2025 INSC 334
SUPREME COURT OF INDIA
(HON’BLE
DIPANKAR DATTA, J. AND HON’BLE MANMOHAN, JJ.)
STATE OF ASSAM
Petitioner
VERSUS
ARABINDA RABHA
Respondent
Civil
Appeal No.2350 OF 2025-Decided on 07-03-2025
Service Law
(A)
Constitution of India, Articles 14 and 16 – Service Law - Recruitment – Judicial review –
Whether the High Court was justified in its interference with the decision to
cancel the select list and to require the process to be carried forward in the
manner directed by it? - It is not that the High Court was called upon by any
unsuccessful candidate to test the bona fide of the earlier Government decision
not to frame recruitment rules and/or not to prescribe a written examination
and/or to require the aspiring candidates to only go through an interview; on
the contrary, the facts presented evince that it is the successor Government
that had taken an informed decision not to proceed with the earlier process and
to start a new process - At that stage of decision making, possibly, three
options were available to the Government, being –
(i) allow the process
to be taken to its logical conclusion, without being unduly bothered by the
illegalities/irregularities detected and referred to by the PCCF;
(ii) cancel the entire
process and start it anew; and
(iii) separate the
grain from the chaff and to proceed with the former and complete the process.
No doubt, the Government could have set right the process by preferring the
third option - However, once the Government arrived at the decision considering
the illegalities/irregularities detected by the PCCF that the process ought to
be started afresh and preferred the second option to the first and third
options, thereby cancelling the previous process, the High Court ought to have
applied the proportionality test to adjudge whether the perfect balance was
struck by preferring that option out of the other available options. Sadly,
such test has not been applied.
Held
that the approach of the single Judge of the High Court has evinced an exercise
of appellate jurisdiction - Resting on the sole premise that no allegation of
corrupt practice or unfair means adopted by the candidates (read, the respondents
herein) had been levelled, the single Judge found force in the submission
advanced by learned counsel for the respondents that the selection process
cannot be said to be vitiated by malpractice - The single Judge also expressed
the opinion that mere over-representation or under-representation, though may
be suggestive of irregularity or malpractice, that by itself was not sufficient
to arrive at a definitive conclusion that malpractice had occurred - Government
itself felt that the selection being entirely based on interview, the same
admitted an element of arbitrariness and that the assessment of candidates
being based merely on the basis of marks at the interview, was reasonable for
drawing a presumption of being misused for favouritism and could well be
regarded as suffering from the vice of arbitrariness. In such circumstances, it
is indeed difficult, if not impossible, for a court to law to substitute its
decision for the one taken by the Government reasoning that the selection has
not been challenged by any unsuccessful candidate.
(Para
36 to 40)
(B) Constitution of
India, Articles 14 and 16 – Service Law – Judicial review – Recruitment - Whether
the decision of the appellants to cancel the select list was either vulnerable
on application of the doctrine of Wednesbury unreasonableness or suspect
applying the doctrine of proportionality and, therefore, liable to
invalidation? – Held that no person of reasonable prudence would be left in
doubt that the process had a coat of discernible taint suggesting impropriety
and bias, if not corruption - Applying the test of proportionality, the
decision taken by the successor Government of cancelling the process initiated
by the earlier Government cannot be said to be so disproportionate and
incommensurate with the illegalities/irregularities detected that interference
could have been said to be legitimately warranted - Division Bench arrived at
its own conclusion that the select list should not have been cancelled without
any detailed inquiry having been conducted to find out the veracity of the
irregularities or illegalities alleged -
Whether or not a detailed inquiry was needed, despite the note of the
PCCF, ought to have been left undisturbed since the successor Government
reached a satisfaction of its own that for the various reasons highlighted in
the said note, it would be unjust to proceed further - Such satisfaction could
not have been tinkered by the Division Bench on the ground that a detailed
inquiry ought to have been conducted – Held that that based on the note of the
PCCF dated 4th July, 2016 and the recommendation made by him for cancellation
of the select list, the decision of the Government to approve the said note
and, thereby, cancel the select list did not stand vitiated to attract its
invalidation either by application of the doctrine of Wednesbury
unreasonableness or proportionality - It has not been proved to our
satisfaction that the impugned decision of cancelling the select list is the neat
result of an injudicious exercise of discretion and was ill- directed in the
guise of achieving the sanctity of the entire selection process - Impugned
decision of cancellation was neither unjustified nor was one which could be
upset by applying the doctrines of either Wednesbury unreasonableness or
proportionality.
(Para
42 to 52)
(C) Constitution of
India, Articles 14 and 16 – Service Law – Judicial review – Recruitment - Whether
the decision of the appellants to cancel the select list infringed the legal
rights of the respondents for which a writ petition under Article
226 of the Constitution could be maintained? Contention that by dint of
mere empanelment/enlistment of an aspirant’s name for filling up a public post,
no right accrues in favour of such an aspirant to move the writ court for
redress repelled - Held do not consider
that an empanelled or a selected candidate has absolutely no right to move the
writ court - Conscious of the line of decisions of this Court which lay down
the law that mere empanelment/enlistment does not result in accrual of any
indefeasible right in favour of such empanelled/selected candidate as well as
the law that the employer may, in its wisdom, either decide to cancel the
select list or not carry on the process further resulting in the
notified/advertised vacancy/vacancies not being filled up pursuant to the
selection process, which has been conducted - What it means is that an
empanelled/selected candidate can claim no right of appointment, if the State
has cogent and germane grounds for not making the appointment - However, at the
same time, it is also the law that the appointing authority cannot ignore the
select panel or decline to make the appointment on its whims - Any
decision taken not to appoint despite there being vacancies and a valid select
list, obviously, is in the nature of a policy decision - Policy decision not to
carry the process forward must be taken bona fide, there has to be justifiable
reason if the process is abandoned mid-way, and such decision must not
suffer from the vice of arbitrariness or the whims of the decision maker - This
acts as a check on the employer’s power deciding against not making any
appointment from the select list despite availability of vacancy/vacancies on
the advertised/notified public post(s) - A writ court may, upon reaching the
requisite satisfaction, intervene in such manner and make such directions as
the facts and circumstances warrant – Held that do not find it acceptable that
the aspirants, not having an indefeasible or vested right of appointment, do
not also have the right to question any decision adverse to their interest
affecting achievement of their goals to secure public employment - Whether, and
to what extent, any relief should be granted, must depend on the facts of each
case - On facts and in the
circumstances, however, the respondents’ legal rights were not infringed
because of absence of grant of legitimacy to the select list by way of an
approval from the Government; hence, the writ petition should not have been
allowed.
(Para
53 to 55)
(D) Constitution of
India, Articles 14 and 16 – Service Law - Recruitment – Judicial review – Held that the factors of “when”,
“which”, “what”, “who” and “how” that are associated with a
recruitment/selection process is the prerogative of the recruiting authority
and the selectors; however, at the same time, the process has to be conducted
consistent with statutory provisions governing the same, if any, as well as
principles of absolute fairness and complete non-arbitrariness - Though it is
true that the law does not postulate a fetter on the authority of the
employer-State and it is within the domain of the Government when to initiate a
process of recruitment for public employment, either according to recruitment
rules or even in the absence thereof, it is for the Government of the day to
decide in which manner it proposes to conduct selection, what would be the
various stages the candidates aspiring for appointment have to pass through in
order to be placed in the select list, who would be the selectors, and how
weightage is to be given to each of the testing methods, a great deal of
credence is lent to a process if it is fairly and transparently conducted in
accordance with rules, whatever be its source, without the slightest hint of
any bias or favouritism or nepotism - Normally, it is not for the courts to
interfere unless the process smacks of mala fides - However, the right to be
considered for public employment being a Fundamental Right, it would be safe
and prudent to have recruitment rules to govern the process of selection so
that the best possible talent is appointed in public service - Obviously,
assessing the merit of the candidates aspiring for public employment on
the basis of a prescribed standard would not only provide a level playing field
for each of them, the excellence of any institution to which the appointment is
to be made would depend directly on the proficiency of its members/staff and
that would, in turn, depend on the quality and merit of those who offer
themselves for selection and ultimately get selected, necessitating the
selection to be conducted without any hidden taint or masked mala fides - Last
but not the least, having regard to present times when corruption has been held
to be a walk of life by certain responsible citizens of the country, it would
have been desirable if the process of recruitment of 104 Constables were
conducted after framing of recruitment rules and also prescribing a written
examination to keep the process absolutely above board.
(Para
35)
JUDGMENT
Dipankar Datta, J.:-
FACTS
1.
A process of recruitment was set in motion by the office of the Principal Chief
Conservator of Forest & Head of Forest Force, Assam [PCCF] , Government of Assam, by issuing an advertisement
dated 23rd July, 2014 to fill up of 104 posts of Constables in the Assam
Forest Protection Force[AFPF]
2.
Process of selection was conducted in May, 2016. The respondents, who had
applied pursuant to the advertisement, participated in the process. They
qualified in the physical efficiency test[PET],
where after they were interviewed. It was claimed by the respondents that the
select list prepared by the Central Selection Committee, headed by the then
PCCF, contained names of candidates found, prima facie, fit for selection and
appointment as Constables in the AFPF and that such list, wherein their names
figured, had been submitted to the Government for approval.
3.
In May, 2016 itself, there was a change in the political regime of Assam
pursuant to the elections held to the Assam Legislative Assembly.
4.
On 4th July, 2016, the incumbent PCCF submitted a note to the Government
highlighting serious anomalies that had crept in, in the selection process.
Based on such note of the PCCF but without conducting any inquiry, as alleged
by the respondents, the Government approved cancellation of the select list
vide order of the Secretary to the Government of Assam, Environment and Forests
Department dated 18th July, 2016. The sole reason assigned for such
cancellation was that the process had been conducted in violation of the
reservation policy as well as judgments of this Court, as suggested by the
PCCF.
5.
On 17th August, 2016, a notice was published from the office of the PCCF in a
daily newspaper informing all concerned of cancellation of the select list. It
was conveyed that further action to be taken in the matter of recruitment of
constables in the AFPF would be notified in due course.
6.
Subsequent thereto, a fresh advertisement dated 14th April, 2017 was issued.
7.
Two sets of writ petitions[W.P. (C) 4532 of
2016 and W.P. (C) 2428 of 2017] were instituted in the Gauhati High
Court[High Court]. The first writ
petition challenged the decision of cancellation of the select list and the
notice dated 17th August, 2016. The other writ petition challenged the advertisement
dated 14th April, 2017. Notice was issued on the first writ petition on 28 th
April, 2017. In course of hearing, a single Judge was informed that the
advertisement dated 14th April, 2017 pertains to appointment of 132 constables.
Such advertisement was different from the 104 posts, which formed the subject
matter of the first writ petition. Considering the same, interim stay of the
advertisement dated 14th April, 2017 was not granted.
THE
JUDGMENTS OF THE HIGH COURT
8.
Vide judgment and order dated 7th May, 2019, the single Judge allowed the first
of the two writ petitions, referred to above, holding, inter alia, that the
irregularities from which the select list allegedly suffered can be
rectified without disturbing the selection process by refixing or reallocating
the candidates in accordance with merit, category and status by giving due
notice to those who are likely to be adversely affected. The single Judge was
also of the view that the chaff could be separated from the grain without much
difficulty and, therefore, the decision to view the entire selection process as
vitiated, leading to cancellation of the select list, is untenable.
9.
The appellants carried the judgment and order dated 7th May, 2019 in an
intra-court appeal.
10.
An Hon’ble Division Bench[Division Bench]
of the High Court, vide judgment and order dated 8th October, 2021, upheld the
view taken by the single Judge and dismissed the writ appeal. The Division
Bench was of the view that prior to cancellation of the select list, no finding
of fact had been arrived at pursuant to an inquiry conducted by any duly
constituted inquiry committee and consequently, the veracity of the
irregularities or illegalities alleged had not been ascertained and that the
note of the then PCCF dated 4th July, 2016, which highlighted the anomalies,
could not have been treated to be definitive finding of fact arrived at by the
Government warranting cancellation of the selection list. A view was also
expressed therein that the irregularities could have been rectified and the
process taken to a logical conclusion.
THE
CHALLENGE
11.
The judgment and order of the Division Bench is the subject matter of assail in
this civil appeal, by special leave, at the instance of the State of Assam and
its officers.
THE
NOTICE ISSUING ORDER
12.
We have noted that the notice issuing order dated 1st August, 2022 recorded
that the co-ordinate bench was apprised of no written examination being
conducted and that the selection was made on the basis of interview alone preceded
by a physical test, which was a qualifying test for appearing in the interview.
It was also noted that out of 104 selected candidates, 64 belonged to Kamrup
(Metro) and Kamrup (Rural) districts and that not a single candidate had been
selected from as many as 16 districts. Concerned thereby, the co- ordinate
bench granted stay of operation of the judgment and order under assail till the
next date of hearing.
APPELLANTS’
CONTENTIONS
13.
Mr. Chinmoy Pradip Sharma, learned senior counsel and Additional Advocate
General for the appellants, contended that the writ petition should not have
been entertained in the first place by the single Judge. According to him,
neither did the empanelled candidates have any indefeasible right of appointment
against the existing vacancies nor was the Government under any obligation to
fill up the vacancies. Inclusion of the names of the respondents in the select
list was at best a condition of eligibility without creating any vested
right of appointment; hence, such inclusion by itself did not confer upon them
the right to invoke the writ jurisdiction and seek certiorari to set aside the
decision to cancel the process as well as for mandamus to take the process
forward. The Government was well within its right to cancel the process, for,
serious irregularities had crept in tainting the process. In such
circumstances, the Government being the sole judge of facts, its decision
demanded deference rather than being quashed on the ground that the irregularities
were curable. Heavy reliance was placed on the Constitution Bench decision
in Shankarsan Dash v. Union of India[(1991)
3 SCC 47] in support of the contention that the High Court – both
single Judge and the Division Bench – fell in error in making the directions it
did.
14.
It was also contended that apart from the fact that the respondents lacked any
legal right to invoke the writ jurisdiction of the High Court, bare perusal of
the note of the PCCF would reveal that sufficient justification was provided in
support of the proposed cancellation of the select list. The said note having
been approved by the Government, led to issuance of the notice dated 17th
August, 2016. However, the single Judge without even considering as to whether
the decision of the Government did suffer from any of the vices attracting
judicial review, proceeded to make directions which normally would
be within the province of an appellate authority but certainly not a
judicial review court.
15.
Insofar as the impugned judgment and order of the Division Bench is concerned,
Mr. Sharma contended that the note of the PCCF was based on meticulous
examination of the records and without there being any material placed by the
respondents before the High Court to suggest that the PCCF had ignored relevant
and germane material or had considered extraneous material, the intra-court
appeal ought not to have been dismissed on the ground that no inquiry was
conducted to ascertain whether the claims made in the said note were correct.
16.
Resting on the aforesaid contentions, Mr. Sharma prayed that the appeal be
allowed and the appellants be permitted to start the process afresh.
RESPONDENTS’
CONTENTIONS
17.
On behalf of the respondents, Mr. Manish Goswami, learned senior counsel
contended as follows:
(i) The order dated
18th July, 2016 and the notice published in the newspaper dated 17th August,
2016 would make it evident that the only reason weighing with the Government
for cancellation was violation of the reservation policy and violation of
judgments of this Court. Therefore, the appellants cannot now be permitted to
improve their case by pleadings etc., and urge new reasons justifying
the cancellation. The appellants misled this Court while obtaining the
notice issuing order dated 1st August, 2022.
(ii) No rules were
violated in preparation of the select list since no rules had been framed to
govern the selection process and none was in operation at the relevant point of
time, which is an admitted position.
(iii) Cancellation of
the process was based solely on the note dated 4th July, 2016 of the PCCF and
no inquiry was ever conducted into the alleged anomalies. On this ground alone,
the appeal is liable to be dismissed.
(iv) No challenge was
laid to the select list by any unsuccessful candidate alleging corrupt practice
and/or fraudulent activity having been resorted to by the selected candidates
including the respondents and the selection process was free from any taint.
(v) Assuming, but not
admitting, that there was some violation of the reservation policy, even then
the same was limited to only 34 selected candidates. This is evident from the
averment of the appellants before the High Court; hence, there was absolutely
no justification to cancel the entire select list containing names of 104
persons. The impugned decision to cancel the select list is hit by the doctrine
of proportionality.
(vi) Both the single
Judge as well as the Division Bench was correct in returning findings that the
alleged violation of the reservation policy was a curable defect and could
be rectified by the authorities without disturbing the selection process by
re-fixing or reallocating the candidates in accordance to their merit, category
and status by giving due notice to those who are likely to be adversely affected.
18.
In support of the aforesaid contentions, reliance was placed by Mr. Goswami on
the following decisions of this Court:
(i) Anamica Mishra v. UPPSC[(1990) Supp SCC 692];
(ii) Union of India & Ors. v. Rajesh P.U.,
Puthuvalnikathu[(2003) 7 SCC 285] ;
(iii) Sachin Kumar v.
Delhi Subordinate Service Selection Board & Ors. [(2021) 4 SCC 631] ; and
(iv) Mohinder Singh
Gill v. Chief Election Commission[(1978)
1 SCC 405].
19.
Mr. Goswami finally urged that in view of the foregoing contentions raised by
him, the appeal deserves to be dismissed. He also prayed that this Court may be
pleased, in addition, to order that the directions passed by the single Judge,
as affirmed by the Division Bench, be implemented by the appellants without any
further delay.
QUESTIONS
ARISING FOR DECISION
20.
The broad question of law arising for decision in the light of the judgment(s)
and order(s) of the High Court is:
Whether the High Court
was justified in its interference with the decision to cancel the select list
and to require the process to be carried forward in the manner directed by it? Answering
the aforesaid question would also require us to notice the grounds based
whereon the appellants cancelled the select list. Thus, we have to necessarily answer
two other questions:
(a) whether the
decision of the appellants to cancel the select list was either vulnerable on
application of the doctrine of Wednesbury unreasonableness or suspect applying
the doctrine of proportionality and, therefore, liable to invalidation?
(b) Whether the
decision of the appellants to cancel the select list infringed the legal rights
of the respondents for which a writ petition under Article 226 of the
Constitution could be maintained?
One incidental
question arising for decision is, whether the appellants have urged new grounds
to support the cancellation in addition to those assigned earlier in any
affidavit/pleading? The final question is, what would be the just relief that
can be granted to the parties to this civil appeal?
ANALYSIS
AND REASONS
21.
We have perused the judgment(s) and order(s) of the High Court and given due
consideration to the contentions advanced by the parties.
22.
It would be profitable to note the precedents in the field having a bearing on
the questions arising for decision in the appeal, before we venture to
answer the questions formulated above. In our view, these could provide
valuable guidance to steer us towards the right direction.
23. In State
of Haryana v. Subash Chander Marwaha[(1974)
3 SCC 220], this Court held that the mere fact of certain candidates being
selected for appointment to vacancies pursuant to an advertisement did not
confer any right to be appointed on the post in question and thereby, entitle
the selectees to a writ of mandamus or any other writ compelling the authority
to make the appointment.
24.
The Constitution Bench in Shankarsan Dash (supra) considered the
aforesaid decision and, taking cue from it, held that:
“7. 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 candidates 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 discrimination can be permitted. …”
25.
Close on the heels of the above decision, a three-Judge Bench in Jai
Singh Dalal v. State of Haryana[1993 Supp
(2) SCC 600] had the occasion to observe:
“7. It will thus be
seen that at the time when the writ petition which has given rise to the
present proceedings was filed, the State Government had withdrawn the aforesaid
two notifications by the notification dated December 30, 1991. The stage at
which the last-mentioned notification came to be issued was the stage when the
HPSC was still in the process of selecting candidates for appointment by
special recruitment. During the pendency of the present proceedings the State
Government finalised the criteria for special recruitment by the notification
of March 9, 1992. Thus, the HPSC was still in the process of selecting
candidates and had yet not completed and finalised the select list nor had it
forwarded the same to the State Government for implementation. The candidates,
therefore, did not have any right to appointment. There was, therefore, no
question of the High Court granting a mandamus or any other writ of the type
sought by the appellants. The law in this behalf appears to be well settled.
….”
26.
Having noticed the decisions on the point as to the rights that aspiring
candidates have, we move on to notice a decision which is not only on the point
of right of a selected candidate to seek appointment through writ remedy but
also dwells with decisions of subsequent Governments upsetting the decisions of
earlier Governments.
27.
One finds an extensive discussion on the tests required to be satisfied to
invalidate a decision of a subsequent Government, nullifying a previous
Government decision, in Jitendra Kumar v. State of Haryana[(2008) 2 SCC 161]. The case involved
suspension of the process of selection by the Government because, inter
alia, the cadre strength was found to be unjustly inflated by the previous
Government. The appellants before this Court indisputably were the selected
candidates and the principal question arising for decision, in the given facts
and circumstances, was whether they had a legal right to be appointed. This
Court held, “the legal principle obtaining herein is not in dispute that the
selectees do not have any legal right of appointment subject, inter alia, to
bona fide action on the part of the State”. Noticing the decisions
in Subash Chander Marwaha (supra), Shankarsan Dash (supra)
as well as other decisions on the point, this Court further held that
whereas the selectee as such has no legal right, the superior court in exercise
of its judicial review would not ordinarily direct issuance of any writ in the
absence of any pleading and proof of mala fide or arbitrariness on the part of
the authority, and each case has to be considered on its own merit. Examining
the point as to whether the impugned action of the respondent-State lacked bona
fide, this Court answered in the negative. Finally, this is what was observed:
“55. We are not
oblivious of the constitutional scheme that the decisions taken by one
Government in public interest itself cannot be a ground for review thereof at
the hands of the successor Government. It is not the Government which is in the
seat of the power, matters in this behalf, but what matters is the public
interest.
56. Mr Dwivedi has
drawn our attention to a decision of this Court in State of Karnataka v.
All India Manufacturers Organisation [(2006) 4 SCC 683] wherein it was
held: (SCC pp.708-09, para 66)
‘66. Taking an overall
view of the matter, it appears that there could hardly be a dispute that the
Project is a mega project which is in the larger public interest of the
State of Karnataka and merely because there was a change in the Government,
there was no necessity for reviewing all decisions taken by the previous
Government, which is what appears to have happened. That such an action cannot
be taken every time there is a change of Government has been clearly laid
down in State of U.P. v. Johri Mal [(2004) 4 SCC 714] and
in State of Haryana v. State of Punjab [(2002) 2 SCC 507] where this
Court observed thus:
‘[I]n the matter of
governance of a State or in the matter of execution of a decision taken by a
previous Government, on the basis of a consensus arrived at, which does not
involve any political philosophy, the succeeding Government must be held
duty-bound to continue and carry on the unfinished job rather than putting a
stop to the same.’
57. There cannot be
any doubt in regard to the aforementioned proposition of law but the question
herein is whether public interest would be subserved by asking the State to
proceed to make appointments. Whereas, on the one hand, an action on the part
of the State to interfere with the good work done by the previous Government
solely on the basis of change in the regime must be deprecated, there cannot
however be any doubt whatsoever that the successor Government cannot blink over
the illegalities committed by the previous Government. If illegalities have
been committed, the same should be rectified. When there exists a reasonable
apprehension in the mind of the State, having regard to the overall situation
including the post- haste manner in which actions had been taken, to cause an
inquiry to be made and suspend the process of making appointments till the
result of such inquiry is obtained, such a decision on its part per se cannot
be said to be an act of arbitrariness or unreasonableness.”
28.
It has not escaped our notice that the decision in Jitendra
Kumar (supra) has been doubted in All India Railway Recruitment Board
v. K. Shyam Kumar[(2010) 6 SCC 614] on
the point as to whether Wednesbury unreasonableness has been replaced by
the doctrine of proportionality. The facts in K. Shyam
Kumar (supra) bear close resemblance to the facts of the present appeal
and, thus, may be noticed. Therein, the Railway Recruitment Board (RRB) had
called for applications for appointments on Group D posts in the South-Central
Railway Zone, Secunderabad. Consequently, in excess of three lakh candidates
appeared for the written examination. Of them, ten short of two thousand seven
hundred candidates having achieved the minimum qualifying marks in the written
examination, were called for a PET. Candidates who qualified in the PET were
called for verification, during which certain malpractices were detected in the
written examination. Additionally, there was a deluge of allegations of mass
copying, question paper leakage, and impersonation committed during the written
examination. A vigilance enquiry was conducted and the report prima facie
revealed these abovementioned illegalities. Relying on the vigilance report,
the RRB decided to conduct a re-test of the candidates who had obtained the
minimum qualifying marks in the written examination. This decision was
challenged by some candidates before the Central Administrative Tribunal,
Hyderabad. The tribunal did not find any irregularity or illegality with the
decision of the RRB, due to which the candidates were constrained to move the
High Court. Before the High Court, the candidates termed the decision of the
RRB as arbitrary and unreasonable. The High Court agreed with the candidates
and set aside the order directing the re-test as, in the High Court’s
opinion, the decision was unreasonable and violative of the Wednesbury
principles. The RRB approached this Court in appeal. In the resultant decision,
this Court while reversing the decision of the High Court discussed the scope
of both the unreasonableness test as well as the proportionality test. It was
held that the unreasonableness test looks, not necessarily at the merits of the
decision, but the way the decision was made; the available courses of action of
the deciding authority are scrutinised to ascertain what a reasonable man would
do. On the other hand, the proportionality test is more wide reaching in its
approach, closely analysing the course of action vis-à-vis the situation
requiring a remedy. Hon’ble K.S.P. Radhakrishnan, J. explained the interplay
between these two tests as follows:
“36. Wednesbury
applies to a decision which is so reprehensible in its defiance of logic or of
accepted moral or ethical standards that no sensible person who had applied his
mind to the issue to be decided could have arrived at it. Proportionality as a
legal test is capable of being more precise and fastidious than a
reasonableness test as well as requiring a more intrusive review of a decision
made by a public authority which requires the courts to ‘assess the balance or
equation’ struck by the decision-maker. Proportionality test in some
jurisdictions is also described as the ‘least injurious means’ or ‘minimal
impairment’ test so as to safeguard the fundamental rights of citizens and to
ensure a fair balance between individual rights and public interest. Suffice it
to say that there has been an overlapping of all these tests in its content and
structure, it is difficult to compartmentalise or lay down a straitjacket
formula and to say that Wednesbury has met with its death knell is too tall a
statement...” Keeping in mind these two tests, this Court noticed that the RRB
had three courses of action once the irregularities had been brought
to light. The first option was to conduct the written examination again
for all the eligible candidates, which would be expensive and time consuming.
The second option was to conduct re-test for the candidates who had obtained
the minimum qualifying marks. The third option would have been to exclude the
sixty-two candidates who were identified as having indulged in impersonation.
The RRB, relying on the vigilance report, held that there were allegations and
prima facie evidence of mass copying as well as leakage of question papers and
these irregularities could not be tackled by just excluding the sixty-two
candidates accused of impersonation. This Court held that the actions of the
RRB to conduct the re-test for candidates who obtained the minimum qualifying
marks struck the right balance, as the first option would have been too
expensive and time consuming and the third option would have been too
restrictive in combatting the irregularities in the examination.
29.
The decision in K. Shyam Kumar (supra) further sheds light on another
aspect, that is, whether the authority can rely on subsequent information to
justify its decision. In the process, the decision in Mohinder Singh
Gill (supra) was distinguished in the following manner:
“45. …The principle laid
down in Mohinder Singh Gill case is not applicable where larger
public interest is involved and in such situations, additional grounds can be
looked into to examine the validity of an order. The finding recorded by the
High Court that the report of CBI cannot be looked into to examine the validity
of the order dated 4-6-2004, cannot be sustained.”
30. Bearing in mind the aforesaid precedents,
we have to examine the facts in some more detail.
31.
A close look at the note of the PCCF dated 4th July, 2016 is indeed imperative,
for, it is the basic document providing justification for the ultimate decision
of cancellation. The single Judge in the judgment dated 7th May, 2019 quoted
the said note in full. We consider it appropriate not to reproduce the note but
to summarise its contents, hereunder:
➢ The Central Selection Committee
was directly constituted by the Minister, Environment & Forests, as per the
enclosed communication.
➢ All the original documents
relating to PET were collected directly by the Central Selection Committee, as
per the enclosed order of the Minister.
➢ A total of 104 candidates, as
per the enclosed list, were recommended for selection/appointment as Constables
by the Central Selection Committee.
➢ Out of 104 candidates, 64
selected candidates belonged either to Kamrup or Kamrup Metro districts, which
raises serious questions about the fairness of the selection process.
➢ While 18 and 46 candidates who
were selected for appointment hailed from Kamrup (Metro) and Kamrup (Rural)
districts, respectively, the other selectees hailed from the 8 named
districts with the number of candidates ranging between 1 to 9 from each
district.
➢ No candidate was selected from
the 16 named districts which included the Hill districts, the Barak Valley
districts and the Bodoland Territorial Council (BTC) districts.
➢ These 16 districts, from where
not a single candidate had been selected, represented a population of 1.60
crore out of the population of 3.11 crore of the State of Assam as per 2011
census; thus, a population of 52% comprised in the said 16 districts would go
unrepresented.
➢ Not a single candidate has been
selected from the Hill districts or the Barak Valley districts or the BTC
districts except one candidate from Baksa district.
➢ A total of 3518 candidates were
called for interview against 104 posts, thus, making it a ratio of about 34
candidates per post.
However, reservation
for the various categories like Scheduled Caste, Scheduled Tribes, Scheduled
Tribes (Plain), etc. as shown in the note were given a complete go-bye. Figures
of the number of candidates who were called from different categories, i.e.,
General, ST (Plain), ST (Hills), SC, OBC/MOBC were indicated in a chart,
thereby demonstrating how the law governing reservation and the judgments of
this Court had been violated in calling the candidates for interview. It was
observed that candidates who ought not to have been called were called,
whereas those deserving of a call were not called.
➢ Although, 15 OBC/MOBC
candidates, 17 ST (Plain) candidates, 1 ST (Hills) candidate and 1 SC candidate
had qualified on merit and could have been counted as General category
candidates, they were shown to have been selected against their respective
reserved categories. As a result, a number of candidates belonging to the
reserved categories were deprived of selection and undeserving candidates
selected.
➢ Reference was made to a
particular candidate who was placed at Serial No.162 in the list of General
category candidates. However, she was included in the select list for General
candidates with only 50 vacancies. Similar type of serious irregularities or
illegalities had taken place in selection of many other candidates.
➢ The entire process of
recruitment is highly questionable, unfair and non-transparent.
32.
What can be deduced from the above points flagged by the PCCF, ultimately
approved by the Government, is this.
33.
Papers/documents relating to the process of selection manifested selection of
aspirants from certain specified districts and without there being any
representation from a major cross-section of the population of the State of
Assam. That apart, illegalities were detected in the process leading to
preparation of the select list. Non- meritorious aspirants, undeserving of
figuring in the select list, were included. Besides, appropriate
earmarking of posts for reserved candidates were given a complete go-bye. In
addition, meritorious aspirants belonging to the reserved category were not
considered for filling up open category vacancies but were placed against the
reserved category to which they belonged, thereby depriving other reserved
category aspirants from entering the zone of consideration for appointment and
paving the way for not so meritorious open category candidates to be placed in
the select list. The Government, having serious reservations about the efficacy
of the selection process, felt that the situation called for cancelling the
process. The question is, whether it was so unjustified that interference in
writ jurisdiction was warranted?
34.
Although the ball had been set rolling in 2014, the interview of the candidates
qualifying in the PET commenced in May, 2016 when admittedly the elections were
knocking at the door. This, per se, may not be seen as a vitiating factor in
the absence of any reference in the note of the PCCF dated 4th July, 2016 as
well as in any subsequent decision of the Government. That apart, proceeding to
conduct a process of recruitment without there being recruitment rules but
based on executive instructions under Article 162 of the Constitution
is not open to invalidation only on such ground. The Constitution Bench decision
of this Court in B.N. Nagarajan v. State of Mysore[AIR 1966 SC 1942], since followed by a
coordinate bench in Smt. Swaran Lata v. Union of India[(1979) 3 SCC 165], may be referred to in this context. In
addition, one would find the absence of any requirement for the aspiring
candidates to take a written examination, thereby, leaving the fate of such
candidates to be determined solely and wholly on the basis of an
interview. Once again, we cannot feign ignorance of the decision of
another coordinate bench in Kiran Gupta v. State of U.P. [(2000) 7 SCC 719] where the law
was laid down in clear terms as follows:
“22. It is difficult
to accept the omnibus contention that selection on the basis of viva voce only
is arbitrary and illegal and that since allocation of 15% marks for interview
was held to be arbitrary by this Court, selections solely based on interview is
a fortiori illegal. It will be useful to bear in mind that there is no rule of
thumb with regard to allotment of percentage of marks for interview. It depends
on several factors and the question of permissible percentage of marks for an
interview-test has to be decided on the facts of each case. However, the
decisions of this Court with regard to reasonableness of percentage of marks
allotted for interview in cases of admission to educational
institutions/schools will not afford a proper guidance in determining the
permissible percentage of marks for interview in cases of selection/appointment
to the posts in various services. Even in this class, there may be two
categories: (i) when the selection is by both a written test and viva voce; and
(ii) by viva voce alone. The courts have frowned upon prescribing higher
percentage of marks for interview when selection is on the basis of both oral
interview and a written test. But, where oral interview alone has been the
criteria for selection/appointment/promotion to any posts in senior positions
the question of higher percentage of marks for interview does not arise.
…”
35.
It cannot be gainsaid that the factors of “when”, “which”, “what”, “who” and
“how” that are associated with a recruitment/selection process is the
prerogative of the recruiting authority and the selectors; however, at the same
time, the process has to be conducted consistent with statutory provisions
governing the same, if any, as well as principles of absolute fairness and
complete non-arbitrariness. Though it is true that the law does not postulate a
fetter on the authority of the employer-State and it is within the domain of
the Government when to initiate a process of recruitment for public employment,
either according to recruitment rules or even in the absence thereof, it is for
the Government of the day to decide in which manner it proposes to conduct
selection, what would be the various stages the candidates aspiring for
appointment have to pass through in order to be placed in the select list, who
would be the selectors, and how weightage is to be given to each of the testing
methods, a great deal of credence is lent to a process if it is fairly and
transparently conducted in accordance with rules, whatever be its source,
without the slightest hint of any bias or favouritism or nepotism. Normally, it
is not for the courts to interfere unless the process smacks of mala fides.
However, the right to be considered for public employment being a Fundamental
Right, it would be safe and prudent to have recruitment rules to govern the
process of selection so that the best possible talent is appointed in public
service. Obviously, assessing the merit of the candidates aspiring for
public employment on the basis of a prescribed standard would not only provide
a level playing field for each of them, the excellence of any institution to
which the appointment is to be made would depend directly on the proficiency of
its members/staff and that would, in turn, depend on the quality and merit of
those who offer themselves for selection and ultimately get selected,
necessitating the selection to be conducted without any hidden taint or masked
mala fides. Last but not the least, having regard to present times when
corruption has been held to be a walk of life by certain responsible citizens
of the country, it would have been desirable if the process of recruitment of 104
Constables were conducted after framing of recruitment rules and also
prescribing a written examination to keep the process absolutely above board.
36.
Be that as it may, drawing from our joint experience on the bench, we can say
with some degree of conviction and authority that conducting recruitment
processes in terms of executive orders and in the absence of statutorily
prescribed standards, more often than not, invite avoidable litigation
producing undesirable results. Left to us, if any process of selection was
challenged by unsuccessful candidates on the ground of absence of recruitment
rules, or on the grounds of absence of a written examination, or on the
allegations of bias or favouritism or nepotism which are nebulous, we would
certainly not interfere in the absence of other apparent vitiating factors.
However, the situation in the present case has taken a completely
different turn. It is the successor Government which nullified the select
list. Hence, the considerations for interference which ordinarily weigh in the
minds of the court, having regard to the peculiar fact situation, are not
exactly the same here. This aspect of the matter, discussed in some more depth
hereafter, seems to have escaped the notice of the High Court.
37.
As the factual narrative has unfolded, it is not that the High Court was called
upon by any unsuccessful candidate to test the bona fide of the earlier
Government decision not to frame recruitment rules and/or not to prescribe a
written examination and/or to require the aspiring candidates to only go
through an interview; on the contrary, the facts presented evince that it is
the successor Government that had taken an informed decision not to proceed
with the earlier process and to start a new process. At that stage of decision
making, possibly, three options were available to the Government, being –
(i) allow the process to be taken to its
logical conclusion, without being unduly bothered by the
illegalities/irregularities detected and referred to by the PCCF;
(ii) cancel the entire
process and start it anew; and
(iii) separate the
grain from the chaff and to proceed with the former and complete the process.
No doubt, the Government could have set right the process by preferring the
third option. However, once the Government arrived at the decision considering
the illegalities/irregularities detected by the PCCF that the process ought to
be started afresh and preferred the second option to the first and third
options, thereby cancelling the previous process, the High Court ought to have
applied the proportionality test to adjudge whether the perfect balance was
struck by preferring that option out of the other available options. Sadly,
such test has not been applied.
38.
The approach of the single Judge of the High Court, we are afraid, has evinced
an exercise of appellate jurisdiction. Resting on the sole premise that no
allegation of corrupt practice or unfair means adopted by the candidates (read,
the respondents herein) had been levelled, the single Judge found force in the
submission advanced by learned counsel for the respondents that the selection
process cannot be said to be vitiated by malpractice. The single Judge also
expressed the opinion that mere over-representation or under-representation,
though may be suggestive of irregularity or malpractice, that by itself was not
sufficient to arrive at a definitive conclusion that malpractice had occurred.
Insofar as the ratio of candidates called for interview qua different
categories, the single Judge observed as follows:
“29. As regards the
non-conformity of ratio of candidates called for interview, though it can be
said to be an irregularity, but the question is whether such irregularity
itself will be sufficient to vitiate the selection process.
It may be mentioned
that adhering to certain ratio for calling of candidates for interview is to
ensure equitable opportunities to the candidate for assessment and so that
deserving candidates are not unduly deprived of. In the present case, it has
been noted that the variation in the ratio is not substantial to be considered
unreasonable. Hence, merely because the ratio has not strictly adhered, that
cannot be a ground for setting aside the recruitment process.
30. Further, though
this Court has also noted that the ratio had not been consistently followed by
the Selection Committee, in absence of any allegation of any corrupt practice
or fraudulent activity, this Court is of the view that mere non-adherence
to specific ration ought not to be a ground to interfere with the entire
selection process.
39.
Viewed in isolation vis-à-vis the claim of the respondents, the opinion
expressed may not seem to be flawed. However, the larger public interest that
the successor Government had in mind was not kept in view by the single Judge.
Fostering diversity and inclusivity in public service, ensuring that there is
representation from almost all the districts including from the hills and
historically backward classes without, however, compromising merit should be
the commitment of all Governments of States in the North-Eastern part of the
country. The decision to cancel the select list has the marks etched to proceed
towards such commitment and achieving the greater good. Such a noble initiative
was, by no means, open to scrutiny by the judicial review court. Two distinct
conclusions in the given set of facts being clearly possible and the successor
Government having taken a view, which by no means was unreasonable and/or
implausible, the writ court instead of substituting its view and/or imposing
its own decision as to what would have been and was the correct option that the
Government should have preferred in lieu of the other option actually
preferred, ought to have stayed at a distance instead.
40.
It is further useful to remember that the Government itself felt that the
selection being entirely based on interview, the same admitted an element of
arbitrariness and that the assessment of candidates being based merely on
the basis of marks at the interview, was reasonable for drawing a presumption
of being misused for favouritism and could well be regarded as suffering from
the vice of arbitrariness. In such circumstances, it is indeed difficult, if
not impossible, for a court to law to substitute its decision for the one taken
by the Government reasoning that the selection has not been challenged by any
unsuccessful candidate.
41.
Insofar as the candidate referred to in the penultimate point of the note of
the PCCF, the single Judge was of the following opinion:
31. As regards the
allegation of including one non meritorious candidate namely, xxx , this Court
is of the opinion that her name can certainly be struck off and the more
meritorious candidate can be included and such one off illegality cannot said
to have vitiated the entire selection process.
The illegal
recommendation of xxx is an instance where the authorities can themselves
rectify by cancelling her selection, which will not have any bearing on the
merit of the other remaining candidates.” The aforesaid observations, admitting
illegal recommendation having been made, overlook that it was not a sole
instance of favouritism but the PCCF had also referred, albeit without giving
detailed particulars, to other illegalities/irregularities in respect of
selection of many other candidates.
42.
On an overall study of the note, no person of reasonable prudence would be left
in doubt that the process had a coat of discernible taint suggesting
impropriety and bias, if not corruption; and applying the test of
proportionality, the decision taken by the successor Government of cancelling
the process initiated by the earlier Government cannot be said to be so
disproportionate and incommensurate with the illegalities/irregularities
detected that interference could have been said to be legitimately warranted.
43.
The Division Bench arrived at its own conclusion that the select list should
not have been cancelled without any detailed inquiry having been conducted to
find out the veracity of the irregularities or illegalities alleged.
44.
Whether or not a detailed inquiry was needed, despite the note of the PCCF,
ought to have been left undisturbed since the successor Government reached a
satisfaction of its own that for the various reasons highlighted in the said
note, it would be unjust to proceed further. Such satisfaction could not have
been tinkered by the Division Bench on the ground that a detailed inquiry ought
to have been conducted.
45.
We, thus, unhesitatingly arrive at the conclusion that based on the note of the
PCCF dated 4th July, 2016 and the recommendation made by him for cancellation
of the select list, the decision of the Government to approve the said note
and, thereby, cancel the select list did not stand vitiated to attract its
invalidation either by application of the doctrine of Wednesbury
unreasonableness or proportionality.
46.
Before ending our discussion on the relevant issues, we record having perused
the decisions in Anamica Mishra (supra), Rajesh P.U. (supra)
and Sachin Kumar (supra).
47.
In Anamica Mishra (supra), this Court held that “… when no defect was pointed
out in regard to the written examination and the sole objection was confined to
exclusion of a group of successful candidates in the written examination from
the interview, there was no justification for cancelling the written part of
the recruitment examination. On the other hand, the situation could have been
appropriately met by setting aside the recruitment and asking for a fresh
interview of all eligible candidates on the basis of the written examination
and select those who on the basis of the written and the freshly-held interview
became eligible for selection”. The decision there turns on its facts, with a
written examination being followed by an interview. The reasons for cancelling
the process were also trivial as compared to the very different reasons with
which the appellants were faced. The cited decision is, therefore,
distinguishable.
48.
There were no serious grievances of malpractices in Rajesh P.U. (supra)
either. In fact, this Court held that “applying a unilaterally rigid and
arbitrary standard to cancel the entirety of the selections despite the firm
and positive information that except 31 of such selected candidates, no
infirmity could be found with reference to others, is nothing but total
disregard of relevancies and allowing to be carried away by irrelevancies
giving a complete go-by to contextual considerations throwing to the winds
the principle of proportionality in going farther than what was strictly and
reasonably to meet the situation”. It was concluded that “the competent
authority completely misdirected itself in taking such an extreme and
unreasonable decision of cancelling the entire selections, wholly unwarranted
and unnecessary even on the factual situation found too, and totally in excess
of the nature and gravity of what was at stake, thereby virtually rendering
such decision to be irrational” (emphasis supplied by us).
49.
Paragraph 35 of the decision in Sachin Kumar (supra) has been relied
on. There, this Court held that:
“35. In deciding this
batch of SLPs, we need not reinvent the wheel. Over the last five decades,
several decisions of this Court have dealt with the fundamental issue of when
the process of an examination can stand vitiated. Essentially, the answer to
the issue turns upon whether the irregularities in the process have taken place
at a systemic level so as to vitiate the sanctity of the process. There are
cases which border upon or cross over into the domain of fraud as a result of
which the credibility and legitimacy of the process is denuded. This
constitutes one end of the spectrum where the authority conducting the
examination or convening the selection process comes to the conclusion that as
a result of supervening event or circumstances, the process has lost its
legitimacy, leaving no option but to cancel it in its entirety. Where a
decision along those lines is taken, it does not turn upon a fact-finding
exercise into individual acts involving the use of malpractices or unfair
means. Where a recourse to unfair means has taken place on a systemic scale, it
may be difficult to segregate the tainted from the untainted participants in
the process. Large-scale irregularities including those which have the effect of
denying equal access to similarly circumstanced candidates are suggestive of a
malaise which has eroded the credibility of the process. At the other end of
the spectrum are cases where some of the participants in the process who appear
at the examination or selection test are guilty of irregularities. In such
a case, it may well be possible to segregate persons who are guilty of
wrongdoing from others who have adhered to the rules and to exclude the former
from the process. In such a case, those who are innocent of wrongdoing should
not pay a price for those who are actually found to be involved in
irregularities. By segregating the wrongdoers, the selection of the untainted
candidates can be allowed to pass muster by taking the selection process to its
logical conclusion. This is not a mere matter of administrative procedure but
as a principle of service jurisprudence it finds embodiment in the
constitutional duty by which public bodies have to act fairly and reasonably. A
fair and reasonable process of selection to posts subject to the norm of
equality of opportunity under Article 16(1) is a constitutional
requirement. A fair and reasonable process is a fundamental requirement
of Article 14 as well. Where the recruitment to public employment
stands vitiated as a consequence of systemic fraud or irregularities, the
entire process becomes illegitimate. On the other hand, where it is possible to
segregate persons who have indulged in malpractices and to penalise them for
their wrongdoing, it would be unfair to impose the burden of their wrongdoing
on those who are free from taint. To treat the innocent and the wrongdoers
equally by subjecting the former to the consequence of the cancellation of the
entire process would be contrary to Article 14 because unequals would
then be treated equally. The requirement that a public body must act in fair
and reasonable terms animates the entire process of selection. The decisions of
the recruiting body are hence subject to judicial control subject to the
settled principle that the recruiting authority must have a measure of
discretion to take decisions in accordance with law which are best suited to
preserve the sanctity of the process. Now it is in the backdrop of these
principles, that it becomes appropriate to advert to the precedents of this
Court which hold the field.”
(emphasis
supplied by us)
50.
What follows from the above is that each case has to be decided on its own
peculiar facts. It has to be pleaded and proved to the satisfaction of the
Court that the decision of the recruiting authority (to cancel the entire
process because of wrongdoing by some tainted elements and not save a part of
the process, to the extent it could be saved, to the utter detriment of
the interests of the innocent) is wholly disproportionate to the risk and
overly severe relative to what is at stake, thereby virtually rendering such
decision to be irrational.
51.
Based on what has been discussed in the paragraphs preceding consideration of
the authorities cited by Mr. Goswami, the appellants’ decision in cancelling
the entire selection process initiated vide the advertisement dated 23rd July,
2014 relying on the note of the PCCF dated 4th July, 2016, and not part of it,
in our considered opinion, does not seem to be either arbitrary or unreasonable
or without any sense of proportion. Since the earlier process did border on
fraud, in the light of the reservation policy not being respected and
observance of the decisions of this Court (that meritorious reserved category
candidates are entitled to be accommodated in the open category) in breach,
there was a brazen violation which was sought to be corrected and, if we may
say, justifiably so. It has not been proved to our satisfaction that the
impugned decision of cancelling the select list is the neat result of an
injudicious exercise of discretion and was ill- directed in the guise of
achieving the sanctity of the entire selection process.
52.
The broad issue and issue (a) (supra) are, thus, answered in favour of the
appellants by holding that the impugned decision of cancellation was neither
unjustified nor was one which could be upset by applying the doctrines of
either Wednesbury unreasonableness or proportionality.
53.
Since we find question (b) supra to be a question of frequent occurrence
engaging the courts of law, it is considered fruitful to take it up for an
answer now. It has been argued that by dint of mere empanelment/enlistment of
an aspirant’s name for filling up a public post, no right accrues in favour of
such an aspirant to move the writ court for redress. We do not consider that an
empanelled or a selected candidate has absolutely no right to move the writ
court. We are conscious of the line of decisions of this Court and have noted
some of them here, which lay down the law that mere empanelment/enlistment does
not result in accrual of any indefeasible right in favour of such
empanelled/selected candidate as well as the law that the employer may, in its
wisdom, either decide to cancel the select list or not carry on the process
further resulting in the notified/advertised vacancy/vacancies not being filled
up pursuant to the selection process, which has been conducted. What it means
is that an empanelled/selected candidate can claim no right of appointment, if
the State has cogent and germane grounds for not making the appointment.
However, at the same time, it is also the law that the appointing authority
cannot ignore the select panel or decline to make the appointment on its
whims. Shankarsan Das (supra) cautions that the State has no licence
to act in an arbitrary manner. In R.S. Mittal v. Union of India[1995 Supp (2) SCC 230], a coordinate
bench held that when a person has been selected by the Selection Board
and there is a vacancy which can be offered to him, keeping in view his
merit position, then, ordinarily, there is no justification to ignore him for
appointment and that there has to be a justifiable reason to decline to appoint
a person who is on the select panel. The position in law finds reiteration
in a decision of recent origin in Dinesh Kumar Kashyap v. South East
Central Railway[(2019) 12 SCC 798],
where the majority held that the employer must give cogent reasons for not
appointing selected candidates.
54.
Any decision taken not to appoint despite there being vacancies and a valid
select list, obviously, is in the nature of a policy decision. It has to be
borne in mind that securing public employment is the dream of many, who put
their heart and soul to prepare for it. Nowadays, aspirants undertake rigorous
study sessions as well as training modules to equip themselves, which also
comes at a heavy cost. That apart, since every process of recruitment
necessarily involves substantial expenses which are borne from the public
exchequer and at the same time the aspirants for the posts (who, as per their
own estimation, have performed sufficiently well and therefore stand a good
chance of being appointed upon figuring in the select list) cherish fond hopes
of a bright and secure future, the law is clear that the policy decision not to
carry the process forward must be taken bona fide, there has to be justifiable
reason if the process is abandoned mid-way, and such decision must not
suffer from the vice of arbitrariness or the whims of the decision maker. This
acts as a check on the employer’s power deciding against not making any
appointment from the select list despite availability of vacancy/vacancies on
the advertised/notified public post(s). A writ court may, upon reaching the
requisite satisfaction, intervene in such manner and make such directions as
the facts and circumstances warrant. We, therefore, do not find it acceptable
that the aspirants, not having an indefeasible or vested right of appointment,
do not also have the right to question any decision adverse to their interest
affecting achievement of their goals to secure public employment. Whether, and
to what extent, any relief should be granted, must depend on the facts of each
case.
55.
On facts and in the circumstances, however, the respondents’ legal rights were
not infringed because of absence of grant of legitimacy to the select list by
way of an approval from the Government; hence, the writ petition should not
have been allowed.
56.
Question (b) (supra) is, accordingly, answered.
57.
The answer to the issue of the appellants urging new grounds need not detain us
for long. We have not looked into the counter affidavit of the appellants but
have confined our attention to the note of the PCCF dated 4th July, 2016,
containing the reasons based on which cancellation of the select list was
proposed. The law laid down in Mohinder Singh Gill (supra)
admits of no dispute; however, the said decision has no application
because of what has been immediately observed by us.
58.
We reiterate having read the note dated 4th July, 2016 of the PCCF in between
the lines and record that there were materials proffering sufficient
justification for the successor Government to cancel the select list; hence, we
endorse our approval of the same.
59.
Having answered all the aforesaid crucial issues, ruling on the final issue
invariably has to be in favour of the appellants. RELIEF
60.
Consequently, the impugned judgment(s) and order(s) of the High Court stand(s)
quashed.
61.
The civil appeal stands allowed, without order for costs.
62.
Pending applications, if any, shall stand disposed of.
CONCLUDING
DIRECTIONS
63.
The appellants are granted liberty to take forward the process of filling up
104 Constables in the AFPF, in accordance with law, by publishing fresh
advertisement. It would be desirable if rules are framed for the purpose of
recruitment and such rules are uniformly applied to all and sundry, so as to
preempt any allegation of bias or arbitrariness. Even if rules are not framed,
the selection process may be taken forward in terms of administrative
instructions which, in any case, should be placed in the public domain.
64.
The respondents, if they choose to apply in pursuance of such advertisement,
shall be considered for appointment waiving their age bar as well as waiving
insignificant minor deficiencies in physical measurement as well as
insignificant requirements of the PET, considering that almost a decade has
passed since the earlier process was initiated. This concession is granted in
exercise of our power conferred by Article 142 of the Constitution.
In addition, it shall be open to the PCCF to grant such further relaxation to
the respondents as deemed fit and proper.
65.
Let the fresh process be initiated and concluded without any delay.
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