[Cites 39, Cited by 0]
Karnataka High Court
Sri Harish Kumar H P vs The State Of Karnataka on 23 March, 2026
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WA No. 814 of 2025
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23rd DAY OF MARCH, 2026
PRESENT
THE HON'BLE MR. JUSTICE D K SINGH
®
AND
THE HON'BLE MR. JUSTICE S RACHAIAH
WRIT APPEAL NO. 814 OF 2025 (S-RES)
BETWEEN:
1. SRI HARISH KUMAR H P
S/O PUTTEGOWDA,
AGED ABOUT 40 YEARS,
R/AT HIRINDYAPPANAHALLI,
KODIHALLI HOBLI,
KANAKAPURA TALUK,
RAMANAGARA DISTRICT-562119
2. SRI VISHWANATH
S/O VRUSHABENDRAYYA SASIMATH,
AGED ABOUT 37 YEARS,
R/AT GUDDNEPPANAMATH POST,
KUKANOOR YELABURGA TALUK,
KOPPALA DISTRICT-583232
Digitally
signed by
VASANTHA 3. SRI HAMPANNA KOLAKAR
KUMARY B S/O SIDDAPPA,
K
Location: AGED ABOUT 37 YEARS,
HIGH R/AT YARANALA POST,
COURT OF BASAVANA BAGEWADI TALUK,
KARNATAKA
VIJAYAPURA DISTRICT-586122
...APPELLANTS
(BY SRI. LAKSHMI NARAYANA, SENIOR ADVOCATE FOR
SMT. SHILPA RANI., ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
DEPARTMENT OF URBAN DEVELOPMENT,
REP BY ITS CHIEF SECRETARY,
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WA No. 814 of 2025
VIKASA SOUDHA,
BENGALURU-560001
2. THE DIRECTOR
DEPARTMENT OF MUNICIPAL ADMINISTRATION,
9TH FLOOR,
VISHVESHWARAIAH TOWER,
DR AMBEDKAR ROAD,
BENGALURU-560001
3. KARNATAKA PUBLIC SERVICE COMMISSION
REP BY ITS SECRETARY,
UDYOGA SOUDHA,
BENGALURU-560001
...RESPONDENTS
(BY SRI. RUEBEN JACOB, AAG ALONG WITH
SRI. MOHAMMAD JAFFAR SHAH, AGA FOR R1 & R2;
SMT. M.R.SINCHANA, ADVOCATE FOR R3)
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO CALL FOR
RECORDS IN WP No-7190/2022 (S-RES) SET ASIDE THE
ORDER DATED 24.02.2025 THEREIN PASSED BY THE LEARNED
SINGLE JUDGE AND ALLOW THE WP AS PRAYED FOR TO MEET
THE ENDS OF JUSTICE.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 30.01.2026, COMING ON FOR
PRONOUNCEMENT THIS DAY, HON'BLE MR. JUSTICE
D K SINGH., PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE D K SINGH
and
HON'BLE MR. JUSTICE S RACHAIAH
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WA No. 814 of 2025
CAV JUDGMENT
(PER: HON'BLE MR. JUSTICE D K SINGH)
The present intra Court Appeal has been filed impugning
the judgment and order dated 24.02.2025 passed by the writ
Court in W.P.No.7190/2022.
2. The parties are referred to as per their ranking
before the writ Court, for the sake of convenience.
3. The petitioners have filed the writ petition seeking a
writ of certiorari to quash the endorsement dated 04.11.2021
issued by the Director, Department of Municipal Administration,
Government of Karnataka, whereby the petitioners request to
issue appointment order against the post of Work Inspector in
pursuance to the selection held by the Karnataka Public Service
Commission (hereinafter referred to as 'the KPSC') has been
rejected and further prayer for writ of mandamus commanding
the respondents to issue letter of appointment to the
petitioners who have secured more than 25% marks and are
fully eligible for appointment in terms of the final selection list
dated 16.09.2017.
4. The learned Single Judge however has taken the
view that as the State Government had taken a decision vide
Government order dated 05.01.2021 to abolish the cadre of
Work Inspector, the petitioners would not be entitled for
appointment even if they have secured more than 25% marks
in the examination. Mere selection and names in the select list
would not entitle them to seek appointment when the
Government has taken a decision to abolish the post against
which they got selected.
5. On requisition having been sent by the Director,
Department of Municipal Administration, the respondent No.2
for making selection against 211 posts of the Work Inspector in
the Department of Urban Development to be merged with local
bodies, the KPSC, the respondent No.3, issued a notification
dated 06.04.2016 and called for applications from the eligible
candidates to fill up 211 posts of the Work Inspector. The KPSC
conducted the competitive examination on 13.11.2016 and
directed the candidates to appear for verification of their
testimonials on 21.06.2017. After verification of the
testimonials of the candidates, the KPSC notified provisional
select list and issued final select list on 16.09.2017. The
petitioners' names were found in the final select list at Sl.Nos.4,
6 and 2 respectively.
6. After publication of the select list, the appointment
orders were not issued to the petitioners. It appears that the
Secretary, Urban Development Department on 04.10.2017
communicated that the Public Works Department had abolished
the cadre of Work Inspector in 2011 and the same had been
removed from the Cadre and Recruitment rules of the Public
Works Department. The draft Karnataka Municipal
Corporation (Common Recruitment of Officers and Employees)
(Amendment) Rules, 2018, proposed for 10 corporations were
pending for finalisation and consequently, cancellation of
selection for the post of Work Inspector in question was sought
for.
7. On this communication issued by the Secretary of
Urban Development Department seeking cancellation of the
selection for the 211 posts of the Work Inspector, the
Government stated that as the KPSC had already published the
final select list therefore, only those candidates who had
secured 25% marks and above in the selection process would
be considered for appointment, and in case of abolition of the
cadre of Work Inspector, the eligible candidates appointed
would be merged into an equivalent cadre.
8. In compliance of the aforesaid directions of the
State Government, the Director issued an instruction letter to
the appellants on 15.02.2019 for verification of original
documents. The petitioners submitted all their original records
pertaining to their educational qualifications before respondent
No.2 and all these original educational mark sheets and
certificates have since been in the custody of respondent No.2
i.e., the Director, Departmental Municipal Corporation.
9. The candidates who had secured less than 25% in
the selection process approached this Court in
W.P.No.3077/2019 and other connected writ petitions seeking
the quashing of the selection process and other such reliefs.
However, the said writ petitions were dismissed by the learned
Single Judge vide judgment and order dated 19.08.2021.
10. In the said W.P.No.3077/2019, the Director,
Department of Municipal Administration, respondent No. 2 had
filed an affidavit inter alia stating that since the KPSC had
already published the final select list, the candidates who had
secured more than 25% and above marks in the selection
process would be considered for appointment, and it was
further stated that in the event of abolition of cadre of Work
Inspector, the eligible candidates appointed could be merged
into an equivalent cadre. This was also brought to the notice of
the Government. Paragraphs 6 and 9 of the affidavit are
extracted hereunder:
"6. Further, to this in the letter dated
05.12.2017 addressed to the Secretary, Urban
Development Department, it has been submitted
that, since Karnataka Public Service Commission had
already published final selection list, only those
candidates who have secure 25% and above may be
considered for appointment and in case of abolition
of cadre of Work Inspector, the eligible candidates
appointed may be merged into equivalent cadre."
9. I further submit that in accordance with
the opinion obtained, Government vide letter dated
06.02.2019 has informed Director of Municipal
Admission to consider those candidates in the
selection list who have secured above 25% for
appointment as Work Inspectors. "
11. The Government had thereafter took a decision vide
Government Order dated 05.01.2021 with the concurrence of
the Finance Department, to abolish various posts in the
Department of Municipal Administration, including the post of
Work Inspector except Bruhath Bengaluru Mahanagara
Palike(BBMP). The cadre of Work Inspector consists of 380
posts, which the Government decided to abolish, in all 1,694
various posts were decided to be abolished by the said
Government Order dated 05.01.2021.
12. After the W.P.No.3077/2019 was disposed of vide
judgment and order dated 19.08.2021, the petitioners
submitted a representation to the Director of Municipal
Administration to issue appointment orders, as per their own
affidavit filed in the W.P.No.3077/2019, stating that the
petitioners had secured more than 25% marks in the selection
process. However, the State Government, vide impugned
endorsement dated 04.11.2011 denied to issue the
appointment orders on the ground that since the post of Work
Inspector stood abolished by the Government, Vide
Government order dated 05.01.2021, the petitioners were not
entitled to appointment against the post of Work Inspector in
pursuance of the selection made by the Public Service
Commission.
13. The learned Senior Counsel for the appellants would
submit that the post of Work Inspector and various other posts
were created under the Karnataka Municipal Corporation
(Common Recruitment of Officers and Employees) Rules, 2011
(hereinafter referred to as 'the 2011 Rules') and these rules
have been framed in exercise of powers conferred by Section
421 of the Karnataka Municipal Corporation Act, 1976
(hereinafter referred to as, 'the KMC Act') by the State
Government. It is further submitted that the cadre of Work
Inspector consists of 380 posts and without an amendment to
the statutory rules, the cadre of Work Inspector cannot be
abolished by merely executive instructions, i.e., the order dated
05.01.2021. It is further submitted that the Government order
dated 05.01.2021 itself contained a direction to amend the
Rules of 2011, however, till date, the Rules have not amended.
14. Rule 5 of the 2011 Rules provides for method of
recruitment and minimum qualification for the post of Work
Inspector, which read as under:
"5. Method of recruitment and minimum
qualification:- In respect of posts specified in
column(2) of Schedulre-III, the pay scale, method of
recruitment and minimum qualifications shall be as
mentioned in the corresponding entries in
columns(3), (4) and (5) thereof. Details of
deputational posts shall be as specified in Schedule
IIIA."
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Sl. Category of Pay Method of Maximum
No. posts Scale Recruitment Qualification
For direct
recruitment (1)
28. Work 7215- By direct must have
Inspector 13350 recruitment passed SSLC or
equivalent
examination
15. The recruitment process was completed much prior
to the Government Order dated 05.01.2021. The Government
had itself taken a conscious decision to appoint candidates from
the select list who had secured more than 25% marks in the
selection process. It is, therefore, submitted that the
Government cannot now resile from its own stand taken in the
affidavit filed in the W.P.No.3077/2019. The petitioners have
secured more than 25% marks and their documents were
verified and the originals are retained with the Director of
Municipal Administration. Consequently, the petitioners have
become overaged. There is a legitimate expectation of
petitioners being appointed in pursuance to the selection held
in which they were successful. It is further submitted that there
are only 4 candidates who have secured more than 25% marks
in the selection process and in view of the Government's own
undertaking on an affidavit before the Writ Court in
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W.P.No.3077/2019, the petitioners are entitled to be appointed
to the post of Work Inspector.
16. It is further submitted that though mere inclusion in
the select list does not confer an indefeasible right to
appointment, but a selection process can only be cancelled for
valid, reasonable and justifiable reasons. The selection process
once held cannot be cancelled arbitrarily at the whims of the
Government. The selected candidates have a legitimate
expectation of appointment and only in the event of the
selection process having been found to be not fair or its
integrity was doubted, then the selection process would be
cancelled. Here, the Government consciously decided to
appoint the candidates who had secured more than 25% marks
in the selection process and whose names were in the select
list. Despite this decision and undertaking, the Government has
now changed its stand claiming that since the Government has
abolished the cadre vide Government order dated 05.01.2021,
the petitioners are not entitled to appointment in pursuance to
the selection held for the post of Work Inspector.
17. The abolition of a cadre can only be effected by
amending the relevant service rules. The cadre of Work
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Inspector was created under the 2011 Rules. Till date, there
has been no amendment to the aforesaid 2011 Rules to abolish
the cadre. A policy decision can only take effect once the
associated rules have been amended. If the associated rules
have not been amended, the policy decision cannot be given
effect to. The only ground taken by the State Government for
not appointing the petitioners is that the Government decided
to abolish the cadre of Work Inspector. Therefore, though the
petitioners were selected and they had secured more than 25%
marks, they have not been entitled to appointment. This stand
of the State Government is wholly arbitrary, illegal and in
violation of Articles 14 and 16 of the Constitution of India.
18. It is further submitted that the learned Single Judge
has missed the point that unless the policy decision was
implemented, the statutory amendment in the rules could not
have been given effect to. The learned single judge has merely
focused on the point that the mere selection of the petitioners,
even if they had score more than 25% marks would not confer
a right to appointment.
19. On the other hand, Mr. Rueben Jacob, learned
Additional Advocate General assisted by Mr. Mohammad Jaffar
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Shah, learned Additional Government Advocate has supported
the judgment and has submitted that it is well settled that
mere inclusion of names in a select list does not confer an
indefeasible right in favour of the selected candidates to be
appointed. Even after selection, it is the discretion of the
Executive/Competent Authority to offer appointment. If the
Government had decided to abolish the post of Work Inspector,
even if the amendment has not been given effect to in the
statutory rules of 2011, the petitioners would not have the right
to seek a writ of mandamus from this Court for appointment
against the post of Work Inspector. He, therefore, submits that
the writ appeal does not have any merit and the learned Single
Judge has rightly held that the petitioners would not have a
fundamental or legal right to seek a writ of mandamus from
this Court for issuing them appointment orders against the post
of Work Inspector when such post has been abolished, even
though a statutory amendment has not been brought in. It is
further submitted that under Article 162 of the Constitution of
India, the Government has the executive power to take a policy
decision on all the matters where it has the power to legislate.
20. The following questions arise for consideration:
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i. Whether a cadre created under the
statutory rules can be abolished by an executive
order?
ii. Whether a candidate duly selected for a
post would have the legitimate expectation of
appointment on the said post, unless there are valid
and justifiable reasons for not effecting the
appointment?
iii. Whether the Government is empowered
to withhold the appointment of a duly selected
candidate, when there are no allegations in respect
of the selection process or the eligibility of the
candidate?
21. In Sant Ram Sharma Vs. State Of Rajasthan
And Others (1967 AIR SC 1910), it has been held that a
cadre created under statutory service rules cannot be abolished
by an executive order without amending the statutory service
rules or enacting a new law. The administrative orders cannot
amend or supersede the statutory rules. Abolition of a cadre
that is created by the statutory rules would amount to altering
the rules unless the rules themselves are amended or a statute
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is enacted to authorise the change. The relevant paragraph is
extracted hereunder:
"7. We proceed to consider the next contention
of Mr N.C Chatterjee that in the absence of any
statutory rules governing promotions to selection
grade posts the Government cannot issue
administrative instructions and such administrative
instructions cannot impose any restrictions not found
in the Rules already framed. We are unable to accept
this argument as correct. It is true that there is no
specific provision in the Rules laying down the
principle of promotion of junior or senior grade
officers to selection grade posts. But that does not
mean that till statutory rules are framed in this
behalf the Government cannot issue administrative
instructions regarding the principle to be followed in
promotions of the officers concerned to selection
grade posts. It is true that Government cannot
amend or supersede statutory rules by
administrative instructions, but if the rules are silent
on any particular point Government can fill up the
gaps and supplement the rules and issue instructions
not inconsistent with the rules already framed."
22. The Madras High Court in the case of ARASU
RUBBER CORPORATION LTD. Vs. S.SUNDAR
(WA.1124/2021) held that it is well settled that the executive
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directions can supplement but not override the statutory rules
framed under Article 309 of the Constitution of India. The
relevant paragraph is extracted hereunder:
"14. It is also to be noted that any relaxation of the
qualification in exercise of the powers under Article
162 of the Constitution of India contrary to the
regulation framed under Article 309 of the
Constitution of India, is clearly bad. Article 162
cannot be understood to give the executive power to
override statutory rules framed under Article 309 of
the Constitution. In this regard, it may be relevant to
refer to the following judgments:
(i) Sk. Nausad Rahaman v. Union of India, [(2022)
12 SCC 1], wherein, it was held by the Hon'ble
Supreme Court as follows:
"29. Fifth, where there is a conflict between
executive instructions and Rules framed under Article
309, the rules must prevail. In the event of a conflict
between the Rules framed under Article 309 and a
law made by the appropriate legislature, the law
prevails. Where the rules are skeletal or in a
situation when there is a gap in the rules, executive
instructions can supplement what is stated in the
rules. [Union of India v. Somasundaram Viswanath,
(1989) 1 SCC 175, para 6 : 1989 SCC (L&S) 150]
........
33. There is a fundamental fallacy in the submission
which has been urged on behalf of the appellants.
Administrative instructions, it is well-settled, can
supplement Rules which are framed under the
proviso to Article 309 of the Constitution in a manner
which does not lead to any inconsistencies. Executive
instructions may fill up the gaps in the rules. But
supplementing the exercise of the rule- making
power with the aid of administrative or executive
instructions is distinct from taking the aid of
administrative instructions contrary to the express
provision or the necessary intendment of the Rules
which have been framed under Article 309. The 2016
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RR have been framed under the proviso to Article
309. Rule 5 of the 2016 RR contains a specific
prescription that each CCA shall have its own
separate cadre. The absence of a provision for filling
up a post in the Commissionerate by absorption of
persons belonging to the cadre of another
Commissionerate clearly indicates that the cadre is
treated as a posting unit and there is no occasion to
absorb a person from outside the cadre who holds a
similar or comparable post.
35. Rule 5 of the 2016 RR postulates that each CCA
has a separate cadre and does not contain a
provision for bringing in, by way of absorption,
persons from outside the cadre. Inducting persons
from outside the cadre by absorption requires a
specific provision in the subordinate legislation for
the simple reason that the concept of a cadre would
otherwise militate against bringing in those outside
22/31 23 the cadre. That is the reason why Rule 4(ii)
of the erstwhile 2002 RR contained a specific
provision to this effect. That provision has however
not been included when the 2016 RR were framed. If
the authority entrusted with the power of framing
Rules under Article 309 of the Constitution did so on
the ground that the provision was subject to misuse
and was contrary to the interests of the
administration, no employee can assert a vested
right to claim an ICT." (emphasis supplied)
(ii) K. Kuppusamy v. State of T.N., [(1998) 8 SCC
469], in which, it was observed by the Hon'ble
Supreme Court as under :
"3. The short point on which these appeals must
succeed is that the Tribunal fell into an error in
taking the view that since the Government had
indicated its intention to amend the relevant rules,
its action in proceeding on the assumption of such
amendment could not be said to be irrational or
arbitrary and, therefore, the consequential orders
passed have to be upheld. We are afraid this line of
approach cannot be countenanced. The relevant
rules, it is admitted, were framed under the proviso
to Article 309 of the Constitution. They are statutory
rules. Statutory rules cannot be overridden by
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executive orders or executive practice." (emphasis
supplied)
(iii)In Union of India v. Ashok Kumar Aggarwal,
[(2013) 16 SCC 147 ], it was observed by the
Hon'ble Supreme Court as follows:
"59. The law laid down above has consistently
been followed and it is a settled proposition of law
that an authority cannot issue orders/office
memorandum/executive instructions in contravention
of the statutory rules. However, instructions can be
issued only to supplement the statutory rules but not
to supplant it. Such instructions should be
subservient to the statutory provisions. (Vide Union
of India v. Majji Jangamayya [(1977) 1 SCC 606 :
1977 23/31 24 SCC (L&S) 191] , P.D. Aggarwal v.
State of U.P. [(1987) 3 SCC 622 : 1987 SCC (L&S)
310 : (1987) 4 ATC 272] , Paluru Ramkrishnaiah v.
Union of India [(1989) 2 SCC 541 : 1989 SCC (L&S)
375 : (1989) 10 ATC 378 : AIR 1990 SC 166] , C.
Rangaswamaiah v. Karnataka Lokayukta [(1998) 6
SCC 66 : 1998 SCC (L&S) 1448] and Joint Action
Committee of Air Line Pilots' Assn. of India v. DG of
Civil Aviation [(2011) 5 SCC 435 : AIR 2011 SC
2220] .)
60. Similarly, a Constitution Bench of this Court, in
Naga People's Movement of Human Rights v. Union
of India [(1998) 2 SCC 109 : 1998 SCC (Cri) 514 :
AIR 1998 SC 431] , held that the executive
instructions have binding force provided the same
have been issued to fill up the gap between the
statutory provisions and are not inconsistent with the
said provisions.
61. In Nagaraj Shivarao Karjagi v. Syndicate Bank
[(1991) 3 SCC 219 : 1991 SCC (L&S) 965 : (1992)
19 ATC 639 : AIR 1991 SC 1507] this Court has
explained the scope of circulars issued by the
Ministry observing that it is binding on the officers of
the department, particularly the recommendations
made by CVC." (emphasis supplied)
(iv) In a recent decision in ESI Corpn. v. Union of
India, [(2022) 11 SCC 392], in which, it was held by
the Hon'ble Supreme Court as follows :
"17. In P.D. Aggarwal v. State of U.P. [P.D. Aggarwal
v. State of U.P., (1987) 3 SCC 622 : 1987 SCC (L&S)
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310] a two-Judge Bench of this Court declined to
grant primacy to an office memorandum issued by
the Government of Uttar Pradesh which purportedly
amended the method of recruitment of Assistant Civil
Engineers in the U.P. Public Service Commission
without amending the relevant regulations. The
Court held : (SCC p. 640, para 20)
"20. The office memorandum dated 7-12-1961 which
purports to amend the United Provinces Service of
Engineers (Buildings and Roads Branch) Class II
Rules, 1936 in our opinion cannot override, amend or
supersede 24/31 25 statutory rules. This
memorandum is nothing but an administrative order
or instruction and as such it cannot amend or
supersede the statutory rules by adding something
therein as has been observed by this Court inSant
Ram Sharma v. State of Rajasthan [Sant Ram
Sharma v. State of Rajasthan, AIR 1967 SC 1910 :
(1968) 1 SCR 111] . Moreover the benefits that have
been conferred on the temporary Assistant Engineers
who have become members of the service after
being selected by the Public Service Commission in
accordance with the service rules are entitled to have
their seniority reckoned in accordance with the
provisions of Rule 23 as it was then, from the date of
their becoming member of the service, and this
cannot be taken away by giving retrospective effect
to the Rules of 1969 and 1971 as it is arbitrary,
irrational and not reasonable."
23. The High Court of Himachal Pradesh, in the case of
Priyanka Gautam & Others Vs. State Of Himachal Pradesh
& Others(2014 LABIC 3374), has held that where a cadre is
created by statutory rules, some abolition or major
restructuring effects a change to those rules. Such change
requires amendment to the rules under Article 309 or a
legislative enactment. This view has been consistently
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supported that the cadre creation/abolition is a matter
governed by the statutory rules and the executive action cannot
unilaterally alter those rules. Paragraph 13 of the said judgment
is extracted hereunder:
"13. It is settled proposition of law that executive
instructions cannot overrule or override the statutory
Rules. Therefore, in case there is a conflict between
the executive instructions and the rules made under
Article 309, the rules made under Article 309 will
prevail and in case there is conflict between the rules
framed under Article 309 and the law made by the
legislature will prevail. It is further trite that
administrative instructions or orders can only be
issued in matters of which the Rules made under
Article 309 are silent, therefore, administrative
instructions can only supplant the Rules but cannot
supplement the same. Even a policy decision taken
by the Government cannot have the force of rule
made under Article 309 of the Constitution of India.
Needless to state that Article 162 whereby the
Government is competent to issue administrative
instructions/orders and Article 309 operate in
different area. In exercising the powers under Article
162, the Government cannot ignore the Rules framed
under Article 309. Thus, any appointment or
regularisation of an appointment made in
contravention of the rules made under Article 309
shall be void. It is equally settled law that the rules
framed under Article 309 cannot be amended or
modified by an administrative order or instruction
even by way of adding to the provisions of the
statutory rule, unless there is a gap in the rule which
required to be fill up. Therefore, what essentially
follows is that the Government cannot amend or
supersede the statutory Rules by administrative
instructions and it is only when the Rules are silent
on any particular point can the Government fill up
the gaps and supplant the Rules or the law by
issuing instructions that too not inconsistent with the
Rules. Thus, an administrative instruction cannot
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abridge or run counter to statutory provision or
Rule."
24. The Bombay High Court, in the case of Ganpat R.
Palni Vs. State of Goa, 2009 SC OnLine 1949, has held
that the creation and abolition of post is the Government's
prerogative when the same is done in good faith. However, the
policy decision to abolish the posts which have been created
under the statutory rules can be done only by amending or
altering the statutory rules and not otherwise. The creation or
abolition of the posts though is an executive prerogative, but
must align with the statutory framework. The relevant
paragraph is extracted hereunder:
"10. It is well settled that creation or abolition of
posts or for that matter surrender of posts is
entirely a discretion of the Government as long as it
is done in good faith and the Courts cannot interfere
with the same. In State of Haryana v. Shri Des Raj
Sangar ((1976) 2 SCC 844) the Apex Court held
that whether the post should be retained or
abolished is essentially a matter for the Government
to decide. As long as such decision of the
Government is taken in good faith, the same cannot
be set aside by the Court. It is not open to the Court
to go behind the wisdom of the decision and
substitute its own opinion for that of the
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Government on the point as to whether a post
should or should not be abolished. The decision to
abolish the post should, however, be taken in good
faith and be not used as a cloak or pretence to
terminate the services of a person holding that post.
In case it is found on consideration of the facts of a
case that the abolition of the post was only a device
to terminate the services of an employee, the
abolition of the post would suffer from a serious
infirmity and would be liable to be set aside. The
termination of a post in good faith and the
consequent termination of the services of the
incumbent of that post would not attract Article 311.
In that case the post was abolished as an economy
measure to meet financial stringency for
administrative reasons and the Apex Court held that
the Court cannot review such reasons and the fact
that the post to be abolished was held by a person
who is confirmed in that post and the post which
was not abolished was held by a person who was
not permanent would not affect the legality of the
decision to abolish the former post as long as the
decision to abolish the post is taken in good faith. In
Divisional Manager, Aravali Golf Club v. Chander
Hass ((2008) 1 SCC 683) the Apex Court has held
that the creation and sanction of posts is the
prerogative of the executive and legislative
authorities and not of the Courts. Likewise, in State
of Haryana v. Navneet Verma ((2008) 2 SCC 65),
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the Apex Court has reiterated that the power to
create or abolish a post rests with the Government;
whether a particular post is necessary is a matter
depending upon the exigencies of the situation and
administrative necessity; creation, continuance and
abolition of posts are all decided by the Government
in the interest of administration and general public;
the Court is least competent in the face of scanty
material to decide whether the Government acted
honestly in creating a post or refusing to create a
post or its decision suffers from mala fides, legal or
factual; as long as the decision to abolish the post is
taken in good faith in the absence of any material,
interference by the Court is not warranted."
25. The High Court of Orissa, in the case of Nilamani
Das v. State of Orissa (1982 SCC OnLine Ori 130), has
held that in absence of cadre or rules allowing executive
regulations would not empower the executive to abolish a
cadre/post created under the statutory rules. The relevant
paragraph is extracted hereunder:
8. For forming a cadre, notification forming
the said cadre is to be published in the gazette.
Cadres are also formed by rules under Article 309 of
the Constitution of India or by express order by
declaring such cadre exercising powers under Article
162 of the Constitution. There has been no
declaration, no publication, no rules and no
- 24 -
provision for recruitment or transfer or seniority in
the gradation list. Interpretation of rules does not
depend on conduct of parties and it cannot be spelt
out from other documents available. The sanctity is
attributed to cadres because it creates vested
rights. It is contended by the State Government
that even assuming that there was a cadre prior to
the Orissa Ministerial Service Rules, the same has
disappeared after the Orissa Ministerial Service
Rules came into force. Annexures-1 to 30 do not
indicate any cadre at all. When there is no statute or
rule holding the field, Government can by executive
order regulate the services of the employees. In
Sant Ram Sharma v. State of Rajasthan [A.I.R.
1967 S.C. 1910.] , it has been held in para-7 that it
does not mean that till statutory rules are framed in
this behalf the Government cannot issue
administrative instructions regarding the principle to
be followed in promotions of the officers concerned.
It is true that Government cannot amend or
supersede the statutory rules by administrative
instructions, but if the rules are silent on any
particular point, Government can fill up the gap and
supplement the rules and issue instructions not
inconsistent with the rules already framed. In para-
8 it has been held that the State Government has
executive power, in relation to all matters with
respect to which the Legislature of the State has
power, to make laws. Reference in this connection
- 25 -
has been made to the case of B.N. Nagarajan v.
State of Mysore [A.I.R. 1966 S.C. 1942.] .
26. The High Court of Andhra Pradesh in the case of
T.A. Waheed Saheb vs. The State of Andhra Pradesh and
Ors. (W.P.No.42518/2022) has held that once the field is
occupied by the statutory law or rules, the cadre creation or
abolition must be effected through statutory amendments
rather than executive orders. The relevant paragraph is
extracted hereunder:
"10. Further, a useful reference could be made to the
Division Bench ruling of the Karnataka High Court
rendered in the case of M.V. Dixit and Ors. Vs. State
of Karnataka and Ors., wherein it has been pleased
to hold in Paras 22, 23, 24 and 25 as under:-
22. After the coming into force of the Civil Services
Act, creation and abolition of posts (i.e. specifying
different categories of posts in different branches of
Public Service, specifying the total number of posts
and nature of posts in each category and the scales
of pay admissible to each category) can only be by
way of Rules made in the manner prescribed in
Section 3(2) of the said Act and not by any executive
order issued under Article 162 of the Constitution.
The field of Regulation of creation and abolition of
posts, method of recruitment and conditions of
- 26 -
service is now occupied by an enactment of State
Legislature. Therefore, exercise of the power in
regard to regulation of the matters falling in the
occupied field can only be in accordance with the
said Act and not otherwise by an executive order.
23. ........................xxxxx........................
24. ........................xxxxx........................
25. ........................xxxxx........................"
27. Thus, we are of the opinion that vide Government
order dated 05.01.2021, the cadre of Work Inspector under
the 2011 Rules cannot be abolished unless there is necessary
amendment to that effect in the statutory rules. The
Government Order dated 05.01.2021 is a mere policy decision
that must be given effect by amending the rules. Unless the
rules are amended, the cadre of Work Inspector continues to
exists. Therefore, we reject the contention of the learned
Additional Advocate General that the Government is
empowered to abolish the post/cadre by taking executive
decision and there is no requirement or necessity of amending
the statutory rules to that effect.
28. So far as question Nos.ii and iii are concerned, they
can be taken together as both of them are interlinked. It is well
- 27 -
settled that Government is not compelled to appoint a duly
selected candidate inasmuch as mere selection or inclusion in
merit list or final list does not create a vested or indefeasible
right to appointment. The Government or the Authority may
withhold the appointment for valid reasons including policy
considerations, changes in eligibility or a conscious decision not
to fill all vacancies. Therefore, a candidate cannot seek a writ of
mandamus to compel appointment solely based on selection
and the Government has the power to refuse or withhold the
appointment provided there exist valid reasons.
29. The Supreme Court, in the case of Shankarsan
Dash v. Union of India, (1991) 3 SCC 47 has held that
though the Government has power and discretion not to offer
appointment to a duly selected candidate, but the State's
prerogative not to fill the advertised vacancies should be bona
fide and non-arbitrary. Paragraph 7 of the said judgment is
extracted under:
"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
- 28 -
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] . "
30. The Supreme Court, in the case of Jitendra Kumar
v. State of Haryana, (2008) 2 SCC 161 has held as follows:
42. The legal principle obtaining herein is not in
dispute that the selectees do not have any legal right
of appointment subject, inter alia, to bona fide action
on the part of the State. We may notice some of the
precedents operating in the field.
43. In Shankarsan Dash v. Union of India [(1991) 3
SCC 47 : 1991 SCC (L&S) 800 : (1991) 17 ATC 95]
this Court held: (SCC pp. 50-51, para 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 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
- 29 -
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] , 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] ."
(emphasis supplied)
44. Yet again in R.S. Mittal v. Union of India [1995
Supp (2) SCC 230 : 1995 SCC (L&S) 787 : (1995) 30
ATC 53] this Court held: (SCC p. 234, para 10)
"10. ... It is no doubt correct that a person on the
select panel has no vested right to be appointed to
the post for which he has been selected. He has a
right to be considered for appointment. But at the
same time, the appointing authority cannot ignore
the select panel or decline to make the appointment
on its whims. When a person has been selected by
the Selection Board and there is a vacancy which can
be offered to him, keeping in view his merit position,
then, ordinarily, there is no justification to ignore
him for appointment. There has to be a justifiable
reason to decline to appoint a person who is on the
select panel. In the present case, there has been a
mere inaction on the part of the Government. No
reason whatsoever, not to talk of a justifiable reason,
was given as to why the appointments were not
offered to the candidates expeditiously and in
accordance with law. The appointment should have
been offered to Mr Murgad within a reasonable time
of availability of the vacancy and thereafter to the
next candidate. The Central Government's approach
in this case was wholly unjustified."
- 30 -
(emphasis supplied)
45. In Asha Kaul v. State of J&K [(1993) 2 SCC 573 :
1993 SCC (L&S) 637 : (1993) 24 ATC 576] this Court
held: (SCC pp. 580-81, para 8)
"8. It is true that mere inclusion in the select list
does not confer upon the candidates included therein
an indefeasible right to appointment (State of
Haryana v. Subash Chander Marwaha [(1974) 3 SCC
220 : 1973 SCC (L&S) 488] ; Mani Subrat Jain v.
State of Haryana [(1977) 1 SCC 486 : 1977 SCC
(L&S) 166] ; State of Kerala v. A. Lakshmikutty
[(1986) 4 SCC 632 : (1986) 1 ATC 735] ) but that is
only one aspect of the matter. The other aspect is
the obligation of the Government to act fairly. The
whole exercise cannot be reduced to a farce. Having
sent a requisition/request to the Commission to
select a particular number of candidates for a
particular category,--in pursuance of which the
Commission issues a notification, holds a written
test, conducts interviews, prepares a select list and
then communicates to the Government--the
Government cannot quietly and without good and
valid reasons nullify the whole exercise and tell the
candidates when they complain that they have no
legal right to appointment. We do not think that any
Government can adopt such a stand with any
justification today."
(See also A.P. Aggarwal v. Govt. of NCT of Delhi
[(2000) 1 SCC 600 : 2000 SCC (L&S) 206] .)
46. In Food Corpn. of India v. Bhanu Lodh [(2005) 3
SCC 618 : 2005 SCC (L&S) 433] this Court held:
(SCC p. 629, para 14)
"14. Merely because vacancies are notified, the
State is not obliged to fill up all the vacancies unless
there is some provision to the contrary in the
applicable rules. However, there is no doubt that the
decision not to fill up the vacancies, has to be taken
bona fide and must pass the test of reasonableness
so as not to fail on the touchstone of Article 14 of the
Constitution. Again, if the vacancies are proposed to
be filled, then the State is obliged to fill them in
- 31 -
accordance with merit from the list of the selected
candidates. Whether to fill up or not to fill up a post,
is a policy decision, and unless it is infected with the
vice of arbitrariness, there is no scope for
interference in judicial review."
31. In the case of Nilamani Das v. State of Orissa,
1982 SCC OnLine Ori 130 it has been held as follows:
''8. For forming a cadre, notification forming
the said cadre is to be published in the gazette.
Cadres are also formed by rules under Article 309 of
the Constitution of India or by express order by
declaring such cadre exercising powers under Article
162 of the Constitution. There has been no
declaration, no publication, no rules and no provision
for recruitment or transfer or seniority in the
gradation list. Interpretation of rules does not
depend on conduct of parties and it cannot be spelt
out from other documents available. The sanctity is
attributed to cadres because it creates vested rights.
It is contended by the State Government that even
assuming that there was a cadre prior to the Orissa
Ministerial Service Rules, the same has disappeared
after the Orissa Ministerial Service Rules came into
force. Annexures-1 to 30 do not indicate any cadre
at all. When there is no statute or rule holding the
field, Government can by executive order regulate
the services of the employees. In Sant Ram Sharma
v. State of Rajasthan [A.I.R. 1967 S.C. 1910.] , it
has been held in para-7 that it does not mean that
- 32 -
till statutory rules are framed in this behalf the
Government cannot issue administrative instructions
regarding the principle to be followed in promotions
of the officers concerned. It is true that Government
cannot amend or supersede the statutory rules by
administrative instructions, but if the rules are silent
on any particular point, Government can fill up the
gap and supplement the rules and issue instructions
not inconsistent with the rules already framed. In
para-8 it has been held that the State Government
has executive power, in relation to all matters with
respect to which the Legislature of the State has
power, to make laws.''
32. It is also well settled that the Government's
discretion not to offer the appointment to a selected candidate
is circumscribed by constitutional principles and statutory
constraints. A candidate who is selected has a legitimate
expectation of appointment.
33. In the case of Union of India v. Uzair Imran,
(2024) 20 SCC 345 it has been held as follows:
23. Notwithstanding this settled legal position,
the stage when ineligibility is cited for not offering
employment also assumes importance. It is indeed
indisputable that none has any legal right to claim
public employment. In terms of Article 16 of the
- 33 -
Constitution, a candidate has only a right to be
considered therefore. Once a candidate is declared
ineligible to participate in the selection process at the
threshold and if he still wishes to participate in the
process perceiving that his candidature has been
arbitrarily rejected, it is for him to work out his
remedy in accordance with law. However, if the
candidature is not rejected at the threshold and the
candidate is allowed to participate in the selection
process and ultimately his name figures in the merit
list -- though such candidate has no indefeasible
right to claim appointment -- he does have a limited
right of being accorded fair and non-discriminatory
treatment.
24. Given the stages of the process that the
candidate has successfully crossed, he may not have
a vested right of appointment but a reasonable
expectation of being appointed having regard to his
position in the merit list could arise. The employer, if
it is a State within the meaning of Article 12 of the
Constitution, would have no authority to act in an
arbitrary manner and throw the candidate out from
the range of appointment, as distinguished from the
zone of consideration, without rhyme or reason. The
employer State being bound by Article 14 of the
Constitution, the law places an obligation, nay duty,
on such an employer to provide some justification by
way of reason. If plausible justification is provided,
the courts would be loath to question the justification
- 34 -
but the justification must be such that it is rational
and justifiable, and not whimsical or capricious,
warranting non-interference.
34. From the aforesaid authorities it can be inferred
that not offering appointment to a duly selected candidates
should be for justified and valid reasons and not for arbitrary,
illegal or mala fide reasons.
35. In the case of Shubham Patel Vs. State of
Madhya Pradesh (MANU/MP/3059/2023) it has been held
as follows:
5. The Supreme Court in the case of Union Territory
of Chandigarh Vs. Dilbagh Singh and Others
reported in (1993) 1 SCC 154 has held as under:
"12. If we have regard to the above enunciation that
a candidate who finds a place in the select list as a
candidate selected for appointment to a civil post,
does not acquire an indefeasible right to be
appointed in such post in the absence of any specific
rule entitling him for such appointment and he could
be aggrieved by his non-appointment only when the
Administration does so either arbitrarily or for no
bona fide reasons, it follows as a necessary
concomitant that such candidate even if has a
legitimate expectation of being appointed in such
posts due to his name finding a place in the select
- 35 -
list of candidates, cannot claim to have a right to be
heard before such select list is cancelled for bona
fide and valid reasons and not arbitrarily. In the
instant case, when the Chandigarh Administration
which received the complaints about the unfair and
injudicious manner in which select list of candidates
for appointment as conductors in CTU was prepared
by the Selection Board constituted for the purpose,
found those complaints to be well founded on an
enquiry got made in that regard, we are unable to
find that the Chandigarh Administration had acted
either arbitrarily or without bona fide and valid
reasons in cancelling such dubious select list.
Hence, the contentions of the learned counsel for
the respondents as to the sustainability of the
judgment of CAT under appeal on the ground of
non-affording of an opportunity of hearing to the
respondents (candidates in the select list) is a
misconceived one and is consequently rejected."
36. Thus, a duly selected candidate may not have a
legal right to appointment and the Government may withhold
from appointing a selected candidate, provided the decision not
to give appointment is neither mala fide, nor arbitrary and
grounded in statutory rules or a policy decision. Where there
exist statutory rules or where a candidate has a legitimate
expectation grounded in prior conduct or explicit assurance, the
- 36 -
Court may interfere and compel the Government to offer the
appointment.
37. In the present case, the select list was published on
16.09.2017 after due selection in pursuance to the notification
published on 06.04.2016. The provisional select list was
published and thereafter the final select list came to be
published on 16.09.2017 as mentioned above, the petitioners
were placed at Sl.Nos.4, 6 and 2 respectively in the select list.
The Government took a conscious decision to give appointment
to those candidates who had secured more than 25% marks in
the selection result. The petitioners' original documents were
taken for verification on 15.02.2019. The Director-respondent
No.2 in his affidavit filed in W.P.No.3077/2019 reiterated the
Government's decision to give appointments to the persons
who had secured more than 25% marks in the selection
process and therefore, we are of the view that the petitioners
should have the legitimate expectation grounded in the prior
conduct and explicit assurance of the Government inasmuch as
they had secured more than 25% marks in the selection
process.
- 37 -
38. Against the 211 posts advertised, petitioners are
only 4 in number and even if the Government has taken the
decision to abolish 380 posts in the cadre of Work Inspector, as
per the Government's assurance in the letter of the Secretary,
Urban Development Department dated 05.12.2017, the
petitioners should be considered for appointment and in the
case of abolition of the cadre by amending the rules, the
petitioners should be merged into an equivalent cadre.
39. We, therefore, set aside the impugned judgment
and order passed by the learned Single Judge and consequently
the endorsement dated 25.09.2017 and allow this writ appeal.
The Government is directed to give appointment to the
petitioners to the post of Work Inspector within two months
from today. In the event of an amendment to the 2011 Rules
abolishing the cadre of Work Inspector, the Government may
merge the petitioners' posts to an equivalent cadre.
Sd/-
(D K SINGH)
JUDGE
Sd/-
(S RACHAIAH)
JUDGE
RKA
