WP(C)/519/2005 of Smti D. Yangfo Vs State of AP on 30 September 2005

WP(C) 5519/200BEFORE

THE HON' BLE MR. JUSTICE R. B. MISR

( 1 ) Heard Mr. R. H. Nabam, learned counset for the petitioner and also heard Mr. B. L. Singh, learned Sr. Govt. Advocate, Arunacnalt Pradesn.

( 2 ) In this petition prayer has been made for issuance of writ in the nature ofT Mandamus commanding respondents to accept tne recommendation of selection comittee and 1ssue appointment orders accordingly. Further prayer nas been made forwrit of certiorari to set aside the impugned communication dated 31st August 05(Annexure-H), whereby, the Secretary, Govt. of Arunachal pradesn, Department ofAdministration, nad issued a circular for conducting selection to the post of group (D) employees from the contingency staff (semi-skilled and unskilled ).

( 3) It appears that the petitioners along witn otners nave participated for seLection to be made to the Class-IV/d category of posts under Civil Secretariat,Itanagar. The selection was conducted for adjusting the contingency staffs, whoNave rendered considerable number of years of service under the state Governmentand the recruitment were to be made to the general category as well as tne reserved category. According to the petitioners, they were declared successful by tne selection Committee after under going selection process in reference to the notification dated 19/3/77 (Annexure F-1) and waiting for appointment, nowever unsuccessTtul candidates wanted to be appointed Tor the same posts and, therefore, nother recruitment process was proposed to be conducted as per tne Circular dateaq 31. 8. 2005 (Annexure-H to tne writ petition) issued by the Secretary (GA), Gvt. of Arunacnalt Pradesn, Itanagar in reference to the complaint of unsuccessfuCandidates.

( 4 ) The case was again Listed for hearing wnen this Court was pleased to passorder the operative part which reads as below:

\with reference to tne order dated 6. 9. 2005 records nave been produced. However, an endeavour nas been made to convince that the earlier selection was not founad satisfactory to the State Government, therefore, a fTresn selection in referce to circular dated 31/8/2005 (Annexure-H) 1S intended to be conducted. The proposed action of the respondents (according to the petitioners) are not free fromqaiscrimination which tack arbitrariness, fairness and reasonableness. Tne Saldactions are not supported by rules. In these circumstances the respondents is tosatisfy this Court under what circumstances and justification, tne fresn select10n Tor tne same posts Tor whicn the petitioners nave already been selected arebeing made again. In the facts and circumstances, the respondents shalt not allow to proceed to cancel the petitioners’ selection during the pendency of the present writ petition as the earlier selection has not been cancelled in accordanceto tne law pefore initiation of fresh selection. In these circumstances the circular dated 31. 8. 2005 (Annexure-H) regarding conducting Tresn selection shallremain stayed and the respondents snaltt file response by way of affidavit. Howeer, the respondents are at liberty to make the appointment of the petitioners inreference to the selection dated //8/2005 (Annexure-Fl ). \

( 5 ) On benalf of the some candidates who Nave been claiming their selection onthe basis of seniority list, Tiled Misc. Application which was taken up on 22.9. 05 along with wp (C) No 519 (AP)2005 anda the petition was directed to be lised on subsequent date on 27. 9. 05 where tnis Court was pleased to observe and pass orders, the operative part reads as follows:

\in course of hearing, it was brought to tne notice of tne Court that the criter1a of previous selection process nave been ignored by the present selection committee. The learned State counsel nas submittedq that the criteria for selecting o tne post of Class D/peon, are seniority, ability and performance. Whereas, theLearned counsel for the petitioner submitted that wnile recommending the candid

ates to the Class 1v/d, vide recommendation dated 15/3/2003, the earlier selectlon board Nas adopted the criteria of giving weightage to performance, ability anaq seniority as well as obedience of tne candidates and on the basis of those crteria, tne petitioners 1 to 5 were allocated total marks 369, 355, 349,305 and 333, respectively. Tnis Court, nowever, 1S anxious to Know how these total markswere allocated in different aspects/subjyects and items. Thnis can be revealed tough the original records of the selection committee and by the then Chairman ofthe relevant selection committee, namely Sri S. T. Bappu, Deputy Secretary (Law), who conducted the selection on 7. 8. 2005. If the records do not disclose tnese aspects, then the then Chairman of tne selection board in question has to file an affidavit Tor tne purpose. \

( 6 ) In compliance to the above order dated 27. 9. 05, the original records nave been produced before the Court for perusal. After going tnrough the original records and proceeding of the selection committee, it 1S noted that the selectioncommittee comprising four members have considered candidates along with the petitioners and assessed their performance basically on 3 (three) aspects (1) ‘basioffice procedure’ of 50 marks (11) ‘personality’ carrying 50 marks (111) ‘general Knowledge’ carrying 50 marks. An overall marks of 150 in respect of these three items were to be awarded separately by all the four members. It 1S worth ment1oning that for atlocating marks to all the candidates format of marking was categories ‘basic office procedure’, ‘personality’ and ‘generat Knowledge’ such criteria and format prescribed Tor interview and selection was indicated by Under secretary (SA) Govt. of Arunachal Pradesn for considering candidate to the post ofT Group (D) category. Seniority, ability and performance etc. were able to be kpt 1n mind by the members of tne committee on tnese above parameters. The four members of the selection committee had awarded respective marks as indicated above to the petitioners and they are Tound to be most proper candidates for appointment to the group (D) category.

( 7 ) On benalf of the petitioner, it was argued that in 1995 Supp. (2) SCC 230(R. S. Mittal Vs. Union of India) wnere the person after being selected and putin the panet of the selected candidates was not to be denied the appointment witnout a proper reason however, in peculiar facts and circumstances relief was refused by tne Supreme court by observing in Para 10 as below:

\lO. Although a person on the select panel has no vested rignt to be appointed to the post for wnicn he nas been selected, the appointing autnority cannot ignore tne select panel or on its whims decline to make the appointment. When a person has been selected by the Selection Board and there 1S a vacancy, whicn can beoffered to him, Keeping in view his merit position, then, ordinarily, there 1s 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 wnatsoever, not to talk of a justifiable reason, was given as wny the appointments were not offered to the candidates expeditiously and in accordance with law. Theappointment snould nave been offered to the candidate at St. No. 1 of tne selectList witnin a reasonable time of availability of tne 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 tnat in (2000)9 SCC 283 (Munna roy Vs. Union of India and Ors.), the Supreme Court after acknowledging themere inclusion in select list daoes not confer any right to the selectee and madamus coulda not pe 1ssued put tne court coulda interfere wnen an administrativeuthnority took a decision on erroneous reasons namely dubious metnod was suspectaq in the selection inasmuch as the candidate was a graduate, whereas, tne minimm qualification for selection was matriculation and then the reason was describeqd as arbitrary, irrational and not germane. In those circumstances, the decisioto cancel the panet on this score could be set aside. In view of the obpservati ns made by the Supreme court in R. S. Mittat (Supra) as well as in Munna Roy (supra) tne action of respondent in not declaring tne result of selection in questlon and subsequently giving appointment to the petitioners was arbitrary, inaction, discriminatory as the same are in derogation to the spirit of article 14 of tne Constitution, as contended on behalf of the petitioners.

( 9 ) In (2002); 4 SCC-726 (Vindan T. and ors. Vs. University of Caticut and Ors.) the supreme Court has neld tnat the appointments to the vacancies must be made in accordance witn Law, if any, and the appointing authority cannot scrap tnepanel of select list during the period of its valiaity except for well founded reasons. It also opnoserved in Para 14 as pelo \l4. The principle that persons merely selected for a post do not thereby acquire a rignt to be appointea to sucn post 1s well estabdlisned by judicial preceden. Even if vacancies exist, it 1S open to the authority concerned to decide how many appointments snould be made. \

( 10 ) In (2002: 5 SCC 195 (S. Renuka and ors. Vs. State ofu. P. and Anr.) the Supreme court while acknowledqging the decision made in above two cases R. S. Mital (supra) and munna Roy (Supra) nas however held tnat no right accrues to a person merely because a person is selected and his or ner name is put on a panel anaq the candidates nave no right to claim the appointment.

( ll ) In (2003; 2 UPLBEC-16097 (State of Andnra Pradesh and Ors. Vs. D. Dastagi1 and Ors.) the Supreme Court nas taken the similar view and has held that no vested right accrue to the candidates to be appointed even if selection process waSs completed and the supreme Court has observed in Para 4 as below

\4. There 1S serious dispute as to tne completion of selection process. According to the appellants, tne selection process was not complete. No record nas beenplaced pefore us to show that the selection process was complete, but it 1S notdisputed that the select list was not published. In paragrapn 16 of tne counteraffidavit, referred above, the respondents themselves had admitted that the selection process was cancelled at the Last stage. In the absence of publication ofselect 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 aqoes not advance the casof 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 rignt to claim appointment based on the select List. It was open to the State Government totake a policy decision cither to have pronibition or not to nave prohibition intne State. Certainly, the government had right to take a policy decision. If pursuant to a policy decision taken to impose pronibition in the State there was no requirement for tne recruitment of constables in the excise Department, nobodycan insist tnat they must appoint candidates as Excise Constables. It 1S not tne case of the respondents that there was any malafide on the part of the appellants in refusing the appointment to tne respondents aftr the selection process waSs complete. Tne only claim was that the action of the appellants, in the appoining 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 aecision, we fait to understand as to how the respondents can dub the action ofT tne respondents as arbitrary, particularly, wnen they did not have any right Ss such to claim appointments. In the absence of selection and publication of seect 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, sucn submission cannot confer right on the respondents, which they otherw1Sse did not nave.

( 12 ) The Supreme Court in Union of India Ors. Vs. IsSwar Singh Khatri and Ors., 1992 Suppl. (3) SCC 84, nas held that selected candidates have right to appoin tment only against vacancies notified\ and that too during tne life of the select list as the panet of selected candidates cannot be valid for indefinite period. Moreover, empanelled candidates \in any event cannot nave a rignt against Tuture vacancies\. In State of Blnar vs Secretariat, Assistant S. E. Union and ors., AIR 1994 SC 736, the Supreme Court has hela that \a person who is selected doeSs not, on account of being empanelledq alone, acquire any indefeasible right ofppointment. \ empanelment is at tne pest a condition of eligibility for purposesof appointment and by itself does not amount to selection or create a vested rignt to the appointed unless relevant service rules provide to the contrary.

( 13 ) In Purshottam Vs. Chairman, maharashtra State Electricity Board and am:,(1999) 6 SCC 49, the Supreme Court has neld as under:

\the right of the appellant to be appointed against the post to wnicn he has been selected, cannot be taken away on the pretext that the said panel, in the meanwhile, expired and tne posts had already been Tilled up by someboay else. Usurpation of post by somebody else 1s not on account of any fault on the part of theappellant but on the erroneous decision of the employer himself. In that view oftne matter, appellant's rignt to be appointed on the post has been illegally taKen away by the employer. \

( 14 ) I nave heard learned counsel for the parties and nave perused the records. LT find tnat no reason nas been stated by the State government Tor not issuingappointment to the petitioners. From perusal of records it appears that same parameters and the criteria for awarding marks were adopted whicn were adopted in tne selection of year 2003 in addition to tnat many other criteria and parameterse. g. ability, sincerity, obedience, performance and seniority, nave also been|Kept in mind while awarding marks out of totat 600 marks wnile assessing the merits of candidates. I dao not find any force in the contentions of tne State tnattne seniority should be tne decisive factor. It 1S worth mentioning that the petitioners were awarded marks according to tne merits as they nave already servednumber of years of service as required by the State Government. Therefore, standof tne State Government 1s not consistent witn the records and, the original records of the selection committee. I ao not find any adverse material in the outcome of the selection process of the selection committee and since the petitioners by virtue of marks and merits are entitled to be considered for issue of appointment, therefore, in these circumstances mandamus 1S being issued to the respondents, particularly, the Secretary, (GA), Government of Arunachal Pradesn, to take immediate steps for giving approval of the out come of the selection in question and accordingly steps to be taken to issue appointment order and consequentupon, the impugned order dated 31/8/2005 (Annexure-H) 1S set aside.

( 15 ) The candidates once participated in the selection and were Tound unsuccessTul cannot challenge the selection on the ground of unfairness or on the groundof defect in selection or in selection process in view of the decision of Supreme Court in (1995)3 scc 486 (Madan Lat and Ors. Vs. State of J andkand Ors.) whlcn has approved its earlier view taken in 1986 Suppl. SCC 285 (Om prakash SnuklaVs. Akhilesn Kr. Shukla ). Similarly, following the decision of Supreme Court 1n AIR 2001 SC 1691 (Vijal Kumar Sharma Vs. Chairman, School Service Commission ana Ors.) this High Court in (2004) (Supp.) GLT 538 (Association of candidates Vs. State of Manipur and Ors.)has held that candidates not empanelled, as they were Tound unsuccessful in the selection process Tor appointment to the post of RifLemen would have no right to claim any relief.—

( 16 ) In view of the above observations, MC no. 143/ ( AP) 2005 1s rejected andtne above directions are to be carried on witnin tnree months. However, dismissal of Misc. application, snalt not debar the candidates - applications of Misc.application No. M. C. No. 143 (AP) 2005 are to be considered on their merits inTuture. Tne writ petition 1s accordingly allowed. No order as to cost.|