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Gujarat High Court
Judgename :S.D.Shah
RATHOD JAHABHAI DANGARBHAI - Appellant
Versus
STATE - Respondent
S.C.A. 1618 of 1989
Decided On : 04/27/1994
(A) Notification of vacancies or existence thereof does -not give a legal right to a candidate to be selected for appointment. -Notification of vacancies simply is an invitation to qualified candidates -to apply for recruitment and on inclusion of their names in the select -list they do not acquire any right to the post.
(B) A successful candidate whose name is included in -the select list does not acqiure any indefeasible right to be appointed.
(C) Unless the relevant Recruitment Rules so indicate, -the State is under no legal duty to fill up all or any of the vacancies. -There is no legal duty on the State to fill up the post. It is for -the State to take a decision as to whether it wants to fill up all -vacancies or not. Govt. has to decide how many appointments should -be made.
(D) It is, of course, open to the Govt. not to fill up -all the vacancies for a valid reason. Such a decision should not be -arbitrary and unreasonable but must be based on sound, rationale and -conscious application of mind. If for reasons which are reasonabl -and rational. It is decided not to fill up the vacancies, Govt. can -not be compelled by mandamus to fill up the vacancies. Once it is -established that the Govt has acted in good faith and has for valid -reasons decided not to fill in the post there is no jurisdiction in -the court to issue mandamus to fill up the post from amongst candidates -whose names are included in the select list.
(E) It follows as a necessary concomitant that such candidate -even if has a legitimate expectation of being appointed in such post -due to his name finding a place in the select list of candidates can -not claim to have a right to be heard before such select list is cancelled -for bonafide and valid reasons and not arbitrarily.
(F) However, 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.
[Para 43]
Gujarat Panchayat Act, 1961-Sec. 201-Gram Sevak -(Panchayat Service) Recruitment Rules, 1982-Selection list prepared -as per 1982 Rules-Invalidated due to subsequent amendment in Rules -in 1988 and 1992-Held, retrospective invalidation of selection -list duly prepared is not permitted-Service Law-Selection -list-Cannot be set at naught retrospectively.
When newly framed rules are only prospective in nature -and are not retrospective in nature the selection of a candidate already -made on the basis of existing rules can not be set at naught on the -ground that the said selection was not in accordance with subsequently -amended rules, and the amended rules can not be applied to invalidate -the selection already made. Though it is true that a candidate does -not got any right of being appointed to the post by merely making -application for the same, it shall have to be accepted that right -is created in his favour for being considered for the post in accordance -with terms and conditions of the advertisement and the existing recruitment -rules. When Recruitment Rules are newly made or amended prospectively -the selection of a candidate already made under existing Rules can -not be set at naught on the ground that such selection was not in -accordance with subsequent amended rules. Amended rules or subsequently -framed rules can not be applied to invalidate selection already made. -Though it is true that a candidate does not get any right of being -appointed to the post, it shall have to be accepted that on selection -inchoate right is created in his favour for being considered for the -post. His right of being considered for selection in accordance with -existing rules can not be affected by amendment of rules unless such -amendment is retrospective in nature.
[Paras 37 & 43]
Service Law-Recruitment-Selection list-Candidates -whose name appear in selection list cannot claim defeasible right -to be appointed.
Simply because name of person is included in the select -list, he does not acquire any right of being appointed on the post. -Secondly, it is always open to the Govt. not to fill up all the vacancies -for a valid reason. Such a decision should not be arbitrary and unreasonable -but must be based on sound, rationale and conscious application of -mind. If for reasons which are reasonable and rational, it is decided -not to fill up the Vacancies, Govt. can not be compelled by mandamus -to fill up the vacancies.
[Para 29]
Service Law-Recruitment-Selection list-Is -co-terminus with filling of vacancies-Practice of preparing unduly -long waiting list should be discontinued.
The practice of preparation of unduly lengthy select-list -quite disproportionate to the number of vacancies notified is required -to be condemned and depricated. In fact, a select list shall have -to be co-terminus with the number of vacancies. Preparation of the -other list or list of candidates equal to two or three times of number -of vacancies so that in case of nonavailability or nonresumption of -duties on appointment by any of the candidates in the select list -duly selected candidates may be available is undoubtedly from the -point of administration as permissible policy. The administration -must ensure that under no circumstances the select list shall exceed -the number of existing vacancies. Practice of preparing lengthy list -of 2 to 3 times to the number of existing vacancies shall have to -be discontinued with further policy of preparing a waiting list of -very few candidates so that contingencies like some of the candidates -in the merit list ailing to resume duty despite their appointment -or vacancies occuring all of sudden could be provided for.
[Para 38]
( 1 ) THIS group of petitions is filed by various petitioners from number of districts for issuance of direction to the respective Panchayats to operate the select list for the post of Gram Sevak (Multipurpose) or Gram Sevak (Training and visit), as the case may be, and to appoint them on such post pursuant to their selection and inclusion of their names in the select list duly prepared. They have also prayed for writ of Certiorari or any other appropriate writ or direction quashing and setting aside the resolution or circular issued by the State Government whereby it has directed the concerned Panchayat to hold fresh selection for the post of Gram Sevak (Multipurpose) /gram Sevak (Training and Visit) and not to make any appointment to said posts based on existing select list.
( 2 ) PETITION-WISE position of respective Panchayat, number of vacancies, notification thereof, preparation of select list and actual appointment of candidates is stated hereunder in a tabular form : district SCA No. No. of Dt. of No. of Size of No. of peti- Adver- Notified Select persons tioners tisement vacancies list appointed Amreli 1618/89 12 13-3-85 35 69 21 kutch 1914/89 20 1-6-84 9 (Multi- 118 62 purpose) 108 (Tandv)
( 21 ) IT was in the aforesaid fact situation while allowing the appeal preferred by the State of Punjab and Haryana and setting aside the order passed by the High court, the Supreme Court observed that existence of vacancy does not give 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 Govt. to decide how many appointments shall be made. The mere fact that a candidates name appears in the list will not entitle him to a mandamus that he be appointed. Indeed, if the state Govt. whlie making the selection for appointment had departed from the ranking given in the list there may be a legitimate grievance on the ground that the State Govt. had departed from the merit. The only restraint put on the power of the Govt. to make appointments is that the Govt. shall not travel outside the list and that the Govt. shall not depart from the ranking given in the list.
( 22 ) AS regards power of the Court to issue mandamus, relying upon its earlier decision in the case of Dr. Rai Shivendra Bahadur v. The Governing Body of the nalanda College, reported in AIR 1962 SC 1210 the Court held that in order that mandamus may issue to compel an authority to do something, it must be shown that the statute imposes a legal duty on that authority and the aggrieved party has a legal right under the statute to enforce its performance. Since there is no legal duty on the State Govt. to appoint all the 15 persons who are in the list it was held that there was no legal right in the petitioners to enforce its performance.
( 23 ) AS regards power of the Govt. not to appoint a person from the select list, the Court observed that this is essentially a matter of administrative policy and if the State Govt. thought it fit that in the interest of judicial competence persons securing less than 55% of marks in the competitive examination should not be selected for appointment, it cannot be said that the Govt. has acted beyond its power. The factor which weighed with the State Govt. was found to be just, proper and reasonable and such exercise of power was not regarded as unreasonable or arbitrary.
( 24 ) ONCE again, in the case of Jatinder Kumar v. State of Punjab, reported in AIR 1984 SC 1850, the Court was called upon to decide the question as to whether a person selected by the Subordinate Service Selection Board for direct appointment to the post of Asstt. Sub-Inspector of Police has got an unfettered right to be appointed on the basis of the recommendation made by Selection board. In the case before the Supreme Court initially requisition was for seven persons for the post of Asstt.
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