Delhi High Court
Kumari Bandna And Anr. vs Union Of India And Ors. on 8 September, 2017
$~16.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ WRIT PETITION(CIVIL) No. 519/2017
Date of decision: 8th September, 2017
KUMARI BANDNA AND ANR. ..... Petitioners
Through Mr. Ankur Chhibber, Advocate.
versus
UNION OF INDIA AND ORS. ..... Respondents
Through Mr. Farman Ali & Mr. Nitish
Gupta, Advocates for Mr. Ravi Prakash,
CGSC.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE I.S. MEHTA
SANJIV KHANNA, J. (ORAL):
Pursuant to an advertisement published in the Employment
News in the month of September, 2015, Kumari Bandna and Anjum
Jahan Sheikh had applied for selection and appointment against two
vacancies of Head Constable (Midwife) in Indo-Tibetan Border Police
(ITBP). Cut-off date for submission of the application was 30th
October, 2015. Written examination was held on 2 nd December, 2015
and the results were declared on 3rd December, 2015. The viva-voce
was conducted on 3rd December, 2015 and final results were declared.
Kumari Bandna was declared selected in the General category
(Unreserved) and Anjum Jahan Sheikh was declared selected in the
W.P (C) No. 519/2017 Page 1 of 5
OBC category. The two petitioners were required to undergo detailed
medical examination on 4th December, 2015.
2. However, offer of appointment letter was not issued. The
petitioners made representations dated 15th September, 2016. By two
identical notifications/communications dated 8th November, 2016, the
respondents informed the petitioners that the recruitment process for
the two posts of Head Constable (Midwife) had been cancelled due to
administrative reasons and hence, offer of appointment letter would
not be issued.
3. The petitioners have filed the present writ petition for issue of
Writ of Certiorari for setting aside the letters dated 8th November,
2016 and for issue of Mandamus directing the respondents to issue
appointment letters to the petitioners as per their merit position and in
terms of the result declared on 3rd December, 2015, with consequential
benefits.
4. Learned counsel for the petitioners submits that the petitioners
have acquired a vested right having been selected and hence, action of
the respondents is contrary to law and appointment letters should be
issued. Reference is made to the decision of the Supreme Court in
N.T. Devin Katti and Others versus Karnataka Public Service
Commission and Others, (1990) 3 SCC 157. It is submitted that even
if there was a cadre review and the posts of Head Constable (Midwife)
had undergone a change, this should not affect the accrued rights of
the petitioners. Once the selection process had commenced, any
amendment or change or reduction of posts vide cadre review should
not adversely affect prior selection of the petitioners.
W.P (C) No. 519/2017 Page 2 of 5
5. We have considered the said contention, but regret our inability
to agree with the petitioners.
6. The respondents in the counter affidavit have pointed out that
there was a comprehensive cadre review in the para medical posts in
ITBP. As a result of the said cadre review, there was a change in the
number of posts of Head Constable (Midwife). The aforesaid cadre
review was approved by the Ministry of Home Affairs on 24 th
November, 2015 and 8th December, 2015. In these circumstances, it
was not required and necessary to fill up the earlier vacant posts of
Head Constable (Midwife). In fact, after the cadre review, there were
no vacant posts of Head Constable (Midwife). Thus, for the aforesaid
administrative reason, the respondents decided to cancel the selection
and not issue appointment letters to the petitioners.
7. The only question, which arises for consideration, is whether
the petitioners had acquired a vested right and can compel the
respondents to appoint them even if for valid and good reasons, they
had decided not to fill up the said posts, which were advertised. The
answer, in our opinion, has to be in the negative and against the
petitioners. Decision in N.T. Devin Katti and Others (supra) relied by
the petitioners, in fact, supports the stand of the respondents. In the
said case, there was a change in the reservation criteria during the
pendency of the selection process pursuant to the State Government
orders. A different mode of selection was also prescribed. In this
context, the Supreme Court observed that the candidates, who had
appeared and undergone written and viva-voce tests had acquired a
vested right for being considered for selection in accordance with the
terms and conditions in the advertisement, as there was no stipulation
W.P (C) No. 519/2017 Page 3 of 5
to the contrary. It was observed that if the Recruitment Rules were not
amended retrospectively during the period of selection, the selection
must be held in accordance with the unamended rules. However, the
Supreme Court was conscious and had clarified, lest there be any
confusion, that the candidate on making an application for a post
pursuant to the advertisement does not acquire a vested right of
selection, but if he or she is eligible or otherwise qualified in
accordance with the relevant rules, he or she acquires a vested right of
being considered for selection.
8. The Constitution bench of the Supreme Court in Shankarsan
Dash vs. Union of India (1991) 3 SCC 47 has elucidated that a
candidate included in the merit list acquires no indefeasible right in
appointment even if vacancies exist. State is under no legal obligation
and duty to fill up any or all of the vacancies unless the recruitment
rules so mandate and require. This does not mean that the state can act
in an arbitrary manner and not fill up vacancies. The decision to not
fill up vacancies that exist has to be bonafide and for good reasons.
Following this decision, in State of Orissa & Anr. Vs. Raj Kishore
Nanda & Ors. (2010) 6 SCC 777 it was held that empanelment does
not give vested right in favour of empanelled candidates.
Empanelment, at best, is a condition of eligibility for purpose of
appointment. A valid and bonafide decision taken by the appointing
authority to leave certain vacancies unfilled even after preparation of
select list cannot be assailed. The Tribunals or Courts would hesitate
to issue any such directions unless the decision not to appoint is
malafide or arbitrary. In the present case, the respondents have not
W.P (C) No. 519/2017 Page 4 of 5
acted in an arbitrary manner and hence, the petitioners are not entitled
to relief as prayed for.
9. The writ petition has no merit and is dismissed, without any
order as to costs.
SANJIV KHANNA, J.
I.S. MEHTA, J.
SEPTEMBER 08, 2017
VKR
