Rajesh Kumar And 4 Others vs State Of U.P. And 7 Others
2023 Latest Caselaw 22683 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Neutral Citation No. - 2023:AHC:169066
 
Court No. - 37
 

 
Case :- WRIT - A No. - 17374 of 2019
 

 
Petitioner :- Rajesh Kumar And 4 Others
 
Respondent :- State Of U.P. And 7 Others
 
Counsel for Petitioner :- Rajesh Pathik
 
Counsel for Respondent :- C.S.C.
 

 
Hon'ble Abdul Moin,J.

1. Heard learned counsel for the petitioners and learned Standing Counsel.

2. This writ petition has been filed for quashing of the order dated 13.6.2019 passed by respondent No.3, a copy of which has been filed as Annexure-10 to the writ petition. Further prayer is for a mandamus directing respondent Nos.4 to 8 to declare the result of Chaprasis (Peons)/Chaukidars (Watchmen).

3. The facts of the case are as under:-

An advertisement was published in the newspaper on 9.7.2010 inviting applications for the post of Peons/Watchmen. The petitioners finding themselves eligible for the said posts applied. Specific averment has been made in paragraph 4 of the petition that all the 5 petitioners appeared in the interview but the result was not declared. It appears that non declaration of the result was on account of a writ in public interest litigation, namely, Public Interest Litigation (PIL) No.19831 of 2011 In re: Saroj Kumar Sen vs. State of U.P. and others, being filed in which a Division Bench of this Court vide order dated 6.4.2011, a copy of which has been filed as Annexure-3 to the writ petition, required the learned Standing Counsel to file a counter affidavit and further provided that the interviews be held but neither the results will be declared nor the appointment orders will be issued without leave of the Court. Subsequent thereto, the aforesaid public interest litigation was dismissed vide judgment and order dated 23.3.2017. A copy of the said judgment has been filed as Annexure-5 to the writ petition.

However, it appears that on account of the order that was passed in the aforesaid public interest litigation on 6.4.2011, the result of the petitioners and other candidates was not declared even after dismissal of the public interest litigation. The petitioners approached this Court by filing Writ-A No.18104 of 2018 In re: Rajesh Kumar and others vs. State of U.P. and others, which was disposed of vide judgment and order dated 27.8.2018, a copy of which has been filed as Annexure-6 to the writ petition, permitting the petitioners to approach the respondents for redressal of their grievance. The respondents were required to examine the grievance of the petitioners and pass appropriate order. In pursuance of the judgment and order dated 27.8.2018, the petitioners approached the respondents by means of their representation contending that though they applied in pursuance to the advertisement and their interviews were also taken but the recruitment process has not been taken to its logical end despite dismissal of the public interest litigation in which restraint order was passed. When the representation was not decided, the petitioners filed Contempt Application (Civil) No.1784 of 2019 which was disposed of vide order dated 1.4.2019, a copy of which has been filed as Annexure-9 to the writ petition. Thereafter the respondents have passed the order dated 13.6.2019 whereby the claim of the petitioners has been rejected. Being aggrieved with the order dated 13.6.2019, instant writ petition has been filed.

4. The contention of learned counsel for the petitioners is that a perusal of the order impugned dated 13.6.2019 indicates that the respondents have rejected the claim of the petitioners for declaration of result and for taking the selection process to its logical end, primarily on the grounds (a) that a Government Order dated 8.9.2010 has been issued directing that appointment of Class-IV employees shall be made through outsourcing; (b) that a period of almost 9 years has lapsed since the selection in question took place in the year 2010; (c) that on the advertised posts no appointment have still taken place and (d) that in the advertisement that had been issued inviting applications for the post of Peons/Watchmen, it was specifically mentioned that selection process could be cancelled or stayed without assigning any reason. Certain other grounds have also been taken while rejecting the representation of the petitioners.

5. Relying upon the letter dated 14.9.2010 sent by the Transport Commissioner to the Principal Secretary (Transport), a copy of which has been filed as Annexure-10 to the writ petition, contention of learned counsel for the petitioners is that by the said letter guidance was sought from the State Government as to what is to be done to the selection process which had been started for recruitment of 115 Class-IV employees, after the Government Order dated 8.9.2010 providing for appointment of Class-IV employees through outsourcing. The State Government, vide letter dated 12.11.2010, a copy of which has been filed as Annexure-2 to the writ petition, informed the Transport Commissioner that His Excellency the Governor has been pleased to relax the conditions of the Government Order dated 8.9.2010 and the selection process in question should be taken to its logical end.

6. The argument is that once the State Government has already granted its approval for taking the selection process in question to its logical end, the respondents have patently erred in passing the impugned order and, therefore, the order impugned merits to be quashed and a further direction be issued to the respondents to declare the result of the Chaprasies/Chowkidars.

7. On the other hand, learned Standing Counsel appearing for the State contended that even a selected candidate has no right to the post. It is submitted that the advertisement had been issued in the year 2010 by which the applications were invited for filling up the Class-IV posts but on account of interim order dated 6.4.2011 passed in a public interest litigation, the selection process was not processed further. Even after dismissal of the public interest litigation, considering the fact that the posts were advertised way back in the year 2010 and substantial time has already lapsed, the competent authority did not find it feasible to continue with the selection process.

8. Reliance has been placed on the judgment of the Apex Court in the case of Anupal Singh and others vs. State of U.P. and others; 2020 (2) SCC 173 to argue that in the said case, the Apex Court has categorically held that even a selected candidate has no right to the post. It is contended that in the instant case only interviews have taken place and the petitioners have not even been selected and thus in view of the law laid by the Apex Court in the case of Anupal Singh (supra), there is no illegality or infirmity in the order impugned whereby the competent authority has decided not to proceed further with the selection process in question.

9. Having heard the learned counsel for the contesting parties and having perused the record what emerges is that an advertisement had been issued way back in the year 2010 for filling in the posts of Peons/Watchmen and the petitioners being eligible for the same applied. The interviews of the petitioners and other candidates had taken place but the result of the same could not be declared on account of interim order dated 6.4.2011 passed by this Court in a public interest litigation filed by certain persons. Subsequently, the public interest litigation was dismissed on 23.3.2017 meaning thereby the interim order merged in the final order. The petitioners approached this Court by filing a writ petition in the year 2018 praying that the selection process be taken to its logical end. This Court disposed of the said writ petition directing the respondents to decide the representation of the petitioner which entailed the respondents passing the impugned order dated 13.6.2019 by which the claim of the petitioners for taking the selection to its logical end was rejected primarily on the ground that substantial time has lapsed since issuance of the advertisement and further as per the advertisement itself, the same could be stayed or cancelled at any stage. Certain other grounds have also been indicated.

10. The short question which is to be considered is as to whether the petitioners, who had applied and had been interviewed for the post of Peons/Watchmen, have got any right to the post.

11. The Apex Court in the case of Anupal Singh (supra) has categorically held that even the selected candidates have no right to be appointed. In the instant case, the petitioners are on a weaker footing inasmuch as they have not even been declared selected rather only an interview had taken place.

12. The Apex Court in the case of Anupal Singh (supra) has held as under:-

"78. It is fairly well-settled that the selected candidates do not have any indefeasible right to be appointed. As held in State of Bihar and Others v. Amrendra Kumar Mishra (2006) 12 SCC 561, merely because the names of candidates were included in the provisional select list, they do not acquire any indefeasible right to be appointed. Merely because UP Public Service Commission has recommended the names of 906 candidates, they do not acquire any indefeasible right for being appointed."

13. Likewise, the Apex Court in the case of Commissioner of Police and another vs. Umesh Kumar; 2020(10) SCC 448 has held as under:-

"19. The real issue, however, is whether the respondents were entitled to a writ of mandamus. This would depend on whether they have a vested right of appointment. Clearly the answer to this must be in the negative. In Punjab SEB vs. Malkiat Singh [2005(9) SCC 22, this Court held that the mere inclusion of candidate in a selection list does not confer upon them a vested right to appointment. The Court held:

"4. ...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 v. Union of India [(1991) 3 SCC 47 : 1991 SCC (L&S) 800 : (1991) 17 ATC 95] which reads: (SCC pp. 50-51)

"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 Chyander 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 Jitendra Kumar v. State of Punjab [(1985) 1 SCC 122 : 1985 SCC (L&S) 174 : (1985) 1 SCR 899] ." (emphasis supplied)"

14. A perusal of the aforesaid judgments would indicate that even a selected candidate has no right to the post and it is in the domain of the competent authority to proceed or not to proceed with the selection process after giving reasons.

15. In the instant case, the competent authority has considered the grievance of the petitioners and rejected the same vide order dated 13.6.2019. Though various grounds have been taken by the respondents while rejecting the representation of the petitioners seeking appointment yet only on the short ground that the petitioners are not even selected candidates and as such have no indefeasible right as held by the Apex Court in the aforesaid judgments, it is apparent that the petitioners are not entitled either for declaration of result of their interview or for selection process to be taken to its logical end.

16. No doubt, the State Government has issued the order dated 12.11.2010 whereby the condition of the Government Order dated 8.9.2010, which pertains to outsourcing, has been relaxed and the selection process has been directed to be taken to its logical end yet the fact of the matter remains that once the respondents themselves have not deemed it fit to take the selection process to its logical end on the grounds already indicated in the impugned order apart from the fact that substantial period of time has already lapsed since the issuance of advertisement and keeping the view the aforesaid judgments of the Apex Court, this Court does not deem it fit to direct the respondents to take the selection process to its logical end.

17. Considering the aforesaid, no ground is made out to interfere with the order impugned. The writ petition is dismissed.

Order Date :- 22.8.2023

Rakesh