CW 1313/06 //1// In the High Court of Judicature for Rajasthan Jaipur Bench ** Civil Writ Petition No.1313/2006 Rajeev Kr Chouhan Versus State & Ors. Date of Order ::: 29/01/09 /Reportable/ Hon'ble Mr. Justice Ajay Rastogi Mr. Rajendra Pd. Sharma, for petitioner Mr. JK Agrawal, Addl.Govt. Counsel, for respondent-State Mr. RA Katta, for respondent University Mr. Virendra Lodha, for respondent No.3 Petitioner despite duly selected and placed in the panel by Selection Committee in the course of process of selection pursuant to advertisement No.2/2005 dt.23/09/05 (Schedule A) and while expected to be considered for appointment to the post of Deputy Registrar, has approached this Court with the grievance that his selection has been cancelled by Jagatguru Ramanand Acharya Sanskrit University (respondent No.2) in an arbitrary manner. Short question for consideration in instant petition is as to whether statutory authority (respondents) acted in an arbitrary manner in cancelling selection of petitioner and can he challenge decision of such an authority. Facts giving rise to the petition lie in short compass. Petitioner substantively held post of Teacher Gr.II (Sanskrit) under CW 1313/06 //2// Directorate, Sanskrit Education; and holds academic qualification of Post-Graduation in Sanskrit (Acharya) with Gold Medal & M.A., in Hindi with 2nd Division. Having been appointed as Teacher Gr.II in Department of Sanskrit Education, worked as Head Master from 10/01/89 and upon his selection as Asstt. Project Officer, in Lok Jumbish Parishad worked from 12/08/94 to 17/08/01; and thereafter from 18/08/01 to 05/09/04 as Sr. Teacher Gr.I in School Teaching College, Mahapur while from 06/09/04 as Deputy Inspector in Directorate Sanskrit Education, as is evident from certificate dt.24/10/05 (Ann.P.9). Based on qualification & experience (supra), petitioner claiming himself eligible applied for the post of Deputy Registrar pursuant to advertisement dt.23/09/05 (Schedule A), by which posts of Controller of Examination, Assistant Registrar, & Computer Programmer were also advertised. For one post of Deputy Registrar, qualifications prescribed in advertisement No.2/ 2005 are as under: 2. Deputy Registrar – One - Essential qualifications : 1.At least a second class post graduate degree and CW 1313/06 //3// 2. At least five years administrative experience in a position involving supervision, control and planning or at least five years experience of teaching at the University level with some knowledge and experience of education research planning and administration. 3.Working knowledge of English and Hindi; Desirable Qualifications: 1.Familiarity with the life and working of University or with the educational administration in a college University or an Institute of higher learning or research; 2.Experience of teaching in a College of a University; 3.Working knowledge of Sanskrit; 4.Experience of University Development planning and project work and familiarity with UGC Scheme. Note : Persons who possess a Bachelor's degree and are already working in the University as Assistant Registrar for at least four years possessing minimum total administrative experience of 10 years would be considered eligible for the post Experience in the cadre of Section officer of equivalent post and above will be counted as administrative experience for this purpose.” In all 22 applications were received by respondent University - after scrutiny whereof nine applicants including petitioner having been found eligible by the committee, were called for interview and in its meeting held on 10/12/05, the selection committee finally made its recommendation, and placed the petitioner at S. No.1 in the order of merit while another applicant Rajendra Kumar Vyas was placed in wait CW 1313/06 //4// list. These recommendations were placed before Syndicate of the University for its approval in its meeting held on 20/12/05 where it was apprised that there is a letter dt. 12/12/05 allegedly sent by Directorate Sanskrit Education that No objection certificate furnished by petitioner was not issued from competent authority and there was complaint pending against him before Anti-Corruption Department and for these reasons, selection of petitioner was not approved by the Syndicate. But finally vide letter dt.04/02/08 (Ann.R.1) under signature of Director, Sanskrit Education, addressed to the Vice Chancellor pointing out that on investigation of letter dt.12/12/05 with regard to alleged complaints & no objection certificate issued by competent authority; it was revealed that there was no inquiry initiated /pending or complaint of any nature made against him; and no objection certificate was also issued by competent authority and whatever alleged against him in earlier letter dt.12/12/05 was totally false and baseless. When this fact came on record that what was transpired before the Syndicate was not true being reflected on the record, this Court vide order dt.07/02/08 directed the University to CW 1313/06 //5// produce order of appointment, failing which its Registrar shall remain present in person before this Court. At that stage, Vice Chancellor of University sent letter dt.14/02/08 (Ann.R.2) to the Chancellor (His Excellency, the Governor) apprising of factual situation, in which it was categorically stated that both the two factors pointed out earlier by Director, Sanskrit Education about petitioner's NOC being issued by competent authority and there being no inquiry initiated or complaint pending against him, was totally baseless; and that apart, it was requested, upon the recommendations of Selection Committee being conflicted by the Syndicate, to kindly resolve the same U/s 6(2) of Rajasthan University Teachers & Officers (Selection for Appointment) Act No.18 of 1974 (“Act, 1974”). In pursuance whereof, a letter was sent by Chancellor on 25/02/08 (Ann.Ap.2) inter-alia observing that once both the factors have been settled down and found to be baseless; it may again be placed before the Syndicate for further necessary action and the Chancellor may also be apprised of their decision. After placing clarification by Chancellor (Ann.Ap.2), matter was again placed CW 1313/06 //6// before the Syndicate and in its meeting on 20/03/08, where one of the members raised objection that petitioner since working as Teacher Gr.II and having no administrative experience being one of requisite conditions of eligibility, was not eligible to participate in process of selection pursuant to advertisement; that being so, the Syndicate in its meeting dt. 20/03/08 (Ann.Ap.1) finally did not accept recommendation of selection committee for following reasons: "ौी चौहान की िनयुिक् त सम् बन् धी इस ूः तुत ूकरण पर िवः तार से िवचार िवमशर् के पँ चात कायर् पिरषद का िनणर्य रहा िक चूंिक ौी चौहान िƮतीय ौेणी के िशक्षक है तथा पाते वेतन पर वतर्मान पद पर कायर्रत है इस ूकार चूंिक वे उप कुलसिवच के पद हेतु िवज्ञािपत योग् यताओ व अनुभवो की पूितर् नहीं करते है ऐसी िः थती में उनकी िनयुिक् त का अनुमोदन िकया जाना उिचत नहीं है उक् त िलए गए िनणर्य के संदभर् में ूितवेदन माननीय कुलािधपित महोदय को भी ूेिषत कर वः तु िः थती से अवगत कराया जावे ।" The decision of Syndicate,ibid, was sent to the Chancellor vide letter dt.09/04/08 for perusal. Counsel for petitioner submits that once petitioner possessed requisite qualification pursuant to advertisement (Schedule A) for the post of Deputy Registrar, and his application was initially scrutinized at the level of the committee constituted by the University which held him as eligible, permitted to participate in process of selection on 10/12/05 and the CW 1313/06 //7// statutory selection committee constituted for the purposes of examining his eligibility & suitability, found meritorious & placed at S.No.1 in order of merit; and all objections earlier raised to nullify his selection, has been ruled out from the letter of Director, Sanskrit Education to the University; subsequent consideration by the Syndicate holding him in- eligible on the premise of having no administrative experience only because having held the post of Teacher Gr.II, is wholly arbitrary and the material on record clearly depicts that the intention of respondent University remained to nullify his selection for one reason or the other so that atleast he may not get appointment despite being placed at S.No.1 in the order of merit; inasmuch as very opinion expressed by the Syndicate nullifying his selection, smacks of non-application of mind; and absence of proper application of mind has caused prejudice to him. In the reply, respondent-State has categorically averred that “No objection certificate” was issued on 29/10/05 by competent authority and there was no inquiry pending against petitioner; and the letter dt.12/12/05 allegedly under signature of Director, Sanskrit CW 1313/06 //8// Education was sent at one point of time, for which the then Director is personally responsible and it has further been averred that there was neither inquiry nor complaint of any nature pending against petitioner; and the Department has not sent a letter which might have alleged that NOC was not issued by competent authority; while such a letter was not issued by the department and there is no such document available on their record. Respondent-University filed its reply raising sole objection that since the University received letter dt.12/12/05 that NOC furnished by petitioner, had not been issued under the signature of competent authority and as certain complaints were pending against him before Anti- Corruption Department, which was considered to be the basis for not accepting recommendations of selection committee; and when both the objections raised were clarified by department, itself vide its letter dt.04/02/08 that neither letter dt.12/12/05 was ever sent by the department about NOC & alleged inquiry/complaint pending, the matter was again processed for being placed before Syndicate of the University as this Court directed them to consider case of CW 1313/06 //9// petitioner for appointment; and finally when it came before the Syndicate in its meeting held on 20/03/08, it being statutory body, examined and observed that since petitioner held post of Teacher Gr.II & having no administrative experience, thus recommendations of selection committee cannot be approved. Reply has also been filed by Respondent NO.3, against whom malice was imputed by petitioner; but has only averred that there was no malice against petitioner and whatever note sheet was placed before him, the University was apprised of situation. Counsel for University submits that petitioner has no legal right to be appointed merely on the basis of recommendations of the selection committee; and that being outside purview of judicial review to go into the reasons assigned by University for cancelling select list. Counsel further submits that latter decision of Syndicate in its meeting held on 20/03/08 on being sent to Chancellor vide letter dt.09/04/08 in terms of S.6(2) of the Act, 1974, pending consideration whereof by Chancellor and having not been assailed by petitioner, no relief can claimed by petitioner at this stage. CW 1313/06 //10// I have considered rival contentions of Counsel for parties and with their assistance, pondered over material on record. At the very outset, it is relevant to emphasize that the University (respondent NO.2) does not have its own procedure of making selections and they are guided by provisions contained in the Act, 1974. Before adverting to factual aspect of the matter vis-a-vis its merits, it is all the more necessary to browse through principles & scope of judicial review in such like matters. It is well settled by Apex Court in a catena of decisions that every action of State authority in order to survive must not be susceptible to the vice of arbitrariness, which is the crux of Art.14 and the basic to the Rule of law, the system which governs us, as has been laid down by Apex Court in Shrilekha Vidyarthi Vs. State of UP (1991)(1) SCC 212). It is no doubt true that advertisement or existence of vacancies does not give a legal right to a candidate to get appointment. Similarly mere inclusion of his name in select list will not entitle him to a mandamus to be appointed. It is trite that a person selected in direct recruitment through selection process, does not have unfettered or vested right to be CW 1313/06 //11// appointed based on recommendations of selection committee. Nevertheless, merit list of selection is of a great significance. It becomes a public document and every candidate has a right to know having regard to the vacancies, whether likely to be appointed, if not, the reasons whereof. In order to keep purity in recruitment in public services, it is always expected that process once initiated should be permitted to reach the stage of its finality. Thus, it is always expected that there should be conscious application of mind while deciding to cancel a select list; and the decision complained of, must demonstrate to be one being not vitiated by arbitrariness. Process of selection by Committee constituted in terms of S.5 of the Act, 1974, consisting of independent persons is to ensure selection of best available persons for a post, to avoid arbitrariness & nepotism in the matter of appointment. It is true that selection of candidates by the Committee is only the recommendation and its finality is vested with the appointing authority under statutory service rules. CW 1313/06 //12// In instant case, selection of petitioner by selection committee is only recommendation and final authority for appointment is the respondent University only after it being approved by the syndicate which is a statutory body constituted under the Act, 1974, because the final authority may accept recommendations or decline to the same; but if it chooses not to accept recommendations of selection committee, the reasons for denial should be disclosed so as to be examined by the Court about its action either being arbitrary or malafide. Matter was examined by Constitution Bench of Apex Court in Shankarsandash Vs. Union of India (1991(3)SCC 47), as to whether a person whose name appears in selection list, acquires indefeasible right of appointment if a vacancy exists. Apex Court after considering precedences delivered in the past, laid down as under : "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 CW 1313/06 //13// 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. Subhash Chander Marwaha (1974(3) SCC 220), Neelima Shangla v. State of Haryana (1986(4) SCC 268), or Jatendra Kumar v. State of Punjab (1985(1) SCC 122)." It was further considered in RS Mittal Vs. Union of India (1995-Supp(2) SCC 230) and observed :- "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 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, there has been a mere inaction on the part of the Government. No reason whatsoever, not to talk of a justifiable reason, was given as to why the appointments were not offered to the candidates expeditiously and in accordance with law. The appointment should have been offered to Mr Murgad within a reasonable time of CW 1313/06 //14// availability of the vacancy and thereafter to the next candidate. The Central Government's approach in this case was wholly unjustified." (Emphasis supplied) In Asha Kaul Vs. State of J & K (1993(2) SCC 573), Apex Court reiterated principles laid down by Constitution Bench in Shankarasandash Vs. Union of India (supra) : "8. It is true that mere inclusion in the select list does not confer upon the candidates included therein an indefeasible right to appointment (State of Haryana v. Subhash Chander Marwaha (1974(3) SCC 220); Mani Subrat Jain v. State of Haryana (1997(1) SCC 486); State of Kerala v. A. Lakshmi Kutty (1986(4) SCC 632) but that is only one aspect of the matter. The other aspect is the obligation of the Government to act fairly. The whole exercise cannot be reduced to a farce. Having sent a requisition/request to the Commission to select a particular number of candidates for a particular category, - in pursuance of which the Commission issues a notification, holds a written test, conducts interviews, prepares a select list and then communicates to the Government - the Government cannot quietly and without good and valid reasons nullify the whole exercise and tell the candidates when they complain that they have no legal right to appointment. We do not think that any Government can adopt such a stand with any justification today." [See also A.P.Aggarwal v. Govt. of NCT of Delhi and Another (2000(1) SCC 600] It further came for consideration in Food Corpn. Of India Vs. Bhanu Lodha (2005(3) SCC 618) and the Apex Court observed ad infra: "14. Merely because vacancies are CW 1313/06 //15// notified, the State is not obliged to fill up all the vacancies unless there is some provision to the contrary in the applicable rules. However, there is no doubt that the decision not to fill up the vacancies, has to be taken bona fide and must pass the test of reasonableness so as not to fail on the touchstone of Article 14 of the Constitution. Again, if the vacancies are proposed to be filled, then the State is obliged to fill them in accordance with merit from the list of the selected candidates. Whether to fill up or not to fill up a post, is a policy decision, and unless it is infected with the vice of arbitrari- ness, there is no scope for interference in judicial review." Recently in Jitendra Kumar Vs. State of Haryana (2008(2) SCC 161) Apex Court observed : “49. Whether we apply the negative test or the positive test, the decision making process should veer round the question in regard to the lack of bona fide or an act of arbitrariness on the part of the State. If lack of bonafide or arbitrariness on the part of the State is proved, whether the right is considered to be a vested or accrued right, or otherwise a negative right, the superior court may exercise its power of judicial review. The judicial intervention would, thus, be possible only when a finding of fact is arrived at in regard to the aforementioned acts of omissions and commission on the part of the State and not otherwise.” In the back ground of law enunciated by Apex Court (supra), question arises as to how far action of respondent University while cancelling select list can be questioned if the decision is arbitrary, unfair or biased, gross abuse of power or in violation of principle of CW 1313/06 //16// natural justice, albeit petitioner may not claim a right of mandamus to be appointed to the post, on being finally selected by the Committee. After whole process having taken u-turn at a later stage, Syndicate of the University had not approved recommendations of selection committee (as per which name of petitioner finds place at S.No.1 in order of merit) only on the premise that he held the post of Teacher Gr.II and his working even on higher post in Lok Jumbish Parishad would not hold him entitled to be eligible having academic qualification & administrative experience for the post of Deputy Registrar pursuant to advertisement dt.23/09/05 (Schedule A). As regards academic qualification, petitioner is a post graduate in Sanskrit (Acharya) with gold medal and M.A., in Hindi with 2nd Division as per requisite condition of eligibility qua academic qualification. During arguments, Counsel for respondent University laid much emphasis that petitioner does not hold requisite five years' administrative experience. Contrarily, Counsel for petitioner has brought to the notice of this Court as regards alleged five years' administrative experience being requisite one of CW 1313/06 //17// conditions of eligibility that according to his experience certificate dt.24/10/05 (Ann.P.9), petitioner worked as Head Master from 24/10/89;, and upon his selection, he worked as Asstt. Project Officer in Lok Jumbish Parishad from 12/08/04 to 17/08/01; and thereafter worked as Sr.Teacher Gr.I from 18/08/01 to 05/09/04; and as Deputy Inspector in Directorate Sanskrit Education from 06/09/04. It has nowhere been notified as to what nature of administrative experience is required by the University for the post in question; inasmuch as the respondent University in its reply initially raised no such objection about eligibility either in regard to academic qualification/administrative experience being one of requisite condition for participation in process of selection to the post of Deputy Registrar; and the only ground taken in its reply was that NOC furnished by petitioner was not issued by competent authority and there being certain inquiry pending in Anti Corruption Department, which was based on letter allegedly issued on 12/12/05 under signature of respondent NO.3, who too later on realized that the facts of pending alleged complaints wrongly apprised by his subordinates were not correct; and the CW 1313/06 //18// State Government at its own clarified its position to the University vide letter dt. 15/12/05 & dt.04/02/08 that NOC was issued by the competent authority and no inquiry was ever initiated or complaint being pending against petitioner at any point of time; and whatever complaint earlier apprised, was totally false & baseless; and this fact has been clarified by respondent-State in its reply in unequivocal terms. That apart, application submitted by petitioner was scrutinized initially by the committee while adjudging eligibility of candidates before calling for interview; and the nature of experience held by him was found to be sufficient as administrative experience as required for the post; and the statutory selection committee after examining his performance in course of interview, found him fit & suitable being best among other applicants for the post and recommended his name for appointment. From narration of facts (supra), nature of discrepancy earlier pointed out by the Syndicate of University in not approving recommendations of selection committee on two points was ruled out finally at its own. As CW 1313/06 //19// regards academic qualification, indisputably, he holds the same; and as regards administrative experience, as observed (supra), there is no such guideline or policy decision laid down by University in appreciating nature of alleged administrative experience; and despite being asked to respondent's Counsel (Shri RA Katta) during arguments, he was unable to place the same on record. On the contrary, petitioner placed certificates issued by State Government with regard to his administrative skill acquired on having worked for more than 5 years either as Head Master or Senior Teacher Gr.I holding post of Principal in School Teaching College or of Asstt. Project Officer in Lok Jumbish Parishad on his selection made by Government for the period narrated (supra), which too had earlier been examined by the committee while adjudging eligibility of applicants before calling for interview at the initial stage and the statutory selection committee of experts upon adjudging suitability, has recommended him for appointment. From the material on record, it is clearly manifest that respondent-University for one reason or the other was not inclined to accept recommendations of statutory Selection CW 1313/06 //20// committee when earlier reasons could not have been able to stand; after the clarification was made by State Government, the Syndicate having come out with u-turn for