t^ M^ Djvl^^.n ^pnch ^ ^ IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT APPEAL No. ^-3 OF 2009 (Arising out ofjudgement dated 23/ 10/2009 passed by the Hon'ble Justice Shri Satish K. Agnihotri in WP(S) No. No.4725/04) APPELLANTS RESPONDENTS (Petitioner No. 1 in ^25 of 2004) ^>. ~"/^ ^-^^> V/ (Petitioner No.2 in WPNo.4725of2004) ^ 1. Chairman-cum-Managing Director, South Eastern Coalfields Ltd. Bilaspur (CG) ^-2. General Manager (Systems) South Eastern Coalfields Ltd. Bilaspur (CG) ^3. Dy. Chief Personnel Manager (Administration), South Eastern Coalfields Ltd. Bilaspur (CG) ^4. Director (Personnel) South Eastern Coalfields Ltd. Bilaspur (CG) VERSUS : 1. Allauddin Siddiqui, Aged about 46 years, S/o Shri Kamaluddin, Welder Category-VI, Bartunga Hill Mine, SECL, Chirimiri Area, Distt. Korea (CG) 2. Bramhnand Gupta Aged about 42 years, S/o Shri Ram Siya Gupta Welder Category-VI ((Petitioner No.3 in /^3. WP No.4725/2004) (Petitioner No.4 in WP No.4725/2004) (Petitioner No.5 in WP No.4725/2004) (Petitioner No.6 in WPNo.4725/2004) (Petitioner No. 7in WP No.47^^004) \y 4. ^ ^ Bartunga Hill Mines, SECL, Chirimiri Area, Distt. Korea (CG) Deepankar Bhowmik Aged about 35 years S/o Shri B. Bhowmik Electric-Helper Category-II, Anjan Hill Mines, SECL, Chirimiri Area, Distt. Korea (CG) Tapas Mukherjee Aged about 43 years S/o Shri Amal Mukherjee Electric Helper Category-II NCPH Hill Mine, SECL, Chirimiri Area, Distt. Korea (CG) Shri Rakeshwar Prasad Aged about 38 years S/o Shri Janki Prasad EPGH, Kursiya Colliery, SECL, Chirimiri Area, Distt. Korea (CG) Shri P.C. Dubey Aged about 46 years S/o Shri K.P. Dubey Arms Guard, SECL, Bilaspur (CG) Shri Anil Dighraskar Aged about 38 years S/o Shri K.D. Dighraskar Categoiy-II, SECL, Singhali Project : Dhelwadih Sub-area Korba Area, Distt. Korba (CG) (Petitioner No.8 in WP No.4725/2004) .8. Shri G. Sao, S/o Shri Ganga Prasad Aged about 42 years, Category II, South Eastern Coalfields Ltd., Gavera Project, Gavera, Distt. Korba. 3 <b WRIT APPEAL UNDER SECTION 2(1) OF THE CHHATTISGARH APPEALTO THE DIVISION BENCH ACT 2006 ,^^^^^^ ^>^"u!^f% / ^. '^i %, ^. ^ ^^ p^T^" "'^.^^ HIGH COURT OF CHHATTISGARH AT BILASPUR . ,r DB: Hon'ble Shri Justice I.M. Quddusi and Hon'ble Shri Jystic^PrashantKymar Mishra Writ Appeal No.369 of 2009 Chairman-cum-Managing Director, South Eastem Coalfields Ltd., Bilaspur and others versus Allauddin Siddiqui and others JUDGMENT^)R CONSIDERATION Hon'ble Shri I.M. Quddusi, J.: 3 <^^^ JUDGE ^^ -08-2010 Sd/- ^JUDGE 26-08-2010 Postfor^-^-2010 Sd/- prashantKumarMishra Judge •^y:.'.::^,, HIGH COURT OFCHHATTISGARH AT BILASPUR DB: Hon'ble Shri Justice I.M. Quddusi and Hon'ble Shri Justice Prashant Kumar Mishra ^y Writ Appeal No.369 of 2009 Appellants versus Respondents Chairman-cum-Managing Director, South Eastern Coalfields Ltd., Bilaspur and others Allauddin Siddiqui and others Present: Shri Ajit Sinha, Senior Advocate with Shri P.S.Koshy, counsel for the appellants. Shri Anurag Dayal Shrivastava, counsel for the respondents. WritAppeal under Section 2(1) ofthe Chhattisaarh Hiah Court (Appeal to Division Bench) Act, 2006 JUDGMENT (Detivered on ^?-o?-2010) Per Prashant Kumar Mishra, J.: Thepresent writ appeal has been preferred by the appellants South Eastern Coalfields Ltd., Bilaspur and others, who were respondents in Writ Petition No.4725/2004. The appellants are challenging the order passed by the learned Single Judge directing the appellants to consider the case of the writ petitioners for appointment to the post of Junior Data Entry Operator (Trainee) Grade-E (henceforth 'the subject post') in the light of select-list prepared on the basis of original eligibility criteria vide Annexure P-4 (in the writ petition) and pass appropriate orders, in accordance with law and on its own merits. ^ w 2. Case of the writ petitioners before the learned Single Judgewas that applications for selection on the subject post were invited by the appellants (henceforth 'the SECL'). Pursuant to the invitation, the writ petitioners submitted their applications and appeared in the selection process and were declared successful after clearing the written examination in first attempt and the typing examination in second attempt, however, their results were not declared. They moved representation before the SECL which was not replied. The SECL later on replied vide Annexure P-12 (in the writ petition) to the legal notice sent on behalf of the writ petitioners, informing them that the functional directors of the SECL have decided that the empanelled list of candidates selected for the subject post be cancelled and in future selection on the subject post shall be made on selection basis from amongst the clerical staff. It was also stated therein that if in the existing empanelled list, someclerical staff have been selected, the same could be considered by the functional directors. The writ petitioners have challenged this decision vide Annexure P-12 (in the writ petition) as arbitrary and inoperative against the petitioners. 3. Case of the respondents/SECL before the learned Single Judge was that the selection list for appointment on the subject post was cancelled by the functional directors in their meeting held on 19-4-2004 and since the select-list was never published the writ petitioners have not acquired any enforceableright for appointment on the subject post. It was also stated by the SECL that the petition suffers from non- joinder of parties inasmuch as the selected persons have not been joined. v^ 4. Learned Single Judge, after relying on the law laid down by the Hon'ble Supreme Court in the cases of P.Mohanan Pillai vs. State of Kerala and others, (2007) 9 SCC 497, Maharashtra State Road Transport Corporation and others vs. Rajendra Bhimrao Mandve and others, (2001) 10 SCC 51, K. Manjusree vs. State of Andhra Pradesh and others, (2008) 3 SCC 512, P.K. Ramachandra /yervs. Union of India, (1984) 2 SCC 141, Umesh Chandra Shukla vs. Union of India, (1985) 3 SCC 721, Durgacharan Misra vs. State of Orissa, (1987) 4 SCC 646, Madan Mohan Sharma and anothervs. State of Rajasthan and others, (2008) 3 SCC 724, Mohd. Sohrab Khan vs. Aligarh Muslim University and others, (2009) 4 SCC 555, concluded that it wasnot permissible for the respondents to change the rules of the game, midway, during the process of selection and that since it is not permissible in law, the SECL, havingalready appointed some persons from the select-list, are bound to consider the case of the writ petitioners in the light of the select-list prepared on the basis of original eligibility criteria. \^ 5. It has been argued on behalf of the appellants/SECL that the decision taken by the functional directors in their meeting held on 19-4- 2004 was not a mala fide action but has been taken in the interest of administration because at that time the main object of SECL was that of extraction of coal from the mining areas under it and the company required technically sound and skilled employees and workers who are working in the mining area to remain in the mining area so that they perform to the best of their ability for maximum production for achieving / the increased target of production, however, when the functional \A? directors became aware of the fact that good number of employees working in the mining area, particularly in the technical division were shifting themselves from the technical division to the managerial services, they feared that it may affect the production and it was in this background the bona fide decision was taken to select persons for the subject post from the clerical staff. It was further stated that when the production level was achieved, the SECL switched back to the earlier criteria and that the decision taken is neither arbitrary nor can be called without jurisdiction or authority. It was also put forth by the appellants that since the selected candidates have not been joined the petition was not maintainable. Learned counsel for the appellants also submits that since the select-list was not published, no right has accrued upon the writ petitioners and no relief could have been granted by the learned Single Judge. Learned counselfor the appellants has placed reliance upon the judgment of the Supreme Court in Shankarsan Dash vs. Union of India, (1991) 3 SCC 47, which has been followed in Punjab State Electricity Board and others vs. Malkiat Singh, (2005) 9 SCC 22 to buttress his submission that mere inclusion in the select-list does not confer any indefeasible right to appointment. 6. Learned counsel for the respondents, placing reliance on the judgment referred by the learned Single Judge in favour of the writ petitioners, has strenuously urged that the present is a proved case of changing the criteria midway and is thus illegal, apart from being arbitrary for the reason that some persons from the same select-list have been appointed by changing the criteria. He would further submit that since there was no prayer in the writ petition seeking quashment of ;f ""^ 9o the selection of 6 candidates, it was not necessary for the writ petitioners to have joined those selected candidates. He submits that since the petitioners are claiming fair consideration and selection on the basis of select-list, compelling the writ petitioners to join the selected candidates and seek quashment of their selection would be fatal to the case of the writ petitioners, therefore, it is not a case of non- joinder of necessary party. 7. We have heard learned counsel for the parties at length and have perused the written submissions submitted by them. The tearned Single Judge has applied the law laid down by the Hon'ble Supreme Court in number ofjudgments referred to in paragraphs 13 to 17 ofthe impugned order and has held that it is not permissible in law to change the rules of the gameto mean to change the eligibility condition in the midst ofthe selection process and since this is exactly what has been done by the SECL in the present case, its decision to appoint a few and treat the select-list as cancelled for others is not sustainable. In the facts and circumstances of the case, this Court does not find any illegality in the finding recorded by the learned Single Judge that the rules of the game have been changed midway. 8. Once it has been found that the rules of the game have been changed midway by changing the eligibility criteria, the issue which falls for consideration, as has been argued also by the SECL that the decision was in the interest of administration and was not arbitrary, therefore, in view of the law laid down by the Hon'ble Supreme Court in 5\ the matter of Shankarsan Dash vs. Union of India (supra), the learned Single Judge ought not to have issued the impugned direction. 9. In the matter of Shankarsan Dash vs. Union of India (supra), the Hon'ble Supreme Court has held in paragraph 7 ofthe report thus: "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. Subhash Chander Marwaha, (1974) 3 SCC 220, Neelima Shangla v. State of Haryana, (1986) 4 SCC 268, or Jatendra Kumar\i. State of Fu/?/a^,(1985)1 SCC122." 10. The law laid down by the Hon'ble Supreme Court in Shankarsan Dash vs. Union of India (supra) is to the effect that the candidate does not acquire any indefeasible right for appointment merely on the basis of inclusion of his name in the select-list, however, the Hon'ble ^^ Supreme Court has further observed that it does not mean that the State has the licence of acting in an arbitrary manner and that the decision not to fill up the vacancies have to be taken bona fidely for appropriate reasons and further that if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidate as reflected in the recruitment test, and no discrimination can be permitted. When the said proposition is applied in the facts of the present case, it would be seen that the rules have been changed in the midway and a few have been appointed by applying the changed eligibility criteria. It is not the case of the SECL that originally advertised vacancies were no longer available or that there is no need for the SECL to fill up the required number of posts at the relevant point of time. On the contrary, the SECL in paragraph 5 of its written submission has stated that the functional directors vide their letter dated 25-1-2007 have restored the old position meaning thereby that the writ petitionersare now qualified to be considered for the subject post. The reason assigned for not considering the case of the writ petitioners is that their performance/duty was required in the mine area for augmenting the production in the SECL, however, the said reasoning does not find place in the document Annexure P-12 (in the writ petition) which reads thus: "(Under Jurisdiction of Bilaspur Court Only) ^TTv^^T ^^ cht^451^^-l South Eastern Coalfietds Limited M^II^H-1 f^TFT M'YjTl^d chl<t|Id^ : ^NH ^ ^t'OsTTO ^Q 60, Roll^^ (^O^TO)-495 006 Regd. Office : Seepat Road, P.B.No.60, Bilaspur No.SECL/BSP/ADMN/Prom/Jr.DEO(T)/04/1739Dt.13.11.2004 'y-al 1 ^,, %» ^ To, Area Personnel Managers, All Areas of SECL. Sub:- Selection ofData Entrv Operators. Dear Sir, We are receiving regular representations from different Areas, employees as well as from Unions regarding selection to the postof Data Entry Operator. The matter has been placed before 228th Meet of FDs held on 19th April, 2004 and the decision of FDs is reproduced below: Functional Directors decided that the empanelled list of candidates selected for the post of Data Entry Operators be cancelled forthwith and in future induction of Data Entry Operators shall be done on selection basis from amongst clerical staff. However, if in the empanelled list, some clerical staff is already selected, the same could be considered by the FDs. This is for your kind information with a request toinform the person concerned accordingly. Yours faithfully, Sd/- DY. CPM Copy to: 1. GM(P&A), SECL, BSP. 2. GM(System), SECL, BSP. 3. DY.CPM(IR), SECL, BSP." 11. The minutes of the meeting of the functional directors held on 19-4-2004 has been filed by theSECL as Annexure R-1 (in the writ petition). The contents of Annexure R-1 (in the writ petition) are reproduced hereunder: ; "SOUTH EASTERN COALFIELDS LIMITED SEEPAT ROAD, BILASPUR, C.G. '^ %a 1 s^ No.SECL:BSP:BD:SECY:FD:288:04:265 Dated, 27.4.2004 Sub: Minutes of the 288th Meet of the Functional Directors held on 19th April. 2004 in CMD. SECL' Chamber The enclosed subject was discussed in the 288 Meet of the Functional Directors held on 19th April, 2004 in CMD, SECL's Chamber. The relevant minutes are quoted below:- QUOTE ITEM No.288.7 Sub: Selection ofData Entrv Operators Functional Directorsdecidedthat the empanelled list of candidates selected for the post of Data Entry Operators be cancelled forthwith and in future induction of Data Entry Operators shall be done on selection basis from amongst clerical staff. However, ifin the empanelled list, some clehcal staff /'s alreadyselected, the same could be considered by the FDs. UNQUOTE Accordingly, the above cited minutes are being forwarded herewith for kind perusal and for taking further needful action in the matter. Sd/- 26/4/04 COMPANY SECRETARY, SECL Director (Personnel). SECL" In this document, it is not reflected that the administrative reason assigned in the return before the writ Court and argued in this writ appeal were ever considered or was the basis for taking the decision vide Annexure R-1 (in the writ petition). s$ 10 12. In the matter of Mohinder Singh Gill and another vs. The Chief Election Commissioner, New Delhi and others, (1978) 1 SCC 405, it has been held by the Hon'ble Supreme Court in paragraph 8 of the report thus: "8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to Couri; on account of a challenge, get validated by additionalgrounds later brought out. We may here draw attention to the observations of Bose, J. in Commr. of Police, Bombay v. Gordhandas Bhanji, AIR 1952 SC 16: Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Pubtic orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself. Orders are not like old wine becoming better as they grow older." Thus, it would be clear that a party to the litigation is not permitted to assign reasons in the affidavit or the counter affidavit which were not considered and were not mentioned in the decision taken by the authorities. Though the subject decision is not statutory but the spirit of the principle laid down by the Hon'ble Supreme Court $fc 11 can be applied. This Court would, thus, held that the administrative reason assigned by the SECL to change the eligibility criteria midway to change the rules of the game was arbitrary and discriminatory as the reason assigned does not find mention in the minutes of the meeting of the functional directors vide Annexure R-1 (in the writ petition). 13. In view of the above, this Court does not find any substance in the writ appeal preferred by the appellants, which fails and is hereby dismissed. There shall be no order as to costs. Sd/- I.M. Quddusi Judge Sd/- prashantKumarMishra Judge Gopal