1. Heard learned counsel for the petitioners and Sri Utsav Misra holding brief of Sri Gaurav Mehrotra, learned counsel appearing for respondent.
2. By means of the present petition, the petitioners have prayed for a mandamus commanding the respondent to give appointment to the petitioners on Class IV post on the basis of the select list.
3. The case set forth by the petitioners is that the respondent i.e. the District Judge, Hardoi, had issued an advertisement on 05.02.2010 inviting applications for appointment on Group 'C' and Group 'D' posts lying vacant in the judgeship and Fast Tract Courts, Hardoi. The total number of vacancies that were advertised were 31. The petitioners finding themselves eligible for Class IV post as mentioned in Column 3 of the advertisement, a copy of which is Annexure-2 to the petition, applied along with their testimonials. There were 11 vacancies which were notified against Class IV post as would be apparent from Column 3 of the said advertisement. The petitioners qualified in the examination held by the respondent and as per the result dated 06.05.2010, a copy of which has been filed as Annexure-1 to the petition, which was declared for 11 posts, the names of the petitioners find place having roll nos.1373 and 884 (Female) against General category and roll no.1627 against reserved category. However, when the petitioners were not appointed, they submitted various representations to the respondent but to no avail and thus they have approached this Court with the aforesaid relief.
4. Learned counsel for the petitioners contends that once the petitioners were declared selected as per the result issued by the respondent on 06.05.2010 and also fell within the 11 vacancies that had been notified for Class IV posts consequently there was no occasion for the respondent to not appoint the petitioners. It is also contended that even if the vacancy position had undergone a change even then the respondent was obliged to appoint the petitioners taking into consideration the law laid down by this Court in the case of Rajesh Kumar Sharma vs. State of U.P. and others- 2014 (1) UPLBEC 269.
5. On the other hand, learned counsel appearing for the respondent submits that admittedly 11 vacancies against Class IV posts had been notified which have been worked out in the following manner - 4 vacancies were available on 17.12.2009 while 5 vacancies were likely to occur up to 31.12.2010, 1 vacancy had occurred due to death of Class IV employee Sri Jamuna Prasad on 25.01.2010 and one vacancy had occurred due to promotion of one Class IV employee in Class III category. On 07.05.2010 appointment letters were issued against 8 existing vacancies to the candidates whose names were in the select list from serial no.1 to 8 i.e. above the names of the petitioners and all 8 persons joined. The vacancy which occurred due to death of Sri Jamuna Prasad on 25.01.2010 was filled up by appointment of his son Sri Sanjeev Kumar under Dying in Harness Rules as per the orders passed by this Court in Writ Petition No.7473 (SS) of 2010 in re: Sanjeev Kumar vs. District Judge, Hardoi. A copy of the order of appointment has been filed as Annexure CA-1 to the counter affidavit. In the month of June 2010, the Court of Additional Civil Judge (S.D.) and the Court of Chief Judicial Magistrate became vacant and employees working in those Courts were declared surplus. In the month of September 2010, out of 7 working Fast Track Courts 2 officers were transferred leaving 2 Fast Track Courts vacant and thus two Class IV employees working in these Courts were rendered surplus. Information was received from this Court to keep the vacancies unfilled for the adjustment of surplus staff of Fast Track Courts and therefore two employees namely Sri Radhey Shyam Patel and Sri Santosh Kumar working in Fast Track Court were adjusted against remaining two vacancies of the year 2010 in compliance of the orders passed by this Court and thus no vacancy was left vacant and consequently the petitioners could not be appointed. In this regard, the attention of this Court has been drawn towards the orders passed by this Court which have been filed as Annexure CA-2 & 3 to the counter affidavit. It is also contended that subsequent thereto, the Presiding Officer of Court No.5 has been transferred and the Court became vacant and consequently two more Class IV employees have become surplus. Placing reliance on the averments which are contained in paragraph 9 of the counter affidavit, Sri Utsav Misra learned counsel appearing for the respondent contends that sufficient reasons exist with the respondent, as already detailed above, per which the petitioners despite being selected were not appointed. It is contended that it is settled proposition of law that a selected candidate has got no right of appointment and in the present case where the reasons exist with the respondent for not appointing the petitioners and the petitioners also have no indefeasible right for appointment consequently no error has been committed by the respondent in not permitting the petitioner to join despite their selection. In this regard, reliance has been placed upon the judgments of the Hon'ble Supreme Court in the case of Shankarsan Dash vs. Union of India reported in (1991) 3 SCC 47, State of Haryana Vs. Shubhas Chandra reported in (1974) 3 SCC 220, All India SC and ST Association Vs. A. Arthana reported in (2001) 6 SCC 380 as well as recent judgment of the Apex Court in the case of Kerala State Road Transport Corporation and Another Vs. Akhilesh V. in Civil Appeal No. 3346 of 2019 decided on 01.04.2019.
6. Heard learned counsel for the contesting parties and perused the records.
7. From perusal of the pleadings and arguments as raised by learned counsel for the respective parties, it comes out that an advertisement had been issued by the respondent on 05.02.2010 inviting applications for various posts in the judgeship including 11 posts of Class IV employees. Admittedly, the petitioners were declared selected. However, of the select list, 8 persons who were above the petitioners from serial no.1 to 8 were appointed and they all joined in pursuance to their selection. The three vacancies which were existing and which had been advertised have subsequently been filled in with the appointment of one Sri Sanjeev Kumar on compassionate ground in pursuance to the directions issued by this Court in Writ Petition No.7473 (SS) of 2010. The other two vacancies were thereafter filled in from certain employees who were rendered surplus in Fast Tract Courts. Thus, it is apparent that justifiable and justiciable grounds were existing with the respondent per which the petitioners despite having been selected were not appointed.
8. Now the question which arises is as to whether a selected person has any indefeasible right for appointment? The issue is no longer res-integra taking into consideration the law laid down by Hon'ble Apex Court in the case of Sankarsan Dash (supra) wherein the Constitution Bench of the Apex Court has held as under:-
"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 vs. Subhash Chander Marwaha (1973)IILLJ266SC, Neelima Shangla vs. State of Haryana [1986]3SCR785 or Jatendra Kumar vs. State of Punjab AIR1984SC1850 ."
9. Likewise, the Apex Court in the case of Shubhas Chandra (supra) has held as under:-
10. One fails to see how the existence of vacancies gives a legal right to a candidate to be selected for appointment. The examination is for the purpose of showing that a particular candidate is eligible for consideration. The selection for appointment comes later. It is open then to the Government to decide how many appointments shall be made. 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. The true effect of Rule 10 in Part C is that if and when the State Government propose to make appointments of Subordinate Judges the State Government (i) shall not make such appointments by travelling outside the list and (ii) shall make the selection for appointments strictly in the order the candidates have been placed in the list published in the Government Gazette. In the present case neither of these two requirements is infringed by the Government. They have appointed the first seven persons in the list as Subordinate Judges. Apart from these constraints on the power to make the appointments, Rule 10 does not impose any other constraint. There is no constraint that the Government shall make an appointment of a Subordinate Judge either because there are vacancies or because a list of candidates has been prepared and is in existence.
10. The Hon'ble Supreme Court in the case of All India SC and ST Association (supra) has held as under:-
"10. Merely because the names of the candidates were included in the panel indicating 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 Vs. Union of India Para 7 of the said judgment reads thus :-
"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 vs. Subhash Chander Marwaha (1973)IILLJ266SC, Neelima Shangla vs. State of Haryana [1986]3SCR785 or Jatendra Kumar vs. State of Punjab AIR1984SC1850 ."
11. Likewise, the Hon'ble Supreme Court in the case of Akhilesh V. (supra) has held as under:-
"4. The short question arising for consideration in these appeals is whether mere empanelment can justify a mandamus to make appointments because vacancies may exist. Additionally, whether mandamus can be issued to make appointments from the panel on vacancies which may have arisen subsequently due to superannuation etc. during the life of the rank list. The question assumes significance in view of the stand of the Appellant that it did not wish to make any further appointments due to a financial crunch and a skewed bus to passenger ratio, and for which purpose it had also appointed a committee to recommend remedial measures.
5. We have heard the counsel for the parties and opine that the order of the High Court is unsustainable. The cadre strength has rightly been held not to be a relevant consideration. The High Court has erred in issuance of mandamus to fill up a total of 97 vacancies, including those arising subsequently but during the life of the rank list. Vacancies which may have arisen subsequently could not be clubbed with the earlier requisition and necessarily had to be part of another selection process. The law stands settled that mere existence of vacancies or empanelment does not create any indefeasible right to appointment. The employer also has the discretion not to fill up all requisitioned vacancies, but which has to be for valid and germane reasons not afflicted by arbitrariness. The Appellant contends a financial crunch along with a skewed staff/bus ratio which are definitely valid and genuine grounds for not making further appointments. The court cannot substitute its views over that of the Appellant, much less issue a mandamus imposing obligations on the Appellant corporation which it is unable to meet.
6. Suffice to observe from Kulwinder Pal Singh v. State of Punjab, (2016) 6 SCC 532:
12. In Manoj Manu v. Union of India, (2013) 12 SCC 171, it was held that (para 10) merely because the name of a candidate finds place in the select list, it would not give the candidate an indefeasible right to get an appointment as well. It is always open to the Government not to fill up the vacancies, however such decision should not be arbitrary or unreasonable. Once the decision is found to be based on some valid reason, the Court would not issue any mandamus to the Government to fill up the vacancies...."
12. Thus, taking into consideration the aforesaid dictum of law as laid down by Hon'ble Apex Court, it is apparent that selected persons have no indefeasible right of appointment. In the present case the persons who were higher in the select list i.e. from serial no.1 to 8 were appointed by the respondent. When the turn of the petitioners came for being appointed, three vacancies which were lying vacant were filled in by the respondent from surplus employees of the Fast Track Courts and by making appointment on compassionate ground in pursuance to the directions issued by this Court consequently, sufficient reasons existed with the respondent for not appointing the petitioners. Thus, no fault can be found in the action of the respondent for not appointing the petitioners despite their selection.
13. So far as the reliance having been placed on the judgment of this Court in the case of Rajesh Kumar Sharma (supra) is concerned, in the said case no reasons were forthcoming from the respondents as to why the selected person was not appointed. The Court also took into consideration the fact that a vacancy had arisen subsequent thereto which also remained unfilled for a long period of three years and the petitioner despite being selected was not appointed. The same is not the case inasmuch as it clearly comes out from the counter affidavit that all the vacancies which were existing with the respondent were filled in, as already detailed above. Thus, the judgment in the case of Rajesh Kumar Sharma (supra) would not be applicable in the facts of the present case.
14. Accordingly, taking into consideration the aforesaid discussion no case for interference is made out. The writ petition is dismissed.
Order Date :- 27.8.2019 A. Katiyar