANDYA for the Petitioner(s) No.
1,2
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NEUTRAL CITATION
C/SCA/3532/2022 JUDGMENT DATED: 08/12/2023
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MR RITURAJ M MEENA(3224) for the Respondent(s) No. 1,2
(in SCA No.7516/2022)
MR EKRAMA QURESHIfor the Petitioner(s) No. 1
MR RITURAJ M MEENA(3224) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 08/12/2023
ORAL JUDGMENT
1. Heard learned advocate Mr.Vikas Nair with learned advocate Ms.Rajvi Patel, learned advocate Mr.Ekrama Qureshi, learned advocate Mr.Zubin Bharda with learned advocate Ms.Disha Pandya for the petitioners and learned advocate Mr.Rituraj Meena on behalf of the respondents.
2. Issue Rule returnable forthwith. Learned advocate Mr.Meena waives service of rule in all the petitions on behalf of the respondents.
3. With the consent of parties, the present petitions are taken up for final hearing.
3.1. At the outset, it would be relevant to mention that the present petitioners challenge the very self-same decision of the respondent Corporation whereby the respondents had cancelled recruitment for paramedical Page 2 of 30 Downloaded on : Fri Dec 08 20:49:18 IST 2023 NEUTRAL CITATION C/SCA/3532/2022 JUDGMENT DATED: 08/12/2023 undefined posts and hence, all the writ petitions are taken up for final hearing together.
3.2. The facts of Special Civil Application No.3532/2022 are being referred to for the purpose of the present decision.
4. The respondent Corporation vide advertisement no.1/2019 had notified recruitment for non-executives on regular basis for the Western Sector - Gujarat State. While vacancies for a total of 35 posts had been advertised, the present petition is concerning the advertisement for paramedical posts namely Pharmacists Grade-IV, (Allopathy) Nurse Grade-IV and Junior Health Attendant, where a total of 21 posts altogether had been advertised. 4.1. The petitioners had applied for the selection process and whereas alongwith other aspirants, the petitioners were required to appear in the Computer Based Test (CBT) examination based upon the results of which the final merit list for qualified candidates was prepared. The petitioners whose names reflected in the final merit list were called for physical verification of Page 3 of 30 Downloaded on : Fri Dec 08 20:49:18 IST 2023 NEUTRAL CITATION C/SCA/3532/2022 JUDGMENT DATED: 08/12/2023 undefined documents in the month of January, 2020. 4.2. At this stage it requires mention that initially candidatures of some of the petitioners had been rejected on the ground of not possessing a domicile certificate. It appears that such rejection had not been restricted to the posts in question and whereas many of the candidates had approached this Court by filing writ petitions and whereas vide common judgment dated 27.02.2020, a learned Coordinate Bench of this Court had inter alia allowed the petition setting aside the action of the respondent Corporation in disqualifying the candidates. The Court had also directed that the petitioners in that group of petitions whose names figured in the final merit list were to be provided with all consequential benefits and whereas the exercise was directed to be completed within a period of twelve weeks. It appears that the respondent Corporation had sought for extension on a few occasions and whereas, the exercise was finally directed to be completed by 15.11.2020.
4.3. It appears that since no progress was taking place Page 4 of 30 Downloaded on : Fri Dec 08 20:49:18 IST 2023 NEUTRAL CITATION C/SCA/3532/2022 JUDGMENT DATED: 08/12/2023 undefined insofar as the present posts, applications had been made by the petitioners and other similarly situated persons and whereas it was intimated that the process was pending due to administrative reasons. It appears that since the respondents were not complying with the directions of the learned Coordinate Bench of completing the process, therefore, the petitioners had preferred an application for direction being Misc. Application No.01/2021. It appears that during pendency of the said MCA, the respondent Corporation had issued an order of cancellation of recruitment for paramedical posts dated 01.02.2022 and whereas, upon the said decision being informed to the learned Coordinate Bench, the learned Coordinate Bench had disposed of the said MCA with liberty reserved to the petitioners to question the impugned decision, while refusing grant of any relief in the said MCA. The cancellation order dated 01.02.2022 is sought to be challenged by the petitioners before this Court.
5. Learned advocates for the petitioners would challenge the impugned decision by submitting that the decision in Page 5 of 30 Downloaded on : Fri Dec 08 20:49:18 IST 2023 NEUTRAL CITATION C/SCA/3532/2022 JUDGMENT DATED: 08/12/2023 undefined question is completely arbitrary inasmuch as after having advertised vacancies for the posts in question and having conducted the recruitment process till the stage of document verification, the respondents were not justified in canceling the recruitment for the posts in question. 5.1. Learned advocates for the petitioners would submit that the respondents in their reply and additional reply would try to justify the decision by stating that in view of the Covid-19 pandemic situation, since the ONGC decided to review non-core activities, which had resulted in cancellation of the recruitment process, yet, the truth is otherwise. Learned advocates would submit that at around the same time when the petitioners were called for document verification in the month of January, 2020, some of the Recognized Unions with the ONGC had raised certain issues with regard to paramedics on contractual basis working with the respondent ONGC and had requested for withholding of the recruitment process insofar as the paramedic posts were concerned. It is submitted by learned advocates that the recruitment process had been initially put on Page 6 of 30 Downloaded on : Fri Dec 08 20:49:18 IST 2023 NEUTRAL CITATION C/SCA/3532/2022 JUDGMENT DATED: 08/12/2023 undefined hold and later cancelled on account of the representation by the Recognized Unions and not on account of any review on account of Covid-19 Pandemic as attempted to be portrayed.
5.2. Learned advocates would further submit that the issue has to be appreciated in the context of the fact that the posts on which the recruitment process had been conducted i.e. with regard to paramedics were occupied by persons appointed on contractual basis and the Unions were espousing the cause of such persons. It is further submitted that as such, the persons working in contractual basis had approached this Court praying for regularization which request had been rejected. Learned advocates would submit that inspite of the same, after having advertised the posts in question and after having conducted the selection process till the stage of document verification, the respondents have cancelled the recruitment under pressure of the Unions so as to ensure that the persons who are occupying the posts though on contractual basis, are permitted to be continued.
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NEUTRAL CITATION C/SCA/3532/2022 JUDGMENT DATED: 08/12/2023 undefined 5.3. It is further submitted by learned advocates that on one hand while it is attempted to be stated by the ONGC that since the ONGC is reviewing its non-core activities inter alia resulting in cancellation of the selection process for the posts in question, yet, on the other hand the respondent ONGC has continued to keep the posts filled in albeit by continuing the candidates on contractual basis. A reply received to an application under the RTI dated 18.11.2021 is being relied upon by learned advocates. It is further submitted by the petitioners that while the respondents appear to be relying upon cancellation of similar recruitment process by the ONGC in other States, yet, at the same time it would also appear that the ONGC had also given appointment to persons in the post of pharmacists in the Mumbai Asset, after the present stand had been taken and hence, it clearly appears that the respondents are adopting a pick and choose method. Thus submitting, learned advocates for the petitioners would request that this Court may interfere.
5.4. Learned advocates would in support of their Page 8 of 30 Downloaded on : Fri Dec 08 20:49:18 IST 2023 NEUTRAL CITATION C/SCA/3532/2022 JUDGMENT DATED: 08/12/2023 undefined submissions rely upon decisions of the Hon'ble Apex Court in case of Shankarsan Dash vs. Union of India reported in (1991) 3 SCC 47 and decision in case of State of Manipur vs. Takhelmayum Kheledro Meitei and others reported in (2019) 3 SCC 331. Relying upon the said decision, learned advocates for the petitioners would request this Court to set aside the decision of the respondents in canceling the recruitment process for the posts in question and further request this Court to direct the respondents to continue the selection process from the stage it had been put on hold/cancelled.
6. On behalf of the respondents. these petitions are vehemently objected to by learned advocate Mr.Meena who at the outset would submit that the present petition itself is misconceived more particularly as the petitioners who had participated in a selection process would not be entitled to claim any right accruing in their favour on account of the same or on account of figuring in the merit list. 6.1. Learned advocate would submit that by now it is a very settled position that even a candidate whose name Page 9 of 30 Downloaded on : Fri Dec 08 20:49:18 IST 2023 NEUTRAL CITATION C/SCA/3532/2022 JUDGMENT DATED: 08/12/2023 undefined figures in the select list would not be entitled to claim for appointment as a matter of right and whereas, the petitioners could not be permitted to question the decision of the respondents merely on account of their names figuring in the merit list.
6.2. Learned advocate would rely upon the affidavit-in- reply and the additional affidavits filed by the respondent and would submit that while initially a decision had been taken for recruiting persons to the posts in question, thereafter i.e. after the onset of the pandemic, since the prices of crude oil had substantially dropped, therefore, a decision had been taken at the highest level to review non-core activities, as a result of which, the posts of paramedics which were not co- relatable to the core activities of the corporation had been decided to be cancelled.
6.3. It is submitted by learned advocate that the respondents have, after issuing the cancellation notification, had refunded the application fee to almost all the candidates in question. Learned advocate Mr.Meena would further submit that as such, a similar Page 10 of 30 Downloaded on : Fri Dec 08 20:49:18 IST 2023 NEUTRAL CITATION C/SCA/3532/2022 JUDGMENT DATED: 08/12/2023 undefined decision of the respondents with regard to advertisement which had been issued at around the same time for the very same post in question i.e. of canceling the entire recruitment process had been questioned by similarly situated candidates before the High Court of Tripura at Agartala and whereas vide an order dated 12.09.2023, a learned Single Judge of the said Court had dismissed the petition on the ground that the same does not suffer from any arbitrariness. Learned advocate would submit that since a similar decision of the respondent Corporation having been upheld by the Tripura High Court, this Court also may not interfere with the decision of the respondents. 6.4. At this stage, it would be relevant to observe that vide an order dated 21.02.2023 this Court had directed the respondents to produce on record the entire file with regard to the on-line decision making process by the respondents and whereas in compliance of such a direction, an additional affidavit had been submitted in the month of May, 2023 which appears to have been filed on 27.09.2023 with the Registry which affidavit Page 11 of 30 Downloaded on : Fri Dec 08 20:49:18 IST 2023 NEUTRAL CITATION C/SCA/3532/2022 JUDGMENT DATED: 08/12/2023 undefined contains the entire file with regard to the decision making process.
6.5. Learned advocate Mr.Meena has taken this Court extensively through the on-line decision making process and has attempted to submit that the decision to cancel the recruitment was on account of the review by the ONGC to their non-core activities and whereas, the said decision had been approved till the level of the Director (HR). Thus, it is submitted that the decision to cancel the recruitment was not a random decision rather senior responsible officers of the respondent Corporation had applied their mind and whereas even the Legal Department of the ONGC had also been consulted whereafter a decision had been taken. Learned advocate would submit that under such circumstances, this Court may not interfere with the said decision.
7. Learned advocates for the petitioners in rejoinder would submit that the respondents are trying to justify their decision to cancel the recruitment process on the ground of the pandemic situation, yet it needs mention that the recruitment process was over before the onset of the Page 12 of 30 Downloaded on : Fri Dec 08 20:49:18 IST 2023 NEUTRAL CITATION C/SCA/3532/2022 JUDGMENT DATED: 08/12/2023 undefined pandemic and even the recruitment process had reached the stage of document verification before the pandemic situation had arisen.
7.1. It is further submitted that while the ONGC is trying to portray the posts of paramedics as non-core activities, yet, there is no justification for the same since it appears that the ONGC has got a very large workforce and the recruitment of paramedics is to cater to such workforce and whereas since the posts are in fact being occupied by persons on contractual basis, the ONGC could not be heard to justify the non-selection on the basis of review of non-core activities. 7.2. It is reiterated by learned advocates that while there cannot be any quarrel with regard to the legal position that a candidate even if his name figures in the select list does not get a writ for appointment, yet, it is equally clear from the law laid down that the State Instrumentalities could not be seem to be acting arbitrarily in matters of public employment. Learned advocates would therefore request this Court to set aside the decision on the part of the respondents of Page 13 of 30 Downloaded on : Fri Dec 08 20:49:19 IST 2023 NEUTRAL CITATION C/SCA/3532/2022 JUDGMENT DATED: 08/12/2023 undefined canceling the recruitment process and grant further prayers as prayed for.
8. Having heard learned counsels for the respective parties and having perused the documents on record, in the considered opinion of this Court, following question arise for the consideration of this Court:-
i. Whether the proposition that a candidate even if his name figures in the select list is not entitled to claim appointment, is an absolute principle?
ii. Whether the decision of the respondents of canceling the recruitment process is in accordance with law or arbitrary?
9. It would be apposite to, before giving my own answer, refer to decisions of the Hon'ble Apex Court on this issue. 9.1. A Constitutional Bench of the Hon'ble Apex Court in case of Shankarsan Dash (supra) has observed thus at paragraph no.7:-
"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 Page 14 of 30 Downloaded on : Fri Dec 08 20:49:19 IST 2023 NEUTRAL CITATION C/SCA/3532/2022 JUDGMENT DATED: 08/12/2023 undefined 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."
(emphasis supplied) 9.2. The law has been very succinctly explained by the Hon'ble Apex Court inasmuch as while laying down the principle that a successful candidate does not acquire an indefeasible right to be appointed, yet, the Hon'ble Apex Court had also clearly set-out the principle that the above referred proposition would be subject to the State not acting arbitrarily. Furthermore, decision not to fill up vacancies have to meet with the scrutiny on the ground of being bona fide and for appropriate reasons. 9.3. The Hon'ble Apex Court in case of Takhelmayum Page 15 of 30 Downloaded on : Fri Dec 08 20:49:19 IST 2023 NEUTRAL CITATION C/SCA/3532/2022 JUDGMENT DATED: 08/12/2023 undefined Kheledro Meitei (supra) had an occasion to refer to decision of Shankarsan Dash (supra) and whereas relevant observations of the Hon'ble Apex Court at paragraph no.11 are reproduced hereinbelow for benefit:-
"11. In Shankarsan Dash v. Union of India, it was held that there is no indefeasible right for appointment merely because a candidate is found fit on the basis of a selection. Ordinary the notification merely amounts to an invitation to qualified candidates to apply for recruitment. 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 was also held in the said judgment that the State does not have any licence to act in an arbitrary manner and that the decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. The High Court observed that there is no bona fide reason for the successor entities of the Electricity Department for not appointing the respondents. Further, the High Court concluded that it was not the stand of the appellant that the process of recruitment has been scrapped."
9.4. From a plain observation, it would be clear that while recognizing that the candidate would not get an indefeasible right for appointment based upon selection, it was further observed that the State cannot act in an arbitrary manner and whereas the decision has to be taken bona fidely.
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NEUTRAL CITATION C/SCA/3532/2022 JUDGMENT DATED: 08/12/2023 undefined 9.5. In case of East Coast Railway and Another vs. Mahadev Appa Rao and Others, reported in (2010) 7 SCC 678, the Hon'ble Apex Court had inter alia observed thus at paragraph no.14, more particularly again explaining the observations of the Apex Court in case of Shankarsan Dash (supra):-
"14. It is evident from the above that while no candidate acquires an indefeasible right to a post merely because he has appeared in the examination or even found a place in the select list, yet the State does not enjoy an unqualified prerogative to refuse an appointment in an arbitrary fashion or to disregard the merit of the candidates as reflected by the merit list prepared at the end of the selection process. The validity of the State's decision not to make an appointment is thus a matter which is not beyond judicial review before a competent writ court. If any such decision is indeed found to be arbitrary, appropriate directions can be issued in the matter."
9.6. The Hon'ble Apex Court, while reiterating the law had further explained that the State's decision not to appoint is subject to judicial review before a writ Court and if the decision is found arbitrary, appropriate directions could be issued.
9.7. Thus, the principle that would emerge from the law laid down by the Hon'ble Apex Court in case of Page 17 of 30 Downloaded on : Fri Dec 08 20:49:19 IST 2023 NEUTRAL CITATION C/SCA/3532/2022 JUDGMENT DATED: 08/12/2023 undefined Shankarsan Dash (supra) explained in later decision that while the State could legitimately deny appointment to a selected candidate, who does not acquire any right on the basis of such selection. Yet, on the other hand, decision of the State should be bona fide and based on appropriate reasons and whereas, if the decision is arbitrary and malafide for reasons which are not appropriate then, it would be open for the writ Court to issue appropriate directions in a challenge to the non-appointment. Thus, the submission that a candidate does not acquire any indefeasible right merely on account of his name figuring in the select list, it not an absolute proposition. In matters of all public employment, the State and its Instrumentalities cannot be seen to be acting arbitrarily and whereas, in case a decision not to appoint a candidate/candidates whose name figure in the select list or in a like situation where the State decides to do away with the selection process, if the decision appears to be arbitrary or for non-bona fide reasons, the writ Court would be entitled to pass appropriate directions.
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10. Having appreciated the issue from its legal perspective, we will now proceed to examine the issue on its facts to understand whether the decision by the respondent ONGC was either arbitrary or was bona fide and for appropriate reasons.
10.1. It would appear that after the advertisement, the selection process had continued in right earnest up to the stage of document verification insofar as the present posts in question are concerned. It would appear that while there had been some erroneous stand taken by the ONGC more particularly having regard to bona fide certificates, it would also appear that at the relevant point of time, the Unions had approached the respondent raising some issues connected with contract paramedics and requested for withholding declaration of result of current recruitment exercise for paramedics. The same is evident from a file noting dated 22.01.2020 originating from the Chief (ER) which had been acknowledged by the Chief (HRD) and the Head (R&P). It appears that based upon such request, on 03.03.2020, the CGM-Head(CORP.R&P) had intimated to the Page 19 of 30 Downloaded on : Fri Dec 08 20:49:19 IST 2023 NEUTRAL CITATION C/SCA/3532/2022 JUDGMENT DATED: 08/12/2023 undefined concerned officers that recruitment in paramedic disciplines be put on hold till further orders. Thus, it clearly appears that at the first instance, the decision to keep the recruitment process on hold had been taken upon the representation received by Recognized Union. 10.2. While the communications reveal representation on account of some pending issue, whereas it does not require any mention here that the reason was very obvious i.e. to ensure that paramedics on contract basis were not disturbed more particularly the said contractual paramedics would be required to make way if the recruitment process for paramedics had reached its logical conclusion.
10.3. It appears that while the position i.e. of keeping the recruitment process on hold continued, the petitioners had approached this Court by preferring Misc. Civil Application (for direction) in the writ petition which they had preferred questioning decision taken by the respondents as regards the domicile certificate. It appears that a question had arisen as to the stand which was to be taken before this Court and whereas, from the Page 20 of 30 Downloaded on : Fri Dec 08 20:49:19 IST 2023 NEUTRAL CITATION C/SCA/3532/2022 JUDGMENT DATED: 08/12/2023 undefined file noting it appears that a justification was found out to cancel the recruitment of paramedics. The justification being that on account of the pandemic situation, there had been a drop in crude prices resulting in the ONGC requiring to review their non- core activities.
10.4. From the e-mails which are part of the file noting starting from one Mr.Rishi Kumar Dwivedi, Section HR Executive dated 13.10.2021 seeking instructions as regards taking a stand before this Court, it would appear that the justification as referred to herein above was arrived at more particularly to cancel the recruitment process for the posts in question and whereas, from the e-mail itself it would be apparent that while the ostensible decision was to refer to the pandemic situation yet, the real reason was the representation by the Recognized Unions to withhold declaration of results. Email sent by one Mr.Rajan Asthana, Group General Manager (HR) to one Mr.Aseemkumar Sinha dated 19.10.2021 making a very interesting reading is reproduced hereinbelow:- Page 21 of 30 Downloaded on : Fri Dec 08 20:49:19 IST 2023
NEUTRAL CITATION C/SCA/3532/2022 JUDGMENT DATED: 08/12/2023 undefined "Dear Sir, The trailing mail and the attachments pertain to filing a reply in the Hon'ble HC of Gujarat in MCA in SCA No. 2054 of 2020, wherein the applicants for the posts of Paramedics have represented against withholding of the recruitment exercise mid-way.
As you are aware a decision was taken in January 2020, based on request of GSs of Recognized Unions to withhold declaration of the Result of the then on-going recruitment of the Paramedics. Subsequently with the outbreak of the COVID-19 Pandemic, followed by a challenging economic scenario, especially related to E&P Sector, Companies across the Globe were constrained to re-visit their business processes, adopt cost effective schemes and welfare measures. Accordingly, ONGC is also reviewing its duty patterns, working out locational agnostic shared services options, introducing enabling technology and re-working our manning mix.
In view of a discouraging Crude price Scenario coupled with reduced production from majority of our aged fields, we shall have to review our non-core activities and hence it would be prudent to cancel the instant recruitment of the paramedics. This was also apprised to Director (HR).
May also offer your comments and if agreed, we may advise Vadodara HR to accordingly submit the reply to the MCA. The hearing is on 22.10.2021 hence the reply is to be submitted before the said date."
10.5. It further appears that thereafter, the services of the Legal Department had been availed to ensure that Page 22 of 30 Downloaded on : Fri Dec 08 20:49:19 IST 2023 NEUTRAL CITATION C/SCA/3532/2022 JUDGMENT DATED: 08/12/2023 undefined the decision stands the scrutiny of the Court.
11. In the considered opinion of this Court, while in the affidavit-in-reply it has been attempted to be stated by the respondents that the decision was for appropriate and bona fide reasons i.e. to do away with non-core activities on account of the discouraging crude prices, yet, a scrutiny of the file relating to the decision in question clearly reveals that neither the decision was bona fide nor the decision was for appropriate reasons.
11.1. It clearly appears that while the recruitment process was near in completion, the Unions espousing the cause of persons working on the posts in question albeit on contractual basis, had requested for keeping the recruitment process on hold. The respondents, without taking into consideration the fact that the request of the contractual employees for regularization having been rejected by this Court, had readily obliged and kept the recruitment for the posts in abeyance. It further appears that when the petitioners had sought to question the same by preferring an MCA (for direction) before this Court, it was decided to cancel the entire Page 23 of 30 Downloaded on : Fri Dec 08 20:49:19 IST 2023 NEUTRAL CITATION C/SCA/3532/2022 JUDGMENT DATED: 08/12/2023 undefined recruitment for the posts in question and to provide justification for the same. The justifications having been elaborately mentioned by this Court hereinabove i.e. of relying upon the pandemic situation which had resulted in discouraging crude prices to review the non-core activities of the ONGC. The decision on the part of the respondents does not to state the least behove a State Entity like the ONGC more particularly when the entire exercise was done to justify their action before this Court and to cover-up the original decision of giving in to the representations of the Unions.
11.2. The Hon'ble Apex Court in case of Shankarsan Dash (supra) had inter alia laid down that the decision of the State should not be arbitrary rather the decision should be bona fide and for appropriate reasons. In the considered opinion of this Court, the decision to keep the recruitment process on hold was as arbitrary as anything could be and whereas the decision smacks of malafides and is for completely inappropriate reasons. In a selection process by a State Entity, there cannot be any interference which could be countenanced more Page 24 of 30 Downloaded on : Fri Dec 08 20:49:19 IST 2023 NEUTRAL CITATION C/SCA/3532/2022 JUDGMENT DATED: 08/12/2023 undefined particularly such interference resulting in disturbing the selection process itself. While it may have been open for the respondent ONGC not to have advertised for filling up of the posts in question, yet, once having decided to fill up the vacancies through a selection process after public advertisement, it was not open for the respondents to first keep the selection process in abeyance and thereafter cancel the entire process under request, possibly pressure by the Recognized Unions. In the considered opinion of this Court, as much as it would be impermissible for any person, body/bodies to interfere in the selection process for public employment to appoint a particular candidate, it would also be impermissible for interfering in the selection process to ensure that no one is appointed so that persons on contractual basis can continue holding the said posts.
12. What is more shocking and intolerable is the stand of the senior management of the respondent. While in the first place the respondents had taken an arbitrary decision to withhold the selection process on account of representations by the Recognized Unions, at a stage when Page 25 of 30 Downloaded on : Fri Dec 08 20:49:19 IST 2023 NEUTRAL CITATION C/SCA/3532/2022 JUDGMENT DATED: 08/12/2023 undefined the respondents realized that the matter had reached this Court, instant of making amends, to ensure that the arbitrary and illegal decision of the respondent is reversed, the senior management resorts to camouflage the decision by relying upon high sounding technical words. It would be apposite to state here that the affidavit-in-reply and the additional affidavits being completely bereft of any details, it could be very well concluded that the only unfortunate victims of the decision of the respondents to review their non-core activities were the candidates with regard to the present selection process. It does not appear that there had been any policy decision taken at the highest echelons to review non-core activities for cost cutting purposes. Again, it is reiterated that the unfortunate part being that the cover-up was by the senior management and whereas, it appears that even the Director (HR) was also a party to the decision making process which was essentially a cover up to justify their arbitrary decision before this Court. 12.1. Thus, it would be clear that the decision to cancel the recruitment was absolutely arbitrary. The reasons for canceling were neither appropriate nor bona fide. Page 26 of 30 Downloaded on : Fri Dec 08 20:49:19 IST 2023
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13. Having come to a conclusion as above that the proposition about candidates not having an indefeasible right to be granted appointment upon his name figuring in the select list and further coming to a conclusion that the decision of the respondents was arbitrary and the reasons for such decision being neither bona fide nor appropriate, the question would be what would be the relief that would be granted. A further question would be as to whether in a fact situation more particularly since this Court has come to a conclusion that the respondents had come up with the reason of discouraging crude prices on account of the pandemic situation requiring review of non-core activities as a camouflage to hide the original decision of keeping the selection in abeyance upon representation from Recognized Unions, and further having come to a conclusion that even the higher management appears to be a part of the cover- up, whether any further directions are required to be issued.
13.1. In the considered opinion of this Court, it is by now a well settled principle of law that the State and its entities are required to act fairly. It also requires to be Page 27 of 30 Downloaded on : Fri Dec 08 20:49:19 IST 2023 NEUTRAL CITATION C/SCA/3532/2022 JUDGMENT DATED: 08/12/2023 undefined mentioned as observed by the Hon'ble Apex Court in case of Ramana Dayaram Shetty vs. International Airport Authority of India, reported in (1979) 3 SCC 489 that:-
"the power of discretion of the Government in a matter of award of jobs must be confined and structured by rational, relevant and non- discriminatory standard or norms and if the Government departs from such standard or norms in any particular case or cases, the action of the Government would be liable to be struck down."
13.2. While this Court having come to a conclusion that the decision of the respondents is arbitrary would be striking down the same, yet, in view of the fact that during pendency of a petition before this Court, since higher management of the respondent appears to have acted irresponsibly and with an intent to mislead this Court into approving their decision, therefore, appropriate directions are also required to be issued in that regard.
14. In view of the above discussion, analysis and conclusions, the following directions are passed:- Page 28 of 30 Downloaded on : Fri Dec 08 20:49:19 IST 2023
NEUTRAL CITATION C/SCA/3532/2022 JUDGMENT DATED: 08/12/2023 undefined 14.1. The impugned decision of the respondents dated 01.02.2022 of cancellation of recruitment for paramedical posts is hereby quashed and set aside.
14.2. The respondents are directed to forthwith continue with the selection process from the stage it had been kept in abeyance and later cancelled.
14.3. The petitioners, if they fulfill all the criteria, shall be granted appointment in the respective posts and while the appointment of the petitioners shall be in the order of merit as determined by the respondents, yet, considering that the petitioners have been denied appointment on account of the arbitrary action of the respondents, the respondents shall pay to the petitioners salary of the respective posts with effect from the date of filing of the petitions.
14.4. A copy of the present judgment be sent to the Secretary, Ministry of Petroleum for information and initiating action against the concerned officers for having indulged in taking such a decision at the behest of the Unions, which decision as referred to Page 29 of 30 Downloaded on : Fri Dec 08 20:49:19 IST 2023 NEUTRAL CITATION C/SCA/3532/2022 JUDGMENT DATED: 08/12/2023 undefined hereinabove, is against all settled standards and norms.
15. With the above directions, the present petitions are disposed of as allowed. Rule is made absolute to the aforesaid extent. Direct service is permitted.
(NIKHIL S. KARIEL,J) Bhoomi Page 30 of 30 Downloaded on : Fri Dec 08 20:49:19 IST 2023