SCA/973920/2002 1/13 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 9739 of 2002 For Approval and Signature: HON'BLE SMT. JUSTICE ABHILASHA KUMARI ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= PATEL MAHENDRA B. - Petitioner(s) Versus DISTRICT EDUCATION OFFICER, AHMEDABAD CITY, & 4 - Respondent(s) ========================================================= Appearance : MR SIKANDAR SAIYED FOR MR AJ SHASTRI for Petitioner MS REETA CHANDARANA, AGP for Respondent(s) : 1, 1.A, 4, MR RA MISHRA for Respondent(s) : 2, 3 ========================================================= CORAM : HON'BLE SMT. JUSTICE ABHILASHA KUMARI Date : 14/08/2008 ORAL JUDGMENT 1. This petition has been filed with the following prayers: SCA/973920/2002 2/13 JUDGMENT (a) Be pleased to issue an appropriate writ, order or direction, directing the respondent – authority namely the D.E.O., Ahmedabad City to grant necessary formal approval with immediate effect so as to enable the petitioner to resume the duty on the post of teacher or in the alternative be pleased to direct the respondent – authority to grant an opportunity of hearing to the petitioner for deciding the representation made by the petitioner on 14th August, 2002 and till then the respondents – authorities may be restrained from conducting any fresh process of selection or recruitment in any manner for the post of teacher in the respondent No.2 – school; (b) Pending admission, hearing and final disposal of this petition, be pleased to restrain the respondents – authorities, its servants and agents in any manner to conduct a fresh process of selection/ recruitment for appointment of teacher in the respondent No.2 – School which is vacant pursuant to the oral instructions of the respondent No.1; (c) Pass such other and further order as the Hon'ble Court deems fit and proper. SCA/973920/2002 3/13 JUDGMENT 2. The brief facts of the case, emerging from a perusal of the averments made in the petition, are that the petitioner, who is said to be having a qualification of M.A., B.Ed., applied for the post of Vidya Sahayak pursuant to advertisement dated 10.11.2001. According to the petitioner, he was having the requisite qualification of M.A., B.Ed. in the subjects of English and Sanskrit. The petitioner was interviewed by the Selection Committee and the names of the selected candidates were put up on the notice-board, in which, the name of the petitioner stood at Sr.No.1. The grievance of the petitioner is that in spite of being selected, appointment letter has not been issued to him for the reason that there was no approval from the District Education Officer concerned. It transpires from the averments made in the petition that earlier, the petitioner had filed Special Civil Application No.7317 of 2002 wherein this Court (Coram: A.L.Dave, J.), by order dated 9.8.2002, permitted the petitioner to withdraw the petition with a view to SCA/973920/2002 4/13 JUDGMENT approaching the appropriate authority for redressal of his grievance. It is averred that pursuant to the order dated 9.8.2002, the petitioner preferred representation dated 14.8.2002 to the District Education Officer, Ahmedabad City. When no reply was received by the petitioner to the representation, reminder dated 31.8.2002 was sent but to no avail. The petitioner, therefore approached this Court by filing the present petition. 3. Notice was issued in the petition on 30.9.2002 and by way of ad-interim relief, the respondents Nos.2 and 3 were restrained from holding any interviews or making any appointments pursuant to the advertisement dated 26.9.2002 (Annexure-H to the petition). Thereafter, Rule was issued on 11.12.2003. 4. Mr.Sikandar Saiyed, learned advocate for Mr.A.J.Shastri, learned counsel for the petitioner, has submitted that the petitioner is highly qualified and his holding the degrees of M.A., B.Ed., and he has taken up Sanskrit and SCA/973920/2002 5/13 JUDGMENT Hindi as his subsidiary subjects in B.A. First Year and Second Year although in the Third Year, he could only take the principal subject of English and, therefore, it cannot be said that the petitioner has not taken up the subjects of Sanskrit as well as English as per the qualifications mentioned in the advertisement dated 10.1.2001. It is submitted that in view of the fact that the petitioner possessed the requisite qualifications, there was no reason for not issuing the appointment letter to him and since his name figured at Sr.No.1 of the Selection List, a right has crystallized in his favour and his candidature ought to have been considered and appointment offered to him. In support of his submissions Mr.Sikandar Saiyed has relied upon the decision in the case of R.S.Mittal v. Union of India – 1995(2) SLR 437. 5. Ms.Reeta Chandarana, learned Assistant Government Pleader, has submitted that admittedly, the petitioner is having the qualifications of M.A., B.Ed. with the subject of English. However, the post advertised SCA/973920/2002 6/13 JUDGMENT required the qualification of B.A., B.Ed. with both the subjects of English and Sanskrit and since the petitioner is not having the qualification of B.Ed. in Sanskrit, the procedure for recruitment undertaken by the school in question on 30.5.2002, is not in accordance with Rules. The learned Assistant Government Pleader has further submitted that the school had requested for permission from the State Government to carry out the recruitment process afresh, by its letter dated 6.9.2002 which permission was granted by the State Government by letter dated 16.10.2002, annexed as Annexure-RI to the reply-affidavit. It is, therefore, submitted that since the entire recruitment process was not in accordance with the Rules, the respondents are justified in not offering appointment to the petitioner and, therefore, the petition should be dismissed. 6. Mr.R.A.Mishra, learned counsel for the respondents No.2 and 3, has supported the stand taken by the State Government and has submitted that merely because the name of the petitioner SCA/973920/2002 7/13 JUDGMENT figures in the Selection List it will not give him an indefeasible right to appointment and since the respondent No.2 – School has already requested the State Government to permit it to start the recruitment process afresh, which request has been acceded to by the State Government, the petitioner has no right to appointment pursuant to a recruitment process which is not in accordance with the Rules. 7. I have heard Mr.Sikandar Saiyed learned advocate for the petitioner, Ms.Reeta Chandarana, learned Assistant Government Pleader for respondents No.1, 1A and 4 and Mr.R.A.Mishra, learned counsel for the respondents No.2 and 3 and have perused the averments made in the petition and documents annexed thereto. 8. The admitted position which emerges from a perusal of the documents on record is that no recruitment has taken place pursuant to the advertisement dated 10.11.2001. Although it is not disputed that the name of the petitioner figured in the Select List however, the School SCA/973920/2002 8/13 JUDGMENT in question has requested for permission from the State Government to carry out the recruitment process afresh, since the petitioner is not possessing the qualification of B.A., B.Ed. in both the subjects of English and Sanskrit and his selection by the Selection Committee is not in accordance with the Rules. 9. It is also pertinent to notice that due to the interim order passed on 30.9.2002, no appointments have been made pursuant to the advertisement dated 10.11.2001. It is a settled position of law that mere inclusion of the name of a candidate in the Select List does not confer upon him any vested right for appointment. This position has been enunciated by the Supreme Court in Punjab State Electricity Board and others v. Malkiat Singh reported in (2005)9 SCC 22, wherein it has been observed as under: “4. Having considered the respective submissions made by the learned counsel for the parties, we are of the view that the High Court committed an error in proceeding SCA/973920/2002 9/13 JUDGMENT 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. This position is made clear in para 7 of the Constitution Bench judgment of this Court in Shankarsan Dash v. Union of India [(1991) 3 SCC 47)] which reads: (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 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 SCA/973920/2002 10/13 JUDGMENT Court, and we do not find any discordant note in the decisions in State of Haryana v. Subhash Chander Marwaha ((1974) 3 SCC 220 : 1973 SCC (L and S) 488 : (1974) 1 SCR 165), Neelima Shangla v. State of Haryana ((1986) 4 SCC 268 : 1986 SCC (L and S) 759), or Jatinder Kumar v. State of Punjab ((1985) 1 SCC 122 : 1985 SCC (L and S) 174 : (1985) 1 SCR 899)". (emphasis supplied) 10.The Judgment in R.S.Mittal v. Union of India (supra) relied upon by the petitioner also reiterates the same position of law. The facts in that case were totally different, inasmuch as there had been inaction on the part of the Government in making appointments from the Select List for which no justifiable reason was given. Even so, no direction for appointment was given by the Supreme Court and a fine of Rs.30,000/- was imposed upon the respondent in the facts and circumstances of the case. The position of law, however, has been clearly stated by the Supreme Court in paragraph-10 of this judgment in the following terms: “10. ....It is no doubt correct that a person on the select-panel has no vested right to be appointed to the post for which SCA/973920/2002 11/13 JUDGMENT he has been selected. He has a right to be considered for appointment. But at the same time, the appointing authority cannot ignore the select panel or decline to make the appointment on its whims. When a person has been selected by the Selection Board and there is a vacancy which can be offered to him, keeping in view his merit position, then, ordinarily, there is no justification to ignore him for appointment. There has to be a justifiable reason to decline to appoint a person who is on the select- panel.....” In the present case, the appointment was not offered to the petitioner for the reason that he did not possess the requisite qualifications of B.A., B.Ed. in both the subjects of English and Sanskrit, as required by the advertisement. In addition thereto, the recruitment process was not in accordance with the Rules and the State Government accorded permission to the respondent No.2 – School to carry out a fresh recruitment process. It cannot, therefore, be said that the candidature of the petitioner has been ignored without any justification. There is a valid reason for cancellation of the entire SCA/973920/2002 12/13 JUDGMENT recruitment process and for not offering the petitioner an appointment to the post of Vidya Sahayak. In view of the settled legal position, the petitioner has no right to claim appointment on the basis of inclusion of his name in the Select List. 11.The earlier petition filed by the petitioner i.e. Special Civil Application No.7317 of 2002 has been withdrawn with a view to filing a representation before the appropriate authority, by order dated 9.8.2002. The petitioner has filed such a representation. However, no liberty has been reserved by the petitioner to approach this Court again on the same cause of action. In this view of the matter as well, this petition is not maintainable as the petitioner has approached the Court on the same cause of action. Had the representation of the petitioner been rejected, it would have amounted to a fresh cause of action. However, that is not the case and on this ground as well, the petition deserves to be rejected. SCA/973920/2002 13/13 JUDGMENT 12.In view of the aforesaid reasons, the petition is dismissed. Rule is discharged. There shall be no orders as to costs. 13.The interim order dated 30.9.2002 is vacated. It is open to the respondents to start recruitment process for the post of Vidya Sahayak afresh, in accordance with Rules, and it is open to the petitioner to participate in the same, subject to his being qualified and eligible. The filing of this writ petition may not come in the way of the petitioner for being considered in the fresh recruitment process, if any, if he is otherwise eligible. (Smt.Abhilasha Kumari, J.) (sunil)