IN THE HIGH COURT QF CHHATTISGARH AT BILASPUR W.P.fsl N0. ^Qijf QF 2009 PETITIONER RESPONDENTS .^"' ^01 ^ ^;'^- ^•">^ .•^•V'".A^^ ^yy' ^^ ^^'.^•" VERSUS 1. ^ >•' 2- ^" 3. Ragini Kumari, D/o Shri RN^Prasav, Aged about 43 years, R/o House No.15, Srishti Park, Avantiyihar, Sector- 2, Raipur, Distt. Raipur (CG) State of Chhattisgarh, Through Secretary, Department of Higher Education, DKS Bhawan, Mantralaya, Raipur, Distt. Raipur (CG) Commissioner, Directorate of Higher Education, Govt. Sdence College Campus, RaipurDistt. Raipur (CG) Principal^ Shaskiya Naveen Kanya Mahavidyalaya, Bilaspur, Distt. Bilaspur (CG) PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA 4^ ^ ^ HIGH COURT OF CHHATTISGARH AT BILASPUR WRH PETITION f8) No. 4041 of2009 PETITIONER : RagimKumari. VER8US RE8PONDENT8 : StateofCliliattisgarh&Others. PETITION UNDER ARTICLE226 OF THE CONSTITUnON OF INDIA SB: Hon'ble Shri Satish K. Agnihotri, J. Present: Smt. Fouzia Mirza, Advocate fbr the petitioner. Shri Shashaitk Thakur, Panel La^yer for the State/respoiidents. ORDER (ORAL) (Passed on 30th day of April, 2010) 1. The petitioner seeks a direction to the respondent authorities to appoint him on the post of Assistant Professor (Psychology) for the acadeniic session 2009-10 pursuant to the order dated 10.10.2008 (.Aimexure P/l). 2. The facts, in brief, asprqjected by the petitioner is that llie petitioner applied forthe post of^sistant Professor, pursuant to the advertisement issued in the month of July, 2007. The naiiie ofthe petitioner found place in the select list but she could not be appointed as all the posts were already filled up. Tliereafter, no fresh applications were called but the vacant posts were to be fllled up by the candidates whose names ah'eady appeared in the appointment list ofprevious year who could not get appomtment. Vide order dated 10.10.2008 (Amiexure P/l), the Principal, Govemment Navin Girls College, Bilaspur was informed that the petitioner has been selected fbr appointment on contract basis for the sessions 2008-2009 and further it was directed to iiifonii the petitioner regarding the saiiie. However, no conimunication was received by the petitioner either fi'om the respondent No. 2 or respondent No. 3. Later on, the petitioner came to know that one Gladis Simmi Miiij has joined the postof Assistant Professor (Psycholog^r) on 01.10.2008 whichis 1 4" ^" ^ 3. evident from letter dated 7.11.2008 written by the respondent No. 3 to the respondent No. 2 (.Aimexure P/2). The petitioner vwote a letter to the respondent No. 3 with regard to her appointment on 10.12.2008 (^mexure P/3). In tum, the respondent No. 2 itifomied the petitioner with regard to non-availability of postof Assistant Professor, on contractual basis even thou^i, there was a post vacant at Govt. J. Yoganandaii Chhattisgarh College, Raipur. Thereafter, on 21.03.2009 (.^nnexure P/4), the petitioner moved an application before His Excellency the Govemor of the State with regard to her non appointment wherein the Govemor directed the Secretary, Govemment of Clihattisgarh to take appropriate action. On 18.05.2009 (Aimexiire P/6), again an advertisement was issued for appointment of Assistant Professors for the acadeimc session 2009-2010 wherein it was mentioned that the persons who were appointed for the session 2008- 2009, need not make fresh application. But for the said session also, the petitioner was not given appointment. Being aggrieved, the petitioner made various representations to the respondent-authorities, but all in vain. Thus.this petition. Smt. Mirza, leamed counsel appearing for the petitioner submits that inspite of selection of tlie petitioner, 021 Gladls Siiiinii Minj was given appointment at Govt. Girls College, Bilaspur. Further, even after mtimating the autliorities that there was a vacant post m Go\l. J. Yoganandan Chhattisgarh College Raipur, the petitioner has not been given appointment When the name ofthe petitioner was iii the select list for the academic session 2008-2009, she should have been given appointment at least fbr the next session i.e. 2009-2010 which was a clear condition in flie advertisement dated 18.05.2009 (Annexiire P/6). ^F-ms,, :! 1 The act ofthe respondent authorities are arbitrary and malafide and is violativeofArticle 14, 15,19(l)(g) aiid 21 oftheConstitutionofIndia. Qn the other hand, Shri Shashank Thakur, leamed Panel Lsiwyer appearing for the State/respondent subsiiits that admittedly, the name of the petitioner foimd place in the select list but since there was no vacant post, she could not be given appointment. Thereafter, the contract period ofthe candidates who were appointed for the session 2008-2009 was extended by the State Govemment for the year 2009-2010, thus, no appointment could be givento the petitioner for the next session also. There is no rnal^ fide, illegality or arbitrarmess on the part of the respondents. Heard leamed counsel appearing fbr the parties, pemsed the pleadings and documents appended thereto. On pemsal ofthe retum filed by the State/respondents, it is clear tliat State/respondents have not explained asto how Gladis Simmi Minj was appomted when there was a clear dii'ection by the respondent No, 2 to the respondent No. 3 to iiitimate the petitioner fbr herjoimngatGovt. GMs College, Bilaspur. Further, it is also not clear asto whether the respondent No. 3 has sent any comiiiunication to the petitioner for joming at Govt. Girls College, Bilaspur. However, on pemsal ofthe documents, it appears that before issuance of letter dated 10.10.2008 (.4miexure P/l), Gladis Sinmii Mmj had joined the post of Assistant Professor at Govt. Girls College, Bilaspur on 01.10.2008 itself. The petitioner has also not filed a copy ofthe advertisement pursuant to which she applied for tlie appointment onthe post ofAssistant Professor for the session 2008-2009 neither has pleaded an^thing in regardto the fact asto what were the torms aiid conditions of appoiritment. The :.f-41:"1^ 1 •ol.,-J: ^^K^' 8. 9. f' .4 petitioner has also not filed the select/merit list so asto indicate her position in the select list. It is well settled prmciple oflawthat a candidate, having its name in the select list or panel Hst has no indefeasible right to appointment (See : Union oflndia v. Kali Das Batish1). However, the stand ofthe State/respondents is not clear as there is no specitic averment in the retiim asto why the petitioner Was denied appointment. In Union of India & Others v» E.G.Nambudiri, the Supreme Court obsen'ed as under: "7. It is not con-ect to say that ifa number of vacancies are notified for appointment and adequate number of candidates are found fit, the successflil 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 ofthe vacancies. However, it does not mean that the State has the license of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. Aiid if the vacancies or any ofthem 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, Neelima Shcmgla v. Staie of Harycina or Jatendra Kumar v. State of Pttnjab" ' (2006) 1 SCC 779 2 (1991) 3 SCC 38 10. There is no dispute that before the appointnient ofthe petitioner on contmct basis on the post of Assistant Professor for academic year 2008-09, one Gladis Simmi Minj has joined the post. Since no select list or any other document has been filed to establish the fact that the name ofthe petitioner was in the select list and she was senior in the select list as compared with Gladis Simmi Minj, it is not possible to come to any conclusion asto whether appointment of Gladis Simmi Minj was proper or not. Further, Gladis Simmi Minj has not been impleaded as parfry-respondent. Thus, her appointmentcannot be examined and quashed in any case. 11. Reliance of the petitioner on the advertisement dated 18.5.2009 (Aimexure-P/6) that it was not necessary to make fresh application, is not bome out from any clause ofthe advertisement. The advertisement was for the purpose of appointment on contract basis for academic session 2009-10. 12. Looking from all angles, the period of contract appointment for academic year 2008-09 has come to an end. Even the subsequenf appointment as per the advertisement was only up to 30.4.2010, the issue involved herein has become academic. 13. It is well settled prmciple of law that if the matter has become iiifructuous on the facts ofthe case and question remains to be decided for academic purpose, it is not necessary to examine the case, as observ7edby Supreme Court in several matters. (SQQ Basheshar Nath v. 1 llu.j.Anm/ "^ 6 Commissioner of Income Tax, Delhi and Rci/asthan and anothe^, Dhartipakar Madan LalAgrawal v. Rajiv Gandhi4, Secretary, Ministry of Infbrmation & Boradcasting, Govt of India and others v. Cricket Association of Bengal and pthers , StMte of Manipur cmd others v. Chcmdam Manihar Singh6, Amit Das v. State ofBihar7 and Prakash Singh Badal and another v. State ofPunjab and others . 14. For vvant of sufficient materials, the question involved herein has become academic and the same cannot be considered and decided in the instant petition. 15. Thus, the writ petition is dismissed leaving question oflaw open for consideration in appropriate cases. 16. No order asto costs. Sd/- Satish K. Agnihotri Judge 3AIRI959SC149 4 1987 (Supp) SCC 93 51995 (2) SCC 161 6199.9 (7) SCC 503 7 2001 (7) SCC 657 S2007(1)SCC1