1 WP-9446 PGK IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Writ Petition No.9446 of 2010 Shuddodhona Ashru Morey & ors. ... Petitioners v/s. The Registrar, High Court Bombay & ors. ... Respondents Mr.Atul Mahajan for Petitioners. Mr.S.K. Talsania i/by Sanjay Udeshi & Co. for Res.No.1. Mr.M.S. Topkar for Res.No.9. ----- CORAM : J.P. DEVADHAR & SMT.ROSHAN DALVI, JJ. DATED : 5th April, 2011 ORAL JUDGMENT : (Per Roshan Dalvi, J.) 1.Rule. Returnable forthwith. 2. The Petitioners are practising Advocates who applied for the post of a Judge, Labour Court pursuant to an advertisement issued by Respondent No.1 on 26th March 2007 inviting applications for 27 posts. The Petitioners underwent a written test and were called for viva voce. Thereafter the condition for qualifying in the viva voce test for securing a minimum of 40% marks was required to be added by Respondent No.1. Except for two selected candidates, including one of 2 WP-9446 the Petitioners, the other Petitioners refused to have any additional condition in the selection process. The entire selection process initiated until then came to be cancelled by Respondent No.1 and a fresh advertisement came to be issued containing the aforesaid condition for qualifying in the viva voce test. 3.The Petitioners have challenged the cancellation of the selection process as also the initiation of the fresh selection process. The Petitioners claim a writ in the nature of certiorari to produce the records as well as to quash the notice of Respondent No.1 cancelling the selection process and issuing the fresh advertisement. The Petitioners claim the writ of mandamus directing Respondent No.1 to complete the selection process pursuant to the advertisement under which the Petitioners applied for the above posts and also for appointment of the Petitioners to the posts for which they applied. 4. The advertisement dated 26th March 2007 issued by Respondent No.1, under which the Petitioners applied, set out the minimum qualifying marks for the initial written test being 50% of the total 200 marks in the paper of two and half hours duration. The candidates were required to appear for their written test and for 3 WP-9446 interview, if called for. No minimum qualifying marks for the viva voce test/interview were mentioned in the advertisement. 5. Out of more than 200 candidates who applied, 24 candidates were declared successful in the written test held on 12th August 2007. They were called for interview. 23 candidates appeared for interview. Aside from the Petitioners and Respondent Nos.2 to 11, there were two other candidates who have been shown as selected for interview. 6. The Petitioners appeared for the viva voce test on 29th and 30th May 2008. The results of the test were not declared. Instead the additional condition of 40% qualifying marks for viva voce test was sought to be added upon the Petitioners giving consent which the Petitioners did not give. Consequently, the selection process was not completed; it was cancelled and the fresh advertisement was issued. 7.The Petitioners challenged the non-completion of the process and issue of the fresh advertisement by a Petition under Article 32 of the Constitution of India in the Supreme Court. The Petitioners did not obtain any interim reliefs therein and have been directed to file this Petition. 4 WP-9446 8. It is the case of the Petitioners that the selection process could not have been cancelled once it was initiated by the advertisement dated 26th March 2007 without concluding it on the ground that fresh advertisement has been issued for the same vacant posts. The Petitioners also contend that no additional condition could be put in the later advertisement which was not mentioned in the earlier advertisement. The Petitioners claim that the selection process was complete and the result was to be declared. Cancellation of the selection process was arbitrary, mala fide, illegal and discriminatory and is hit by the principles of legitimate expectation of the Petitioners. The Petitioners claim that for 29 vacant posts, which were advertised, only 24 candidates were selected in the written test and after their viva voce test, they had the right to be appointed since the number of candidates was lesser than the number of vacant posts. 9.The only aspect, which has to be considered, is whether the Petitioners have any vested legal right which is crystallised to give them a right of appointment and if so, when. It must be appreciated that mere passing the written test would not qualify the Petitioners for appointment. Consequently, mere submission to the viva 5 WP-9446 voce test also would not similarly qualify them for appointment. It may be mentioned that after the viva voce test also the Petitioners would be required to clear their criminal record as well as their medical tests. The Petitioners would qualify for appointment only thereafter. It was in the midst of this selection process, which was yet incomplete, that one of the conditions was sought to be added by consent of the Petitioners and since that could not be done, the process was cancelled allowing the Petitioners to reapply, if they chose. At that stage, no legal right came to be vested in the Petitioners for appointment to the posts advertised. 10.The Petitioners contend that the additional qualification could not have been imposed as held in the case of Himani Malhotra vs. High Court of Delhi, (2008) 7 SCC 11 and in the case of K. Manjusree vs. State of Andhra Pradesh & anr., (2008) 3 SCC 512. It is true that no additional condition could be imposed in the same selection process. The Petitioners consent was sought and since the Petitioners did not consent, the process was scrapped and fresh advertisement came to be issued. The law laid down by the Supreme Court in the aforesaid cases could be tested by seeing that if in this case the additional condition was imposed, the Petitioners would have challenged the imposition and 6 WP-9446 sought cancellation of the selection process. That has been avoided by Respondent No.1 itself by cancelling the selection process. Once the selection process is cancelled and a fresh advertisement is issued, Respondent No.1 has fully complied with the mandate in the aforesaid judgments. When the selection process was incomplete, no right would vest in the Petitioners and hence before its completion, it can be scarpped. Prayer (e) of the Petition praying for writ of mandamus to complete the selection process itself shows that process was incomplete and the legal right of the Petitioners was not crystallised. 11.The Petitioners further contend that Respondent No.1 gave over much importance to the viva voce test which is contrary to Rules 12(3) and (4) of the Maharashtra Judicial Service Rules, 2008 (the Rules) framed under Articles 234 read with 309 of the Constitution of India, governing District Judges, Senior Judges, Junior Judges and the Judicial Magistrates First Class, the applicability of which the Petitioners claim. Rule 12(3) of the Rules sets out that the object of viva voce test was to judge the mental alertness, knowledge of law, logical exposition, balance of judgment, skills, attitude, ethics, power of assimilation, power of communication, character, intellectual depth and the like of the candidate. Rule 12(4) of the Rules sets out 7 WP-9446 that the mode of evaluating the performance is required to be specified in numerical marks obtained in written and oral examinations. These Rules show that the viva voce test is a strong requirement of the selection process. It also shows that the marks are required to be given for the written as well as oral tests. The viva voce test was held as a part of the selection process. Minimum number of marks, however, were not specified as was for the written test. The contention of the Petitioners that because the candidates selected for the viva voce test were less than the vacant posts, each of them should have been selected and appointed to the said post would nullify the viva voce test altogether. Consequently, all the aforesaid traits of the candidates would not be assessed. It need hardly be stated that each of these traits are strong requirements in making of a sound appointment. The viva voce test was, therefore, an essential part of the selection process. It is, however, not only one of the two requirements of the selection process. The legal right of the Petitioners, therefore, would not be vested in them until the entire process was completed and pending its completion, it could be recalled. 12.The relevant meaning of the term vest in Black s Law Dictionary 8th Edition at page 1594 is: 8 WP-9446 To give (a person) an immediate, fixed right of present or future enjoyment. Vested: Having become a completed, consummated right for present or future enjoyment; not contingent; unconditional; absolute <a vested interest in the estate>. Further the meaning of vested right is given in the aforesaid Dictionary at page 1349 thus: Vested right. A right that so completely and definitely belongs to a person that it cannot be impaired or taken away without the person s consent. 13.Referring to the earlier case of remedy of infringement of a legal right of Marbury vs. Madison in the USA, the concept of the remedy for the specific legal right came to be enunciated in the case of Rattan Singh vs. Baliram, AIR 1954 Punjab & Haryana 47 thus: 4. .....The Courts are always at pains to give effect to this maxim and to supply an adequate remedy, if and when they are satisfied that a legal right has been invaded and broken. In the celebrated case of -- Marbury vs. Madison , (1603) 2 Law Ed. 60(A), it was pointed out that the essence of civil liberty consists of the right of every individual to claim protection of the laws whenever he receives an injury. 5. But a person s right to sue can be established if, and only if, the following 9 WP-9446 conditions concur. It is essential, in the first place, that there should be a good cause of action, that is the fact or facts which give rise to the right of remedy. A cause of action arises when a legal right vests in the plaintiff to do a certain thing, when a corresponding legal duty devolves on the defendant to permit that thing being done and when by means of a wrongful act or omission of the defendant, the plaintiff is prevented from exercising his right. The cause of action consists of three factors viz., (1) the plaintiff s primary right, (2) the defendant s corresponding primary duty, and (3) the wrongful act or omission of the defendant by which the primary right and duty have been violated. To put in a slightly different language, a cause of action cannot exist without the concurrence of a right, a duty and a default. The law presumes that it is the duty of a person to refrain from indulging in tortious or illegal acts which violate the legal rights of others ..... 7.The third essential condition to the validity of an action is that the right to bring the suit must vest in the person instituting it. (Emphasis supplied) 14.In this case the Petitioners have failed to show at what point in time their legal right got vested in them or crystallised. Hence a case for mandamus has not been shown. 15.In the case of Ajay B. Chate & anr. vs. High Court of 10 WP-9446 Judicature at Bombay & anr. in Writ Petition No.6651 of 2010, an identical issue came up for consideration before a Division Bench of this Court. The case of Himani Malhotra (supra) was cited and distinguished. A fresh selection process was to be started upon recall of the earlier process undertaken. In fact, the notification of appointment of four candidates recommended by the High Court to the Government for appointment itself was sought to be cancelled. The challenge to the cancellation of the earlier process was rejected on the ground that upon the Supreme Court judgment in the case of Himani Malhotra (supra), the selection process could not be continued. In that case also there were 11 candidates who qualified in the written test for 12 vacancies. They performed poorly. It was held that the candidates had no right of appointment after their interview even if their names are included in the select list and hence they were not entitled to the writ of mandamus by then. Relying upon the case of Dr.Rai Shivendra Bahadur vs. Governing Body of the Nalanda College, Bihar Sharif and ors. AIR 1962 SC 1210, it was held that the Petitioner must show his legal right and the Respondent s legal duty. In this case, it would be the legal right to appointment. That right must be crystallised or vested in the Petitioner. It was also observed relying upon the judgment in the case of S.S. Balu & anr. vs. State of Kerala & ors., 11 WP-9446 (2009) 2 SCC 479 that the Respondent would be under no obligation or legal duty to fill up all the vacancies and consequently, it was observed that even if the candidate s name appears in the select list, it would not entitle her/him to a writ of mandamus and hence no exception could be taken to the cancellation of the selection process and initiation of the fresh process of selection as no vested rights of the Petitioners are taken away or denied. This case is identical. We are bound by and agree with the reasoning in the case of Ajay B. Chate (supra). 16.Consequently, the Writ Petition stands dismissed. Rule is discharged accordingly. No order as to costs. (SMT.ROSHAN DALVI, J.) (J.P. DEVADHAR, J.)