\^ c'-3 ^\f^ ^_ 'lMfi IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION (S.) No. 1 £2-l /2011 ^/^ Qo^.y ^^ r ^ 4. PETITIONERS ^ Shiv Kumar Tiwari aged about 35 years, S/o Ram Pratap Tiwari, Bada Bazar, Chirniiri, Distt. Koriya, Ram Kumar Sahu, aged about 34 years, S/o Sitaram Sahu, Village Jharra, Post Sarvani Via Bramnidih, Distt. Janjgir Champa Kanta Prasad, aged about 26 years, S/o Dhanurara R/o Village Kenapali, Post Kauli, Via Adbhar, Distt. Janjgir Champa Rajushanker Rain aged about 21 S/o Phoolsairain R/o Village Sahapur, Post Kusmi Distt. Sarguja Abhishek Kumar Pandey aged about 33 years, S/o Krishna Kuraar Pandey, Village Chumkava, Post Seniartal Thana Koni, Distt. Bilaspur Ajit Kumar Mathur aged about 25 years, S/o Jamuna Prasad Mathur, Village Ratanpur, (Navapara), Tahsil Kota, Distt. Bilaspur Santosh Kumar Dariyana aged about 33 years, S/o Balaram Dariyana R/o Village Taga, Tahsil and Distt. Janjgir Champa Arjun Prasad Parmar, aged about 34 year S/o Kameshwar Prasd. R/o Village Rangamahri,Post Balrampur, Distt. Sarguja 9.' Shailendra Kumar aged about 28 years, S/o Rajendrarara R/o Village Jawahar Nagar, Tahsil Kusroi, Distt. Sarguja 10 Banwari Lakda, aged about 21 years, ^ ^ 15' S/o Iliyas Lakda, Village Ratasilli, Post Kusmi, Distt. Sarguja 11 Parmeshwarram aged about 27 years, S/o Bauvaram R/o Village Tareni, Post Barima Tahsil and Thana Kusmi Distt. Sarguja 12 Rajkumar Kujur aged about 31 years, S/o Boloram R/o Village Narendha, Tahsil Kusrai, Distt. Sarguja .3. Anil Kumar Rajpur, aged about 34 years, S/o Goverdhan Singh Village Kundrapara Tahsil Lormi Distt. Bilaspur Umesh Yadav aged about 23 years, S/o GyaniYadav, Village Bata, (Sarddih), Post Humarkholi, Distt. Sarguja Shrimant Bhoi, aged about 28 years, S/o Dayasagar Bhoi, R/o Village Jamdalkha Post Dongripail, Thana Baramkela, distt. Sarguja, r6 Smt Meera Singh aged about 42 years, ^I^P/o M.M Parihar, R/o C/o Behind Shyam Talkies, Bilaspur -7 Shailendra Singh Chouhan, aged about 31 years, S/o Amarsingh R/o New Sarkanda, Seepat Road, Quarter No. C/8 SECL, Bilaspur 18 Amrit Kumar Khosle aged about 36 years, S/o Bedram Khosle, Village Nachanpali, Post ChoteLendhra Tahsil Sarangarh, ^Distt. Raigarh J^ Deepak Gupta, aged about 32 years, S/o Mansuklal Gupta, Village and Thana Ratanpur, Distt. Bilaspur Jairam Kumar Satnaini, aged about 25 years, S/o Daulal Satnami, R/o Village Ranigaon, Post Lausra Tahsil Dakti, Distt. ^ Janjgir Champa Saroj Kumar Kewat aged about 27 year, S/o Firatram Kewat, R/o bilasa Hostel, Kewat Sanaaj, Dabripara, Sarkanda Distt. Bilaspur Smt Anjulata Sinha, aged about 30 years, W/o S.K. Sinha, D.C. Road, Near Ingole Depot, Arabikapur Mohd. Anwarulhak aged about 25 years, S/o Mohd. Enulhak, R/o C/o AbdulRaufh, Maharaaya Road, Rasid Painter, Muininpura, Arabikapur Rajni Kewat aged about 28 years, W/o Tirathram R/o Bhdesar Post Dhaneli, Thana Pamgarh, Tahsil and Distt. Jangir Champa r VERSUS RESPONDENTS 1 The State of Chhattisgarh through its Secretary, Ministry of Panchayat Rural Development Department, D.K.S. Bhawan Raipur Chief Executive Officer, Janpad Panchayat, Kusmi, Distt. Sarguja Shri Samudsaya Paikra, Chief Executive Officer, Janpad Panchayat, Kusmi, Distt. Sarguja The Collector, Sarguja, Ambikapur WRIT PETITION UNDER ARTICLE !26 AND OF INDIA 1. Particular of the Petitioner :- As mentioned above in the cause title. ^ ae^\ BjS'igsss B'wsau l!Stt I'tSii ^ HIGH COURT OF CHHATTISGARH ATBILASPUR WRIT PETITION (SV No. 1621 of2011 PETITIONERS RESPONDENTS Shiv Kumar Tiwari & Others. VERSUS The State of Chhattisgarh & Others. WRIT PETITION UNDER ARTICLE 226 AND 227 OF THE CONSTITUTION OF INDIA SBJEIon^ble^ShrlSatish^R AgnLhotrLJ. Present: Shri Parag Kotecha, Advocate for the petitioners. Shri Y.S.Thakur, Deputy Advocate General for the State/ respondent No. 1 and4. ORDER(ORAL) (Passed on 25th day ofMarch, 2011) 1. By this petition, the petitioners seek a direction to the respondents to issue appointment orders in favour of the petitioners, on the post of Shiksha Karmi Grade III and to grant all consequential benefits to the petitioners. Further, a direction to the respondent No. 1 to make enquiry .against the respondent No. 3 for his illegal, arbitrary and malaflde action. 2. The facts, in nutshell, as projected by the petitioners are that in pursuance of the advertisement for selection on the post of Shiksha Karmi Grade III, the petitioners herein applied for the same. A written examination was conducted by the Chhattisgarh Professional Examination Board. The petitioners were found successful as their names were shown in the merit list of Science and Arts category. A notice for counselling for appointment on75 vacant posts in Science discipline and 15 posts in Arts discipline was issued in the newspaper. ^.ccordingly, the petitioners appeared in the counselling held on APR ';%. ^ 03.02'.2011 and 04.02.2011 before the respondent No. 2. However, no appointment was made thereafter. The petitioners have filed a list (Annexure P/5) which according to them was obtained by taking photograph through their mobile phones. Being aggrieved, the petitioners made a representation to the respondent authorities as well as the Minister for Panchayat and Rural Development but nothing had been done till date. . 3. Shri Kotecha, leamed counsel appearing for the petitioners submits that when there was clear vacant posts available and the petitioners were found eligible for appointment on the basis of the select list, the action of the respondent authorities by not issuing the appointment orders is arbitrary, illegal and discriminatory. Shri Kotecha further submits that the respondent authorities are trying to frusta-ate the opportunity ofthe petitioners for appointment to the post of Shiksha Karmi Grade III, whose names fmd place in the merit list. Shri Kotecha .next contends fhat the respondent authorities have not assigned any specific reason asto why the petitioners have been denied appointment, in the teeth of clear availability posts. In support of his contention, Shri Kotecha relies on East Coast Raihvay & Anr. V. Mahadev Appa Rao & Ors and The Yadavinra Public School Association v. State ofPunjab & Others . 4. On the other hand, Shri Thakur, leamed Advocate General appearing for the State/respondent No. 1 and 4 submits that it is well settled - principle of law that a candidate does not have any indefeasible right to appointment even if his nanie finds place in the select list. Even '-2010AIRSCW4210 2AIR1999SC3373 ^ otherwise, the term of the select list had already expired. Shri Thakur next contends that the allegation of malafide, discrimination or arbitrariness is unsubstantiated by any document or material, except on the basis of selfsame statement. There is no case wherein a person, havinglesser marks or a qualification than the petitioners, have been appointed or there is any infraction of law. Malaflde is to be established properly and not merely on the basis of simple averment in the pleadings. Thus, the petitioners are not entitled to any relief, as prayed for in this petition. In support of his contention, Shri Thakur relies on S.S.Balu & Another v. State ofKerala & Others 5. In Jai Singh Dalal & Others v. Stdte of Haryana & Another , wherein similar facts were under consideration, the Supreme Court observed as under: "7. In a recent decision in Shankarsan Dash v. Union of India the Constitution Bench of this Court reiterated that even if a number of vacancies are notified for appointment and adequate number of candidates are found fit, tlie 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 recmitment 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 mustnot 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 Govemment at a subsequent date not to fill up the posts or to resort to fresh selection and appointment on revised criteria." 3 (2009) 2 SCC 47.9 "1993Supp(2)SCC600 6. In another decision of Supreme Court, in All India SC and ST Employees Assocn. & Another v. A.Arthur Jeen & Others , "10. Merely because the names ofthe candidates were included in the panel indicating their provisional selection, they did not acquire any indefeasible right for appointment even against the existfng vacancies and the State is imder no legal duty to fill up all or any ofthe vacancies as laid down by the Constitution Bench of this Court, after referring to earlier cases in Shankarsan Dash v. Union oflndia. Para 7 ofthe saidjudgment 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 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 Haryana v. Subash Chander Marwaha, Neelima Shangla v. State ofHaryana or Jatinder Kumar v. State ofPunjab." 7. In State ofA.P. & Others v. D.Dastagiri & Others , the Supreme Court observed as under: "4...In the absence ofpublication 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 5 (2001) 6 SCC 380 6 (2003) 5 SCC 373 ~^. -f^ 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 Govermiient to take a policy decision either to have prohibition or not to have prohibition in the State. Certainly, the Govemment had right to take a policy decision. If pursuant to a policy decision taken to impose prohibition in the State there was no 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 ofthe respondents that there was any mala fides 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 actiou 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 Govemment to take a policy decision, we fail to understand as to how the respondents can dub the action of the respondents as arbitrary, particularly, when they did not have any right as such toclaim appointments." 8. In Director, SCTI for Medical Science & Technology & another v. M.Pushkaran ,, the Supreme Court observed as under: "11. The law operating in the field in this behalf is neither in doubt nor in dispute. Only because the name of a person appears in the select list, the same by itselfmay not be a ground for offering him an appointment. A person in the select list does not have any legal right in this behalf. The selectees do not have any legal right of appointment subject, inter alia, to bona fide action on the part ofthe State...." "16. It is, therefore, evident that whereas the selectee as such has no legal right and the superior court in exercise of its power ofjudicial review would not ordinarily direct issuance of any writ in absence of any pleading and proof of mala fide or arbitrariness on the part of the employer. Each case, therefore, must be considered on its own merit." 9. The Supreme Court in State of M.P. and Others v. Sanjay Kumar Pathak and Others , observed as under: 7--(2008) 1 SCC 448 8 (2008) 1 SCC 456 ^ "18.....Even where, it is trite, the names of the persons appeared in the select list, the same by itself would not give rise to a legal right unless the action on the part of the State is found to be unfair, unreasonable or mala fide. The State, thus, subject to acting bona fide as also complying with the principles laid down in Articles 14 and 16 ofthe Constitution oflndia, is entitled to take a decision not to employ any selected (sic candidate) even from amongst the SelectList.... 24. In Pitta Naveen Kumar v. Raja Narasaiah Zangiti 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 ofArticle 16 ofthe 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 ofthe extant rules but strict adherence thereto would be necessary in a case where the rules operate only to the disadvantage of the candidates concemed and not otherwise." In a situation ofthis nature, no appointment could be made by the State in absence ofthe 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 ofsympathy alone." lO.The Supreme Court in Rakhi Ray and Others v. High Court ofDelhi andOthers , observed as under : "24. 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 amomit 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. In the instant case, once 13 notified vacancies were filled up, the selection process came to an end, thus there could be no scope ofany further appointment." (2010)23cc637 'o 7 11. The Supreme Court, in S.S.Balu & Another , relied on by Shri Thakur, the Supreme Court, further clarified the right of a selected candidate, as under: "12. There is another aspect ofthe matter which cannot also be lost sight of. A person does not acquire a legal right to be appointed only because his name appears in the select list. [See Pitta Naveen Kumar & ors. vs. Raja Narasaiah Zangiti. The state as an employer has a right to fill up all the posts or not to fill them up. Unless a discrimination is made in regard to the filling up of the vacancies or an arbitrariness is committed, the candidate concemed will have no legal right for obtaining a writ of or in the nature of mandamus. [See Batiarani Gramiya Bank vs. Pallab Kumar]. In Shankarsan Dash vs. Union of India, a Constitution Bench of this Court held: (SCCpp.50-51,para7). "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 appomted 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 recniitment rules so indicate, the State is under no legal duty to fill up all or any ofthe 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." 12.In East Coast Railway , relied on by Shri Kotecha, there is no change in the well settled proposition of law as the Supreme Court has further elucidated, as under: 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 arbito-ary, appropriate directions can be issued in the matter." 13-Thus, a common thread nmning into the above stated decisions of the Supreme Court is that indisputably, a candidate has no indefeasible right to appointment even ifhis name finds place in the select list. However, if there is arbitrariness, discrimination or disregard to the merit of the candidate, a writ court can issue appropriate directions. In the case on hand, the petitioners have not pointed out any discrimination on the ground that there was any disregard to the merit of the candidates as reflected in the merit list. Secondly, there was no pick and choose in making the appointment and also, there was no exercise ofarbitrariness or discrimination as all the candidates who appeared in the counseling could not be appointed, as admittedly, the period ofselect list came to an end. Thus, no interference is warranted. 14.The last contention of the petitioners that if there is an allegation of malafide, the matter cannot be considered and dismissed at the motion stage itself, without issuing notice to the person against who the allegation of malafide. In the instant petition, there is no specific allegation against any particular person except "when the posts are vacant and the eligible candidate are ayailable, than it was the duty of the respondent No. 2 in official capacity and respondent No. 3 personal capacity to fill the post within the limitation period of the select list and ought not to have allowed to expire the period of select list in an arbitrary manner" and' further, "that here in the present matter because of the ^ malaflde intention and with an ulterior motive of the respondent No. 3, the appointment order are not issued. That the respondent No. 2 is the appointing authority of the Shiksha Karmi Grade 3 and he has every power to issued the appointment order, but due to the reason best known to the respondent No. 3, the appointment order are not issued." 15.The above stated averments cannot come within the scope of serious allegation of malafide against a particular person. The above allegation does not come within the scope ofserious allegation. In the case on hand, the petitioners have not made out even a case ofprimafacie allegation and, as such, no notice is required. Thus, reliance of the petitioners on The Yadavinra Public School Association , is not applicable to the facts of the case on hand. 16. In view,of the above analysis and applying the well settled proposition of law, as aforestated to the facts ofthe case on hand, the petition is bereft of merit and is accordingly dismissed. SatishK. AgBihotri Amit