IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP(T) No. 5932 of 2008. Reserved on 16.12.2010. Decided on 21.02.2011. Gulshan Kumar. …Petitioner. -Versus- State of Himachal Pradesh and Others. …Respondents. Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 No. __________________________________________________________ For the petitioner. : Mr. Dilip Sharma, Advocate. For the respondents. : Mr. P.M. Negi, Deputy Advocate General with Mr. R.P. Singh, Assistant Advocate General. ---------------------------------------------------------------------------------------- Rajiv Sharma, Judge (Oral): Petitioner was called for interview on 30.04.2003. According to the pleadings his name was at Sr. No. 1 in the select list. However, he was not offered appointment. Paragraph No. 3 of the reply filed by the respondents reads thus: “That the present original application filed by the applicant is not maintainable as the applicant has not denied appointment in Kinnaur District on batch wise basis. The applicant is at serial No. 1 in the list of his category and therefore, he will be offered appointment when the post in the category is available, therefore the present original application liable to be dismissed.” 2. It is specifically mentioned in this paragraph that the petitioner has not been denied appointment on batch-wise basis. However, fact of the matter is that the petitioner was not 1 Whether the reporters of the local papers may be allowed to see the judgment?. No. - 2 - offered appointment, though seven posts were filled-up by Para Teachers of the category of P.T.I.’s. 3 posts became available after the up-gradation of Government Middle School Gharsu, Government Middle School Ropa and Government Middle School Kachrang. It has been admitted in the reply that five persons were appointed as Para Teachers on 03.03.2004 in Government Middle School, Labrang, Government Middle School, Chansu, Government Middle School, Sapni, Government Middle School, Asrang and Government Middle School, Jani. The remaining three posts were filled-up by way of deployments. Since the posts were available, the petitioner ought to have been considered for appointment against any of these posts instead of filling up the posts by way of recruitment of Para Teachers or deployments. It is true that the petitioner has no indefeasible right to be appointed, however, it is equally true that the decision not to fill-up the posts should be taken in just and fair manner. 3. Their Lordships of the Hon’ble Supreme Court in East Coast Railway and another Versus Mahadev Appa Rao and Others (2010) 7 Supreme Court Cases 678 have held as under: “14. 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 - 3 - 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. 15. To the same effect is the decision of this Court in UT of Chandigarh V. Dilbagh Singh 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- appointment if the authority concerned acts arbitrarily or in a malafide manner. That was also a case where the 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 canceling what was described by this Court to be as a “dubious selection”. 16. 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 - 4 - possible appointment in their favour, were entitled to is to ensure that the selection process was not allowed to be scuttled for mala fide reasons or in an arbitrary manner. 17. It is trite that Article 14 of the Constitution strikes at arbitrariness which is an antithesis 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. 4. Accordingly, in view of the observations made hereinabove, the petition is allowed. The respondents are directed to consider the case of the petitioner for appointment to the post of P.T.I. on the basis of interview held on 30.04.2003 against any of the vacancies which had become available after the interview was held in the category of ward of Ex-serviceman with all consequential benefits, within a period of two months from the date of production of a certified copy of this judgment by the petitioner. No costs. (Rajiv Sharma) Judge February 21, 2011. (bhupender) - 5 -