IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP (T) No. 8226/2008 Decided on:7.12.2010 _____________________________________________ Rajender Singh. …Petitioner. Versus State of Himachal Pradesh and others. …Respondents. ________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. For the petitioner : Ms. Archana Dutt, Advocate. For the Respondents : Mr. P.M. Negi, Dy. Advocate General with Mr. R.P. Singh, Assistant Advocate General. _____________________________________________________ Rajiv Sharma, Judge (oral). Petitioner submitted application for considering his candidature for the post of Takniki Sahayak. Petitioner was called for interview on 18.9.2001. His name was kept at Sr. No. 3 of the select list Annexure PB dated 24.9.2001. 2. Ms. Archana Dutt has strenuously argued that the action of the respondents of not appointing the petitioner, as Takniki Sahayak is arbitrary, discriminatory, illegal and thus violative of Articles 14 and 16 of the Constitution of India. 1 Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 3. Mr. P.M. Negi, learned Deputy Advocate General has vehemently argued that the petitioner does not possess any indefeasible right to be appointed even though his name was kept in the select list. 4. I have heard the learned counsel for the parties and have perused the pleadings carefully. 5. Petitioner’s name was at Sr. No. 3, as is evident from Annexure PB dated 24.9.2001. There was a direction to appoint six candidates, including the petitioner from the waiting list. This list was issued by the Assistant Engineer Development, Paonta Sahib. The stand of the respondent- State is that Sub Divisional Officer (Civil), Paonta Sahib had issued letter dated 29.9.2001 ordering respondent No.2 not to fill up the post from Sr. No. 15 to 20, i.e. waiting list. Thereafter Sub Divisional Magistrate, Paonta Sahib wrote to respondent No.2 to fill up the post by inviting fresh applications and holding fresh interview. Thereafter, respondent No.2 asked respondent No.3 vide letter dated 15.11.2001, who is the Chairman of Selection Committee, to conduct fresh interview. Once the petitioner’s suitability was adjudged by a duly constituted Selection Committee and his name was in the waiting list and the posts were vacant, he ought to have been offered appointment. There is no 3 justification why the petitioner has not been offered appointment to the post of Takniki Sahayak after his name was recommended by the duly constituted Selection Committee. The Sub Divisional Officer (Civil), Poanta Sahib had unauthorizedly ordered respondent No.2 not to fill up the post from Sr. No. 15 to 20 of the waiting list. The decision not to fill up the posts could be taken only on basis of relevant considerations. He could not order abruptly to scuttle the earlier selection process, which had led to placing the petitioner at Sr. No.3 of the waiting list. The decision to be taken by the authorities must be reasonable, transparent, just and fair. It must be supported by reasons. In the instant case, the decision not to fill up the post is violative of Articles 14 and 16 of the Constitution of India. 6. In a recent judgment, their Lordships of the Hon’ble Supreme Court in East Coast Railway and another versus Mahadev Appa Rao and others, (2010) 7 SCC 678 have held that no candidate acquires an indefeasible right to a post merely because he has appeared in the examination or even found 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 4 candidates as reflected by the merit list prepared at the end of the selection process. Their Lordships have held as under: “14. 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 arbitrary, appropriate directions can be issued in the matter. 15. To the same effect is the decision of this Court in Union Territory of Chandigarh v. Dilbagh Singh and Ors. (1993) 1 SCC 154, where again this Court reiterated that while a candidate who finds a place in the select list may have no vested right to be appointed to any post, in the absence of any specific rules entitling him to the same, he may still be aggrieved of his non-appointment if the authority concerned acts arbitrarily or in a malafide manner. That was also a case where selection process had been cancelled by the Chandigarh Administration upon receipt of complaints about the unfair and injudicious manner in which the select list of candidates for appointment as conductors in CTU was prepared by the Selection Board. An inquiry got conducted into the said complaint proved the allegations made in the complaint to be true. It was in that backdrop that action taken by the Chandigarh Administration was held to be neither discriminatory nor unjustified as the same was duly supported by valid reasons for cancelling what was described by this Court to be as a "dubious selection". 5 16. Applying these principles to the case at hand there is no gainsaying that while the candidates who appeared in the typewriting test had no indefeasible or absolute right to seek an appointment, yet the same did not give a licence to the competent authority to cancel the examination and the result thereof in an arbitrary manner. The least which the candidates who were otherwise eligible for appointment and who had appeared in the examination that constituted a step in aid of a possible appointment in their favour, were entitled to is to ensure that the selection process was not allowed to be scuttled for malafide reasons or in an arbitrary manner. 17. It is trite that Article 14 of the Constitution strikes at arbitrariness which is an anti thesis of the guarantee contained in Articles 14 and 16 of the Constitution. Whether or not the cancellation of the typing test was arbitrary is a question which the Court shall have to examine once a challenge is mounted to any such action, no matter the candidates do not have an indefeasible right to claim an appointment against the advertised posts.” 7. Accordingly, in view of the definitive law laid down by their Lordships of the Hon’ble Supreme Court, the petition is allowed. Respondents are directed to appoint the petitioner in sequel to Annexure PB dated 24.9.2001 as Takniki Sahayak in a Gram Panchayat with all the consequential benefits. Needful be done within a period of one month from the date of production of certified copy of this judgment. However, there shall be no order as to costs. (Rajiv Sharma), Judge. 7.12.2010*awasthi*