Hussain Ali Vs State Of Tripura And Ors

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[1] Heard Mr. S. Das, learned counsel appearing for the petitioners as well as Mr. D. Sharma, learned Addl. G.A. appearing for the respondents.

[2] These writ petitions being W.P.(C) No.353 of 2015 [Md. Hussain Ali vs. State of Tripura & Ors.] and W.P.(C) No.354 of 2015 [Sri Mitu Sen vs. State of Tripura & Ors.] are consolidated for disposal by a common judgment inasmuch as in both the writ petitions the petitioners have sought the following relief in the resembling fact-situation:

[i] Issue writ in the nature of certiorari directing the respondents and each of them to set aside/quash the decision contained in letter No.6544/F.27(16)/DAP/TSR/ RSV/11 dated 06.08.2015.

[ii] Issue writ in the nature of mandamus directing the respondents and each of them to provide job by way of transfer to Havildar [Clerk] Tripura State Rifles.

[iii] Issue writ in the nature of mandamus directing the respondents and each of them to provide job to Havildar [Clerk] Tripura State Rifles pursuant to the panel prepared by the respondents.

[3] By the said letter dated 06.08.2015 [Annexure-3 to the writ petitions] the Dy. Inspector General of Police, AP[Adm & Trg] has communicated the Commandant 7th Battalion TSR that PHQ Tripura vide U. No.2654f8/PHQ/15 dated 08.07.2015 has intimated that the panel recommended by the DPC held in the year 2011 cannot be considered after a lapse of 04[four] years. PHQ, Tripura has intimated that a proposal for amendment of Rule 37 of TSR[Recruitment] Rules, 1984 for the post of Hav.[Clerk] in TSR BNs has been sent to the Govt. vide PHQ letter No.8411-12/F.8(107)-PHQ/TSR/2010 (Part) dated 27.02.2015 [Copy enclosed] which is still pending with the Government and therefore, no DPC can be constituted for filling-up of the vacant posts of Hav [Clerk] in TSR BNs before amendment of Recruitment Rules. It was directed to inform the individual concerned.

[4] There is no dispute that in terms of Sub Rule 1 of Rule 37 of the TSR [Recruitment] Rules, 1984, a departmental examination is held for filling-up of 6[six] vacant posts of Havildar [Clerk] in the TSR. It appears from the records that there is no dispute that the Departmental Promotion Committee [DPC] had prepared a panel of 20 persons for purpose of appointment to the post of Havildar [Clerk]. Names of the petitioners figure in the said panel at Sl. No.7 & 6. That apart, the petitioners belong to UR category. By the order under No.F5212-21/F.30/IGP (TSR & Ops) dated 09.11.2011 [Annexure-1 to the writ petitions], the following persons were transferred/appointed to the post of Havildar [Clerk] according to their seniority:

Sl. No.

Regd No., Rank and Name

Category

Remarks

01080875 Rfn (GD) Naresh Kumar

8th

Previous panel

97031211 Rfn (GD) Aditya Kr. Yadav

3rd

Previous panel

00060150 Hav(GD) Naveen Kr. Jha

6th

Fresh candidate

01080743 Hav (GD) Rupesh Kr. Mishra

8th

-do

02020506 Hav(GD) Joy Debnath

2nd

-do

97031259 L/NK (GD) Ganesh Bhattacharjee

11th

-do

01070689 Rfn (GD) Abhijit Malakar

7th

-do

01070975 Rfn (GD) Nabadwip Tripura

7th

-do

01070997 Rfn (GD) Tapan Kr. Das

7th

-do

01070536 Rfn (GD) Abhijit Das

7th

-do

02090015 Rfn (GD) Goutam Das

9th

-do

06020043 Rfn (GD) Biswa Ranjan Halam

9th

-do

Formal order shall be issued by the Commandants of concerned Unit to which the above individuals are presently posted and subject to condition that no DP/Criminal case is either pending or contemplated against them. Their pay & allowances on appointment as Havildar [Clerk] by way of transfer shall be fixed as per TSCS [Revised Pay] Rules, 2009.

Sd/

Illegible

[DS Deb Chowdhury] Dy. IG of Police, AP [Adm & Trg] Tripura, Agartala"

[7] Mr. Das, learned counsel having referred to Para-9 of the writ petitions has contended that those appointments made by the order dated 13.11.2009 were made from the panel recommended by the DPC after a lapse of 5 years. The said practice has extended the legitimate expectation to the petitioners for being appointed against the subsequent vacancies. The petitioners were at Sl. No.5 & 6 and hence, they were at the top of the said panel and thus, non-consideration for appointment from the said panel has seriously prejudiced the petitioners. Such legitimate expectation binds the respondents with duty to attend the expectation. In support of his contention, Mr. Das, learned counsel has relied the following decisions of the apex court on legitimate expectation and the extent of acquiescence thereof:

[i] Navjyoti Coop. Group Housing Society and others, reported in (1992) 4 SCC 477;

[ii] Food Corporation of India vs. M/s. Kamdhenu Cattle Feed Industries, reported in (1993) 1 SCC 71;

[iii] Union of India and others vs. Hindustan Development Corporation and others, reported in (1993) 3 SCC 499.

[8] In reply, Mr. D. Sharma, learned Addl. G.A. appearing for the respondents has submitted that no appointment in the post of Havildar [Clerk] is being made. There is a proposal for amendment of Rule 37 of TSR [Recruitment] Rules, 1984 and that proposal has been sent to the competent authority but the process is still inconclusive. Hence, no DPC has been constituted. It has been further asserted that the DPC was never asked to recommend the name beyond the post available at the material time. As such, the said panel in no way can create any obligation in filling-up of the future vacancies. As per the guidelines in vogue, only the required number of officers in the descending order of merit be recommended. It has been asserted in the Para-12 of the reply filed by the respondents that 'as per DPC guidelines recommended panel is to be kept valid for one year and six months and ceases to be valid after one year and six months.' Mr. Sharma, learned Addl. G.A. having referred to Para-13 of the reply has submitted that 'it is a fact that two Rfn. [GD] who had been declared passed and kept in the panel by the Board held in the year 2004 for the post of Havildar [Clerk] were considered for appointment to the post of Havildar [Clerk] following the recommendation of Board held in the year 2009 by theappointment order issued vide No.5739-52/F.2(4)/DAP/TSR/RSV/08 dated 13.11.2009.' Mr. Sharma, learned Addl. G.A has submitted further that beyond the vacancy for which the DPC is constituted, the persons in the wait panel cannot be treated as the reservoir or source of recruitment. In this regard, the following decisions of the apex court have been relied by Mr. Sharma, learned Addl. G.A. in support of his contention on whether inclusion in the wait panel creates any indefeasible right in favour of the person who is in the panel:

[i] State of Bihar and others vs. Amrendra Kumar Mishra, reported in (2006) 12 SCC 561;

[ii] Aryavrat Gramin Bank vs. Vijay Shankar Shukla, reported in (2007) 12 SCC 413;

[iii] State of Rajasthan and others vs. Jagdish Chopra, reported in (2007) 8 SCC 161;

[iv] Rakhi Ray and others vs. High Court of Delhi and others, reported in (2010) 2 SCC 637.

[9] Mr. Sharma, learned Addl. G.A has further submitted that there is no space for sympathy towards the person who are in the panel and if the panel is considered in view of their position they might be considered for appointment. The persons who were appointed on the basis of the said panel were admittedly superior on merit and the petitioners do not have any grievance in that regard. Hence, they cannot raise any grievance on the basis of fairness qua Article 14 of the Constitution of India.

[10] Having appreciated the submissions, as advanced by the learned counsel appearing for the parties, two questions intertwined by consequences have emerged for decision viz: [i] Whether the panel maintained by the DPC beyond the vacancies, as adverted, for the exercise can be the source for filling-up of the future vacancies and

[ii] Whether the legitimate expectation as claimed by the petitioners creates any obligation for the respondents?

[11] Whether the panel maintained by the DPC beyond the vacancies, as adverted, for the exercise can be the source for filling-up of the future vacancies?

In Amarendra Kumar Mishra (supra), having referred to Surinder Singh vs. State of Punjab, reported in (1997) 8 SCC 488, it has been observed that the candidates in the waiting list have no vested right to be appointed except to the limited extent when a candidate selected against the existing vacancy does not join for some reasons and the waiting list still operative the appointment can be made from the waiting list. [See Prem Singh vs. Harayana S.E.B, reported in (1996) 4 SCC 319]. It has been further observed that the wait list must be acted upon having regard to the terms of advertisement and in any event cannot remain operative beyond the prescribed period.

[12] In Aryavrat Gramin Bank (supra) it has been succinctly laid by the apex court as follows:

"21. It is now a trite law that only because a person has been selected and his name finds place in the select list, the same by itself does not confer any legal right on him to be appointed. It is also trite that ordinarily a Superior Court in exercise of its power of judicial review would not interfere with the right to make appointment by an employer unless its action or in-action is found to be wholly arbitrary so as to offend Article 14 of the Constitution of India."

[13] In Jadish Chopra (supra) the apex court has clearly laid down the law for the situation when Rules do not specifically provide for the period for which the panel shall remain valid, the intent of the legislature is absolutely clear as vacancies have to be determined only once in a year, vacancies which arose in the subsequent years could be filled up from the select list in the previous year and not in any other manner. Even otherwise, in absence of any rule, ordinary period of validity of select list should be one year.

[14] As relied by Mr. Sharma, learned Addl. G.A., in Rakhi Ray (supra) the apex court has observed in respect of the validity of the panel as under:

"21. A person whose name appears in the select list does not acquire any indefeasible right of appointment. Empanelment at the best is a condition of eligibility for purpose of appointment and by itself does not amount to selection or create a vested right to be appointed. The vacancies have to be filled up as per the statutory rules and in conformity with the constitutional mandate. In the instant case, once 13 notified vacancies were filled up, the selection process came to an end, thus there could be no scope of any further appointment." [Emphasis added]

[15] Whether the legitimate expectation as claimed by the petitioners creates any obligation for the respondents?

The law as enunciated is binding on the courts in India. No expectation can eclipse the operation of law. However, legitimate expectation has been recognized as a tool to ensure that due consideration is not denied. In Navjyoti Coop. Group Housing Society (supra) the apex court has observed that the doctrine of legitimate expectation imposes an essence of duty on the public authority to act fairly by taking into consideration all relevant factors relating to such legitimate expectation. The existence of legitimate expectation may have a number of different consequences and one of such consequences is that the authority ought not act to defeat the legitimate expectation without some overriding reasons of the public policy to justify its doing so. Within the conspectus of fair dealing in case of legitimate expectation, the reasonable opportunities to make representation are to be made on emergence of any change in the consistent past policy. In other words, if the authority proposes to defeat the legitimate expectation, it should afford him an opportunity to make representation in the matter.

[16] The apex court in Hindustan Development Corporation (supra) has revisited the law and approved the law stated in Kamdhenu Cattle Field Industries (supra) and observed that legitimate expectation gives the applicant sufficient locus-standi for judicial review. The doctrine of legitimate expectation is to be confined mostly to right of a fair hearing before a decision which results in negativing a promise or withdrawing an undertaking. The doctrine does not give scope to claim relief straightaway from the authorities as no crystallised right as such emerges. The protection of such legitimate expectation does not require the fulfilment of the expectation where an overriding public interest requires otherwise. Where a person's legitimate expectation is not fulfilled by causing its reversal then the decision-maker should justify the denial of such expectation by showing some overriding public interest. Therefore, even if substantive protection of such expectation is contemplated, that does not grant an absolute right to a person who extends his claim on such expectation. The law, as discussed before, simply outlines the circumstances in which that expectation may be denied or restricted. Legitimate expectation being less than a right operates in the field of public law and not in the private law domain and to some extent, such legitimate expectation ought to be protected, though not guaranteed. A case of legitimate expectation would arise when a body by representation or by past practice aroused expectation which would be within its powers to fulfil. The protection is limited to that extent and a judicial review can be within those limits. A person who bases his claim on the doctrine of legitimate expectation, in the first instance, must satisfy that there is a foundation and thus he has locus standi to make such a claim. Where there are stronger reasons to deny the legitimate expectation, the expectation should not be substantively or otherwise protected. Thus, the legal obligation emerges whenever the case is stronger than the case against it. If principles of natural justice does not condition the exercise of the power, the concept of legitimate expectation can have no role to play and the Court must not usurp the discretion of the public authority, which is lawfully empowered to take the decisions and the court is expected to apply an objective standard which leaves the deciding authority to its full range of choices. Even in a case where the decision is left entirely to the discretion of the deciding authority without any such legal bounds and if the decision is taken fairly and objectively, the court will not interfere on the ground of procedural fairness in favour of a person whose interest is based on legitimate expectation, even he is affected by such decision. In the matter of policy, if any change is made in the old policy, the courts cannot interfere with a decision. If a denial of legitimate expectation in a given case amounts to denial of right guaranteed or is arbitrary, discriminatory, unfair or based on gross abuse of power or violation of principles of natural justice, the same can be questioned on the well-known grounds available under Article 14 but a claim based on mere legitimate expectation without anything of that sort, cannot ipso facto give a right to invoke this doctrine. The court however can lift the veil and see whether the decision is violative of these principles or warrants interference. It depends on the facts and the recognised principles of administrative law which might canonically apply to facts, and the concept of legitimate expectation, which is the latest recruit to a long list of concepts fashioned by the courts for the review of administrative action, must be restricted to the general legal limitations in the matter of future exercise of administrative power in a particular case. It follows that the concept of legitimate expectation is 'not the key which unlocks the treasury of natural justice and it ought not to unlock the gates which shuts the court out of review on the merits,' particularly when the element of speculation and uncertainty is inherent in that very concept. The courts should restrain themselves and restrict such claims to the legal limitations.

[17] If the proposition of law as laid down by the apex court is applied in the present controversy, the petitioners cannot be given any relief inasmuch no right has been crystalised in their favour. Moreover, if the relief as sought is given that would override the public interest. Hence, the writ petitions are considered to be devoid of merit and accordingly, those are dismissed. However, in the circumstances, there shall be no order as to costs.

The records be returned forthwith.

Hussain Ali vs State Of Tripura And Ors

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