Heard Sri H.S.Jain, learned counsel for the petitioner for quite some time. A very emphatic and passionate pleading has been raised by Sri Jain in his usual manner.
The petitioner has prayed for quashing of the impugned order dated 9.10.2007 passed by the opposite party No.2 as contained in Annexure -2 to the writ petition. Further he has prayed that the result of the examination be declared which was held in pursuance of the advertisement dated 10.8.1998. The argument of Sri Jain is that the petitioner had applied in pursuance of the advertisement and had taken examination but the result was not declared. The petitioner filed writ petition bearing No.6267 (s/S) of 2001. The Court without making any observation and expressing any opinion on the merits of the case directed the opposite parties to decide the representation of the petitioner. The impugned order is a result of the decision taken by the opposite parties in pursuance of the High Court's orders.
Counter affidavit has already been filed to which rejoinder affidavit along with supplementary affidavit has been filed, which is taken on record. Sri Jain has challenged the statement made in the counter affidavit as well as the reasons given by the opposite parties in annexure No.2 to the writ petition. In the impugned order dated 9.10.1007 it has been stated that an advertisement was made on 10.8.1998. Several persons had applied in pursuance of this advertisement. Written examination was held on 13.12.1998. A type test was also held on 25.2.1999. But during this period a government order had already been issued on 17.11.1998 putting up a ban on the selection of class-III employees including the posts which were advertised by the opposite parties in the present case. It has been held that since the ban had already come into existence, the process of selection was left at the stage and date when the ban came into the knowledge of the departmental authorities. The interview which was scheduled to be conducted was never held. The process was left incomplete. In the impugned order the word has been used as "Chayan prakriya purna nahi huie hain". It has been repeated that "Choonki is sambandh mein nideshalaya ke vibhinna patron ke uprant bhi chayan prikriya purna karne ke sambandh mein shashan se anumodan prapt nahin hua jiske karan chayan prakriya apurna hain. Atah mamle mein samyak vicharoprant main is nishkarsh par pahunchata hun ki pratyavedan nirast kiye jaane yogya hain."
In the counter affidavit the same reason has been given in legal language and it has been stated in paragraph 5 and 7 that the selection was never completed and it should be treated to have been cancelled. Sri Jain has placed in supplementary affidavit a government order dated February 12, 2008 whereby the said ban has been lifted. The argument of Sri Jain firstly is that since selection which was started in pursuance of the advertisement was never cancelled expressly hence the process should be picked up from the stage it was left incomplete and should be completed today and the result should be declared in pursuance of the government order dated February 12, 2008. Further argument of Sri Jain is that such cancellation is violative of Article 14 and 16 of the Constitution of India. He buttresses his argument with a plea that such cancellation in the hands of the department gives arbitrary power. Cancellation has been done at the sweet will of the departmental authorities for the purpose of denying the persons who have applied, a fair chance to compete and it can lead to the arbitrariness and pick and choose policy.
The first limb of the argument of Sri Jain is misconceived. Firstly that no incumbent has an indefeatable right to be appointed on a particular post in pursuance of any advertisement. The advertisement is not a promise to appoint. The advertisement is an invitation to fairly compete with all similarly situated persons who think that they fulfill any particular eligibility criteria. It is the sweet will of an incumbent to apply under an advertisement or not. Any authority or institution issuing an advertisement can not be bound by its terms to give appointment if anybody applies on his own sweet will. Hon'ble Supreme Court in an number of cases has held that mere appearance in the examination does not give any right of appointment to a candidate. Moreover, no malice can be attributed either of fact or of law against the opposite parties. The advertisement was made by the department but the ban was imposed by the State Government, so much so that the departmental authorities did not even know about the ban which was already existing when the written examination were being conducted. It can not be said that there was any connivance and there was any arbitrary action on the part of the departmental authorities or the departmental authorities were interested in canceling the examination to appoint their favorite persons. The department was under obligation to obey the government orders which is for the whole of the State government and not for particular advertisement. Hence, neither malice of act nor malice of law can be attributed to the cancellation of examination. Further argument is belied by the fact that the selection process itself was not completed. The interview was never taken. Naturally, there is no question of declaration of result and making a select list or the merit list, what to say of waiting list. The selection process was left in the mid way. Interview was integral part of the examination as declared by the advertisement itself. The petitioner was never called for interview in the year 1998 or in the year 1999. The legitimate expectation can not be said to be valid because the petitioner new at the threshold that if the examination itself has not been completed, there is no question of declaration of result. The argument of Sri Jain to that extent is misconceived. The law of legitimate expectation can not be exaggerated to this extent that a person, who has not appeared in interview and examination itself has been incomplete, will expect that he or she should be appointed and the result should be declared. The opposite parties were not in a position to keep the petitioners waiting because it was not within their rights to know when the ban will be lifted.
The ban incidentally has been lifted in the year 2008 but it might not have been lifted at all. The departmental authorities had no way of knowing as to when the ban will be lifted and could not have kept the half held examination in abeyance for ever. In the present case, the ban was lifted after twelve years. No reasonable person can expect that any selection which was left half way in the year 1998 i.e. about 12 years ago, will be re-started in the year 2008 from the same selection process. Article 14 and 16 of the Constitution of India are also not violated because there has been no discrimination. It might be a hard case for the petitioner but I do not find that there is any case in law.
The petition is devoid of merits and is accordingly dismissed.
Order Date :- 8.12.2010 RKM.