Kambli 1 WP6651.10 IN THE HIGH COURT JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.6651 OF 2010 ... Ajay s/o Bhagwanrao Chate & Anr. Petitioners v/s. High Court of Judicature at Bombay Through: Registrar General and anr, Respondents ... Mr.R.V.Ghuge i/b V.A.Sugdare for Petitioners. Mr.S.Talsaniya, senior Advocate with Mr.Sanjay Udeshi i/b Sanjay Udeshi & Co. for Respondent No.1. ... CORAM: D.K.DESHMUKH & N.D.DESHPANDE,JJ. DATED: 7th December,2010 P.C.: 1. By the present Petition the Petitioners challenge the notice dated 5-8-2008 issued by the Respondent No.1, Registrar General, High Court, Bombay Kambli 2 WP6651.10 recalling the process of selection for the post of Member, Industrial Court and deciding to start fresh process of selection for filling in 14 Posts of Member of Industrial Court. They seek a writ of mandamus asking the Respondents to appoint them as Member, Industrial Court. They also challenge the advertisement dated 31-7-2008, which is a fresh advertisement issued for initiating the process of selection of candidates for appointment to the post of Member, Industrial Court, as a consequence of cancellation of the process of selection started earlier. 2. The facts which are relevant for deciding this petition are, the Registrar General, High Court, Bombay initiated process to fill up the vacancies in the post of Member, Industrial Court by nomination. In response to the advertisement issued, 375 Kambli 3 WP6651.10 applications were received. On scrutiny and short listing 179 candidates were found eligible for the written test. Out of 179 candidates who appeared for the written test 11 candidates were declared successful and qualified for viva-voce test. Out of these 11 candidates, the Interview Committee recommended for appointment names of 4 candidates. Pursuant to the decision of the Interview Committee, the names of these 4 candidates were recommended to the Government for appointment. Thereafter, the present Petitioners submitted representation dated 7-5-2008. In their representation they claimed, relying on the judgment of the Supreme Court in the case of Himani Malhotra Vs. High Court of Delhi (2008) 7 SCC 11 , that as only 11 candidates were called for interview and there were 12 vacancies they ought to have been selected for the post. Kambli 4 WP6651.10 This representation was placed before the Administrative Judges Committee of the High Court. The Administrative Judges Committee considered that representation in its meeting held on 15-7-2008 and decided to recall the entire process and to start a fresh selection process. Pursuant to said decision the State Government was informed to cancell the notification for appointment of 4 candidates whose names were recommended to the Government for appointment by the High Court. The Registrar General, High Court issued the notice notifying recall of entire process of selection and to initiate fresh process of selection and advertisement was issued on 31-7-2008 notifying 14 vacancies for the post of Member, Industrial Court. 3. The Petitioners challenge the cancellation of the earlier process and Kambli 5 WP6651.10 initiation of the fresh process of selection. They also claim writ of mandamus for their appointment. 4. The High Court has filed an affidavit. In its affidavit the High Court has given following justification for recalling the earlier process of selection. i)There was a denial of fair competition. There were 12 vacancies for which only 11 candidates qualified in the written examination; ii)The candidates who were called for interview performed poorly. Several candidates had scored single digit marks in the viva voce. The overall performance of those candidates was so poor that the induction of such Kambli 6 WP6651.10 candidates waas not in the interests of the administration of justice; iii) A controversy as to eligibility of in service candidates for the post of Member, Industrial Court by nomination; and iv) In view of the judgment of this Hon’ble Court in `Himani Malhotra’ it was not possible to continue with the earlier selection process. 5. The High Court in its affidavit has also stated that there were certain irregularities in the process of selection initiated earlier. According to High Court there were following irregularities. i) The Registry while putting up the Kambli 7 WP6651.10 proposal, did not bring to the notice of the Competent Authority, the requirement in regard to constitution of a separate selection committee as provided under the Rules regulating recruitment for the post of Member, Industrial Court, and ii)Two candidates viz. Mr.R.V.Sardesai and Mr.M.N.Deshpande, who secured less than 50% marks (i.e. 92 and 61 marks respectively out of 200 marks), were wrongly included in the list of 11 candidates qualified for the viva voce test. 6. It is submitted on behalf of the High Court that there was no arbitrariness, Kambli 8 WP6651.10 illegality or discrimination on the part of High Court in its decision to recall the earlier selection process and initiation of fresh process of selection. 7. We have heard the learned Counsel appearing for both sides. The Petitioners mainly rely on the judgment of the Supreme Court in the case of Himani Malhotra, referred to above, and claim that they have a right of appointment. Perusal of the judgment of the Supreme Court in Himani Malhotra’s case shows that the Supreme Court in its judgment has no where held that the candidates like the Petitioners have a right of appointment. What is held by the Supreme Court is that in the situation the candidates like the Petitioners will have a right of selection and therefore they will have a right of getting their names included in the Kambli 9 WP6651.10 select list. But merely because the Petitioners have a right to get their names entered in the select list, they do not become entitled to a writ of mandamus for their appointment in the posts of Member, Industrial Court. The Constitution Bench of the Supreme Court in its judgment in the case of Dr.Rai Shivendra Bahadur v/s. Governing Body of the Nalanda College, Bihar Sharif and ors, AIR 1962 SC 1210 has considered the question of issuance of writ of mandamus for appointment. The Supreme Court has in paragraph 5 of that judgment observed thus: (5)...........In order that mandamus may issue to compel the respondents to do something it must be shown that the Statutes impose a legal duty and the appellant has a legal right under the Statutes to enforce its performance. It is, however, wholly unnecessary to go into or decide this question or to decide whether the Statutes impose on the Governing Body of the College a duty which can be enforced by a writ of mandamus Kambli 10 WP6651.10 because assuming that the contention of the appellant is right that the College is a public body and it has to perform a public duty in the appointment of a Principal, it has not been shown that there is any right in the appellant which can be enforced by mandamus. According to the Statutes all appointments of teachers and staff have to be made by the Governing Body and no person can be appointed, removed or demoted except, in accordance with Rules but the appellant has not shown that he has any right entitling him to get an order for appointment or reinstatement. Our attention has not been drawn to any Article in the Statutes by which the appellant has a right to be appointed or reinstated and if he has not that right he cannot come to Court and ask for a writ to issue. It is therefore not necessary to go into any other question. 8. The Supreme Court in its judgment in the case of S.S.Balu and anr. v/s. State of Kerala and ors., (2009) 2 SCC 479 has again considered this aspect of the matter. The observations of the Supreme Court in paragraphs 12 to 15 of that judgment are relevant. They read as under: Kambli 11 WP6651.10 12.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 v. 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 concerned will have no legal right for obtaining a writ of or in the nature of mandamus. (See Batiarani Gramiya Bank v. Pallab Kumar). In Shankarasan Dash v. Union of India a Constitution Bench of this Court held: (SCC pp.50-51, para 7) “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 Kambli 12 WP6651.10 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 fill 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.” 13. In State of Haryana v. Subash Chander Marwaha this Court held: (SCC p.226, paras 10-11) “10.....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 Rai Shivendra Bahandur (Dr.) v. Nalanda College that in order that mandamus may issue to Kambli 13 WP6651.10 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.” 14. In Pitta Naveen Kumar v. Raja Narasaiash Zangiti this Court held: (SCC p.273 para 32) “32.....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 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.” 15. In State of Rajasthan v. Jagdish Chopra this Court held: (SCC pp.164-65, paras 9 & 11) “9. Recruitment for teachers in Kambli 14 WP6651.10 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 this Court opined: (SCC p.564, para 9) “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.’ It was further held: (Amrendra Kumar case, SCC P.565, para 13) `13. The decisions noticed Kambli 15 WP6651.10 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.’ 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 and Asha Kaul v. State of J & K) 9. Thus, the Petitioners are not entitled to a writ of mandamus for their appointment in the post of Member, Industrial Court. As we find that there are no allegations of malafide made against the Respondents, no exception can also be taken to the decision of the Respondents to cancell the process of selection and to initiate a fresh process of selection. Thereby no rights vested in the Petitioners are taken away or denied. Kambli 16 WP6651.10 10. Taking overall view of the matter, therefore, there is no substance in the petition and it is liable to rejected. It is accordingly rejected. (D.K.Deshmukh,J.) (N.D.Deshpande, J.)