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1999 Supreme(Gau) 114
GAUHATI HIGH COURT
Brijesh Kumar, P.G.Agarwal, JJ.
Union of India -Appellant
Versus
Debasish Chowdhury -Respondent
Civil Rule No. 2068 to 2072, 2074, 2076 to 2079 and 2114 to 2118 of 1998
Decided On : 01-04-1999
P.K.Tiwari, Sukumar Sharma, N.Dutta, G.Sharma, D.K.Das, D.Das, B.K.Sharma
The cancellation of a select list for bona fide and valid reasons does not require a pre-decisional hearing to the selected candidates.
Headnote:
RAILWAY RECRUITMENT - SELECTION PROCESS - CANCELLATION OF SELECT LIST - RIGHT TO HEARING - FAIRNESS AND BONA FIDE ACTION - NATURAL JUSTICE - RAILWAY RECRUITMENT RULES - ALLOTMENT OF MARKS FOR VIVA-VOCE TEST.
Fact of the Case:
The Railway Recruitment Board (RRB) conducted a selection test for the posts of Stenographer (English) and prepared a merit list of 16 candidates. However, the select panel was canceled due to alleged irregularities in the selection process. The selected candidates challenged the cancellation before the Central Administrative Tribunal (CAT), which set aside the cancellation order and directed the respondents to complete the recruitment process within three months.
Finding of the Court:
The court held that the selection process was vitiated due to unfair and injudicious manner of selection. The allotment of 90 marks for viva-voce test was in contravention of the recruitment rules of the Railways and the law laid down by the Apex Court. The entire selection process was masterminded and managed by only one member of the three-member Selection Board.
Issues: 1. Whether the selected candidates had acquired an indefeasible right to be appointed to the post? 2. Whether the cancellation of the select list was bona fide and for valid reasons? 3. Whether the selected candidates were entitled to a pre-decisional hearing before the cancellation of the select list?
Ratio Decidendi: 1. A selected candidate does not acquire an indefeasible right to be appointed to the post unless the relevant recruitment rules so indicate. 2. The State is under no legal duty to fill up all or any of the vacancies, but the decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. 3. If the cancellation of the select list is for bona fide and not arbitrary, the selected candidates cannot claim to have a right to be heard before such cancellation.
Final Decision: The court allowed the writ petitions, set aside the impugned order, and directed the Railway authorities to step up the process of selection.
By this common judgment we propose to dispose of 15 numbers of civil rules mentioned above preferred by the Union of India. These civil rules have arisen out of a common judgment passed by the Central Administrative Tribunal, Guwahati Bench on 8.1.98 in OA No. 152 of 1996.
2. In pursuance of Employment Notice No. 1 of 1995 dated 26.4.95 the Railway Recruitment Board hereinafter referred as the RRB conducted the selection test for the posts of Stenographer (English). RRB held written test speed test and viva voce test and thereafter prepared a merit list of 16 candidates in order of merit. Although the panel was published by 9.11.95 no appointment was made. The Chairman, Railway Recruitment Board received certain complaints regarding alleged irregularities in the selection process and an enquiry was conducted through Vigilance Cell and thereafter by an order dated 5.9.96 the select panel was cancelled. The above mentioned 15 petitioners thereupon approached the Central Administrative Tribunal, Guwahati Bench for relief and the learned Tribunal vide the impugned order set aside and quashed the order of cancellation so far it relates to Stenographer (English). The respondents were d further directed to complete the process of recruitment within three months. Hence the present petitions.
3. We have heard the learned counsel for both sides.
4. The broad facts regarding selection and cancellation of the panel is not disputed. According to the learned Tribunal the selected candidates, that is, respondents in the present petition had acquired two rights, namely right to get employment and the right of being heard before any action prejudicial to them is taken. In the instant case, there is no dispute at the Bar that before cancelling the panel the respondents were not heard and no opportunity was given to them. Learned Tribunal therefore held :
“We have no hesitation to hold that when the respondents had cancelled the Select Panel without affording an opportunity of being heard to the applicants before the cancellation was made, they had violated both the rights of the applicants.”
5. Now coming to the first proposition 35 to whether the respondents whose names appeared in the select list had acquire^ an indefeasible right to appoint in such post. A Constitution Bench of Apex Court: in the case of Saankarasan Das vs. Union of India, (1991) 3 SCC 47 enunciated the legal position as follows:
“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 candidate 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 indiscrimination 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 the State of Haryana vs. Subhash Chander Marwaha, Neelima Shangia (Miss) vs. State of Haryana or Jitender Kumar vs. State of Punjab.”
The above proposition of law was reiterated by the Apex Court in the case of Union Territory of Chandigarh vs. Dilbagh Singh & others reported in (1993) 1 SCC 154. It was further held that a selected candidate could be aggrieved by his non-appointment only when the Administration does so either arbitrarily or for no bona fide reasons. In the instant case the Railways have
