JUDGMENT R.B. Misra, J.
Heard Mrs. Durga Tiwari, learned Counsel for the petitioner, Sri S.D. Kautilya, learned Counsel for Nagar Nigam, Allahabad, and learned Standing Counsel for the State respondents.
1. In this petition prayer has been made for issuance of writ of mandamus directing the Mukhya Nagar Adhikari, Nagar Nigam Allahabad and Upper Mukhya Nagar, Adhikari, Nagar Nigam Allahabad, respondent Nos. 2 and 3; respectively, to declare the result of interview held on 17.06.1995 for the post of Safai Nayak and also for giving Appointment, if the petitioner is found Successful in the above result.
2. The facts of the case as pleaded are that the petitioners date of birth is 6th July, 1965. Five posts were to be fulfilled, out of which two posts were to be fulfilled by departmental promotion, one was reserved for backward class; one post was reserved for Schedule caste and one post was reserved for general category. For the existing vacancies of Safai Nayak advertisement was published and written examination was conducted on 13.06.1995, in which 115 candidates appeared and in the result 43 candidates were declared successful including the petitioner, who participated in the, interview held on 17.06.1995. According to the petitioner, he had done satisfactory performance in the written examination and also in the interview and had every hope of being successful, however, the respondents without any rhyme or reason are frustrating the selection process by not declaring the outcome of the selection for the above post.
3. Counter affidavit filed on behalf of respondents reveals that certain complaints were received to the Mayor of Nagar Nigam and by his consultation the Upper Mukhya Adhikari has cancelled the incomplete selection on 10.11.1995, and such cancellation was Subsequently accorded by Mukhya Nagar Adhikari on 18.11.1995.
4. It has been submitted on behalf of petitioner that it has not been mentioned at all by the respondents about the nature of the complaint and against whom there was complaint and who was the complainant, and the cancellation of selection is not based on any material. According to the petitioner, no indication of cancellation of selection of Safai Nayak has ever been notified, whereas, on the other and large number of vacancies in the substantive posts of Safai Nayak are still in existence. In these circumstances, without any | basis and disclosure of complaint, without any inquiry or probe the selection to the post of Safai-Nayak is suppressed, which is illegal.
5. By order dated 06.11.2003 of this Court even Municipal Commissioner, Nagar Nigam, Allahabad was summoned in the Court in order to know the background of cancellation of the selection in question. In view of the earlier order of this Court dated 14.01.2003 information was sought from the respondent Nagar Nigam about the fund being allocated for cleanliness/Safai, mode and modalities of scheme of selection of employees for cleanliness, garbage, water affluent. Subsequently, on 04.12.2003 Municipal Commissioner Nagar Nigam, Allahabad was summoned along with the original records to know the background of selection of cancellation and process of selection. In compliance thereto Municipal Commissioner appeared in the Court and indicated that since the records were kept for long time with the former Mukhya Nagar Adhikari and were handed over to the office at very late stage, therefore, full documents are not available and many of the original documents are missing. The facts revealing from the documents indicated that the selection was not finalized and in respect of comments dated 18.11.1996 of the then Upper Mukhya Nagar Adhikari the said selection in question of Safai Nayak was to be cancelled and as such, the same was cancelled. At subsequent stage a detail affidavit was filed through Municipal Commissioner/ Mukhya Nagar Adhikari, which has given the details of fund, assistance, amount being spent on Safai workers and in respect of funds being utilized in different heads. It has also been indicated through the counter affidavit that large number of vacancies are available, however, after cancellation of the selection in question no subsequent selection to the post of Safai Nayak was ever held. The testing of genuineness of allocation and utilization of funds in different heads is not issue in question to be adjudicated upon, but at present only it is to be said that keeping in view the fund the peoples are expecting many more things from Nagar Nigam and their workers, specifically in respect of cleanliness of roads, road sides, drainage, garbage and water affluent, however, this Court is only expressing a note of regret that people of the city as well as those, who are concerned and accountable or deployed for cleanliness, are not serving with true spirit to clean the city.
6. Rejoinder affidavit has been filed with an attempt to controvert the stand taken by the respondents with reiterating that the cancellation of selection in question is without any rhyme or reason or basis when large number of vacancies and posts are available. (7) On behalf of the petitioner it was argued that in 1995 Supp (2) S.C.C.- 230 (R.S. Mittal v. Union of India], where the person after being selected and put in the panel of the selected candidates was not to be denied the appointment without a proper reason however, in peculiar facts and circumstances relief was refused by the Supreme Court by observing in para 10 as below:-
"10. Although a person on the select panel has no vested right to be appointed to the post for, which he has been selected, the appointing authority cannot Ignore the select panel or on its whims decline to make the appointment When a person has been selected by the Selection Board and there is a vacancy which can be offered to him, keeping In view his merit position, then, ordinarily, there is no justification to ignore him for appointment.' There has to be a justifiable reason to decline to appoint a person who is on the select panel. In the present case, there has been a mere inaction on the part of the Government. No reason whatsoever, not to talk of a justifiable reason, was given as to why the appointments were not offered to the candidates expeditiously and in accordance with law. The appointment should have been offered to the candidate at Sr.No. 1 of the select list within a reasonable time of availability of the vacancy and thereafter to the next candidate. The Central Government's approach in this case was wholly unjustified. "
8. It was also argued on behalf of the petitioners that in (2000) 9 SCC- 283 (Munna Roy v. Union of India and Ors. ), the Supreme Court after acknowledging that mere inclusion in select list does not confer any right to the Selectee and mandamus could not be issued but the Court could, interfere when an administrative authority took a decision on erroneous reasons namely dubious method was suspected in the selection inasmuch as the candidate was a graduate, whereas, the minimum qualification for selection was matriculation and when the reason was described as arbitrary, irrational and not germane. In those circumstances the decision to cancel the panel on this score could be set aside. In view of the observations made by the Supreme Court in R.S. Mittal (supra) as well as in Munna Roy (supra) the action of respondent in not declaring the result of selection in question and subsequently giving appointment to the petitioners is arbitrary, inaction, discriminatory as the same are in derogation to the spirit of Article 14 of the Constitution, as contended on behalf of the petitioners.
9. In (2002) 4 SCC-726 (Vinodan T. and Ors. v. University of Calicut and Ors. ) the Supreme Court has held that the appointments to the vacancies must be made in accordance with law if any, and the appointing authority can not scrap the panel of select list during the period of its validity except for well-founded reasons. It also observed in para 14 as below:-
"14. The principle that persons merely selected for a post do not thereby acquire a right to be appointed to such post is well established by judicial precedent. Even if vacancies exist, it is open to the authority concerned to decide how many appointments should be made."
10. In (S. Renuka and Ors. v. State of U.P. and Anr. ) the Supreme Court while acknowledging the decision made in above two cases R.S. Mittal (supra) and Munna Roy (supra) has however held that no right accrues to a person merely because a person is selected and his or her name is put on a panel and the candidates have no right to claim the appointment.
11. In (2003) 2 UPLBEC-1697 (State of Andhra Pradesh and Ors. v. D. Dastagiri and Ors. ) the Supreme Court has taken the similar view and has held that no vested right accrue to the candidates to be, appointed even if selection process was completed and the Supreme Court has observed in para 4 as below:-
"4. There is serious dispute as to the completion of selection process. According to the appellants, the selection process was not complete. No record has been placed before us to show that the selection process was complete, but, it is not disputed that the select list was not published. In paragraph 16 of the counter affidavit, referred above, the respondents themselves had admitted that the selection process was cancelled at the last stage. In the absence of publication of select list, we are inclined to think that the selection process was not complete. Be that as it may, even if the selection process was complete and assuming that only select list was remained to be published, that does not, advance the case of the respondents for the 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 Government to take a policy decision either to have prohibition or not to have prohibition in the State. Certainly, the Government 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 of Constables in the Excise Department/ nobody can insist that they must appoint candidates as Excise Constables. It is not the case of the respondents that there \was any mala fide on the part of the appellants in refusing the appointment to the respondents after the selection process was complete. The only claim was that the action of the appellants, in the appointing the respondents as Excise Constables, was arbitrary. In the light of the facts that we have stated above, when it was open to the Government to take a policy decision, we fail to understand as to how the respondent can dub the action of the respondents as arbitrary, particularly, when they did not nave any right as such to claim appointments. In the absence of selection and publication of select list, mere concession or submission made by the learned Government Pleader on behalf of the appellant-State cannot improve the case, of the respondents. Similarly, such submission cannot confer right on the respondents, which they otherwise did not have."
12. A person has a right only to be considered being eligible as per the Rules for employment. He can raise the grievance provided a person having lesser merit in the same, category is offered appointment.
13. Mere inclusion of the name of a candidate in the select list does not confer any right of appointment [vide Shanker Sen Das v. Union of India and Ors. ; Asha Kaul v. State of Jammu and Kashmir, ; Union of India and Ors. v. S.S. Uppal, 1996 SC 2340; Hanuman Prasad v. Union of India and Ors., ; Bihar Public Service Commission v. State of Bihar, AIR 1998 SC 2280; Syndicate Bank and Ors. v. Shankar Paul and Ors., AIR 1977 SC 3091; and Vice Chancellor University of Allahabad v. Dr Anand Prakash Mishra and Ors. ].
14. As there is no enforceable right to appointment, mandamus cannot be issued to the respondents to appoint petitioner (vide Punjab S.E.B. v. Seema, 1999 SCC (S/S) 629).
15. The Supreme Court in Union of India and Ors. v. Ishwar Singh Khatri and Ors., 1992 Suppl. (3) SCC 84, has held that selected candidates have right to appointment only against vacancies notified" and that too during the life of the select list as the panel of selected candidates cannot be valid for indefinite period. Moreover, empanelled candidates "in any event cannot have a right against future vacancies. In State of Bihar v. Secretariat, Assistant S.E. Union and Ors. , the Supreme Court has held that "a person who is selected does not, on account of being empanelled alone, acquire any indefeasible right of appointment." Empanelment is at the best a condition of eligibility for purposes of appointment, and by itself does not amount to selection or create a vested right to the appointed unless relevant service rules provides to the contrary.
16. In Surinder Singh v. State of Punjab, , the Supreme Court observed as under:-
"....... If the waiting list in one examination was to operate as infinite stock for power, there is danger that the State may resort to the device of not holding, the examination for years together and pick-up candidates from the waiting list as and when required. The Constitutional discipline requires that improper exercise of power which may result in creating a vested interest and perpetuating the waiting list for the candidates of one examination at the cost of entire set of fresh candidates either from the open or even from service.... Exercise of such power (to requisition the post) has to be tested on the touch-stone of reasonableness......"
17. It is settled legal proposition that no relief can be granted to the candidate if he approaches the Court after expiry of the Select List. (Vide J Ashok Kumar v. State of Andhra Pradesh and Ors., ; State of Bihar and Ors. v. Mohd. Kalimuddin, 1996 SC 1145; State of Uttar Pradesh v. Harish Chandra, ; and State of U.P. and Ors. v. Ram Swarup Saroj, ). It has been held therein that if the selection process is over, select list had expired and appointments had been made, no relief can be granted by the court at a belated stage.
However, in Purshottam v. Chairman, Maharashtra State Electricity Board and Anr., , the Supreme Court has held as under:-
"..The right of the appellant to be appointed against the post to which he has been selected, cannot be taken away on the pretext that the said panel, in the meanwhile, expired and the posts had already been filled up by somebody else. Usurpation of post by somebody else is not on account of any fault on the part of the appellant but on the erroneous decision of the employer himself. In that view of the matter, appellant's right to be appointed on the post has been illegally taken away by the employer".
The Supreme Court held that in such a situation the party should be given the relief. The aforesaid judgment had been delivered by a Bench consisting of two Hon'ble Judges of the Supreme Court and that too without taking note of the judgments referred to hereinabove.
18. A Bench of Three Hon'ble Judges of the Supreme Court, in Sushma Suri v. Government of National Capital of Delhi, , dealing with a case wherein the Court has been approached at the stage when the process of selection had started but by the time the matter was decided, the selection process stood concluded and the appointments had been made, observed as under:
"However, we are not in a position to give any relief to the appellant before us now because when she commenced the litigation, the recruitment process was still going on and it had gone too far ahead. In fact, the same has been completed and selected candidates had already been appointed and they had reported for duty in different places and they are not impleaded as parties in these proceedings, it would not be proper to upset such appointment.
19. There can be no dispute that wherever there is a conflict in two judgments of the Court, the judgment of the larger Bench would prevail. [Vide Rameshwar Shaw v. Distt. Magistrate Burdwan and Anr., AIR 1964 SC 335; State of U.P. and Ors. v. Rahi Chandra Trivedi, ; N. Meera Rahi v. Govt of Tamil Nadu and Anr. ; N.S. Giri v. Corporation of City of Manglore and Ors., ; Coir Board Ernakulam and Anr. v. Indira Devai P.S. and Ors., ; Sub Inspector Roop Lal and Anr. v. Lt. Governor Delhi and Ors., ; Lily Thomas and Ors. v. Union of India and Ors., ; and S.H. Rangappa v. State of Karnataka and Ors., .
Thus, in view of the above observations it could safely be concluded that in view of the larger Bench judgements no appointment can be made after expiry of the Select List.
20. The Court has no competence to issue a direction contrary to law, (vide Union of India and Anr. v. Kirloskar Pneumatic Co. Ltd., ; State of U.P. and Ors. v. Harish Chandra and Ors., ; and Vice Chancellor, University of Allahabad and Ors. v. Dr. Anand Prakash Mishra and Ors., ].
21. In State of Punjab and Ors. v. Renuka Singla and Ors., , dealing with a similar situation, the Supreme Court has observed as under:-
"We fail to appreciate as to how the High Court or this Court can be generous or liberal in issuing such directions which in substance amount to directing the authorities concerned to violate their own statutory rules and regulations."
22. Similarly, in Karnataka State Road Transport Corporation v. Ashrafulla Khan and Ors., , the Supreme Court has held as under:-
" The High Court under Article 226 of the Constitution is required to enforce rule of law and not pass, order or direction which is contrary to what has been injected by law."
23. Similar view has also been taken by this Court in (2004) UPLBEC 588 (Satyendra Dwivedi and Anr. v. Administrator, Nagar Mahapalika, Allahabad and Anr. ), where the Nagar Mahapalika denied the appointment in reference to selection to the post of Naib Moharrir in the garb of the policy decision taken that only few persons were to be appointed and the writ petitioners, thus, were denied appointment, and this Court declined to issue writ of mandamus for declaration of list for appointment to the writ petitioners in view of the settled law that mere selection or inclsion in the select list cannot give vested right of appointment and denial of appointment cars not be declared illegal or arbitrary.
24. I have heard learned Counsels for the parties. Since the respondents before finalizing the selection in question themselves have come forward saying that in reference to the complaint though not elaborately disclosed have cancelled the selection. This Court is hesitant to interfere in the decision and action of the respondents in cancelling the selection in question more so when such decision has been taken on the basis of the documents as well as on the subjective satisfaction of the respondent authorities. In view of the above observations, this Court can not issue any direction to the respondents to pronounce the result and give appointment, therefore, the writ petition is dismissed.