^gteSS' IN THE HIGH COURT OF JUDICATURE AT BILASPUR CHHATTISGARH WRIT PETITION (S) N0. ^^3 OF 2008 PETITIONER : -y,.<-, ^^sa ^>"..< ^' .^" ^^•" Ram Ashrya Chandra, S/o Chotelal Chandra, aged about 38 years, R/o village Lakhali, via Bamhridih, District Janjgir- Champa (CG). ^" s.<^^ RESPONDENTS : "%^^^»^ Versus 1. State of Chhattisgarh, Through ^ the Secretary, Department of Panchayat & Rural Development, D.K.S. Building, Mantralaya, Raipur (CG). Director, Panchayat, Raipur 3. Collector, District Janjgir- Champa (CG). 4. Janpad Panchayat, Jaijaipur, Through Chief Executive ( Officer, Jaijaipur, District Janjgir-Champa(CG). 5. Chief Executive Officer, Janpad Panchayat, Jaijaipur, District Janjgir-Champa(CG). WRIT PETITION UNDER ARTICLE 2^6 OF THE CONSTITUTION OF INDIA HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION (S) No. 163 of2008 PETITIONERS RESPQNDENTS Shashi Bhushan Patel & Others. VERSUS State ofChhattisgarh & Others. c^o WRITPETITIONrS)No. 161 of2008 PETITIONERS RESPONDENTS Mohd. Zahir Abbas & Others. VERSUS State ofChhattisgarh & Others. PETmONER WRIT PETITION CS) No. 309 of2008 Ramadhar Yadav. RESPONDENTS VERSUS State ofChhattisgarh & Others. PETITIONER WRIT PETITION fS) No. 453 of2008 Ram Ashray Chandra. RESPONDENTS VERSUS State ofChhattisgarh& Others. ^ Post for pronouncement ofjudgment on -?<?/Jay ofOctober, 2010. Sd/- SatishK.Agnihotri Judge HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION fS) No. 163 of2008 PETITIONERS RESPONDENTS Shashi Bhushan Patel & Others. VERSUS State ofChhattisgarh & Others. ^ WRITPETITION(S)No. 161 of 2008 PETITIQNERS RESPONDENTS Mohd. Zahir Abbas & Others. VERSUS State ofChhattisgarh & Others. PETITIONER WRIT PETITION (S) No. 309 of2008 Ramadhar Yadav. RESPONDENTS VERSUS State ofChhattisgarh & Others. PETITIONER WRIT PETITION fS) No. 453 of2008 Ram Ashray Chandra. RESPONDENTS 'VERSUS State ofChhattisgarh & Others. WRIT PETITION UNDER ARTICLE 226/227 OF THE CONSTITUTION OF INDIA Present: Shri B.D.Gum, Shri Ashish Surana, Shri Anand Dadariya, Advocates for the respective petitioners. Shri M.P.S.Bhatia, Deputy Govemment Advocate for the State Shri Pankaj Shrivastava, Advocate for the respondent-Janpad Panchayat, Sarangarh. Shri R.K.Kesharwani, Advocate for the respondent-Janpad Panchayat, Jaijaipur. SB: Hon'ble Shri SatishK^Aenihotri, J. JUDGMENT (Delivered on .^2y0dsy of October, 2010) This batch ofpetition viz. Writ Petition (S) No. 163 of 2008, Writ Petition (S) No. 161 of 2008, Writ Petition (S) No. 309 of 2008 and Writ Petition (S) No. 453 of 2008 involves common question of law asto whether the selection process initiated pursuant to the advertisement under the prevailing provisions of law i.e. the Chhattisgarh Panchayat Shiksha Karmi (Recruitment & Conditions of Services) Rules, 1997 (for short tthe Rules, 1997)) can be abandoned/discontinued before publication of the final select list and appointment of the select candidates, thereof. The facts, in nutshell, as projected by the respective petitioners, are as under: W.P.('S)No. 163 of2008 and 161 of2008. Pursuant to the advertisement dated 22.12.2006 (Annexure P/l) and 13.03.2007 (Annexure P/2) for appointment on the post of Shiksha Karmi Grade III, the petitioners alongwith others made applications. Thereon, selection process commenced. A provisional select list was prepared on 16.11.2007 (Annexure P/4) which was approved by the Selection Committee. The Selection Committee, in its meeting dated 17.11.2007 [Annexure P/3 to W.P.(S) No. 163 of 2008] and [Annexure P/7 to W.P.(S) No. 161 of 2008], ^ specifically mentioned that the Selection Committee has approved the provisional select list and waiting list and after appointment ofthe selected candidates, their testimonials may be verified and in the event, it is found tbat the testimonials were forged, appointment would be cancelled and statutory action may be taken. Further, the date ofcounseling was fixed for 27.11.2007 till 29.11.2007. In the meantime, before fmal select list was published and the appointment order could be issued, Chhattisgarh Panchayat Shiksha Karmi (Recruitment & Conditions of Services) Rules, 2007 (for short 'ne^ Rules, 2007)) were notified which came into force/^.e./ the date of its publication in the State Gazettee i.e. on 29.11.2007. The selection process initiated under the provisions ofthe Rules, 1997 were abandoned, Thus, being aggrieved, the petitioners have preferred this petition. Writ Petition CS) No. 309 of2008 and 453 of 2008. Pursuant to the advertisement dated 25.03.2006 (Annexure P/l), 29.06.2006 (Annexure P/2) and 10.06.2006 (Annexure P/3) for appointment on the post of Shiksha Karmi Grade III, the petitioners alongwith others made applications. Thereon, selection process commenced. A provisional select list was prepared on 28.11.2007 (Annexure P/4) which was approved by the Selection Committee. According to the petitioners, the Selection Conimittee, in its meeting dated 28.11.2007 (Annexure P/5) decided to issue appointment orders. In the meantime, before final select list was published and the 1 u 4. appointment order could be issued., new Rules, 2007 were notified which came into force w.^./ the date of its publication in the State Gazettee i.e. on 29.11.2007 (Annexure P/6). The selection process initiated under the provisions of the Rules, 1997 were abandoned. Thus, being aggrieved, the petitioners have preferred this petition. Shri B.D.Gum, Shri Ashish Surana, Shri Anand Dadariya, leamed counsel appearing for the respective petitioners would submit that it is well settled principle of law that once the selection process has been initiated under the provisions of the prevailing mles, i.e. the Rules, 1997 in this case, the same cannot be quashed or set aside by enforcement of new rules i.e. the Rules, 2007, subsequently which has no retrospective operation. Leamed counsel would further submit that in the cases on hand, the selection process was complete, even provisional select list was prepared, as the same was approved by the Selection Committee. Only appointment order could not be issued. In the meantime, new mles i.e. the Rules, 2007 came into force which clearly provides that the same would come into effect from the date of publication in the State Gazette i.e. 29.11.2007. Thus, the action of the respondents by not issuing appointment orders is unsustainable and bad in the eyes oflaw. On the other hand, Shri Pankaj Shrivasfrva and Shri RX.Kesharwani, leamed counsel appearing for the respective Janpad Panchayats, would submit that selection, pursuant to 9^ the advertisement dated 22.12.2006 and 13.03.2007 could not be completed as no final select list was published. During the process of selection, new Rules, 2007 came into force and as such, selection process imtiated under the old Rules, 1997 was abandoned and a fresh advertisement was issued for new selection on the basis ofnew Rules, 2007. Since the. selection was not complete, the respondent authorities were fally competent to quash the selection and further, the petitioners have not acquired any indefeasible right for appointment on the post of Shiksha Karmi Grade III, on the basis of provisional select list. Shri Bhatia, leamed Deputy Govemment Advocate appearing for the State would adopt the submissions made by leamed counsel for the respective Janpad Panchayats in support ofthe action ofquashing ofthe selection process. I have heard leamed counsel appearing for the parties, pemsed the pleadings and documents appended thereto. This Court, on 10.01.2008 [in W.P.(S) No. 163/2008 and 161/2008], on 16.01.2008 [in W.P.(S) No. 309/2008] and on 22.01.2008 [in W.P.(S) No. 453/2008] directed that the vacancies available pursuant to the advertisements dated 22.12.2006, 13.03.2007 and 25.03.2006, respectively, may not be filled up till the next date of hearing. According to leamed counsel for the respective Janpad Panchayats, vacancies are still available for appointment. 6 ^ 8. It is indisputable that the selection process commenced under the provisions ofthe Rules, 1997. It is fa'rther not in dispute that the a provisional select list as on 16.11.2007 (Annexure P/4 to W.P.(S) No. 163/2008) was prepared. The said select list was duly approved by the Selection Committee on 17.11.2007 (Annexure P/3 to W.P.(S) No. 163/2008). In case of Writ Petition (S) No. 309/2008 and 453 of 2008, a provisional list was prepared and approved by the selection committee on 28.11.2007. Thereafter, no ,final select list was published and the appointmentorders were not issued. The Selection Committee, after approving the provisional select list, directed to issue appointment orders and verify the testimonials afiter issuing the appointment orders. Thus, it is indisputably held that the final selection list was not published despite approval ofthe provisional select list by the Selection Conimittee. Consequently, no appointment orders could be issued. 9. Thus, the question arises for consideration before this Court is asto firstly, whether the petitioners have acquired a right to appointment on the basis of approved provisional select list when the selection process was abandoned on account of enforcement of new Rules, 2007. Secondly, whether the employer (State or its agencies) can quash the selection process without completing the same. 10. In this context, principle of law is well settled that the State Govemment at a subsequent date can discontinue the 1 ^ selection process by revising the qualifications or otherwise by way of amendment in the ser/ice mles or by enforcement of new mles. The selection process cannot be held as complete till the final select list is published. In the case on hand, there is no dispute that the provisional select list was approved but no final list was published before new Rules, 2007 came into force and the Govemment decided to discontinue the instant selection process and to issue a fresh advertisement for appointment for appointment on the post of Shiksha Karmi, Grade III under the provisions of new Rules, 2007. 11. In Jai Singh Dalal & Others v. State ofHaryana & Another , wherein similar facts were under consideration., the Supreme Court observed as under: "7. In a recent decision in Shankarsan Dash v. Union of India the Constitution Bench of this Court reiterated that even if a number of vacancies are notified for appointment and adequate number ofcandidates are found fit, the successful candidates do not acquire any indefeasible right to appointment against the existmg vacancies. It was pointed out that ordinarily the notification merely amounts to an invitation to qualified candidates to apply for recmitment and on their selection they do not acquire any right to the post. The State is under no legal duty to fill up all or any of the vacancies by appointing candidates selected for that purpose. Albeit, the State must act in good faith and must not exercise its power mala fide or in an arbitrary manner. The Constitution Bench referred with approval the earlier decision of this Court in Subash Chander. Therefore, the law is settled that even candidates selected for appointment have no right to appointment and it is open to the State Govemment at a subsequent date not to fill up 1993 Supp (2) SCC 600 ^^ the posts or to resort to fresh selection and appointment on revised criteria." 12. In State of M.P. & Others v. Raghuveer Singh Yadav & Others1, wherein during selection process, the qualification, under the Madhya Pradesh Standard of Weights and Measurement (Enforcement) Rules, 1989, was altered, the Govemment withdrew the earlier notification and decided to proceed with the recruitment afresh, the Supreme Court observed as under: "5. It is settled law that the State has got power to prescribe qualifications for recmitment. Here is a case that pursuant to amended Rules, the Govemment has withdrawn the earlier notification and wants to proceed with the recmitment afresh. It is not a case of any accmed right. The candidates who had appeared for the examination and passed the written examination had only legitimate expectation to be considered of their claims according to the rules then in vogue. The amended Rules have only prospective operation. The Govemment is entitled to conduct selection in accordance with the changed mles and make final recmitment. Obviously no candidate acquired any vested right against the State. Therefore, the State is entitled to withdraw the notification by which it had previously notified recmitment and to issue fresh notification in that regard on the basis of the amended Rules." 13. The ratio laid down in Raghweer Singh Yadav2 was referred with approval in Rajasthan Public Ser^ice Commission v. Chanan Ram & Another3. 14. In another decision of Supreme Court, in All India SC and ST Employees Assocn. &Another v. A.ArthurJeen & Others , "10. Merely because the names of the candidates were included in the panel indicating 2 (1994)68cc 151 3 (1998)48cc 202 4(2001)6SCC380 15. 9 their provisional selection, they did not acquire any indefeasible right for appointment even against the existing vacancies and the State is under no legal duty to fill up all or any of the vacancies as laid down by the Constitution Bench of this Court, after referring to earlier cases in Shankarsan Dash v. Union of India. Para 7 of the said judgment reads thus: (SCC pp. 50-51) "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 notificafion merely amounts to an invitation to qualified candidates to apply for recmitment and on their selection they do not acquire any right to the post. Unless the relevant recmitment mles 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 recmitment 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. Subash Chander Manvaha, Neelima Shangla v. State of Haryana or Jatinder Kumar v. State ofPunjab:' In State ofA.P. & Others v. D.Dastagiri & Others , relied on by Shri Shrivastava, the facts were that the process of recmitment commenced, candidates were interviewed but before publication of the select list, in view of the Govemment decision of introducing total prohibition in the State., the process of recmitment of Excise Constables was cancelled. The result of the interview was not declared. The question asto whether without publication of the final select ' (2003) 5SCC 373 10 ^i^ -Zi- list, selection may be held as complete, the Supreme Court observed as under: 16. <>64...In the absence of publication ofselect list, we are inclined tp think that the selection process was not coniplete. Be that as it may, even if the selection process was complete and assuming that only select list remained to be published, that does not advance the case of the respondents forthe simple reason that even the candidates who are selected and whose names find place in the select list, do not get vested right to claim appointment based on the select list. It was open to the State Govemment totake a policy decision either to have prohibition or not to have prohibition in the State. Certainly, the Govemment had right' to take a policy decision. If pursuant to a policy decision taken to impose prohibition in the State there was no requirement for the recruitment ofConstables in the Excise Department, nobody can insist that they must appoint the candidates as Excise Constables. It is not the case ofthe respondents that there was any mala fides on the part of the appellants in refusing the appointment to the respondents afiter the selection process was complete. The only claim was that the action of the appellants, in not appointing the respondents as Excise Constables, was arbitrary. In the light ofthe facts that we have stated above, when it was open to the Govemment to take a policy decision, we fail to understand as to how the respondents can dub the action of the respondents as arbitrary, particularly., when they did not have any right as such to claim appointments." In Madan Mohan Sharma & Another v. State ofRajasthan & Others6, the Supreme Court held as under: "11....0nce the advertisement had been issued on the basis of the circular obtaining at that particular time, the effect would be that the selection process should continue on the basis of the criteria which were laid down and it cannot be on the basis ofthe criteria which has been made subsequently. 12. As per the circular which was obtaining at the time when the advertisement was issued dated 24-7-1995, the criteria for selection to the post of teacher Grade III was Secondary Examination though this was changed during '(2008) 3 SCC 724 " 11 '..^ the pendency of the advertisement. Subsequent amendment ofthe Rules which was prospective cannot be made retrospective so as to make the selection on the basis of the Rules which were subsequently amended. If this was to be done, then the only course open was to recall Advertisement No. 1 of 1996 and to issue fresh advertisement according to the Rules which had come into force. Secondly,lthis was not done and erroneously the authorities made the amended Rules applicable and proceeded with the selection which resulted into litigation and ultimately Radhey Shyam Sharma succeeded in that litigation and it was held that the selection should be made as per Secondary Examination marks, the criteria which was prevalent at the time when the advertisement was issued." 17. The judgment of Supreme Court in Subha B. Nair & Others v. State of Kerala & Others7, relied on by Shri Shrivastava in support ofhis contention that it is for the employer to fill up the vacancy or not and no interference is warranted by a writ Court in absence ofdiscrimination, arbitration or malafide, is not applicable to the facts ofthe present cases, the final select list was not published and no appointment order was issued to any candidate. 18. \n State of M.P. & Others v. Sanjay. Kumar Pathak & Others8,theSupremeCowt observed as under: "24. In Pitta Naveen Kumar v. Raja Narasaiah Zangiti this Court observed: (SCC p. 273, para 32) ~ "32. The legal position obtaining in this behalfis not in dispute. A candidate does not have any legal right to be appointed. He in terms of Article 16 of the Constitution oflndia 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 mles operate only to the disadvantage 7 (2008) 7 SCC 210 8 (2008) 1 SCC 456 12 of fhe candidates concemed and not otherwise." In a situation of this nature, no appointment could be made by the State in absence of the select list. The State could not substitute itself for the Selection Committee. 25. Furthermore, ordinarily, the wrtt court should not, in absence of any legal right, act on the basis ofsympathy alone." 19. Further, the Supreme Court, in S.S.Balu & Another v. State of Kerala & Others reiterated the ratio laid down m Sanja Kumar Pathak8. 20. Applying the well settled principles of law, as aforestated to the facts ofthe instant cases, wherein the select list was not published after altering the qualification by new Rules, 2007 i.e, after commencement of the selection process. The selection process was abandoned on the ground of enforcement of new Rules, 2007, and as such, initial advertisements inviting applications from the candidates for appointment under the Rules, 1997 were withdrawn and a fresh advertisement was issued for recmitment under new Rules, 2007. This practise camiot be faulted with. The State Govemment and its agency is competent to abandon or discontinue the selection process in such condition, as aforestated. 21. For the reasons and analysis mentioned hereinabove, all the above writ petitions are dismissed. 22. There shall be no order asto costs. Sd/- Satish K. Agnihotri Judge '(2009) 2 SCC 479