•••"~v.^^ ^H«HC<^O..n»C^SIS CHHATTISGARH WRIT PETITION(Sl NO..^6^ QF 2008 PEyriTIONER : A' ^...<<5^- ^•^y. ^s^"' ,..-^^''" Ramadhar Yadav, S/o Dukheeram Yadav, aged about 34 years, R/o'village Jaijaipur, District Janjgir-Champa (CG). .>«•• rfC' ^I^^ONDENTS .0<' ^^.! ^y .^u^ f''' A^ ^:^ Versus 1. -State of Chhattisgarh, Through the Secretary, Department of Panchayat & Rural Development, D.K.S. Building, Mantralaya, Raipur (CG). 2. Director, Panchayat, Raipur Collector, District Janjgu--, Champa(CG). '.y 4. ^Janpad Pa.nchayat, Jaijaipur, Through Chief Executive Officer, Jaijaipur, District Janjgir-Champa(CG). Chief Executive Officer, Janpad Panchayat, Jaijaipur, District Janjgir-Chaxnpa(CG). WRn'PE'NTION UNDERARTICLE226 OF THE GONsnTUTION OE INDIA r: a HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION (S) No. 163 of 2008 WRIT PETITION (S) N0. 161 of2008 WRIT PETITION (S) No. 309 of 2008 WRIT PETITION (S) N0. 453 of 2008 Post for pronouncement ofjudgment on 3.3.ilkay of October, 2010. ( J Sd/— ‘ ' i Satish K. Agnihotri PETITIONERS : Shashi Bhushan Patel & Others. VERSUS RESPONDENTS : State of Chhattisgarh & Others. PETITIONERS : Mohd. Zahir Abbas & Others. VERSUS RESPONDENTS : State of Chhattisgarh & Others. PETITIONER : Ramadhar Yadav. VERSUS RESPONDENTS : State of Chhattisgarh & Others. PETITIONER ’ : Ram Ashray Chandra. VERSUS RESPONDENTS z ’ State of Chhattisgarh & Others. SB: Hon’ble Shri Satish K. Agnihotri, J. JUDGMENT (Delivered on .-23Qday of October, 2010) This batch of petition viz. Writ Petition (S) No. 163 of 2008, Writ Petition (S) No. 161 of 2008, Writ Petition (S) No. 309’ of 2008 and Writ Petition (S) No. 453 of 2008 involves common question of law asto Whether the selection process initiated pursuant to the advertisement under the prevailing provisions of law i.e. the Chhattisgarh Panchayat Shiksha Karmi (Recruitment & Conditions of Services) Rules, 1997 (for short ‘the Rules, 1997’) can be abandoned/discontinued before publication of the final select list and appointment of the select candidates, thereof. The facts, in nutshell, as projected by the respective petitioners, are as under: W.P.(S) No. 163 of20’08 and 161 of 2008. Pursuant t0 the advertisement dated 22.12.2006 (Annexure P/l) and 13.03.2007 (Annexure P/2) for appointment on th post of Shiksha Karmi Grade III, the petitioners alongwith others made applications. Thereon, selection process commenced. VA provisional select list ‘ was prepared on 16.11.2007 (Annexure P/4) which was approved by the Selection Committee. The - Selection Committee, in its meeting dated 17.11.2007 [Annexure P/3 to W..P.(S) No. 163 of 2008] and [Annexure P/7 to W.P.(S) N0. 161 of 2008], e specifically mentioned that th Selection Cittee has approved he provsional select list and waiting lt and ter appointment th slected candidates, their testinials may b verified and n te event, t is found that the testimoia were forge, appointent woul be cancelled n tatutory d m d ad s action ma taken. Further, the da of counseing s flxe y be te l wa d for 27.1 100 till 21.07. In the meantime, before fina .27 9.120 l select list was published d h appointment orr could be an te de issued, Chhattisgarh Panchayat Shiksha Karmi (Rruitment ec & Conditions of Services) Rules, 2007 (for short ‘new Rules, 2007’) were notified which came into force w.e.f the date of its publication in the State Gazettee i.e. on 29.11.2007. The selection process initiated under the provisions of the Rules, 1997 were abandoned. Thus, being aggrieved, the petitioners have preferred this petition. Writ Petition_(S) N0. 309 of 2008 and 453 of 2008. Pursuant to the advertisement dated 25.03.2006 (Annexure P/l), 29.06.2006 (Annexure P/2) and 10.06.2006 (Annexure P/3) for appointment on the post of Shiksha Karmi Grade III, the petitioners’alongwith others made applications. Thereon, selection process commenced. A provisional select list was prepared on 28.1 1.2007 (Annexure P/4) which was approved by the Selection Committee. According to the petitioners, the Selection Committee, in its meeting dated 28.11.2007 (Annexure P/5) decided to issue appointment orders. In the meantime, before final select list was published and the e omm t i is af of e e mo e i h i nls appointment der could be ssued, new Rus, 2007 we or i le re notif Whic ' cam into force w.e.f. the date of its publicati in he tate Gazettee i.e. n 29.11007 (Anne P/6). The selection process initiated unr the provisions of the Rules, 1997 re abandoned. us ng we Th, bei aggrieve, the etitione have preferre thi petitio. d prs d s n Shri .D.Guru, Shri shish Surana Shr nand Dadar, learned counsel aearing for te respectve peitioners ould submit that is wel ttled principle of law that once the selection process ha been‘initiated under th prosions o the prevailing ruls, i.e. he Rules, 1997 in is case, the sam e t th e d r b m r cannot be quashe o set aside y enforceent of new ules i.e. the Rules, 2007, subsquently which s no rtrospective e ha e op L wo hat t eration. earned counsel uld further submit t in he cases on hand, the selction rocess as complte even e p w e, provisial selt list was epared, as the sam s on ec pr e wa approved by he election omittee. Only appointmen t S Cm t d me order coul not be issued. In the antime, new rules i.e. the Rules, 07came into force wich clearly prodes that the e ld o i e of ucn sam wou cme nto effect from th date pbliatio in the Sta Gazette i.e. 211.2007 Thus the action of the te 9.. , y no ssuing nt rd i respondents b t i appoiment oers s unsustaible nd ad in h eye of law na a b te s . On t other hand hri Pankaj Shrivastva and Shr he , S i shwa co g r t t R.K.Kearni, learned unsel appearin fo he respecive Janpad Panchayats, oud subit that seection, pursut o wl m l an t ied h e on t S o .2 exur de B A , i A iya pp h i t w it l se s e vi f 20' h vi the advertisement dated 22.12.2006 and 13032007 could not be completed as no fmal select list was published. During the process of selection, new Rules, 2007 came into force and as such, selection process initiated under the old Rules, 1997 was abandoned and a fresh advertisement was issued for new selection on the basis of new Rules, 2007. Since the. selection was not complete, the respondent authorities were fully competent to quash the selection and further, the petitioners have not acquired any indefeasible right for appointment on the‘ post of Shiksha Karmi Grade III? on the basis of provisional select list. Shri Bhatia, learned Deputy Government Advocate appearing for the State would adopt the submissions made by learned counsel for the respective Janpad Panchayats in support of the action of quashing ofthe selection process. I have heard learned counsel appearing for the parties, perused the pleadings anddocuments appended thereto. This Court, on 10.01.2008 [in W.P.(S) No. 163/2008 and 161/2008], 011 16.01.2008 [in W.P.(S) N0. 309/2008] and on 22.01.2008 [in W.P.(S) No. 453/2008] directed that the vacancies available pursuant to the advertisements dated 22.12.2006, 13.03.2007 and 25.03.2006, respectively, may not be filled up till the next date of hearing. According to learned counsel for the respective Janpad Panchayats, vacancies are still available for appointment. ndsab he ectn e d It is iiputle that t sleio process commencd uner the pvisions of e Rules, 199. It is fuher not n dispute that th a proviial sct list as on 1 1.07 Annexure P/4 to W..S o 13/2008) was prepared. The said select list was duly pprovd by the Selection ommitte o 17.1127 (Annexure P/3 t .P.(S) No. 163/2008). In ase of it Petition (S) No. 309/08 d 453 of 2008, a provisnal list as preared a approv by t sletio committee n 28 1.200. Tereaher, no lnal select list as published and the apintment orders were issue. T Selecion Coittee, fter approng the provisional sec list, directed to issue appointment orders nd vey the testimoals after issuing the appointment orders. us, it is indisputably eld that the al selection l ws not publishd desite approval f th provision selec lst by t n d Selection Committee. Cosequently, no appointment orers could be sued. is Thus, the esion arises for consideration before thi Cour is asto firstly, hether th etioners have acquired a right to appotent o the is f aproved provisional select is when the seectio process was abandned accou f ln o on nt o enforcement of new Rules, 2007. Secondly, whetr the he employer (Stat or its aencies) can quas e electio e g h th sn process hout completing the same. wit In this cntex prnciple of law is well settled ha th State ot, i tt e rn a e is the Govement t a subsequent dat can dcontinue ro th 7 rt i e son ele 6.1 20 ( P() N. 6 ae Ce n .00 o W c Wr 20 an io w p nd ed he ecn o .1 7 h f w po not d he t mm a vi elt a rif ni Th h fm ist a e p o e al t i he qut s t w e pti inm n bas o p lt 139 selection process by revising the qualifications or otherwise by way of amendment in the service rules or by enforcement of new rules. The selection process cannot be held as complete till the final select list is published. In the case on hand, there is no dispute that the provisional select list was approved but no flnal list was published before new Rules, 2007 came into force and the Government decided to discontinue the instant selection process and to issue a fresh advertisement for appointment for appointment on the post of Shiksha Karmi, Grade III under the provisions of new Rules, In Jaz‘ Singh Dalal & Others v. State ofHaryana & Another], wherein similar facts were under consideration, the Supreme Court observed as under: “7. In a recent decision in Shankarsan Dash v. Union oflndia the Constitution Bench of thi Court reiterated that even if a number of vacancies are notified for appointment and adequate number of candidates are found fit, the successful candidates do not acquire any indefeasible right to appointment against the existing vacancies. It was pointed out that 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. The State is under no legal duty to fill up all or any of the vacancies by appointing candidates selected for that purpose. Albeit, the State must act in good faith and must not exercise its power mala fide or in an arbitrary manner. The Constitution Bench referred with approval the earlier decision of this Court in ‘ Subash Chander. Therefore, the law is settled that even candidates selected for appointment have no right to appointment and it is open to the State Government at a subsequent date not to fill up s the posts or to resort to fresh selection and appointment on revised criteria.” In State of MP. & Others v. Raghuveer Singh Yadav & 0thers2, wherein during selection process, the qualification, under the Madhya Pradesh Standard of Weights and Measurement (Enforcement) Rules, 1989, was altered, the Government withdrew the earlier notification and decided to proceed with the recruitment afresh, the Supreme Court observed as under: “5. 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.” ' The ratio laid down in Raghuveer Singh Yadav2 was referred with approval in Rajasthan Public Service Commission v. Chamm Ram & Another3. In another decision of Supreme Court, in All India SC and ST Employees Assocn. d’c Another v. A.Arthur Jeen & Others", “10. Merely Ibecause the names of the candidates were included in the panel indicating ’Z(1994)6scc 151 3 (1998) 4 scc 202 4(2001) 6 scc 380 their provisional selection, they did not acquire any indefeasible right for appointment even against the existing vacancies and the State is under no legal duty to fill up all or any of the vacancies as laid down by the Constitution Bench of this Court, after referring to earlier cases in Shankarscm Dash v. Union of India. Para 7 of the said judgment reads thus: (SCC pp. 50-51) “7. It is not correct to say that if a number of vacancies are notified for appointment and adequate number of candidates are foundvfit, the successihl 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 bond to respect the comparative erit of the candidates, as reflecd at te recruitmnt test, and no iscaon can be permitted. This correct ositi as been consistently followe y ths‘Court, an we do not fin any discordt note in the decisions Kn Stte of Haryan v. uash Chander Marwaha, Neelima Shangla , State 0f aryana or Jatier Kumar v. State ofPujab.” In State ofA:P. & Others v. D.Dastagir & 0thers5, reled by Shri Shrivastava, the facts were that e pcess o th ro f recruitment commenced, candidates were iterviewed but st i w t before publication of the elec list, n Vie of he Govemment decision of introing total probition n te duc hi i h State, the process of recruiten of Excise nstables was mt Co cancelled. The result of the interiew was ot declred. Th v n a e question asto whether without pblication of e fil ect u th na sel u m te h e driminti ’ pon h d b i d d an i a a Sb v H nd n i i on n list, selection may be held as complete, the Supreme Court observed as under: "4...In the absence of publication of select list, we are inclined to think that the selection process was not complete. Be that as it may, even if the selection process was complete and assuming that only select list remained to be published, that does not advance the case of the respondents for the simple reason that even the candidates who are selected and whose names find place in the select list, do not get vested right to claim appointment based on the select list. It was open to the State Government to take a policy decision either to have prohibition or not to have prohibition in the State. Certainly, the Government had right' to take a policy decision. If pursuant to a policy decision taken to impose prohibition in the State there was n0 requirement for the recruitment of Constables in the Excise Department, nobody can insist that they must appoint the candidates as Excise Constables. It is not the case of the respondents that there was any mala tides on the part of the appellants in refusing the appointment to the respondents after the selection process was complete. The only claim was that the action of the appellants, in not appointing the respondents as Excise Constables, was arbitrary. In the light of the facts that we have stated above, when it was open to the Government to take a policy decision, we fail to understand as to how the respondents can dub th‘e action of a the respondents as arbitrary, particularly, when they did not r have any right as such to claim appointments.” l6. In Madan Mohan Sharma & Another v. State ofRajasthan & 0thers6, the Supreme Court held as under: 11....Once the advertisement had been issued on the basis of the circular obtaining at that particular time, the effect would be that the selection process should continue on the basis of the criteria which were laid down and it cannot be on the basis of the criteria which has een made subsequently. l2. As per the circular which was obtaining at the time when the. advertisement was issued dated 24-7-1995, the criteria for selection to the post of teacher Grade III was Secondary Examination though this was changed during 6 (2008) 3 SCC 724 “ b " 1V3 the pendency of the advertisement Subsequent amendment of the Rules which was prospective cannot be made retrospective so as to make the selection on the basis of the Rules which were subsequently amended. If this was to be done, then the only course open was to recall Advertisement No. 1 of 1996 and to issue fresh advertisement according to the Rules which had come into force. Secondly,‘this was not done and erroneously the authorities made the amended Rules applicable and proceeded with the selection which resulted into litigation and ultimately Radhey Shyam Sharma succeeded in that litigation and it was held that the selection should be made as per Secondary Examination marks, the criteria which was prevalent at the time when the advertisement was issued.” The judgment of Supreme Court in Subha B. Nair & Others v. StateroKerala & 0thers7, relied on by Shri Shrivastava in f support of his contention that it is for the employer to fill up the vacancy or not and no interference is warranted by a writ Court in absence of discrimination, arbitration or malafide, is not applicable to the facts of the present cases, the final select list was not published and no appointment order was issued to any candidate. In State of MP. & Others v. Sanjay, Kumar Pathak & Others8,the Supreme Court observed as under: “24. In Pitta Naveen Kumar v. Raja Narasaiah Zangz‘ti this Court observed: (SCC p. 273, para 32) “32. The legal position obtaining in this behalf is not in dispute. A candidate does not have any legal right to be appointed. He in terms of Article 16 of the Constitution of India has only a right to be considered therefor. Consideration of the case of an individual candidate although ordinarily is required to be made in terms of the extant rules but strict adherence thereto would be necessary in a case where the rules operate only to the disadvantage q (2008) 7 SCC 210 3 (2008) 1 SCC 456 7 of the candidates concerned and not otherwise.” In a situation of this nature, no appointment could be made by the State in absence of the select list. The State could not substitute itself for the Selection Committee. 25. Furthermore, ordinarily, the writ court should not, in absence of any legal right, act on the basis of sympathy alone.” Further, the Supreme Court, in S.S.Balu & Another v. State of Kerala & Othersg reiterated the ratio laid down in Sanja Kumar Pathakg. Applying the well settled principles of law, as aforestated to the facts of‘the instant cases, wherein the select list was not ,.. published after altering the qualincation by new Rules, 2007 12a after commencement of the selection process. The selection process was abandoned on the ground of enforcement of new Rules, 2007, and as such, initial advertisements inviting applications from the candidates for appointment under the Rules, 1997 were withdrawn and a‘ fresh advertisement was issued for recruitment under new Rules, 2007. This practise cannot be faulted with. The State Government and its agency is competent to abandon or discontinue the selection process in such condition, as aforestated. 21. For the reasons and analysis mentioned hereinabove, all the above writ petitions are dismissed. There shall be no order asto costs: ##1## .4 Sd/- ‘ i Satish K. Agnihotri r Vii ' Judge 9 (2009) 2 SCC 479