Punjab-Haryana High Court
Subhash Chander vs State Of Haryana And Anr on 8 January, 2024
Author: Harsimran Singh Sethi
Bench: Harsimran Singh Sethi
Neutral Citation No:=2024:PHHC:001170
CM-20240-CWP-2023 in/and
CWP No. 7956-2017 2024:PHHC:001170
1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
(102) CM-20240-CWP-2023 in/and
CWP No. 7956-2017
Date of Decision : 08.01.2024
Subhash Chander
...Petitioner
Versus
State of Haryana and another
...Respondents
CORAM: HON'BLE MR. JUSTICE HARSIMRAN SINGH SETHI
Present: Mr. Amit Jhanji, Senior Advocate with
Mr. Himanshu Arora, Advocate and
Ms. Nikita Garg, Advocate for the petitioner.
Mr. Harish Nain, Assistant Advocate General, Haryana.
***
Harsimran Singh Sethi J. (Oral)
CM-20240-CWP-2023
Present application has been filed for revival of the writ
petition.
Notice of the application to the counsel opposite.
Mr. Harish Nain, learned Assistant Advocate General,
Haryana, who is present in Court, accepts notice on behalf of the
respondents. He raises no objection for the grant of prayer as raised in
the present application.
Keeping in view the averments made in the application,
which is duly supported by an affidavit, coupled with the fact that learned
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counsel for the respondents has not objected to the relief as prayed in the
present application, the same is allowed and the writ petition is
accordingly revived.
On the joint request of learned counsel for the parties, the
writ petition is taken up for hearing today itself.
CWP-7956-2017
1. Certain facts need to be noticed for the proper adjudication
of the present case, which are as under :-
2. The Haryana Public Service Commission-respondent No.2
issued an advertisement No.12 dated 24.01.2004, advertising 102 posts of
Haryana Civil Services (Executive Branch) and Other Allied Services,
out of which, 58 posts were for HCS (Executive Branch) and the
remaining were for Other Allied Services. The candidates applied and
competed for the said posts. On 30.12.2004, the respondent-Commission
after finalizing the selection process, recommended 102 candidates for
appointment against the said advertised posts.
3. Despite recommendations made by the respondent-
Commission, appointments were not made by the Government and
ultimately, candidates, who were recommended for appointment by the
respondent-Commission, filed writ petitions being CWP No. 3768 of
2005 and CWP No. 5437 of 2005 before this Court seeking appointment
in pursuance to recommendation of the Commission. It may be noticed
that candidates, who could not find their names in the list of
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recommended candidates, challenged the recruitment process itself by
filing CWP No.3327 of 2005.
4. During the pendency of the aforementioned writ petitions,
the respondent-State reduced the cadre strength of the HCS (Executive
Branch) from 300 to 230.
5. During the pendency of the said writ petitions, the
respondent-State keeping in view the number of complaints received,
constituted a Vigilance enquiry with the State Vigilance Bureau to find
out as to whether, the selection process undertaken was in accordance
with law or not, so that, an appropriate decision could be taken with
regard to the claim being made by the selected/recommended candidates
for their appointment as well as upon the complaints qua irregularities
committed during the selection process. Keeping in view the stand taken
by the Government that the matter was under consideration of the State
Vigilance Bureau, the writ petitions filed seeking appointment in
pursuance to the recommendation as well as those challenging the
selection process itself were dismissed by this Court on the ground that
the Government itself is considering the said issue.
6. Order passed by this Court dismissing the writ petitions on
the ground that the Government is seized of the matter, was challenged
before the Hon'ble Supreme Court of India, which Special Leave Petition
came to be dismissed on 11.12.2007 with the observation that the State
Government should expedite the enquiry and conclude the same at the
earliest so as to decide whether, any appointment is to be made qua the
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candidates, who have been recommended for appointment against the
advertised posts.
7. While the matter with regard to selection against 102 posts
advertised was pending consideration with the respondent-State, another
advertisement was issued in the year 2009 by the respondent-State. The
said advertisement of 2009 was then challenged vide CWP No. 2130 of
2009 before this Hon'ble Court wherein the issue raised was that while
on one hand, the Government is not accepting the recommendations
made by the respondent-Commission in pursuance to the earlier
advertisement issued in the year 2004 on the ground that the issue qua the
appointment of re-commended candidates is under consideration and
without finalizing the said issue, a fresh advertisement has been issued by
the respondent-State. The said writ petition was ultimately disposed of
on 20.08.2010 with the observation that the vigilance enquiry pending
with the State Vigilance Bureau, which has been initiated in pursuance to
the allegation of irregularities while making recommendations in
pursuance to the initial advertisement of the year 2004, shall be
concluded within a period of six months.
8. Upon the expiry of the said period of six months when the
enquiry initiated by the respondent-State did not attain finality, contempt
petitions were filed and during the pendency of the said contempt
petitions, respondent-State was directed to conclude the enquiry entrusted
to the State Vigilance Bureau within a period of three months, so that, the
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claim of the selected/recommended candidates in pursuance to the
advertisement of the year 2004 could be decided.
9. The report of the said enquiry by the State Vigilance Bureau
was submitted to the Chief Secretary, Government of Haryana on
09.11.2011 for consideration wherein it was mentioned that out of 102
selected/recommended candidates in pursuance to the advertisement
issued in the year 2004, irregularities qua 64 candidates were noticed,
which were detailed in the said report. The said report pointing out
irregularities only qua 64 candidates was sent to the Government for its
consideration.
10. Along with the report, a chart giving details of all the
recommended candidates was also appended by the State Vigilance
Bureau depicting the status of each candidate as to whether,
recommendation qua particular candidate was free of any discrepancy or
not. As per the said chart, against 38 candidates, no discrepancy was
found qua their recommendation. It may be noticed that the petitioner
was among 64 candidates against selection of whom irregularities were
pointed out so as to term their selection as tainted.
11. Though, the vigilance report dated 09.11.2011 submitted by
State Vigilance Bureau had already been submitted with regard to the
status of the candidates as to whether they are tainted or not, no action
qua appointment of selected/recommended candidates was taken by the
State. Ultimately, the writ petitions were filed by the candidates. The
candidates like the petitioner, who were being treated as tainted filed the
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petitions seeking appointment on the ground that the vigilance report
submitted by the State Vigilance Bureau is not correct, whereas 38
candidates against whom no discrepancy were found in the report filed
writ petitions claiming appointment on the ground that once their
selection has been declared untainted, they should be given appointment
keeping in view recommendation of their name by the respondent-
Commission in pursuance to the Advertisement issued in the year 2004.
12. The bunch of said writ petitions came to be decided by the
Co-ordinate Bench vide order dated 29.05.2015 while passing order in
CWP No. 108 of 2012 and other connected cases. The Co-ordinate
Bench came to the conclusion that keeping in view the record which had
come before the Court, no direction can be issued to the respondent-State
to give the appointments to the 102 selected/recommended candidates
and all those writ petitions were dismissed by recording observation qua
the selection process.
13. The said order passed by the Co-ordinate Bench dated
29.05.2015 was assailed by the selected/recommended candidates by
filing several Letters Patent Appeals. The petitioner and other candidates
like him filed appeal challenging the vigilance report submitted by the
State Vigilance Bureau dated 09.11.2011 as well as the judgment of the
Co-ordinate Bench dated 29.05.2015 rejecting their claim qua
appointment and the candidates, whose selection were declared untainted,
approached the Hon'ble Division Bench in Letters Patent Appeal on the
ground that they should have given the appointment keeping in view the
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same vigilance report dated 09.11.2011 by setting-aside the judgment of
learned Single Judge dated 25.05.2015.
14. During the pendency of the said appeals before the Hon'ble
Division Bench, the respondent-State upon being directed by the Hon'ble
Division Bench to state its stand now that the vigilance report dated
09.11.2011 was received, upon which direction respondent-State formed
a Committee of Officers under the Chairmanship of Director General
Vigilance Bureau, which Committee was tasked to review the report of
the State Vigilance Bureau so as to eliminated the possibility of any
candidate being wrongly attributed as tainted and submit its report for the
State to give its final stand.
15. The said Committee of Officers formed by the Government
looked into the selection process undertaken by the respondent-
Commission qua the selection and recommendation of 102 candidates
once again and gave a detailed report dated 29.01.2016 to the respondent-
State. It may be noticed that members of the Committee, which was
formed by the respondent-State was the then Additional Director General,
State Vigilance Bureau, Panchkula, Inspector General of Police, State
Vigilance Bureau, Panchkula, Superintendent of Police, State Vigilance
Bureau, Hisar and Deputy District Attorney, State Vigilance Bureau,
Panchkula. Vide the said report dated 29.01.2016, the Committee again
reiterated and affirmed the findings of the State Vigilance Bureau qua the
38 candidates against whom no discrepancy/irregularity in the report
dated 09.11.2011 and the names of 68 tainted candidates were also
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mentioned in the said report. It may be noticed that in the report of the
Committee of Officers dated 29.01.2016, the stand regarding the
petitioner being tainted as noted in the report of the State Vigilance
Bureau dated 09.11.2011 was again affirmed.
16. Subsequent to the submission of the report dated 29.01.2016
of the Committee of Officers the respondent-State through its Chief
Secretary issued letter dated 26.02.2016 to the Advocate General,
Haryana, wherein, it was mentioned that the Government has accepted in
principal the report of the State Vigilance Bureau and the Government
has decided to offer appointment to the 38 untainted candidates and the
said appointments were to be given on certain terms and conditions,
which were made part of the said letter.
17. Keeping in view the letter dated 26.02.2016, the Division
Bench segregated the bunch of appeals in two categories, one of those
filed by untainted candidates and second of those filed by tainted
candidates. The Hon'ble Division Bench then vide order dated
27.02.2016 in LPA No. 1168/2015 and other connected cases, which
formed part of the first bunch of appeals filed by untainted candidates
modified the judgment of learned Single Judge dated 29.05.2015 qua the
untainted candidates and partly allowed their appeals in terms of the
letter dated 26.02.2016 and allowed the State Government to make
appointment of 38 candidates, who were found to be untainted.
18. On the same date, the petitioner and other similarly situated
candidates, who were declared tainted, withdrew their appeals which
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formed part of the second bunch of appeals, which were of those
candidates, who were termed as tainted with liberty to approach the
Government for redressal of their grievance. It may be noticed here
again that, in the appeals filed by the candidates, who were termed as
tainted, the report dated 09.11.2011 of the State Vigilance Bureau was
under challenge.
19. After withdrawing the said appeals/LPA, the petitioner and
other similarly situated candidates approach the Government for
consideration of their claim to be treated as untainted. The Government
passed an order dated 09.03.2017 (Annexure P-10) on the representation
of the present petitioner by which, the Government again rejected the
claim of the petitioner so as to grant him appointment. A detailed order
dated 09.03.2017 (Annexure P-10) was passed by the Government by
noticing all the facts and circumstances as well as the reports of the State
Vigilance Bureau and Committee of Officers, which had come before the
Government.
20. In the present petition, the decision dated 09.03.2017
(Annexure P-10) rejecting the claim of the petitioner on his
representation to declare him untainted has been rejected, is under
challenge.
21. After notice of motion, the respondents have filed the reply,
wherein, the respondents have again taken the same stand as mentioned
in the impugned order 09.03.2017 (Annexure P-10) that the selection of
the petitioner has been declared tainted more than once by premier
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institution of the State i.e. State Vigilance Bureau and also by the
Committee of Officers constituted by the Government, therefore, the
representation of the petitioner so as to declare him untainted has not
found favour with the Government and the same has been rejected by
passing the impugned order dated 09.03.2017 (Annexure P-10).
22. I have heard learned counsel for the parties and have gone
through the record with their able assistance.
23. From the facts, which have been mentioned here-in-before, it
is clear that after the selection, the Government chose not to give
appointment to any of the 102 selected/recommended candidates. The
legal battle started before this Court, wherein, all the 102
selected/recommended candidates approached this Court through various
writ petitions seeking appointment. Their claim was not accepted by this
Court on the ground that the matter was under consideration of the State
Vigilance Bureau of the Government and ultimately, the Hon'ble
Supreme Court of India while disposing of the said litigation held that the
State will be free to take appropriate decision keeping in view the
vigilance report, which was yet to be received as the selection process
was under scrutiny at the relevant point of time.
24. It is also a conceded position that the report of the State
Vigilance Bureau qua the validity of selection process undertaken in
pursuance to the Advertisement of the year 2004 was received by the
Government on 09.11.2011. The State Vigilance Bureau in the said
report bifurcated the 102 selected/recommended candidates as tainted and
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untainted candidates, tainted being those candidates qua selection of
whom discrepancies were found. The petitioner was part of the 64
candidates, who were declared as tainted. The petitioner had then
approached this Court challenging the said report of the State Vigilance
Bureau dated 09.11.2011 so as to declare him untainted by filing writ
petition and the Co-ordinate Bench while passing order in CWP No. 108
of 2012 and other connected cases dated 29.05.2015 dismissed the bunch
of writ petitions filed by the selected/recommended candidates along
with that of the petitioner which were filed seeking grant of appointment
in pursuance to selection/recommendation by the respondent-
Commission with respect to the Advertisement of the year 2004.
25. Against the said decision, the petitioner as well as the other
101 candidates filed the LPA so as to claim the benefit of appointment in
view of their recommendations. During the pendency of the LPA, the
respondent-State upon being directed to State its stand qua appointment,
formed a Committee of Officers to assist it, which Committee again
affirmed the finding of the report dated 09.11.2011 of State Vigilance
Bureau in its own report dated 29.01.2016 in which report also, the
petitioner was declared as part of the tainted candidates. In light of the
recommendation of the Committee of Officers the Government gave in
principal approval to the report of the State Vigilance Bureau and
accepted the claim of 38 untainted candidates for their appointment. The
Hon'ble Division Bench disposed of the appeals filed by the 38 untainted
candidates in terms of the stand taken by the Government and the
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petitioner along with similarly situated candidates, who were termed as
tainted rather than pressing their challenge to the report of the State
Vigilance Bureau dated 09.11.2011, which was adopted by the
Government, withdrew their appeals/LPA so as to approach the
Government with representation without any liberty to approach the
Hon'ble Court again on the same cause of action.
26. Keeping in view the above mentioned facts, it is clear that
the report of the State Vigilance Bureau dated 09.11.2011 which was
subject matter of challenge in the earlier petition filed by the petitioner
remained basis for petitioner's non-appointment and even the finding qua
the petitioner being tainted of the report of State Vigilance Bureau was
affirmed by the Committee of Officers in the report dated 29.01.2016,
which was tasked to cross all the possibility of a wrong candidate
suffering before the Government took its decision. That being the factual
position asking this Court to declare the petitioner as untainted candidate
does not arise for the following reasons.
(a) While passing the order dated 11.12.2007 by the Hon'ble
Supreme Court of India, the jurisdiction was given to the State to act in
accordance with the report of the State Vigilance Bureau and its own
enquiry qua the fairness of the selection process and for appointing the
candidates in pursuance to the same. The State Vigilance Bureau in its
report dated 09.11.2011 had declared the petitioner as tainted and the said
view was adopted by the respondent-State vide impugned order dated
(Annexure P-6), which report was subject matter of challenge in the
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appeal filed by the petitioner before the Hon'ble Division Bench, which
challenge was abandoned by the petitioner by withdrawing the appeal
and consequently the judgment of Co-ordinate Bench dated 29.05.2015
became final qua the petitioner where the report of the State Vigilance
Bureau was not set-aside to hold the petitioner not being a tainted
candidate. Petitioner cannot agitate the same issue once again in this
petition so as to seek a contrary view from this Court that petitioner is not
a tainted candidate. If the prayer raised in the present petition is accepted
then it will amount to passing of two different judgments on the same
issue between the same parties without there being any additional facts
qua the claim of the petitioner being not tainted. This is not permissible
in the eyes of law.
27. The Hon'ble Supreme Court of India in Civil Appeal No.
3149 of 2019 titled as P. Bandopadhya & Ors. Vs. Union of India &
Ors., decided on 15.03.2019 again affirmed the applicability of principle
of res-judicata to writ petitions. The relevant paragraph 8.7 of the said
judgment is as under :-
"8.7. The decision in S.V. Vasaikar & Ors. v. Union of
India & Ors. [2003 (2) Mh. L.J. 691 : 2003 (4) Bom CR
79] was not challenged before the Supreme Court, and has
since attained finality. Therefore, the relief sought by the
Appellants before the High Court was barred by the
principle of res judicata.
Reference can be made to the decision of the
Constitution Bench in Direct Recruit Class II Engineering
Officers' Association v. State of Maharashtra & Ors.,
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(1990) 2 SCC 715 : AIR 1990 Supreme Court 1607.
wherein Sharma, J., on behalf of the five-judge bench, held:
"35...It is well established that the principles of res
judicata are applicable to writ petitions. The relief
prayed for on behalf of the petitioner in the present
case is the same as he would have, in the event of his
success, obtained in the earlier writ petition before the
High Court. The petitioner in reply contended that
since the special leave petition before this Court was
dismissed in limine without giving any reason, the
order cannot be relied upon for a plea of res judicata.
The answer is that it is not the order of this Court
dismissing the special leave petition which is being
relied upon; the plea of res judicata has been pressed
on the basis of the High Court's judgment which
became final after the dismissal of the special leave
petition. In similar situation a Constitution Bench of
this Court in Daryao v. State of UP, (1962) 1 SCR 574
: AIR 1961 Supreme Court 1457. held that where the
High Court dismisses a writ petition under
Article 226 of the Constitution after hearing the
matter on the merits, a subsequent petition in the
Supreme Court under Article 32 on the same facts and
for the same reliefs filed by the same parties will be
barred by the general principle of res judicata. The
binding character of judgments of courts of competent
jurisdiction is in essence a part of the rule of law on
which the administration of justice, so much
emphasised by the Constitution, is founded and a
judgment of the High Court under Article 226 passed
after a hearing on the merits must bind the parties till
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set a.side in appeal a.s provided by the Constitution
and cannot be permitted to be circumvented by a
petition under Article 32..."
(emphasis supplied)
Albeit the decision of the Constitution Bench was in
the context of a Writ Petition filed under Article 32, it would
apply with greater force to bar a Writ Petition filed under
Article 226, like the one filed by the present Appellants, by
the operation of the principle of res judicata."
28. The present petition had earlier laid challenge to the report
dated 09.11.2011 of the State Vigilance Bureau in which writ petition the
petitioner got an order on merit from the Co-ordinate Bench declining o
treat him as untainted candidate so as to secure him appointment in
pursuance to recommendation of his name by respondent-Commission,
which judgment of Co-ordinate Bench dated 29.05.2015 was subject
matter of challenge in the LPA filed by the petitioner before the Hon'ble
Division Bench of this Court, which appeal was withdrawn without
seeking any liberty. Further, the impugned order dated 09.03.2017
(Annexure P-10) again has its primary basis the report dated 09.11.2011
of the State Vigilance Bureau. Even the report of Committee of Officers
dated 29.01.2016 also hold the petitioner as a tainted candidate, which
fact was already there before the Division Bench but rather than proving
the report of State Vigilance Bureau as incorrect so as to get the judgment
of learned Single Judge set-aside, petitioner chose to withdraw the appeal
to approach Government, hence the stand of the Government that
selection of the petitioner is tainted, which has already been accepted by
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the Co-ordinate Bench vide order dated 29.05.2015, cannot be re-opened
on the pretext of challenging the order passed by Government on the
representation of the petitioner. Facts, which have attained finality
between the parties i.e. the selection of the petitioner is untainted, cannot
be reopened to be accepted once again in these proceedings.
29. Even otherwise, the Hon'ble Supreme Court in Civil Appeal
No. 8072 of 2010 titled as State of Orissa and another Vs. Laxmi
Narayan Dass (Dead) through Lrs & Others, decided on 12.07.2023 in
paragraph 37 of the judgment has held as under :-
"37. On the question, as to whether after the withdrawal of a
suit claiming the same relief without having permission to institute
fresh one for the same relief, a writ petition will be maintainable
before the Court, the guidance is available from the judgment of
this Court in M.J. Exporters Private Limited v. Union of India
and others (2021) 13 SCC 543, wherein the principle of
constructive res judicata was applied. The case concerns a litigant
who sought to file a fresh writ petition after withdrawal of the
earlier writ petition filed for the same relief without permission to
file fresh one. The Court held that the principles contained in
Order 23, Rule 1 CPC are applicable even in writ proceedings.
Para 15 thereof is extracted below:
"15. In these circumstances, we feel that when this issue was
raised and abandoned in the first writ petition which was
dismissed as withdrawn, the principles of constructive res
judicata which are laid down under Order 23 Rule 1 of the
Code of Civil Procedure, 1908, and which principles are
extendable to writ proceedings as well as held by this
in Sarguja Transport Service v. STAT, (1987) 1 SCC 5."
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30. Learned senior counsel appearing on behalf of the petitioner
has further argued that keeping in view the order passed by this Court
during the pendency of the present petition so as to seek the status report
from the respondent-department qua the status of the petitioner, it can be
safely assumed that the matter has already been reopened by this court so
as to be decided afresh as to whether, the selection of the petitioner is to
be treated tainted or not.
31. The said argument cannot be accepted. Merely an interim
order has been passed to seek certain opinion from the department does
not mean that the earlier judgment between the parties, which attained
finality on the same issue, will stand washed off. The orders passed by
this Court in this petition is only to ascertain as to whether, the question
being raised by the petitioner can be adjudicated or not. The interim
orders are not the final orders but an exercise conducted by the Court so
as to adjudicate the issue between the parties and reach a final
conclusion.
32. Further, the interim orders cannot be treated as a final orders
to mean that the issue of taintedness has been reopened by this Court.
Rather, as per the settled principle of law, the issues already settled
between the parties cannot be reopened by the Co-ordinate Bench and in
the present case, the petitioner had already been declared tainted in the
Vigilance Report dated 09.11.2011 by the State Vigilance Bureau, which
was a subject matter of his earlier petition and during the pendency of his
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LPA, he was again declared tainted by the Committee of Officers on
29.01.2016.
33. The Co-ordinate Bench had already upheld the decision of
the Government to treat the selection of the petitioner as a tainted, which
decision attained finality after the petitioner withdrew his LPA without
getting it adjudicated on merits, hence, the said question cannot be
reopened by this Court and rather this Court will not have even the
jurisdiction to reopen the same and the interim orders will not give a right
to the petitioner to open his issue to be decided once again.
34. It may be noticed that even during the pendency of the
present petition also, in another exercise undertaken by the respondents,
the selection of the petitioner has again been declared as tainted, which
fact shows that there is a consistent view of the respondents that the
selection of the petitioner is a tainted one. Once, a view has been taken
by the Government on the basis of record/report, which record/report has
been prima-facie, accepted by the Division Bench also while passing an
order dated 27.02.2016, the same has to be held to be a good ground with
the Government to decline the petitioner appointment in pursuance to his
recommendation.
35. Even otherwise, there are no malafide, which have been
agitated by the petitioner upon anyone so as to declare him a tainted
candidate. In the absence of any malafide, any genuine reason, which
has come from the Government for the acceptance of the report and for
not accepting the recommendation of the petitioner against the post
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which has been advertised in the year 2004, the action of the respondent-
department has to be given preference over the claim of the petitioner.
Once the employer feels that the selection of a candidate is tainted, the
Court will not be sitting in an appeal over the said decision so as to
impose an unwanted candidate upon the employer and that too where the
employer has given a valid reason for not accepting a candidate as an
employee, hence, the prayer of the petitioner so as to grant him
appointment in pursuance to his recommendation by declaring him as an
untainted candidate, cannot be accepted.
36. Bona-fide action taken by the State has to be upheld. The
Hon'ble Supreme Court of India while deciding Civil Appeal No. 5803 of
2007 titled as Jitendra Kumar and others Vs. State of Haryana and
another, decided on 11.12.2007, in the earlier litigation between the
parties, has categorically held that the selectees do not have any legal
right for their appointment subject to any dispute regarding the bona-fide
on the part of the State and in the present case in the absence of any
mala-fide action alleged against anyone keeping in view the material
which was presented before a State to arrive at a particular decision that
the petitioner's selection is tainted, cannot be interfered with, especially
when the public appointments are within the exclusive domain of the
Government and the power of judicial review in such a matter is very
limited. The relevant paragraphs 25 and 30 of the said judgment are as
under :-
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"25. However, upon change in the political set up and
upon an objective consideration of the entire matter vis-a-vis
the need and interest of the State, the cadre strength was
fixed at 230. No serious challenge has been made to this part
of the judgment of the High Court.
We also do not see any reason to interfere with the
impugned notification dated 13.05.2005. What would be the
need of the State and how an administration shall be run is
within the exclusive domain of the State. The power of
judicial review in such matter is very limited. The superior
judiciary ordinarily would not interfere in a matter involving
policy decision. We do not mean to say that the policy
decision of the State is beyond the realm of judicial review.
However, power of judicial review can be exercised only on
the basis of known legal principles. [See Cellular Operators
Assn. of India and Others v. Union of India and Others,
(2003)3 SCC 186 , Bombay Dyeing & Mfg. Co. Ltd. (3) v.
Bombay Environmental Action Group and Others, (2006)3
SCC 434 and Sarbananda Sonowal v. Union of India,
(2007)1 SCC 174 ]
We, however, in the fact situation obtaining herein
cannot opine that any case has been made out where the
court shall delve deep into the aforementioned question.
xxx xxx xxx xxx
30. The legal principle obtaining herein is not in
dispute that the selectees do not have any legal right of
appointment subject, inter alia , to bonafide action on the
part of the State. We may notice some of the precedents
operating in the field.
In Shankarsan Dash v. Union of India, 1991(2) SCT
194 : [(1991)3 SCC 47] , this Court held :
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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 bonafide 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 Chander
Marwaha, AIR 1973 Supreme Court 2216 , Neelima
Shangla v. State of Haryana, AIR 1987 Supreme Court
169 or Jatendra Kumar v. State of Punjab, 1985(1)
SCC 122. "
Yet again in R.S. Mittal v. Union of India, 1995(3) SCT
284 : [1995 Supp (2) SCC 230] , this Court held :
"...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
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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."
(Emphasis supplied)
In Asha Kaul (Mrs.) and Another v. State of Jammu
and Kashmir, 1993(2) SCT 744 : [(1993)2 SCC 573] , this
Court held :
"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.
Subhash Chander Marwaha ; Mani Subrat Jain v.
State of Haryana, AIR 1977 Supreme Court 276 ;
State of Kerala v. A. Lakshmikutty, (1986(4) SCC 632)
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
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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 and
Another, (2000)1 SCC 600 ]
In Food Corpn. Of India and Others v. Bhanu Lodh
and Others, 2005(2) SCT : 151 : [(2005)3 SCC 618] , this
Court held :
"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 bonafide 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 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."
37. No other argument has been raised.
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38. Keeping in view the above, in the facts and circumstances of
the present case, no ground is made out for the grant of prayer as made in
the present petition.
39. Dismissed.
January 08th, 2024 (HARSIMRAN SINGH SETHI)
kanchan JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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