CWP No. 3230 of 1988 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 3230 of 1988 Date of Decision: 2.12.2009 Shri Janesh Sharma ...Petitioner Vs. Punjab State Agricultural Marketing Board ...Respondent CORAM Hon'ble Mr.Justice Vinod K.Sharma Present: Mr.Harsh Garg, Advocate, for the petitioner. None for the respondent. --- 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in Digest? --- Vinod K.Sharma, J . (Oral The petitioner by invoking the writ jurisdiction of this court has sought a writ of mandamus directing the Respondent/Punjab State Agricultural Marketing Board to declare the result of the petitioner for CWP No. 3230 of 1988 2 which the petitioner had appeared in 1985 for appointment to the post of clerk. The facts leading to the filing of the present writ petition are that the respondent/Board advertised 30 posts of clerks in the Daily Tribune on 23.10.1983 calling applications along with postal order of Rs.8/- and Rs.2/-. The petitioner applied for the post of clerk along with many other desirous candidates. After the receipt of the applications no action was taken by the respondent for a period of 2 years and thereafter letters were sent to the candidates to find out whether they were still interested in the post of clerk. The case of the petitioner is that he opted for written test and type test on 22.9.1985 and 23.9.1985 and cleared both the tests. The petitioner was conveyed the result vide letter dated 24.10.1985. He was called for interview on 3.10.1985. It is the case of the petitioner that there was change of Government and a new Chairman was appointed to the Board who postponed the interview fixed for 3.10.1985. The case of the petitioner is that thereafter he did not receive any letter intimating the next date of interview. The petitioner thereafter made a representation but he did not receive any response thereto, thus, he invoked the writ jurisdiction of this court. Writ petition was filed in 1988. Relief claimed for being considered for appointment has been rendered infructuous with efflux of time. Mr.Harsh Garg, learned counsel for the petitioner, however, CWP No. 3230 of 1988 3 by placing reliance on the judgment of Hon'ble Supreme Court in the case of Director S.C.I. for Medical Science and Tech. And Anr. Vs. M.Pushkaran AIR 2008 SC 559 contended that there was mala fide on the part of newly appointed Chairman in not completing the selection process and therefore, directions are required to be issued to the respondent now to complete the selection process and issue appointment letter to the petitioner or in the alternative the petitioner be granted compensation for the wrong done. On consideration of matter, I find no force in this contention. The petitioner has chosen not to implead Chairman as party against whom mala fides are alleged. In the absence of a party to the petition the petitioner cannot be permitted to take the plea of mala fides. Even in the judgment relied upon by the petitioner it has been laid down that the select list candidate has no vested right to appointment. Learned counsel for the petitioner also placed reliance on the judgment of Hon'ble Supreme Court in the case of Punjab Communications Ltd. Vs. Union of India and Ors. AIR 1999 SC 1801 (1) to contend that the writ petition deserves to be allowed as the doctrine of legitimate expectation in the substantive sense has been accepted as part of our law and that the decision maker can normally be compelled to give effect to his representation in regard to the expectation based on previous practice or past conduct unless some overriding public interest comes in the way, the change in policy can defeat a substantive legitimate expectation if it can be justified on Wednesbury reasonableness. CWP No. 3230 of 1988 4 The contention of the learned counsel for the petitioner, therefore, was that the decision not to fill up the posts or proceed with the process is not an act which can be held good on the principle of Wednesbury reasonableness. Learned counsel for the petitioner also placed reliance on the judgment of Hon'ble Supreme Court in the case of Munna Roy Vs. Union of India and Ors. 2000 (4) RSJ 101 to contend that the respondent has not chosen to file reply and therefore, the averments made in the writ petition that the process was dropped at the instance of new Chairman is admitted and the reasons for droping the process are not germine or bona fide and therefore, the action is required to be held as arbitrary and irrational. It may be noticed here that in whole of the petition no foundation for claiming legitimate expectation was laid down. In view of the law laid down by Hon'ble Supreme Court in the case of National Buildings Construction Corporation Vs. S.Raghunathan and Ors AIR 1998 SC 2779, this plea cannot be allowed to be raised for the first time in this court at the time of argument. Hon'ble Supreme Court in the case of National Buildings Construction Corporation Vs. S.Raghunathan and Ors (supra) has been pleased to lay down as under:- “31. Incidentally, in this case, the question of “Legitimate Expectation” was not raised in the petition and no foundation was laid in the pleadings for such a plea being advanced before the Court, Strangely, the High Court allowed this plea at the CWP No. 3230 of 1988 5 stage of argument and allowed the petitions only on the ground of “Legitimate Expectation” without least realizing that there was hardly any legitimacy in the claim of the respondents. In the absence of pleadings and the affidavit of the respondents in support thereof, the whole exercise done by the High Court cannot but be deemed to be speculative.” The petition also deserves to be rejected on another ground, as process of selection was not complete. Now it is well established law that a person does not acquire legal right to be appointed only because of selection. The State/employer has a right to fill up all the posts or not to fill up the same. In the absence of discrimination or arbitrariness candidate has no legal right for obtaining a writ for mandamus for his appointment merely because his name appeared in the select list. Hon'ble Supreme Court in the case of S.S.Balu & Anr. Vs. State of Kerala & Ors. 2009 (2) SCT 73 has been pleased to lay down as under:- “15. There is another aspect of the 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 & ors. 2006 (4) SCT 320: (2006) 10 SCC 261. 16. 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 concerned candidate will have no legal right for CWP No. 3230 of 1988 6 obtaining a writ of or in the nature of mandamus. [See Batiarani Gramiya Bank vs. Pallab Kumar & ors. 2003 (4) SCT 321: (2004) 9 SCC 100] In Shankarsan Dash vs. Union of India 1991 (2) SCT 555: [(1991) 3 SCC 47], a Constitution Bench of this Court held: "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." In State of Haryana vs. Subash Chander Marwaha (1974) 3 SCC 220, this Court held: CWP No. 3230 of 1988 7 "The mere fact that a candidate's name appears in the list will not entitle him to a mandamus that he be appointed. Indeed, if the State Government while making the selection for appointment had departed from the ranking given in the list, there would have been a legitimate grievance on the ground that the State Government had departed from the rules in this respect... 11. It must be remembered that the petition is for a mandamus. This Court has pointed out in Dr Rai Shivendra Bahadur v. Governing Body of the Nalanda College that in order that mandamus may issue to compel an authority to do something, it must be shown that the statute imposes a legal duty on that authority and the aggrieved party has a legal right under the statute to enforce its performance. Since there is no legal duty on the State Government to appoint all the 15 persons who are in the list and the petitioners have no legal right under the rules to enforce its performance the petition is clearly misconceived." In Pitta Naveen Kumar vs. Raja Narasaiah Zangiti (2006) 10 SCC261, this Court held: "....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 CWP No. 3230 of 1988 8 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 of the candidates concerned and not otherwise..." In State of Rajasthan & ors. vs. Jagdish Chopra 2007 (4) SCT 188: (2007) 8 SCC 161, this Court held: "9. Recruitment for teachers in the State of Rajasthan is admittedly governed by the statutory rules. All recruitments, therefore, are required to be made in terms thereof. Although Rule 9(3) of the Rules does not specifically provide for the period for which the merit list shall remain valid but the intent of the legislature is absolutely clear as vacancies have to be determined only once in a year. Vacancies which arose in the subsequent years could be filled up from the select list prepared in the previous year and not in other manner. Even otherwise, in absence of any rule, ordinary period of validity of select list should be one year. In State of Bihar v. Amrendra Kumar Mishra 2006 (4) SCT 497 : (2006) 12 SCC 561, this Court opined: "9. In the aforementioned situation, in our opinion, he did not have any legal right to be appointed. Life of a panel, it is well known, remains valid for a year. Once it lapses, unless an appropriate order is issued by the State, no appointment can be made out of the said panel." CWP No. 3230 of 1988 9 It was further held: "13. The decisions noticed hereinbefore are authorities for the proposition that even the wait list must be acted upon having regard to the terms of the advertisement and in any event cannot remain operative beyond the prescribed period." xxx xxx xxx 11. It is well-settled principle of law that even selected candidates do not have legal right in this behalf. (See Shankarsan Dash v. Union of India (1991) 3 SCC 47, and Asha Kaul v. State of J&K (1993) 2 SCC 573)." Advertisement was issued in the year 1985, whereas present writ petition was filed in the year 1988, therefore, no direction can be issued at this stage to the respondent to conclude the process started in the year 1985 for selection of clerks as prayed for in the present writ petition as all the candidates who appeared in test have become ineligible for appointment by passage of time. As already observed above the writ petition is otherwise infructuous with efflux of time besides being without merit. For the reasons stated, finding no merit in the present writ petition it is ordered to be dismissed but with no order as to costs. (Vinod K.Sharma) 02.12.2009 Judge rp