Dr. Kritika Sharma, Daughter Of ... vs State Of Rajasthan ...
2023 Latest Caselaw 512 Raj/2

     HIGH COURT OF JUDICATURE FOR RAJASTHAN
                 BENCH AT JAIPUR

      D.B. Special Appeal Writ No. 1130/2022 IN
         S.B. Civil Writ Petition No. 3703/2021
1.   Dr. Kritika Sharma, Daughter of Kaushal Kumar Sharma,
     Aged About 35 Years, Resident of 363, Nirman Nagar AB,
     Janpath, Ajmer Road, Jaipur (Rajasthan).
     (Worked As Assistant Professor With RUHS CMS From
     2015)
2.   Dr. Ankesh Goyal, Son Of Shri Mohan Lal Goyal, Aged
     About 38 Years, Resident Of 47, Mathur Vaishya Nagar,
     Sitabari, Tonk Road, Jaipur (Rajasthan).
     (Worked As Assistant Professor With RUHS CMS From
     2016 To 2020)
3.   Dr. Seema Singh, Wife Of Dr. Bharat Kumar Singh, Aged
     About 45 Years, Resident Of 69/343, V.T. Choraha, Behind
     Oriental Bank Of Commerce, Mansarovar, Jaipur
     (Rajasthan).
     (Working As Assistant Professor With RUHS CMS From
     2017)
4.   Dr. Archna Singh, Daughter Of Shri Vijendra Singh, Aged
     About 39 Years, Resident Of C-31, 80 Feet Road, Mahesh
     Nagar, Jaipur (Rajasthan).
     (Working As Senior Demonstrator With RUHS CMS From
     2014)
5.   Dr. Priyanka Saini, Wife Of Dr. Rajendra Bansal, Aged
     About 38 Years, Resident Of 5/24, Vidhyadhar Nagar,
     Jaipur (Rajasthan).
     (Working As Assistant Professor With RUHS CMS From
     2017)
                                                 ---Petitioners-Appellants
                               Versus
1.   State Of Rajasthan, Through The Secretary To
     Government, Medical Education Department, Government
     Of Rajasthan, Government Secretariat, Jaipur
2.   Rajasthan University Of Health Sciences, Through Its
     Registrar, Sector-18, Kumbha Marg, Pratap Nagar, Jaipur
     (Rajasthan)
3.   Convener, Recruitment Of Teaching Faculties, RUHS-2015
     (Under The Advertisement Dated 10.12.2015), Office Of
     Convener, RUHS, Sector-18, Kumbha Marg, Pratap Nagar,
     Jaipur (Rajasthan)
4.   Selection Committee, Through Its Chairman-Cum-Vice
     Chancellor, Rajasthan University Of Health Sciences,
     Sector-18,   Kumbha   Marg,    Pratap Nagar,  Jaipur
     (Rajasthan)
5.   National Medical Commission (NMC), (The Then Medical
     Council Of India) Through Its Secretary, Pocket No. 14,
     Sector-8, Dwarka Phase-I, New Delhi


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6.       Kaluram Jat, RAS, Presently Posted As Registrar,
         Rajasthan University Of Health Sciences, Sector-18,
         Kumbha Marg, Pratap Nagar, Jaipur (Rajasthan)
                                                                 ----Respondents

D.B. Special Appeal Writ No. 1131/2022 IN S.B. Civil Writ Petition No. 4018/2019

Dr. Govind Sharan Sharma S/o Sh. Raghunandan Sharma, Aged About 33 Years, R/o A-632, Vidyut Nagar, Ajmer Road, Jaipur

----Appellant Versus

1. State Of Rajasthan, Through Principal Secretary, Medical Education, Government Secretariat, Jaipur.

2. Rajasthan University Of Health Sciences, Kumbha Marg, Sector 18, Pratap Nagar, Jaipur Through Its Registrar.

3. Convener, Rajasthan University Of Health Sciences, Kumbha Marg, Sector 18, Pratap Nagar, Jaipur.

----Respondents

D.B. Special Appeal Writ No. 1132/2022 IN S.B. Civil Writ Petition No. 15586/2019

Dr. Varun Singh, S/o Dr. Shri Devi Singh, Aged About 39 Years, Resident of House No.94/201, Vijay Path, Mansarovar, Jaipur (Rajasthan).

----Appellant Versus

1. State Of Rajasthan, Through Secretary To Government, Medical Education Department, Government Of Rajasthan, Government Secretariat, Jaipur (Rajasthan).

2. Rajasthan University Of Health Sciences, Through Its Registrar, Sector-18, Kumbha Marg, Pratap Nagar, Jaipur (Rajasthan).

3. Convener, Recruitment Of Teaching Faculties, RUHS-2015 (Under The Advertisement Dated 10.12.2015), Office Of Convener, RUHS, Sector-18, Kumbha Marg, Pratap Nagar, Jaipur (Rajasthan).

4. Selection Committee, Through Its Chairman-Cum-Vice Chancellor, Rajasthan University Of Health Sciences, Sector- 18, Kumbha Marg, Pratap Nagar, Jaipur (Rajasthan).

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5. The National Medical Commission, Pocket 14, Sector-8, Dwarka Phase-I, New Delhi Through its Secretary.

----Respondents

For Appellant(s) : Mr. Saransh Saini with Mr. Sanjeev Kumar and Ms. Anshika Maheshwari in SAW Nos.1130/2022 & 1132/2022.

Mr. Anirudh Tyagi Mr. Manan Mathur Mr. Dishant Karnawat on behalf of Mr. Kapil Prakash Mathur in SAW No.1131/2022

For Respondent(s) : Mr. Virendra Lodha, Sr. Advocate with Mr. Raunak Singhvi, Advocate and Mr. Rachit Sharma, Advocate Mr. Angad Mirdha for NMC

HON'BLE THE CHIEF JUSTICE MR. PANKAJ MITHAL [THROUGH VC JODHPUR] HON'BLE MR. JUSTICE ANOOP KUMAR DHAND

Judgment Reserved on : 01/11/2022 Pronounced on : 16/01/2023

Reportable

[Per : Anoop Kumar Dhand, J.]

(1) This order will govern the disposal of D.B. Special

Appeal (Writ) Nos.1130/2022, 1131/2022 and 1132/2022 since it

is jointly submitted by the parties that these special appeals

involve common issue in the identical fact situation. The issue

involved in these appeals is "whether the candidates who have

applied does have any legal right to insist the authority that the

recruitment process set in motion be carried out to its logical

end"?

(2) Vide impugned judgment dated 27.08.2022, the

learned Single Judge dismissed the writ petitions submitted by the

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appellants by granting liberty to the respondents to make regular

appointment / selection in accordance with law and till regularly

selected candidates are made available, the services of the

appellants shall not be discontinued.

(3) The facts of the case are that the appellant/writ

petitioners (hereinafter referred as 'the petitioners') participated in

the process for selection initiated by the Rajasthan University of

Health Sciences (for short "RUHS") by issuing advertisement

dated 10.12.2015 for holding selections for the posts of Professor,

Associate Professor, Assistant Professor, Senior Demonstrator

(Clinical) and Senior Demonstrator/Tutor (Non-clinical) for various

branches/faculties. The online examination was conducted on

25.02.2016 and the result was declared in the next month. The

interviews were supposed to be conducted with effect from

01.05.2017 to 10.05.2017, but the same were postponed and the

process was not completed, and finally the recruitment process

was cancelled by the respondents vide impugned order dated

06.02.2021.

(4) Feeling aggrieved by the impugned order dated

06.02.2021, the petitioners submitted three different writ petitions

and the same were dismissed by the learned Single Judge by the

common impugned judgment dated 27.08.2022.

(5) Learned counsels for the petitioners submits that the

learned Single Judge has dismissed the writ petitions on the basis

of decision dated 06.02.2021 taken by the Board of Management

(for short "BOM") and the BOM has committed an error in taking

the decision for cancelling the recruitment process initiated in the

year 2015. The counsels submit that the BOM has taken the

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impugned decision on the basis of opinion given by the Advocate

General (for short "AG"). Counsels submit that the opinion of the

AG was not binding upon the BOM. Counsels submit that

respondent no.6 was Registrar in RUHS and he acted malafidely

and due to his malice, the entire selection process was cancelled.

Counsels submit that no reply or affidavit was submitted by the

respondent no.6. Hence the allegation of mala fide remained un-

controverted.

(6) Counsels submit that reservation provision providing

reservation to the members of Economically Weaker Section (for

short "EWS") came into force in 2019 and the same cannot be

applied with retrospective effect by scrapping the advertisement

issued on 10.12.2015. Counsels submit that the vested rights of

petitioners cannot be allowed to be snatched by application of

EWS reservation with retrospective effect. In support of their

contentions, reliance has been placed on the following

judgments :-

(i) P. Mahendran & Ors v. State of Karnataka & Ors AIR 1990 SC 405

(ii) Secretary, A.P. Public Service Commission v. B. Swapna & Ors (2005) 4 SCC 154

(iii) K. Manjusree v. State of A.P. & Ors AIR 2008 SC 1470

(iv) Tej Prakash Pathak & Ors v. Rajasthan High Court & Ors [Civil Appeal No. 2634/2013 decided by Hon'ble Apex Court on 20.03.2013]

(v) R.S. Mittal v. Union of India 1995 Supp (2) SCC 230

(vi) The State of Rajasthan v. Indu Bala Kumawat & Ors [D.B. Special Appeal (Writ) No.1046/2018 decided on 01.06.2019]

(vii) Anil Kumar Sharma v. Rajasthan High Court & Anr [D.B. Civil Writ Petition No.6646/2021 decided on 19.07.2021]

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(viii) University of Kerala & Ors v. Merlin J.N. & Ors [Civil Appeal Nos.5309/2022 decided by Hon'ble Apex Court on 17.08.2022]

(ix) Mohd. Sohrab Khan v. Aligarh Muslim University & Ors (2009) 4 SCC 555

(x) Ranjeet Kumar Sah & Ors v. The State of Jharkhand & Ors [W.P. (S) No.53/2020 decided on 21.01.2021]

(xi) Md. Sahid Ali & Ors v. State of Tripura & Ors (2007) 2 GLR 701

(7) Counsels submit that under these circumstances

interference of this court is warranted.

(8) Per contra, counsels for the respondents opposed the

arguments raised by the counsels for the petitioners and

submitted that there is no error in the decision taken by the BOM

canceling the selection process and the petitioners have no legal

right to insist the authority that the recruitment process set in

motion be carried out to its logical end. Counsels submit that

inclusion of the petitioners in the selection list may not clothe

them with such right. Counsels submit that though the

advertisement was issued in the year 2015 but the process could

not be completed till decision of the BOM and the petitioners have

simply qualified in the written test and prior to holding of the

interview the decision has been taken to cancel the advertisement

dated 10.12.2015 and initiate the new selection process.

Counsels submit that the petitioners were neither selected nor any

appointment order was offered to them, hence they cannot claim

the relief desired by them in the writ petitions. Counsels submit

that there is no error in the judgment passed by the learned

Single Judge, hence no interference of this court is warranted.

(9) In support of their contentions, they have placed

reliance on the following judgments :-

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       (i)     East Coast Railway & Anr v. Mahadev Appa Rao & Ors

[SLP (Civil) No.27153 of 2008 decided on 07.07.2010]

(ii) Employees State Insurance Corporatio & Anr v. Dr. Vinay Kumar & Ors 2022 LiveLaw (SC) 514

(iii) State of Himachal Pradesh & Ors v. Raj Kumar & Ors 2022 LiveLaw (SC) 502

(iv) Rajesh Jain & Ors v. Rajasthan High Court & Anr [D.B. Civil Writ Petition No.568/2011 decided on 28.01.2011]

(10) Heard the rival submissions made at the Bar and

perused the material available on the record.

(11) Perusal of the record indicates that the advertisement

was issued on 10.12.2015 and the online exams were conducted

on 25.02.2016 and the result of the said exams was declared in

March 2016. Therefore, interviews were scheduled to be held with

effect from 01.05.2017 to 10.05.2017 but due to technical

reasons the same could not be held. When the result was put

before the BOM on 17.04.2017, it was found that the selection

committee did not complete its mandatory exercise as per the

provisions contained under the Rajasthan Universities and Officers

(Selection for Appointment) Act, 1974 (for short "the Act of

1974"). Section 6 of the Act of 1974 mandates that :-

"Section 6 of the Act of 1974 mandates that the selection committee has to give recommendations along with select list and waiting list. In the absence of recommendations, Section 3 clearly bars the appointment and in case of appointment in violation of section 3 then same is null and void. Section 3 and 6 of the Act of 1974 are quoted here as under for ready reference of the Hon'ble Court:-

3. Restrictions on appointments of teachers and officers.

(1) Notwithstanding anything contained in the relevant law, as from the commencement of this Act, no teacher and no officer in any University in Rajasthan

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shall be appointed except on the recommendations of the selection committee constituted under Section 4.

(2) Every appointment of a teacher or of an officer in any University made in contravention of sub-section (1) shall be null and void;

Provided that the University may, with prior permission of the State Government, extend the term of appointment of such ad hoc or urgent temporary teachers who were appointed as stop gap arrangement prior to, and working as such immediately before, the commencement of the Rajasthan Universities Teachers and Officers (Selection for Appointment) Amendment Act, 2003 (Act no.7 of 2003), for a period of six months at a time until regular appointments are made in accordance with sub-section (1).

2 [xxx]

3    [Explanation.-     The    expression

"appointed" in sub-section (1) shall mean appointed initially and not appointed by way of promotion.]

[[6.] Procedure of selection committees-

(1) The quorum required for the meeting of a Selection committee constituted under [Section 5] shall not be less than [five] out of which at least two shall be the experts, if the selection to be made is for the post of a Professor or Reader, and at least one shall be expert, if the selection to be made is for the post of a Lecturer or any other post of a teacher equivalent thereto. The quorum required for the meeting of non-teaching posts shall be not less than one-half of the number of the members of the Selection Committee, out of which at least one shall be an expert.

(2) The Selection Committee shall make its recommendations to the Syndicate. If the Syndicate disapproves the recommendations of the Selection Committee, the Vice-Commissioner of the University concerned shall submit such recommendations along with reasons for disapproval given by the Syndicate to the

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Chancellor for his consideration and the decision of the Chancellor thereon shall be final.

(3) Every Selection Committee shall be bound by the qualifications laid down in the relevant law of the University concerned for the post of a teacher or, as the case may be, of any officer.

(4) The Selection Committee, while making its recommendations to the Syndicate under sub-section (2) shall prepare a list of candidates selected by it in order of merit and shall further prepare a list of candidates selected by it in order of merit and shall further prepare a reserve list in the same order and to the extent of 50% of the vacancies in the posts of teachers or officers for which the Selection Committee was constituted under Sub-section (1) of section 5 and shall forward the main list and the reserve list along with its recommendations to the Syndicate.."

(12) Due to failure of the selection committee to act as per

the mandate of Sections 3 and 6 of the Act of 1974, the selection

could not be made. The Medical Council of India (for short "MCI")

vide its Notification dated 08.06.2017 amended minimum

qualification for Teachers in Medical Institutions Regulations 1988

and for the post of Assistant Processor, the following qualification

was added :-

"3 years junior in a recognized medical college in the concerned subject and 1 year as Senior Resident in the concerned subject in a recognized medical college."

(13) In the meantime the issue of reservation came before

the Allahabad High Court in Writ Petition no. 43260/2016 and the

same was decided on 07.04.2017. The said judgment of the

Allahabad High Court was challenged before the Hon'ble Apex

Court by the Union of India by way of filing SLP (C) 3525/2019

and the same was decided on 22.01.2019. Because of pendency

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of the above litigation before the Hon'ble Apex Court, the

University Grants Commission (for short "UGC") wrote a letter on

09.07.2018 directing all the Universities to postpone the

recruitment process. Based on the said letter of UGC, His

Excellency the Governor of Rajasthan issued a communication on

19.07.2018 to keep the recruitment process in all the Universities

in abeyance.

(14) In the meantime, the reservation provisions changed by

providing reservation to EWS category in the year 2019. Then

opinion of the AG was sought, who gave his opinion on

23.07.2020 and opined that nothing substantial has happened

except holding of the screening test, hence he opined to start

recruitment process afresh by scrapping the advertisement issued

on 10.12.2015 by incorporating the latest qualification for

appointment and reservation etc..

(15) On the basis of the above opinion of the AG the BOM

took a decision on 06.02.2021 to cancel the recruitment process

initiated vide advertisement dated 10.12.2015 and initiate fresh

selection process as per the existing rules.

(16) Now the question before this court is whether the

respondents were justified in cancelling the process initiated vide

advertisement dated 10.12.2015. Whether any vested right has

accrued to the petitioners under these circumstances when only

screening test was held and interviews for regular selection were

not held.

(17) The similar situation came before the Hon'ble Supreme

Court in the case of State of MP & Ors v. Raghuveer Singh Yadav &

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Ors, reported in (1994) 6 SCC 151. In para 5 of the judgment,

Hon'ble Apex Court has held as under :-

"It is not in dispute that Statutory Rules have been made introducing Degree in Science or Engineering or Diploma in Technology as qualifications for recruitment to the posts of Inspector of Weights and Measures. It is settled law that the State has got power to prescribe qualifications for recruitment. Here is a case that pursuant to amended Rules, the Government has withdrawn the earlier notification and wants to proceed with the recruitment afresh. It is not a case of any accrued right. The candidates who had appeared for the examination and passed the written examination had only legitimate expectation to be considered of their claims according to the rules then in vogue. The amended Rules have only prospective operation. The Government is entitled to conduct selection in accordance with the changed rules and make final recruitment. Obviously no candidate acquired any vested right against the State. Therefore, the State is entitled to withdraw the notification by which it had previously notified recruitment and to issue fresh notification in that regard on the basis of the amended Rules."

(18) In the case of Raghuveer Singh Yadav (supra) the

Hon'ble Apex Court has held that the Government is entitled to

conduct the selection process in accordance with the changed

rules and make the final recruitment. It has been further held

that no candidate has acquired any vested right and the State is

entitled to withdraw the Notification and issue fresh Notification on

the basis of amended rules.

(19) Similarly in the case of Employees State Insurance

Corporation v. Dr. Vinay Kumar (supra) the Hon'ble Apex Court

has held in para 6 as under :-

"The cardinal principle we must bear in mind is that this is a case of direct recruitment. A candidate who has applied

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does not have a legal right to insist that the recruitment process set in motion be carried to its logical end. Even inclusion of a candidate in the select list may not clothe the candidate with such a right. This is, however, different, no doubt, from holding that the employer is free to act in an arbitrary manner. But, at the same time, in the first place, direction which is given by the High Court to conclude the recruitment within 45 days is clearly untenable. This is for the reason that, as noticed, the advertisement dated 01.03.2018 was put on hold on 21.03.2018 before the last date indicated for filing the application by advertisement dated 01.03.2018. As the very advertisement was put on hold, it is quite likely that any candidate who may have being desirous of applying, may not have applied being discouraged by the fact that the advertisement has been put on hold. Therefore, the direction to conclude the proceedings within 45 days is unsupportable."

(20) In the case of East Coast Railway (supra) Hon'ble Apex

Court has dealt with the issue in question in para nos. 11 to 20 as

under :-

"11. Relying upon the decision of this Court in Union of India and Ors. v. Tarun K. Singh and Ors. (2003) 11 SCC 768, Mr. Malhotra all the same argued that the challenge to the order cancelling the test was legally untenable as no candidate had any legally enforceable right to any post until he was selected and an order of appointment issued in his favour. Cancellation of the selection process on the ground of malpractices could not, therefore, be subjected to judicial scrutiny before a Writ Court, at the instance of a candidate who had not even found a place in the select list.

12. A Constitution Bench of this Court in Shankarsan Dash v. Union of India (1991) 3 SCC 47 had an occasion to examine whether a candidate seeking appointment to a civil post can be regarded to have acquired an indefeasible right to appointment again such post merely because his name appeared in the merit list of candidates for such post. Answering the question in the negative this Court observed:

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"It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in the State of Haryana v. Subhash Chander Marwaha 1974 (3) SCC 220; Neelima Shangla (Miss) v. State of Haryana 1986(4) SCC 268 or Jitender Kumar v. State of Punjab 1985 (1) SCC 122."

13. It is evident from the above that while no candidate acquires an indefeasible right to a post merely because he has appeared in the examination or even found a place in the select list, yet the State does not enjoy an unqualified prerogative to refuse an appointment in an arbitrary fashion or to disregard the merit of the candidates as reflected by the merit list prepared at the end of the selection process. The validity of the State's decision not to make an appointment is thus a matter which is not beyond judicial review before a competent Writ court. If any such decision is indeed found to be arbitrary, appropriate directions can be issued in the matter.

14. To the same effect is the decision of this Court in Union Territory of Chandigarh v. Dilbagh Singh and Ors. (1993) 1 SCC 154, where again this Court reiterated that while a candidate who finds a place in the select list may have no vested right to be appointed to any post, in the absence of any specific rules entitling him to the same, he may still be aggrieved of his non-

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appointment if the authority concerned acts arbitrarily or in a malafide manner. That was also a case where selection process had been cancelled by the Chandigarh Administration upon receipt of complaints about the unfair and injudicious manner in which the select list of candidates for appointment as conductors in CTU was prepared by the Selection Board. An inquiry got conducted into the said complaint proved the allegations made in the complaint to be true. It was in that backdrop that action taken by the Chandigarh Administration was held to be neither discriminatory nor unjustified as the same was duly supported by valid reasons for cancelling what was described by this Court to be as a "dubious selection".

15. Applying these principles to the case at hand there is no gainsaying that while the candidates who appeared in the typewriting test had no indefeasible or absolute right to seek an appointment, yet the same did not give a licence to the competent authority to cancel the examination and the result thereof in an arbitrary manner. The least which the candidates who were otherwise eligible for appointment and who had appeared in the examination that constituted a step in aid of a possible appointment in their favour, were entitled to is to ensure that the selection process was not allowed to be scuttled for malafide reasons or in an arbitrary manner. It is trite that Article 14 of the Constitution strikes at arbitrariness which is an anti thesis of the guarantee contained in Articles 14 and 16 of the Constitution. Whether or not the cancellation of the typing test was arbitrary is a question which the Court shall have to examine once a challenge is mounted to any such action, no matter the candidates do not have an indefeasible right to claim an appointment against the advertised posts.

16. What then is meant for arbitrary/arbitrariness and how far can the decision of the competent authority in the present case be described as arbitrary? Black's Law Dictionary describes the term "arbitrary" in the following words:

"1. Depending on individual discretion; specif., determined by a judge rather than by fixed rules, procedures, or law.

2. (Of a judicial decision) founded on prejudice or preference rather than on reason or fact. This type of decision is often termed arbitrary and capricious."

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17. To the same effect is the meaning given to the expression "arbitrary" by Corpus Juris Secundum which explains the term in the following words:

"ARBITRARY - Based alone upon one's will, and not upon any course of reasoning and exercise of judgment; bound by no law; capricious; exercised according to one's own will or caprice and therefore conveying a notion of a tendency to abuse possession of power; fixed or done capriciously or at pleasure, without adequate determining principle, nonrational, or not done or acting according to reason or judgment; not based upon actuality but beyond a reasonable extent; not founded in the nature of things; not governed by any fixed rules or standard; also, in a somewhat different sense, absolute in power, despotic, or tyrannical; harsh and unforbearing. When applied to acts, "arbitrary" has been held to connote a disregard of evidence or of the proper weight thereof; to express an idea opposed to administrative, executive, judicial, or legislative discretion; and to imply at least an element of bad faith, and has been compared with "willful".

18. There is no precise statutory or other definition of the term "arbitrary". In Kumari Shrilekha Vidyarthi and Ors. v. State of U.P. and Ors. (AIR 1991 SC 537), this Court explained that the true import of the expression "arbitrariness" is more easily visualized than precisely stated or defined and that whether or not an act is arbitrary would be determined on the facts and circumstances of a given case. This Court observed:

"The meaning and true import of arbitrariness is more easily visualized than precisely stated or defined. The question, whether an impugned act is arbitrary or not, is ultimately to be answered on the facts and in the circumstances of a given case. An obvious test to apply is to see whether there is any discernible principle emerging from the impugned act and if so, does it satisfy the test of reasonableness. Where a mode is prescribed for doing an act and there is no impediment in following that procedure, performance of the act otherwise and in a manner which does not disclose any discernible principle which is

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reasonable, may itself attract the vice of arbitrariness. Every State action must be informed by reason and it follows that an act uninformed by reason, is arbitrary. Rule of law contemplates governance by laws and not by humour, whims or caprices of the men to whom the governance is entrusted for the time being. It is trite that `be you ever so high, the laws are above you'. This is what men in power must remember, always."

19. Dealing with the principle governing exercise of official power Prof. De Smith, Woolf & Jowell in their celebrated book on "Judicial Review of Administrative Action" emphasized how the decision-maker invested with the wide discretion is expected to exercise that discretion in accordance with the general principles governing exercise of power in a constitutional democracy unless of course the statute under which such power is exercisable indicates otherwise. One of the most fundamental principles of rule of law recognized in all democratic systems is that the power vested in any competent authority shall not be exercised arbitrarily and that the power is exercised that it does not lead to any unfair discrimination. The following passage from the above is in this regard apposite:

"We have seen in a number of situations how the scope of an official power cannot be interpreted in isolation from general principles governing the exercise of power in a constitutional democracy. The courts presume that these principles apply to the exercise of all powers and that even where the decision-maker is invested with wide discretion, that discretion is to be exercised in accordance with those principles unless Parliament clearly indicates otherwise. One such principle, the rule of law, contains within it a number of requirements such as the right of the individual to access to the law and that power should not be arbitrarily exercised. The rule of law above all rests upon the principle of legal certainty, which will be considered here, along with a principle which is partly but not wholly contained within the rule of law, namely, the principle of equality, or equal treatment without unfair discrimination."

20. Arbitrariness in the making of an order by an authority can manifest itself in different forms.

Non-application of mind by the authority making

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the order is only one of them. Every order passed by a public authority must disclose due and proper application of mind by the person making the order. This may be evident from the order itself or the record contemporaneously maintained. Application of mind is best demonstrated by disclosure of mind by the authority making the order. And disclosure is best done by recording the reasons that led the authority to pass the order in question. Absence of reasons either in the order passed by the authority or in the record contemporaneously maintained is clearly suggestive of the order being arbitrary hence legally unsustainable.."

(21) Recently, Hon'ble Supreme Court in the case of State of

Himachal Pradesh v. Raj Kumar (supra), has held that selection

shall be made in accordance with the existing rules. Hon'ble Apex

Court held that if the recruitment rules are amended

retrospectively during the proceeding of selection, in that event

selection process be held in accordance with the amended rules. It

has been observed by the Hon'ble Supreme Court in para nos. 13

to 15 as under :-

"13.1 N.T. Devin Katti v. Karnataka Public Service Commission (1990) 3 SCC 157, is a case concerning appointment to the post of Tehsildar, a selection post governed under 1975 Rules [Karnataka Administrative Services (Tehsildars) Recruitment (Special) Rules, 1975], to be filled from in-service candidates. While the advertisement was issued in May 1975, the procedure for selection of candidates by following the rules of reservation in favour of SC/ST candidates was brought into force on 09 July 1975. The Court held that as the advertisement expressly stated that the selection shall be made in accordance with the existing rules, the candidates who have appeared in the written test and have undergone viva voce acquired a vested right for being considered for selection in terms of the advertisement. The Court held that, as the rules have no retrospective effect, the recruitment process cannot be affected. It is in this context, that the Court referred to the case of Rangaiah and P. Ganeshwar Rao. The Court also relied on A.A Calton v. Director of Education & Anr (1983)

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3 SCC 33 which was related to the appointment for the post of Principal under the U.P.

Intermediate Education Act, 1921 and P. Mahenderan & Ors v. State of Karnatake (1990) 1 SCC 411, case which was related to the recruitment process for direct appointment to the post of Motor Vehicle Inspector. Changes made to the rules after the issuance of the advertisement was the question under consideration. The Court observed:

"11. There is yet another aspect of the question. Where advertisement is issued inviting applications for direct recruitment to a category of posts, and if it further indicates the extent of reservations in favour of various categories, the selection of candidates in such a case must be made in accordance with the then existing rules and Government orders. Candidates who apply, and undergo written or viva voce test acquire vested right for being considered for selection in accordance with the terms and conditions contained in the advertisement, unless the advertisement itself indicates a contrary intention. Generally, a candidate has right to be considered in accordance with the terms and conditions set out in the advertisement as his right crystallises on the date of publication of advertisement, however he has no absolute right in the matter. If the recruitment Rules are amended retrospectively during the pendency of selection, in that event selection must be held in accordance with the amended Rules. Whether the Rules have retrospective effect or not, primarily depends upon the language of the Rules and its construction to ascertain the legislative intent. The legislative intent is ascertained either by express provision or by necessary implication; if the amended Rules are not retrospective in nature the selection must be regulated in accordance with the rules and orders which were in force on the date of advertisement. Determination of this question largely depends on the facts of each case having regard to the terms and conditions set out in the advertisement and the relevant rules and orders. Lest there be any confusion, we would like to make it clear that a candidate on making application for a post pursuant to an advertisement does not acquire any vested right of selection, but if

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he is eligible and is otherwise qualified in accordance with the relevant rules and the terms contained in the advertisement, he does acquire a vested right of being considered for selection in accordance with the rules as they existed on the date of advertisement. He cannot be deprived of that limited right on the amendment of rules during the pendency of selection unless the amended rules are retrospective in nature."

13.2 This case concerns appointment to the post pursuant to an advertisement prescribing certain qualifications. Candidates who have applied on the basis of such qualifications have a right to be considered on the basis of the advertisement and such a right cannot be taken away without making a retrospective amendment to rules is the ratio of this case. The issue involved in this case is different from the one confronting us. The case does not throw much light on the issue involved in the present case.

14. In State of Rajasthan v. R. Dayal (1997) 10 SCC 419, selection for 9 existing vacancies which were to be filled by the Rajasthan Service of Engineers (Building and Roads Branch) Rules 1954 was in question. In a short order, relying on Rangaiah, this Court observed that vacancies existing prior to the amendment of the rules are required to be filled in accordance with the law existing as on the date when the vacancies arose. It was held:

"6. As a consequence, any appointment made as on that date should be consistent with the above Rule. In support thereof, he placed reliance on the decision of this Court in Y.V. Rangaiah v. J. Sreenivasa Rao. ...

8. Therefore, it is not in dispute and cannot be disputed that while selecting officers, minimum requisite qualifications and experience for promotion specified in the relevant column, should be taken into consideration against vacancies existing as on 1st April of the year of selection. But since the Rules came to be amended and the amendment became effective with immediate effect and clause (11-B) of Rule 24-A indicates that options have been given to the Government or the Appointing Authority, as the case may be, to revise the select list as existing as per the law as on the date of the appointment or as may

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be directed by a competent court, selection is required to be made by the concerned DPC. An appointment made, after selection as per the procedure, to the vacancies existing prior to the amendment, is valid. But the question is whether selection would be made, in the case of appointment to the vacancies which admittedly arose after the amendment of the Rules came into force, according to the amended Rules or in terms of Rule 9 read with Rules 23 and 24- A, as mentioned hereinbefore. This Court has considered the similar question in para 9 of the judgment above-cited. This Court has specifically laid that the vacancies which occurred prior to the amendment of the Rules would be governed by the original Rules and not by the amended Rules. Accordingly, this Court had held that the posts which fell vacant prior to the amendment of the Rules would be governed by the original Rules and not the amended Rules. As a necessary corollary, the vacancies that arose subsequent to the amendment of the Rules are required to be filled in in accordance with the law existing as on the date when the vacancies arose. Undoubtedly, the selection came to be made prior to the amendment of the Rules in accordance with law then existing since the anticipated vacancies also must have been taken into consideration in the light of Rule 9 of the Rules. But after the amended Rules came into force, necessarily the amended Rules would be required to be applied for and given effect to. But, unfortunately, that has not been done in the present case. The two courses are open to the Government or the Appointing Authority, viz., either to make temporary promotions for the ensuing financial year until the DPC meets or in exercise of the power under Rule 24-A(11-B), they can revise the panel already prepared in accordance with the Rules and make appointments in accordance therewith."

15.1 In B.L Gupta v. M.C.D. (1998) 9 SCC 223, appointment to the post of Assistant Accountant of DESU under MCD was under consideration. These posts were to be filled in accordance with the statutory rules framed in 1978 which provided for an examination. 171 vacancies arose for the said posts in 1993. Only 79 persons who appeared in the examination were

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appointed. Writ petitions were filed in the High Court of Delhi praying for all 171 vacancies to be filled as per the examination. During the pendency of the writ petitions, the rules were amended in 1995 which provided that 80% of the posts to be filled by promotion and the remaining 20% by examination. The High Court while deciding these writ petitions held that 79 posts were validly filled and the remaining vacancies were to be filled as per the amended rules. The question was whether the remaining vacancies are to be filled as per the amended rules or the unamended rules. Allowing the appeals the Court held:

"9. When the statutory rules had been framed in 1978, the vacancies had to be filled only according to the said Rules. The Rules of 1995 have been held to be prospective by the High Court and in our opinion this was the correct conclusion. This being so, the question which arises is whether the vacancies which had arisen earlier than 1995 can be filled as per the 1995 Rules. Our attention has been drawn by Mr Mehta to a decision of this Court in the case of N.T. Devin Katti v. Karnataka Public Service Commission [(1990) 3 SCC 157]. In that case after referring to the earlier decisions in the cases of Y.V. Rangaiah v. J. Sreenivasa Rao [(1983) 3 SCC 284] , P. Ganeshwar Rao v. State of A.P. [1988 Supp SCC 740] and A.A. Calton v. Director of Education [(1983) 3 SCC 33] it was held by this Court that the vacancies which had occurred prior to the amendment of the Rules would be governed by the old Rules and not by the amended Rules. Though the High Court has referred to these judgments, but for the reasons which are not easily decipherable its applicability was only restricted to 79 and not 171 vacancies, which admittedly existed. This being the correct legal position, the High Court ought to have directed the respondent to declare the results for 171 posts of Assistant Accountants and not 79 which it had done.

10. The Rules of 1978 prescribe the mode in which the promotions can be made. This mode has to be followed before the appointments could be made. If no statutory rules had existed, it may have been possible, though we express no opinion on it, that the existing incumbents may have been regularised. Where,

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however, statutory rules exist, the appointments and promotions have to be made in accordance with the statutory rules specially where it has not been shown to us that the Rules gave the power to the appointing authority of relaxing the said Rules. In the absence of any such power of relaxation, the appointment as Assistant Accountant could only be made by requiring the candidates to take the examination which was the method which was prescribed by the 1978 Rules." 15.2 In this short judgment, the Court proceeded on the premise that Rangaiah and the subsequent decisions such as N.T. Devin Katti held that vacancies occurring prior to the amendment should be governed by the old rules. There is neither a discussion on the Constitutional position, nor is there a reference to the principle governing service conditions of a Government servant as laid down in Roshan Lal Tandon's case. Suffice to say that the Court has in its order referred to and followed Rangaiah. This is the fourth case which has merely followed Rangaiah without examining the principle."

(22) This position has been made more clear by the

constitutional bench of the Supreme Court in the case of

Shankarsam v. Union of India reported in (1991) 3 SCC 47. In

para 7 Hon'ble Apex Court has held as under :-

"It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates acquire an indefeasible right to be appointed which cannot be legitimately denied. Ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in State of

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Haryana v. Subhash Chander Marwaha and Others, [1974] 1 SCR 165; Miss Neelima Shangla v. State of Haryana and Others, [1986] 4 SCC 268 and Jitendra Kumar and Others v. State of Punjab and Others, [1985] 1 SCR 899."

(23) Even in the case of Punjab SEB v. Malkiat Singh

reported in 2005 (9) SCC 22, the Hon'ble Apex Court has held that

mere inclusion of the candidates in selected list does not confer

upon them a vested right to appointment. Hon'ble Apex Court has

held in para no. 4 as under :-

"..the High Court committed an error in proceeding on the basis that the respondent had got a vested right for appointment and that could not have been taken away by the subsequent change in the policy. It is settled law that mere inclusion of name of a candidate in the select list does not confer on such candidate any vested right to get an order of appointment.."

(24) The Supreme Court in the case of State of Orissa v.

Rajkishore Nanda (2010) 6 SCC 777, observed as under :-

"A person whose name appears in the select list does not acquire any indefeasible right of appointment. Empanelment at the best is a condition of eligibility for the purpose of appointment and by itself does not amount to selection or create a vested right to be appointed. The vacancies have to be filled up as per the statutory rules and in conformity with the constitutional mandate."

(25) In view of the settled position of law, this court finds

that a decision was taken by the respondents to cancel the

advertisement under the changed circumstances i.e. qualification

and EWS reservation. This court finds no arbitrariness in the

decision taken by the respondents. The petitioners have

miserably failed to prove the allegation of malice levelled against

the respondent no.6 Kaluram Jat because the impugned decision

was taken by circulation by members of BOM. The respondent

no.6 was not the all alone to take the decision. The decision of

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BOM was based on the opinion of the AG as the basis of material

and judgment of Hon'ble Apex Court in the case of Raghuveer

Singh Yadav (supra). The judgments cited by the counsels for the

petitioners are not applicable in the facts and circumstances of the

case.

(26) Here is a case where reservation provisions have

changed by providing for reservation to EWS category in 2019 and

the qualification criteria was amended by MCI. The BOM has

withdrawn the Notification and wants to proceed with recruitment

afresh. The petitioners who had appeared in the examination and

passed the same, had only legitimate expectations to be

considered of their claims according to the rules then in vogue.

The recruitment process started in 2015 and had not been

completed till 2021 and during this time much water had flown

down. Therefore, it is all the more necessary not to continue with

the recruitment and to have a fresh recruitment for the purpose.

The respondents are entitled to conduct the selection in

accordance with the changed rules and make final recruitment.

(27) In the light of the above discussions and guided by the

precedents narrated hereinabove, this court is of the opinion that

the appearance of the name of the candidates like the petitioners

in merit / select list do not confer any right to be selected.

Judicial review can be exercised only if any unconstitutionality or

violation of statutory rules is established, and it cannot be

exercised to undo a work done by the competent authority.

(28) As a cumulative effect of the aforesaid facts, reasons

and judicial pronouncements, we are unable to persuade ourselves

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to interference with the impugned judgment passed by the

learned Single Judge.

(29) Consequently, these appeals stand dismissed. Pending

applications (if any) shall stand disposed of. There shall be no

order as to costs.

A copy of this judgment be placed in each connected file.

(ANOOP KUMAR DHAND) J. (PANKAJ MITHAL) CJ.

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