Delhi High Court
Anit Kumar vs Union Of India & Ors on 23 May, 2014
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of decision: 23rd May, 2014.
+ LPA 394/2014, CMs No.9138/2014 (for condonation of 54 days
delay) & 9139/2014 (for exemption)
ANIT KUMAR ..... Appellant
Through: Mr. Ashok Aggarwal and Mr. Anuj
Aggarwal, Advs.
Versus
UNION OF INDIA & ORS ..... Respondents
Through: Ms. Maneesha Dhir, Ms. Geeta
Sharma and Mr. Ishan Sanghi, Advs.
for UOI.
Mr. Anil K. Batra, Adv. for R-3&4.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. This intra court appeal impugns the judgment dated 6 th February,
2014 of the learned Single Judge of this Court of dismissal of W.P.(C)
No.1022/2010 preferred by the appellant.
2. Though the appeal is accompanied with an application for
condonation of 54 days delay in filing thereof and the reasons given therefor
are vague but instead of giving option to the counsel for the appellant to file
a better affidavit in support thereof, we have heard the counsels on the
merits of the appeal.
LPA No.394/2014 Page 1 of 6
3. The appellant, in pursuance to the notice published by the respondent
No.3 Bharat Petroleum Corporation Ltd. (BPCL) in the newspaper of 2nd
July, 2004, inviting applications for engagement as its retail outlet dealer in
Delhi, applied under the Scheduled Caste Category. Upon not receiving any
intimation from the respondent No.3 BPCL, the appellant, on enquiry, learnt
that no appointment as a retail outlet dealer could be considered till the
allotment of land and which had not been made available. The respondent
No.3 BPCL ultimately vide letter dated 25th April, 2008 informed the
appellant that since the land had not been made available for setting up of a
retail outlet till then, the earlier notice inviting applications had been
withdrawn. The application fee paid by the appellant was also refunded.
4. The appellant however requested the respondent No.3 BPCL to keep
his application pending, for consideration as and when the land was made
available. Upon the respondent No.3 BPCL not agreeing thereto, the writ
petition from which this appeal arises, was filed. The appellant, at the time
of hearing, confined the relief in the writ petition to, the respondent No.3
BPCL conducting interviews for appointment/allotment, even if no
appointment/allotment was to be immediately made and was to be made
only when the land was so made available though in the writ petition,
LPA No.394/2014 Page 2 of 6
allegations of arbitrariness and discrimination were also made, contending
that one Ms. Jaya Rashmi had been appointed/allotted in pursuance to the
notice in response to which the appellant had applied.
5. The learned Single Judge held that the allegations of arbitrariness and
discrimination were not made out as the aforesaid Ms. Jaya Rashmi was also
not appointed/allotted. It was further held that no direction could be issued
to the respondent No.3 BPCL to make a selection when
appointment/allotment was not to be made then, owing to the admitted non-
availability of land. The learned Single Judge held that mere publication of
the notice by the respondent No.3 BPCL inviting applications did not create
any rights in favour of the appellant.
6. The counsel for the appellant before us also has confined the relief
only to directing the respondent No.3 BPCL to proceed with the selection
process and if the appellant is so selected, to make his
appointment/allotment, subject to availability of land.
7. We are unable to agree. Admittedly, there is to be no
appointment/allotment as of today, due to non-availability of land or for
whatever reason. We fail to see, as to under what law, we can direct the
respondent No.3 BPCL to make a selection for appointment/allotment
LPA No.394/2014 Page 3 of 6
which is not possible today. No direction to any authority to make a
selection, say for a post which is non-existent, can be issued. What the
appellant is wanting us to do is to compel the respondent No.3 BPCL to
make a wait list and for which no provision is shown.
8. There is another aspect of the matter. The respondent No.3 BPCL is
entitled to evolve a policy for such appointment/allotment and to change
such policy from time to time. As is obvious, ten years have already passed
since the notice, in pursuance to which the appellant had applied, was
published. To direct the respondent No.3 BPCL to, in pursuance to the said
notice, make a selection when no post is available, would amount to
restraining the respondent No.3 BPCL from changing the policy for
appointment/allotment of dealers for retail outlet and which the respondent
No.3 BPCL may otherwise in law be entitled to. No such ground even has
been urged by the appellant that the respondent No.3 BPCL is not entitled to
change the policy in pursuance to which the notice inviting applications was
published. Moreover, though the appellant may have met the qualifications
if any prescribed in the notice inviting applications for appointment, at the
time when the same was published, the appellant may not be complying
with the same today and/or may not be complying therewith, when the
LPA No.394/2014 Page 4 of 6
occasion for actual appointment/allotment arises. For this reason also no
such direction can be issued.
9. The learned Single Judge is correct also in observing that publication
of an advertisement inviting applications does not create any right in favour
of those making the application. Reference if any required in this regard
can be made to the judgment of the Constitution Bench in Shankarsan
Dash Vs. Union of India (1991) 3 SCC 47 laying down that the notification
merely amounts to an invitation to qualified candidates to apply for
recruitment and or their selection; they do not acquire any right to the post
and that unless the relevant Recruitment Rules so indicate, the State is under
no legal duty to fill up, all or any of the vacancies. It was however held that
the same does not imply that the State has the license of acting arbitrarily. It
is not the case here that the decision of the respondent No.3 BPCL to scrap
the notice inviting applications is arbitrary. In fact, the appellant also agrees
that no appointment/allotment can be made as of now owing to non-
availability of land. In fact, the Supreme Court in R.S. Mittal Vs. Union of
India 1995 Supp. (2) SCC 230 has held that even a selected candidate has
no vested right. Similarly, in State of U.P. Vs. Rajkumar Sharma (2006) 3
SCC 330 it was held that mere inclusion in the select list does not confer
LPA No.394/2014 Page 5 of 6
any right to be selected, even if some of the vacancies remain unfulfilled.
To the same effect is the judgment in Ashwani Kumar Singh Vs. U.P.
Public Service Commission (2003) 11 SCC 584.
10. There is thus no merit in the appeal which is dismissed. We refrain
from imposing any costs on the appellant for bringing a frivolous lis, devoid
of any legal basis, before the Court.
CHIEF JUSTICE
RAJIV SAHAI ENDLAW, J.
MAY 23, 2014
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