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IN THE HIGH COURT OF KERALA AT ERNAKULAM
K. VINOD CHANDRAN, A. BADHARUDEEN, JJ.
Naseema I. W/o K. Rasheed – Appellant
Versus
Union of India, Rep. by Joint Secretary, Ministry of Rural Development – Respondent
W.A. Nos. 2108, 2151 of 2019
Decided On : 26-10-2021
Ombudsman - Mahatma Gandhi National Rural Employment Guarantee (MGNREG) Act, 2005 - 1990 (3) SCC 157, 1983 (3) SCC 284, 1990 (1) SCC 411, 2008 (3) SCC 512, 2008 (3) SCC 724, 1991 (3) SCC 47, (1997) 3 SCC 59, (2017) 3 SCC 646, 2011) 6 SCC 725, 2019 KHC 2812 - The court discussed the cancellation of the draft select list for the appointment of Ombudsman under the MGNREG Act, 2005, and the applicability of revised guidelines issued after the selection process commenced. The court held that the candidates did not have an accrued or vested right for appointment based on the cancelled select list, and the government had the prerogative to conduct a fresh selection process in accordance with the new guidelines. The court also emphasized the principle that vacancies must be filled in accordance with the rules as amended, and candidates have the right to be considered in the light of the existing rules at the time of consideration. The court found no mala-fides or arbitrariness on the part of the government in cancelling the list and upheld the judgment of the Single Judge.
Fact of the Case:
The writ appeals arose from the desire of the appellants to be appointed as Ombudsman under the MGNREG Act, 2005, following the cancellation of the draft select list for the same. The appellants challenged the Government Order cancelling the draft rank list and sought various reliefs, alleging that the selection process was not in accordance with the revised guidelines issued by the government.
Finding of the Court:
The court held that the cancellation of the draft select list and the subsequent decision to conduct a fresh selection process in accordance with the new guidelines were not actuated by any mala-fides or arbitrariness on the part of the government. The court also held that the candidates did not have an accrued or vested right for appointment based on the cancelled select list.
Issues: The main issue was whether the cancellation of the draft select list and the decision to conduct a fresh selection process in accordance with the new guidelines were justified, and whether the candidates had an accrued or vested right for appointment based on the cancelled select list.
Ratio Decidendi: The court emphasized the principle that vacancies must be filled in accordance with the rules as amended, and candidates have the right to be considered in the light of the existing rules at the time of consideration. The court also held that the candidates did not have an accrued or vested right for appointment based on the cancelled select list.
Final Decision: The court upheld the judgment of the Single Judge, holding that the challenge against the notification cancelling the draft select list did not require any interference, and the writ appeals were dismissed.
JUDGMENT :
A. BADHARUDEEN, J.
1. Both these Writ Appeals blossom out of the desire of the appellants to be appointed as Ombudsman under the Mahatma Gandhi National Rural Employment Guarantee (MGNREG) Act, 2005 (for brevity the Act of 2005, hereinafter), subsequent to the cancellation of the draft select list for the same.
2. Writ Appeal No. 2151/2019 arises out of W.P. (C) No. 3602/2019, where the appellants are the petitioners and respondents herein are the respondents. Writ Appeal No. 2108/2019 is at the instance of the petitioners in W.P. (C) No. 3251/2019 and the respondents herein are the respondents therein.
3. In the Writ Petitions, the petitioners challenged Government Order dated 22.01.2019, Ext.P10 (in both the Writ Petitions), whereby the draft rank list prepared by the Selection Committee for appointment as Ombudsman under the Act of 2005 was cancelled, vide publication in the Kerala Gazette No. 5 dated 10.04.2018.
4. The writ petitioners approached this Court seeking the following reliefs:
(a) Call for the records leading upto Ext.P10 and quash Ext.P10 by issuance of a writ of certiorari or any other appropriate writ order or direction.
(b) Issue a writ of mandamus or any other appropriate writ order or direction commanding the respondents to appoint the petitioners, who have secured the first rank in their respective district as Ombudsman, in terms of Ext.P7 and P8.
(c) Issue a writ of mandamus or any other appropriate writ order or direction commanding the respondents not to start the process of appointing Ombudsman pursuant to Ext.P10.
(d) Declare that Ext.P10 order cancelling the selection that was validly done was for extraneous considerations and therefore unsustainable.
(e) Grant such other deemed fit to this Hon'ble Court.
W.P. (C) No. 3602/2019
(i) To call for the records leading to issue Ext.P10 notification and issue a writ of certiorari or any other appropriate writ or writs or order or direction to quash Ext.P10 notification issued by the 1st respondent.
(ii) Issue a writ of mandamus or any other appropriate writ or order or direction to the 1st, 3rd and 4th respondents to publish the final Rank list with respect to Ext.P7, of persons who are found suitable for appointment as Ombudsman for MGNREGS after removing the ineligible candidates and make appointment, forthwith.
(iii) Issue a writ of mandamus or any other appropriate writ or order or direction to the 1st, 3rd and 4th respondents to appoint the petitioners herein in the post of Ombudsman for MGNREGS for the district of Kozhikode and Kannur, respectively, forthwith.
(iv) Direct the respondents to pay cost of this proceedings.
(v) Grant any other relief, in the interest of justice, which this Hon'ble Court deems fit in the facts and circumstances of the case.”
The common case of the writ petitioners is that as per Ext.P10 notification issued by the Government, the select list for the post of Ombudsman to administer the MGNREG scheme under the Act of 2005 was cancelled on the premise that it was not prepared in accordance with the revised guidelines issued on 28.08.2017. It is contended that the 2nd and 3rd respondents invited applications to fill up vacancies of Ombudsman, through open advertisement in News paper dated 04.07.2017 and following the same, the 3rd and 4th respondents issued notice dated 27.12.2017 requiring the appellants to appear for an interview on 10.01.2018 for appointment to the post of Ombudsman under the Act, 2005. Thereafter, a draft rank list was prepared by the selection committee on 14.03.2018. The appellants were entitled to be appointed in their respective districts. However, the appellants did not receive any appointment letter for over 6 months following which they preferred representation on 13.11.2018 before the 2nd respondent. No action was taken on the representation and on 22.01.2019 the 2nd respondent issued a subsequent order as Notification No. 144/DD2/2017/LSGD cancelling the notification dated 14.03.
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