B. Kamaraj vs The Director of Technical Education, The Correspondent, Murugappa Polytechnic and The Principal, Murugappa Polytechnic

P.K. Misra, J.—The petitioner has prayed for issuing a Writ of Mandamus directing the 2nd and 3rd respondents to implement the order of

approval made by the 1st respondent herein in his Letter No. Pa.Mu.30163/C3/96 dated 31.7.1996 and appoint the petitioner herein as

Associate Lecturer in Mathematics in Murugappa Polytechnic, Avadi, Chennai - 600 002.

The petitioner was working on temporary basis as Instructor in Mathematics in the Murugappa Polytechnic from the year 1993. The aforesaid

Institute is an aided Institute. Subsequently, a regular vacancy for the post of Associate Lecturer in Mathematics had arisen, and the third

respondent namely the Principal of the Institute requested the Assistant Director of Professional and Executive Employment Exchange to send list

of eligible candidates for interview. However, the Assistant Director by a communication dated 19.9.94 issued a non-availability certificate, as the

candidates were not available at that stage. Since, the candidates were not available, an advertisement was made and by holding an interview, the

present petitioner was selected by the Staff Selection Committee of the Institute and the 2nd respondent namely the Correspondent of the Institute

sought for approval from the 1st respondent. At that stage, the first respondent refused to approve the selection on the ground that the non-

availability certificate was valid only for a period for six months and since the selection had been made after the period of six months, such selection

could not be approved. Thereafter, the third respondent again requested the Assistant Director of Professional and Executive Employment

Exchange to send a fresh list of candidates. Since the petitioner was qualified his name was sponsored by the Employment Exchange. Thereafter,

an interview was held on 14.8.1995 and the Staff Selection Committee again selected the petitioner. Thereafter, the 2nd and 3rd respondents

sought for approval of the first respondent for appointment of the petitioner as Associate Lecturer in Mathematics. After prolonged

correspondence, the first respondent approved the selection in Letter. No. Pa.Mu.30163/C3/96 dated 31.7.96 which was sent to the 2nd and 3rd

respondents. Inspite of the aforesaid approval, the 2nd and 3rd respondents however, did not issue any formal appointment order to the petitioner.

It is alleged by the petitioner that at that stage, the 3rd respondent wanted to appoint his own daughter-in-law and therefore did not issue any

formal letter of appointment. While the matter stood thus, a fresh list of candidates was called for. This action on the part of the 2nd and 3rd

respondents forced the present petitioner to file the present writ petitioner claiming for the relief as indicated above. The petitioner has also filed a

petition seeking for an injunction and it appears that an order of interim injunction had been passed, prohibiting the 2nd and 3rd respondents from

calling for a fresh candidates.

A separate counter affidavit has been filed on behalf of the 2nd and 3rd respondents taking similar stand. It is contended in the counter affidavit

that until an order of appointment is issued to the petitioner, he does not have vested right to get an order of appointment. The allegation that the

3rd respondent wanted to appoint his own daughter-in-law has been denied by stating that the said Principal had retired in the mean time and no

such appointment has been made. The basic fact that the petitioner had been selected and subsequently, the first respondent had approved such

selection has not been denied. It has been further stated that the work of the petitioner as a temporary instructor was not satisfactory and for the

aforesaid reason the petitioner was not appointed.

The 2nd and 3rd respondents vehemently contended that until an order of appointment is actually issued to the candidate, such candidate does

not have vested right of such appointment. In suport of the aforesaid contention, learned has placed reliance on the decision reported in Tagin Litin

Vs. State of Arunachal Pradesh and another, stating that there cannot be any vested right until an order of appointment is actually issued and the

selected candidate does not have any right to the post.

There is no quarrel over the above general principle that a selected candidate does not have a right to the post until an order of appointment is

issued. This general principle however does not authorise the authority to act arbitrarily. If a particular person is selected, the employer is not

bound to employ such person. However, there should be sufficient reason for not appointing such person. It may be that after the selection is over,

the said vacancy may not arise or the employer for appropriate reason may think of not filling up the post. Even though the person selected does

not have a vested right to get the order of appointment, such person has got a legitimate expectation of being appointed and such legitimate

expectation should not be thwarted merely on the basis of any arbitrary action on the part of the employer.

In the present case, the Institute is an Aided Institute receiving aid from the Government. It is not denied that the selection was made for the said

post which comes within the sanctioned strength and precisely for the said reason, approval of the first respondent regarding selection had been

sought for. The necessity to fill up the post was continuing and in the meantime the said post remains vacant. The petitioner had been selected not

only once but on two occasions. On the first occasion, the first respondent had not accorded approval on the technical ground and on the second

occasion even though the first respondent had accorded approval, the second and third respondents delayed the matter for no reason.

It is true that in the counter affidavit, it is now asserted that the performance of the petitioner while he was in temporary post was not up to the

mark. However, this stand appears to be a mere after thought as no such reply was given to the petitioner when he had correspondence with the

2nd and 3rd respondents. If the performance of the petitioner was not up to the mark, it is not understood as to how the Staff Selection Committee

on two successive occasions have selected the petitioner. It is thus apparent that the 2nd and 3rd respondents have acted arbitrarily in not issuing

any appointment letter inspite of the approval accorded by the first respondent. The legitimate expectation of the petitioner has been denied by the

2nd and 3rd respondents without any reasonable basis. The facts of the reported decision Tagin Litin Vs. State of Arunachal Pradesh and another,

were different and distinguishable and the ratio of the said decision has no application to the present facts and circumstances of the case.

It is also to be noted that at the time of selection, the petitioner was about 30 years old and in the meantime he has crossed the age recruitment

for employment in any public services.

Having regard to all these aspects, I am inclined to allow the writ petition and issue a direction to the 2nd and 3rd respondents to issue

necessary letter of appointment to the petitioner. No order as to costs. Consequently, W.M.P. No. 2586 of 1997 is closed.