Bombay High Court
The Union Of India And Ors vs Jagdish P. Awale And Ors on 4 March, 2024
2024:BHC-AS:10482-DB
10.336.2010-wp.docx
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.336 OF 2010
WITH
CIVIL APPLICATION NO.2601 OF 2018
WITH
CIVIL APPLICATION NO.2371 OF 2013
IN
WRIT PETITION NO.336 OF 2010
The Union of India & Ors. ..... Petitioners
Vs.
Jagdish P. Awale & Ors. ..... Respondents
Mr. R. R. Shetty for the Petitioners
Ms. Vaishnavi M. Gujarathi for the Respondents
CORAM: DEVENDRA KUMAR UPADHYAYA, CJ. &
ARIF S. DOCTOR, J.
DATE : MARCH 4, 2024
ORAL JUDGMENT (PER : CHIEF JUSTICE)
1. It has been informed by the learned Counsel representing
the Respondents that Respondent No.9 has died.
2. Learned Counsel representing the Petitioners states that
considering the subject matter of this Writ Petition, no cause of
action survives as against Respondent No.9 and accordingly, he
may be permitted to delete Respondent No.9 from the array of
Respondents.
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3. We, thus, direct that Respondent No.9 shall be deleted
from the array of Respondents.
4. Necessary amendment shall be carried out by learned
Counsel representing the Petitioners during the course of the
day. Reverification is dispensed with.
5. We, now, proceed to adjudicate the Writ Petition finally with
the consent of the learned Counsel for the parties.
6. Heard Mr. R. R. Shetty, learned Counsel representing the
Petitioners and Ms. Vaishnavi M. Gujarathi, learned Counsel
appearing for the Respondents.
7. By instituting the present proceedings of this Writ Petition,
the Petitioners have challenged the judgment and order dated
15th June 2009 passed by the Mumbai Bench of the Central
Administrative Tribunal (hereinafter referred to as the
"Tribunal") whereby the Original Application No.278 of 2008
filed by the Respondents has been allowed and a direction has
been issued to the Petitioners to consider the Respondents for
recruitment as unskilled labourers pursuant to the advertisement
dated 19th November 2005 from the stage at which the
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recruitment process is said to have been cancelled on 11 th
February 2008.
8. It has been argued by the learned Counsel for the
Petitioners that such a direction issued by the Tribunal is
completely illegal for two reasons. Firstly, that merely because
the Respondents were permitted to participate in the interview
and physical efficiency tests, they will have no vested right to be
appointed and secondly, it has been argued on behalf of the
Petitioners that whether to fill-in or keep a vacancy in abeyance
is the prerogative of the employer and by a judicial order the
employer cannot be compelled to fill-in a vacancy. In this view,
the argument is that the impugned direction issued by the
Tribunal is not sustainable.
9. In addition to the aforesaid, it has also been submitted by
learned Counsel for the Petitioners that there existed valid and
reasonable grounds for the Petitioners to cancel the recruitment
process and as a matter of fact the recruitment process initiated
pursuant to the advertisement dated 19th November 2005 was
cancelled with a view to give effect to the judgment passed by
the Tribunal in Original Application No.684 of 2006 which was
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filed with a prayer for absorption of Group-D employees. It is,
thus, argued that no exception can be taken by the Respondents
to the cancellation of recruitment process.
10. Per-contra, it is submitted by learned Counsel representing
the Respondents that the Tribunal, while deciding the Original
Application No.684 of 2006, by means of impugned judgment
and order dated 6th June 2007, has rightly allowed to continue
the recruitment process initiated pursuant to the advertisement
dated 19th November 2005 and that against the available
vacancies if a direction has been issued by the Tribunal for
completing recruitment process, no fault can be found with such
a direction issued by the Tribunal.
11. We have given our anxious consideration to the competing
submissions made by the learned Counsel for the respective
parties and have also considered the records available before us
on this Writ Petition.
12. By means of an advertisement dated 19 th November 2005,
121 vacancies of unskilled labourers were advertised pursuant to
which the Respondents submitted their Applications. Accordingly,
the Respondents are said to have been subjected to interview
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and physical efficiency tests and they were also issued letters for
undergoing the medical examination, however, before the
medical examination could be completed, a communication was
received by the Respondents not to attend the medical
examination as a consequence whereof the Respondents filed
Original Application No.647 of 2007 which was disposed of by
the Tribunal with a direction to the Petitioners to decide the
representations made by the Respondents against deferment /
cancellation of recruitment process initiated pursuant to the
advertisement dated 19th November 2005. The Petitioners,
pursuant to the said direction issued by the Tribunal on 11 th
November 2007 in Original Application No.647 of 2007,
considered the representations of the Respondents and rejected
the same by means of an order dated 18 th December 2007.
Once the representations made by the Respondents were
rejected, it necessitated filing of Original Application No.278 of
2008 which has been decided by the impugned judgment and
order dated 15th June 2009 whereby the Original Application has
been allowed and the Petitioners have been directed to consider
the recruitment of the Respondents as unskilled labourers
pursuant to the advertisement dated 19th November 2005 from
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the stage the recruitment process is said to have been cancelled
on 11th February 2008.
13. The reason indicated by the Petitioners while rejecting the
representations of the Respondents is extracted in the impugned
judgment and order dated 15th June 2009 according to which,
the recruitment process was cancelled for giving effect to the
judgment and order passed by the Tribunal on 6 th June 2007 in
Original Application No.684 of 2006 which was filed by certain
employees seeking their absorption as Group-D employees as
unskilled labourers in terms of the existing Recruitment Rules
which provide that prior to undertaking the recruitment process
for direct recruitment, the process of absorption shall be
resorted to. The Tribunal, however, while noticing the said
reason, has further proceeded to calculate the vacancy position
which is available in paragraph No.9 of the impugned judgment
and order. The calculation of vacancies made by the Tribunal
itself in paragraph No.9 of the impugned judgment and order is
extracted hereinbelow:
"9. As against that on the basis of a letter dated
10.1.2008 of Respondent No. 4 to the applicants and
the averrment made on behal of the respondents in
response to this Tribunal's order dated 03.12.2008,
the applicants have suggested the following vacancy
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position: -"
"Posts of Unskilled Labourers
As on 31st December 2007 1497
Vacant posts filled in view of O.A. No. 84 of 2006 160
Vacant Posts advertised in April 2008 (not yet filled) 698
34 Still available
14. The Tribunal has, thus, concluded that 34 vacancies were
still available, that is to say, 34 vacancies were available on the
date of pronouncement of judgment by the Tribunal which is on
15th June 2009. It is also to be noticed that once the
recruitment process was started pursuant to the advertisement
dated 19th November 2005, it was deferred on account of an
interim order passed by the Tribunal on 22 nd December 2006 and
thereafter the recruitment process was cancelled pursuant to the
final judgment and order passed by the Tribunal on 6 th June 2007
in Original Application No.684 of 2006 and also that in the
meantime 698 posts were advertised in the month of April 2008.
The vacancy position as calculated by the Tribunal on the date of
its judgment is 732, out of which 698 were advertised and 34
vacancies were still available. As to how these 34 vacancies
related back to the date of an advertisement dated 19 th
November 2005 is not decipherable from the judgment of the
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Tribunal. In any case, such an exercise undertaken by the
Tribunal was absolutely uncalled for and unwarranted in the facts
of this case.
15. The issue which ought to have been considered by the
Tribunal was limited as to whether the reason given by the
Petitioners for cancellation of the recruitment process initiated
pursuant to the advertisement dated 19th November 2005 was
having any rationale or not. The Tribunal, while discussing the
law as to the vested or indefeasible right in a candidate merely
on account of selection and also the principle that the
recruitment process initiated by the employer could be cancelled
for a valid reason, has given the impugned directions in the
judgment which is under challenge before us in this Writ Petition.
16. The law in this regard is very clear, as held by the Hon'ble
Supreme Court in the case of Shankarsan Dash Vs. Union of
India1, according to which 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 license to act in arbitrary manner. Paragraph 7
of the judgment in the case of Shankarsan (supra) is
extracted hereinbelow:
1 (1991) 3 SCC 47
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"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. Subash 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 Jatinder Kumar v. State of Punjab [(1985) 1 SCC 122 :
1985 SCC (L&S) 174 : (1985) 1 SCR 899]."
17. The view taken by the Hon'ble Supreme Court in the case
of Shankarsan (supra) has been referred with approval in yet
another judgment by the Hon'ble Supreme Court in the case of
Vinodan T and Others Vs. University of Calicut and
Others2.
18. Even the Tribunal has extracted the judgment of the
Hon'ble Supreme Court in the case of All India SC & ST
2 (2002) 4 SCC 726
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Employees' Associatioin and Another Vs. A. Arthur Jeen
and Ors.3, wherein it has been noticed by the Hon'ble Supreme
Court, inter alia, that unless the relevant recruitment rules so
indicate, the State is under no legal duty to fill up all or any
other vacancies.
19. Accordingly, from the discussion as above, the legal
position which emerges is; (a) the State or the employer is
under no legal obligation to fill-up the vacancies advertised, (b)
merely because of selection of a candidate, he does not get
indefeasible or vested right to be appointed, (c) in case where a
candidate has only been subjected to interview and physical
tests and recruitment process is not complete, he shall not have
any vested right to be considered for an appointment, and (d)
even after completion of recruitment process the State or the
employer has right to cancel the recruitment process once
initiated, provided there are valid reasons for the same.
20. If the facts of the instant case are analyzed on the
touchstone of the aforesaid legal principles, what we find is that
the recruitment process initiated pursuant to the advertisement
dated 19th November 2005 was deferred on account of interim
3 (2001) 6 SCC 380
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order passed by the Tribunal on 22 nd December 2006 in Original
Application No.684 of 2006. This very recruitment process was
subsequently cancelled with a view to give effect to the
judgment and order dated 6th June 2007 passed by the Tribunal
in Original Application No.684 of 2004 which was finally allowed
with a direction to the Petitioners to absorb certain Group-D
employees. Thus, the reason available for cancellation of the
recruitment process initiated pursuant to the advertisement
dated 19th November 2005 in which the Respondents had
participated, in our considered opinion, is legitimate and no fault
can be thus found with the Petitioners in cancelling the
recruitment process.
21. Further, we may also observe that any direction to fill-up
any vacancy to the employer having regard to the facts and
circumstances of this case, cannot be approved of. Such a
direction in the facts of the present case was completely
unwarranted.
22. For the reasons given above, the Writ Petition deserves to
be allowed.
23. Resultantly, the Writ Petition is allowed. The judgment and
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order dated 15th June 2009 passed by the Mumbai Bench of
Central Administrative Tribunal is hereby quashed.
24. There will be no order as to costs.
25. The Interim Applications, if any, shall stand disposed of.
(ARIF S. DOCTOR, J.) (CHIEF JUSTICE)
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