Pankaj Rai vs State Of Himachal Pradesh & Anr.

“I. Impugned notification dated 30.09.2025 (Annexure P-4), as well as the impugned order dated 16.09.2025 (Annexure P-6) whereby, the respondent no. 2 cancelled selection process for the post of Chairman, HP Electricity Regulatory Commission in pursuance to the advertisement dated 14.08.2025, be quashed and set aside.

II. Respondents No. 1 & 2 may be directed to conclude the selection process for the post of Chairman, HP Electricity Regulatory Commission (HPERC) in strict adherence to the statutory mandate and notified eligibility criteria ensuring that the petitioner's candidature is duly evaluated in a fair and time-bound manner.”

Admitted Facts

“The qualification for appointment of Chairman of State Commission and their terms of office and conditions of service are provided in section 84 and 89 of the Electricity Act, 2003, respectively. Salary, allowances & other conditions of Chairman have been provided in the Himachal Pradesh Electricity Regulatory Commission (Salary, Allowances and other conditions of Service of Chairman and members) Rules 2006 notified on 30.11.2006 with amendment dated 6th April, 2017 and 7.1.2025. As per Section 84 of the Electricity Act, 2003, the Chairman and the Members of the State Commission shall be a person of ability, integrity and standing who has adequate knowledge of, and has shown capacity in, dealing with problems relating to engineering, finance, commerce, economics, law or management. The Chairman and the Members of the State Commission shall not hold any other office as provided in sub-section (3) of Section 84 of the Electricity Act, 2003.”

“PROCEEDINGS OF THE MEETING HELD ON 14.9.2025 AT 10:00 AM FOR THE SELECTION OF THE CHAIRMAN,

HIMACHAL PRADESH ELECTRICITY REGULATORY COMMISSION (HPERC), SHIMLA

A meeting of the Selection Committee for the selection of the Chairman, HPERC was held on 14.09.2025. The Chairman of the Selection Committee, Justice V.K. Sharma (Retd.), and the Co-Member, Shri Jishnu Barua, attended the meeting in person.

2.

At the outset, the Special Secretary (MPP & Power) to the Government of Himachal Pradesh placed before the Selection Committee the advertisement dated 14th August, 2025, issued for inviting applications to the post of Chairman, HPERC, and apprised the Committee that the last date for submission of applications was 30th August, 2025. The Committee perused the said advertisement.

3.

The Special Secretary further informed the Committee that 16 applications had been received for the post of Chairman, HPERC. He apprised the Committee of the educational qualifications and experience of the applicants, and placed before it the applications received, along with the bio-data furnished by each applicant.

4.

The Selection Committee was apprised that the Chief Secretary to the Government of Himachal Pradesh is a member of the Committee, as notified vide Notification dated 25.08.2025. It was, however, brought to the notice of the Committee that Shri Prabodh Saxena, presently holding the charge of Chief Secretary, Government of Himachal Pradesh, has submitted his application for the post of Chairman, HPERC, and has, therefore, withdrawn from the Selection Committee.

5.

The Committee took note that Section 85(6) of the Electricity Act, 2003 stipulates that no appointment of the Chairman or any other Member shall be invalid merely by reason of any vacancy in the Selection Committee. In view of the above, the withdrawal of the Chief Secretary, Government of Himachal Pradesh, from the Selection Committee was accepted. It was accordingly observed that the Selection Committee shall function as a two-member Committee.

6.

It was also apprised that in the advertisement, the candidates were asked to submit a declaration in the form of undertaking alongwith their applications on the points that the applicant does not have any financial or other interest likely to affect prejudicially his/her function as Chairman, HPERC; whether any criminal case has been registered against the applicant; whether the applicant has been charge-sheeted for any criminal offence; and whether the applicant has been convicted by any competent court for any criminal offence. Further, it was apprised that all the applicants have submitted their applications alongwith the declaration.

7.

Out of the 16 applicants who had applied for the post of Chairman HPERC, only 12 applicants, as per Annexure-I, appeared before the Selection Committee. After perusal of the applications submitted by the applicants, followed by examination of their educational qualifications and experience, interaction with them, due assessment of their abilities and knowledge, and after due deliberations, both Members of the Selection Committee were unanimous in their opinion that, keeping in view the requirements prescribed under section 84(1) of the Electricity Act, 2003 for the post of Chairman, HPERC, and on the basis of the particulars furnished in the bio-data, as well as the applicant's experience from their previous assignments and job profiles, the following two candidates, in no order of preference, have been found suitable for the post of Chairman HPERC and are accordingly recommended for this post.

1.

Sh. Pankaj Rai

2.

Sh. Rajiv Sood

Furthermore, the Selection Committee has satisfied itself that as required under section 85(5) of the Electricity Act, 2003 the recommended persons do not have any financial or other interest which is likely to affect prejudicially their functions as Chairman of the HPERC.

Sd/- Sd/-[Sh. Jishnu Barua] [Justice V.K. Sharma, (Retd.)] Member, Selection Committee Chairman, Selection Committee”

Petitioner’s case

Respondents’ response

Submissions on behalf of Petitioner:

Submission on behalf of Respondents-State:

“K.S. Radhakrishnan, J.

21.

We are of the view that non-compliance of sub-section (5) of Section 85 of the Act is not a procedural violation, as it affects the very substratum of the appointment, being a mandatory requirement to be complied with, by the Selection Committee before recommending a person for the post of Chairman. We are of the view that non-compliance of sub-section (5) of Section 85 of the Act will vitiate the entire selection process since it is intended to be followed before making the recommendation to the State Government. Non-compliance of mandatory requirements results in nullification of the process of selection unless it is shown that performance of that requirement was impossible or it could be statutorily waived. The expression “before recommending any person” clearly indicates that it is a mandatory requirement to be followed by the Selection Committee before recommending the name of any person for the post of Chairman. The expression “before” clearly indicates the intention of the Legislature. The meaning of the expression “before” came for consideration before this Court in State Bank of Travancore v. Mohammad (1981) 4 SCC 82 where the words “any debt due at and before the commencement of this Act to any banking company” as occurring in section 4(1) of the Kerala Agriculturist Debt Relief Act, 1970, were construed by the Supreme Court to mean “any debt due at and before the commencement of this Act”. We, therefore, find it difficult to accept the contention of learned senior counsel that this, being a procedural provision and non-compliance of sub-section (5) of Section 85 of the Act, is a defect curable by sending the recommendation back to the Selection Committee for compliance of sub-section (5) of Section 85 of the Act.

xx xx xx

Judgment

Deepak Misra, J.

14.

On an x-ray of the Preamble of the Act and the important functions ascribed to the State Commission I have no scintilla of doubt that the selection of Chairman or a member is extremely important, more so, when there is a statutory prescription about the manner in which the Selection Committee is required to act. I may state here that though the language is plain, unambiguous, clear and leads to a singular construction, yet I think it apt to reproduce a passage from Utkal Contractors Joinery Pvt. Ltd. and others etc. v. State of Orissa and others, AIR 1987 SC 1454 wherein Chinnappa Reddy, J. has observed thus: -

“A statute is best understood if we know the reason for it. The reason for a statute is the safest guide to its interpretation. The words of a statute take their colour from the reason for it. How do we discover the reason for a statute? There are external and internal aids. The external aids are Statement of Objects and Reasons when the Bill is presented to Parliament, the reports of Committees which preceded the Bill and the reports of Parliamentary Committees. Occasional excursions into the debates of Parliament are permitted. Internal aids are the preamble, the scheme and the provisions of the Act. Having discovered the reason for the statute and so having set the sail to the wind, the interpreter may proceed ahead. No provision in the statute and no word of the statute may be construed in isolation. Every provision and every word must be looked at generally before any provision or word is attempted to be construed. The setting and the pattern are important.” (emphasis supplied) xx xx xx

21.

I have referred to the aforesaid authorities singularly for the purpose that regulatory commission is an expert body and in such a situation the selection has to be absolutely in accord with the mandatory procedure as enshrined under Section 85 of the Act.

22.

In the present context, it has become necessitous to dwell upon the role of the Selection Committee. Section 85(1) of the Act provides for constitution of Selection Committee to select Members of the State Commission. The said Committee, as the composition would show, is a high powered committee, which has been authorised to adjudge all aspects. I may hasten to add that I am not at all delving into the sphere of suitability of a candidate or the eligibility, for in the case at hand the issue in singularity pertains to total non-compliance of the statutory command as envisaged under Section 85(5).

25.

It is manifest in the selection of the appellant that there is absence of “intellectual objectivity” in the decision making process. It is to be kept in mind a constructive intellect brings in good rationale and reflects conscious exercise of conferred power. A selection process of this nature has to reflect a combined effect of intellect and industry. It is because when there is a combination of the two, the recommendations as used in the provision not only serves the purpose of a “lamp in the study” but also as a “light house” which is shining, clear and transparent.”

“37.

In the backdrop of the above, the following questions arise for consideration before this Court:

i.

Whether a candidate selected and recommended by the Commission acquires an indefeasible right to appointment merely by virtue of such selection and recommendation?

ii.

Whether, notwithstanding the recommendation made by the Commission, the Respondent-State, as the Appointing Authority, was competent to verify and reassess the Appellant's eligibility prior to issuance of the final appointment order, particularly in view of the stipulation contained in the Commission's communication dated 07.10.2021?

iii.

Whether the Appellant fulfils the teaching criteria and whether the findings of the committee as to the eligibility of the Appellant are otherwise legally sustainable?

xx xx xx

43.

It is settled law that a recommended candidate does not have an indefeasible right to appointment and the Appointing Authority retains certain discretion in the matter of appointments. The mere inclusion of a candidate's name in a select list or in a recommendation by the selection body/Commission does not create a vested right to appointment. Selection undoubtedly confers upon the candidate a right to fair, non-arbitrary and equitable consideration for appointment, but it does not by itself crystallise into an absolute right to be appointed to the post. xx xx xx

“10. Commission's decision about the eligibility of

candidates Final.— The decision of the Commission as to the eligibility or otherwise of a candidate for selection shall be final and no candidate to whom a certificate of admission has not been issued by the Commission shall be interviewed by them.”

xx xx xx

59.

The Respondent-State sought to overcome this legal hurdle by contending that the recommendation letter dated 07.10.2021 issued by the Commission contained a stipulation that granted them the authority to re-examine the Appellant’s eligibility, which in our view appears to be without any substance. The relevant portion of the communication dated 07.10.2021 of the Commission reads as follows:

“Before issuing the appointment letter, verification of all original educational certificates and other documents of the candidates and, in case of candidates belonging to the physically handicapped category, their disability certificates, shall compulsorily be undertaken. Further action regarding appointment shall be taken only after verification and satisfaction regarding the eligibility of the candidate for the post.” (emphasis added)

This communication, in our view, has to be read in the light of Rule 10. The words ‘verification’ and ‘satisfaction’ in the communication must be understood within the scope of the constitutional scheme and the statutory rules and cannot render Rule 10 redundant or otiose. The executive order cannot have the effect of diluting a statutory provision. We have already held that the Appointing Authority, having final discretion to appoint a recommended candidate, must also be satisfied that the candidate is eligible, as only someone who is eligible can hold a public post.

But as discussed above, such discretion of the Appointing Authority is circumscribed by the constitutional scheme and the relevant statutory provisions. Thus, verification as contemplated under the aforesaid communication could have been undertaken only to verify the genuineness of the documents, or if the Commission had made a patently wrong determination, or if new materials were brought on record clearly showing that the candidate is not eligible.

Thus, if, at the time of verification, it is found that the documents were fraudulently acquired or forged, that there was patent illegality in the determination by the Commission, or that new documents or materials emerged that clearly show the candidate is not eligible, the Appointing Authority may decline to accept the Commission's recommendation. But in light of Rule 10, it is not open to them to conduct a de novo examination of the question of eligibility of the Appellant but to refer it back to the Commission. We, therefore, find substance in the Appellant’s contention that the Respondent-State lacked the ability to independently reopen the question of eligibility after the same had been verified by the Commission in the light of Rule 10 of the Service Rules, 1983.

“19.

The learned Solicitor General appeared on behalf of the Secretary General of the Supreme Court of India, as also in his capacity as the Solicitor General of India. Appearing on behalf of the Secretary General of the Supreme Court of India, the learned counsel took us through Para 74 of the judgement in Indira Jaising-1. He submitted that in the light of the experience gained by the Supreme Court of India, since the designation procedure prescribed in Indira Jaising-1 was conceived, several predicaments have arisen, which show that the system has not yielded the results it intended to achieve. He submitted that the assessment conducted by a permanent committee, as proposed by Indira Jaising-1, should be discontinued. In support of this submission, he relied on Sub-Section (2) Section 16 of the Advocates Act, 1961 which reads thus:

“Section 16. Senior and other advocates.

(1)….

(2)

An advocate may, with his consent, be designated as senior advocate if the Supreme Court or a High Court is of opinion that by virtue of his ability, 1[standing at the Bar or special knowledge or experience in law] he is deserving of such distinction” xx xx xx

46.

Learned counsel Mr. Anilendra Pande, appearing for the Supreme Court Arguing Counsel Association (unregistered), submitted that the designation system should be all-inclusive, ensuring consideration for Advocates from rural backgrounds, backward classes, and marginalized communities.

xx xx xx

65.

We have noted that in Sub-section (2) of Section 16, as it existed prior to 31st January, 1974, the criteria was ability, experience and standing at the Bar. After the amendment with effect from 31st January, 1974, the criterion of ability and standing at the Bar remain. What is added is special knowledge or experience in law. The intention of the Legislature, as reflected in the amendment, is that mere experience in the profession cannot be the criterion. Therefore, the experience simpliciter is done away with and replaced by “experience in law”. In the point-based format, 20 points have been provided for practice beyond 20 years and 10 or more points for 10 to 20 years. There is no doubt that no Advocate can be said to have standing contemplated by Sub-section (2) of Section 16, unless he has spent a sufficiently long time in the profession.

66.

There can be many members of the Bar who have a long presence in the profession. There are many members of the Bar who continue to practice for a long time, though their appearances are minimal. Only the number of years spent in practice cannot be a major criterion for designation by any stretch of imagination. Let us test with an example i.e. a member of the Bar, who has not performed or is not up to the mark, can get 20 points out of 100 only on the ground that he or she has continued to be a member of the Bar for more than 20 years. Therefore, in our view, assigning points on the basis of experience in terms of the number of years is something which will require reconsideration as it does not serve the object sought to be achieved by this Court. Moreover, the length of practice cannot be a rational criterion. On the contrary, it will help those who do not deserve designation as they will get points on the basis of the number of years in practice.

xx xx xx

75.

We have already held in paragraph 60 that considering the object of the exercise undertaken by this Court, the directions issued in Indira Jaising-1 and 2 were never intended to be final. Indira Jaising-1 specifically records need for reconsiderations by suitable additions/deletions in the light of the experience to be gained over a period of time. Even Indira Jaising-2 reiterates this position and holds that the process of improvement is continuous, based on our experience. What we have held in earlier paragraphs shows that the system of 100 point-based assessment has not achieved the desired objectives. Moreover, the experience shows that the points-based assessment is not flawless. We have realized that with experience. Therefore, paragraph 73.7 deserves deletion in exercise of powers reserved in paragraph 74 of Indira Jaising-1 read with paragraph 51 in Indira Jaising-2. When we do this, it will not amount to review or recall of the decisions. After finding that the point-based assessment is not workable, we will be failing in our duty if we fail to do what we are expected to do in the light of paragraph 74 of Indira Jaising-1.

76.

On plain reading of Sub-section (2) of Section 16, the Legislature never contemplated an Advocate making an application seeking designation. The scheme of Sub-section (2) of Section 16 indicates that designation has to be conferred by the Supreme Court or the High Courts. The scheme of Sub-section (2) of Section 16 indicates that an individual Judge of the Supreme Court or the High Court, as the case may be, cannot recommend any Advocate for designation as the decision is a collective decision of the Full Court. Even if an Advocate deserving of a designation does not apply for designation, on the basis of the discussion in the house, the Full Court can always recommend his/her designation, subject to his/her consent. For that purpose, the recommendation in writing of an individual Judge is not warranted.

xx xx xx

80.

Another question is whether a number of years of practice or minimum income should be a criterion. It all depends on the situation in every State. If a condition of minimum income is introduced, the process will cease to be inclusive. Income is one of the several factors to be considered. The requirement of a minimum practice of 10 years should be retained as the standing at the Bar can be assessed only if the Advocate has practiced for a reasonably long time.

xx xx xx

87.

We, therefore, pass following orders:

(i)

We direct that the directions contained in paragraph 73.7 of Indira Jaising-1 as amended by Indira Jaising-2 shall not be implemented.”

39.

At this stage, we may state that, there is a basic difference between "eligibility" and "suitability". The process of judging the fitness of a person to be appointed as a High Court Judge falls in the realm of "suitability". Similarly, the process of consultation falls in the realm of suitability. On the other hand, eligibility at the threshold stage comes under Article 217(2)(b).

40.

This dichotomy between suitability and eligibility finds place in Article 217(1) in juxtaposition to Article 217(2). The word "consultation" finds place in Article 217(1) whereas the word "qualify" finds place in Article 217(2). This dichotomy is succinctly brought out in the Constitutional Law of India by H.M. Seervai, Fourth Edition, at page 2729, which is quoted hereinbelow:-

"From Article 217(1) as enacted in 1950 the following things are clear. First, Art. 217(1) provided for the appointment of only permanent High Court Judges. They were permanent in the sense that they continued to hold their office till they attained the age of 60 years. They were not "permanent" as opposed to Addl. Judges who held office for a period not exceeding 2 years, because in 1950 our Constitution did not provide for Addl. Judges. Secondly, Art. 217(2) prescribed the qualifications which a person must possess before he could be appointed a High Court Judge. Thirdly Art. 217(1) provided the procedure to be followed before a person was appointed a High Court Judge. That procedure was designed to test the fitness of a person to be appointed a High Court Judge: his character, his integrity, and his competence in various branches of the law, and the like. In recruiting a person from the Bar, his experience in different kinds of litigation would also be taken into account. The thing to note is that Art. 217 (1) provides for a once for all test of a person's fitness to be a High Court Judge. A person who has passed that test is subject to no other test of fitness but will continue to hold his office till he attains the age of retirement which had been fixed at 60 years till 1963. But once appointed, his performance on the Bench may be good, bad or indifferent. His judgments and orders may be subject to appeal in High Court, and are certainly subject to appeal to the Supreme Court under Art. 136 if not under other Articles of Chap. IV of part VI."

41.

The appointment of a Judge is an executive function of the President. Article 217(1) prescribes the constitutional requirement of "consultation". Fitness of a person to be appointed a Judge of the High Court is evaluated in the consultation process (see Basu's Commentary on the Constitution of India, Sixth Edition, p. 234). Once this dichotomy is kept in mind, then, it becomes clear that evaluation of the worth and merit of a person is a matter entirely different from eligibility of a candidate for elevation. Article 217(2), therefore, prescribes a threshold limit or an entry point for a person to become qualified to be a High Court Judge whereas Article 217(1) provides for a procedure to be followed before a person could be appointed as a High Court Judge, which procedure is designed to test the fitness of a person to be so appointed: his character, his integrity, his competence, his knowledge and the like.

42.

Hence, Article 217(1) and Article 217(2) operate in different spheres. Article 217(1) answers the question as to who "should be elevated" whereas Article 217(2) deals with the question as to who "could be elevated". Enrolment of an advocate under the 1961 Act comes in the category of who "could be elevated" whereas the number of years of actual practice put in by a person, which is a significant factor, comes in the category as to who "should be elevated".

43.

One more aspect needs to be highlighted. "Eligibility" is an objective factor. Who could be elevated is specifically answered by Article 217(2). When "eligibility" is put in question, it could fall within the scope of judicial review. However, the question as to who should be elevated, which essentially involves the aspect of "suitability", stands excluded from the purview of judicial review.

44.

At this stage, we may highlight the fact that there is a vital difference between judicial review and merit review. Consultation, as stated above, forms part of the procedure to test the fitness of a person to be appointed a High Court Judge under Article 217(1). Once there is consultation, the content of that consultation is beyond the scope of judicial review, though lack of effective consultation could fall within the scope of judicial review. This is the basic ratio of the judgment of the Constitutional Bench of this Court in the case of Supreme Court Advocates-on-Record Association (supra) and Re.

45.

Lastly, it may also be stated that the present case arises from a writ petition filed under Article 226 of the Constitution by way of a writ of quo warranto and not a writ of certiorari.

Significance of Explanation (a) and Explanation (aa) inserted in Article 217(2) vide Forty-fourth Constitutional Amendment Act.

46.

One of the questions which arises for determination before us is: whether by insertion of Explanation (aa) appended to Article 217(2)(b), the effect of judgment of this Court in Prof. C.P. Agarwal's case (supra) stands nullified? To answer the above question, we need to refer to Article 124(3) (which has been quoted hereinabove).

47.

Article 124 deals with establishment and Constitution of Supreme Court. Article 124(3) prescribes qualifications for appointment of a person as a Judge of the Supreme Court. Article 124(3)(b) inter alia states that a person shall not be qualified for appointment as a Judge of the Supreme Court unless he has been for at least 10 years an advocate of a High Court. This sub-clause has to be read with Explanation-II which is similar to Explanation (aa) appended to Article 217(2)(b).

48.

Commenting on Explanation-II, H.M. Seervai in Constitutional Law of India, First Edition, p. 1012, has this to say:

"The qualification for appointment as a judge of the Supreme Court is the holding of a judge's office for at least five years in a High Court or in two or more High Courts in succession; or at least ten years' standing as an advocate of a High Court or two or more High Courts in succession; or distinction achieved as a jurist [Art. 124(3)]. In computing the period during which a person has been an advocate, any period during which he has held judicial office not inferior to that of a District Judge after he become an advocate, is to be included [Art. 124 (3) Expl. II]. It is clear that the explanation is not attracted if a person has been an advocate for ten years before accepting any judicial appointment, for that by itself is a sufficient qualification for appointment as a judge of the Supreme Court."

(emphasis supplied)

49.

In our view, Explanation (aa) appended to Article 217(2) is so appended so as to compute the period during which a person has been an advocate, any period during which he has held the Office of a Member of a Tribunal after he became an advocate. As stated by the learned Author, quoted above, if a person has been an advocate for ten years before becoming a member of the Tribunal, Explanation (aa) would not be attracted because being an advocate for ten years per se would constitute sufficient qualification for appointment as a Judge of the High Court.

50.

Before concluding on this point, we may state that the word "standing" connotes the years in which a person is entitled to practice and not the actual years put in by a person in practice (see Halsbury's Laws of England, Fourth Edition Reissue, Volume 3(1), paragraphs 351 and 394 of the Chapter under the Heading `Barristers'.) Under Section 220(3)(a) of the Government of India Act, 1935, qualifications were prescribed for appointment as a Judge of a High Court. A Barrister of at least ten years standing was qualified to be appointed as a Judge of the High Court. As stated above, the word `standing' connotes the years in which a person is entitled to practice, not the actual years put in by that person in practice.

51.

In Re. Lily Isabel Thomas reported in AIR 1964 SC 855 this Court equated "right to practice" with "entitlement to practice" (see para 11). In our view, Article 217(2)(b), therefore, prescribes a qualification for being appointed a Judge of the High Court. The concept of "actual practice" will fall under Article 217(1) whereas the concept of right to practice or entitlement to practice will fall under Article 217(2)(b). The former will come in the category of "suitability, the latter will come in the category of "eligibility".

40.

When we read the aforesaid para (i) as a whole, we find force in the submission of the appellant that the word ‘inter se’ applies both to seniority as well as suitability. Therefore, ‘inter se suitability’ is also to be assessed inasmuch as this assessment is ‘in the light of their earlier experience of serving in a particular service’. As far as consideration on the parameters of ‘inter se seniority’ is concerned, it would mean that a person who is senior gets precedence. To this extent, there is no quarrel. Question is as to what meaning is to be assigned to ‘inter se suitability’. Two questions arise from the above. First, what is the meaning of ‘suitability’. Second, how the expression ‘inter se suitability’ is to be construed, i.e. whether it should be understood as choosing a ‘more suitable’ officer for appointment as DGsMS. As far as inter se suitability is concerned, all the eligible officers in the rank of Lt. General (& Equiv), having regard to their earlier experience of serving in particular services, they are to be considered for appointment as DGsMS of services (i.e. DGMS (Army)).

41.

Let us first consider the meaning of ‘suitability’.

42.

In English parlance, the word ‘suitable’ is assigned the meaning as ‘appropriate, fitted for the purpose or acceptable’. The concise Oxford Dictionary defines the word suitable as ‘well fitted for the purpose; appropriate’. This ordinary meaning is to be given effect to as a general guide, unless this expression is given special meaning in a statute or rule in administrative instructions. In R (Quintavalle) v. Human Fertilisation Authority7, the House of Lords remarked that “the word ‘suitability’ is an empty vessel which is filled with meaning by context and background.

43.

In service jurisprudence, where the word ‘suitable’ is normally examined from the point of view as to whether a particular person is suitable to hold a particular post, it is construed as ‘fit’ to hold that post. It would mean that the job profile and job requirement of a particular post would be seen and then, going by the calibre, competence, attributes, skill and experience of the candidate, it would be ascertained as to whether such a person would be able to discharge the duties of the post i.e. whether he is suited to carry out the functions of the post, to the satisfaction of his employer.

44.

It, thus, follows from the above that the person to be eligible should quality the following conditions:

(i)

the officer should be in the rank of Lt. General (& Equiv);

(ii)

such an officer should be holding the post of Comdt AM 7 (2005) UKHL 28 C&C; and

(iii)

he should have a minimum remainder service of one year from the date of occurrence of the vacancy.

45.

Adverting to the second question, the prefix ‘inter se’ has also to be given some meaning as it cannot be rendered otiose. Therefore, whereas while assessing ‘suitability’, it has to be seen that a particular officer is not unfit for the post, when it comes to ‘inter se suitability’, it has reference to assessing the suitability of all eligible officers and thereafter finding who is more suitable to occupy such a post. We have to keep in mind that these are very high ranking posts and, therefore, the competent authority is supposed to choose a more suitable officer for such posts. We are of the opinion that for expressing such an intention, the Circular could have been worded more appropriately and with clarity to avoid such doubts. However, since the word ‘inter se’ is used, it implies that the intention behind laying down this criteria was to give these posts to a better suited person after evaluating their inter se suitability. Of course, while doing this exercise seniority of an officer is also to be given due weightage, meaning thereby if the senior most person is competent to hold the post, he is to be given preference. Therefore, we conclude that the view of the AFT that the post of DGMS (Army) is to be filled by the officer on the strength of ‘seniority-cum-suitability’, where seniority is a decisive factor and suitability is a secondary factor, is not correct. In the entire discussion resting with the aforesaid view, the Tribunal ignored the fact that it is not only seniority and suitability simpliciter but ‘inter se’ seniority and suitability. The expression ‘inter se’ is totally ignored and there is no discussion thereupon at all, which has led the AFT to take wrong view insofar as interpretation of the criteria laid down in the Circular dated 10 th July, 1992 is concerned, which talks of ‘inter se seniority and suitability’.

Rebuttal on behalf of Petitioner:

12.

It will thus appear that apart from the fact that the High Court has rolled the cases of the two appointees in one, though their appointments are not assailable on the same grounds, the Court has also found it necessary to sit in appeal over the decision of the Selection Committee and to embark upon deciding the relative merits of the candidates. It is needless to emphasise that it is not the function of the Court to hear appeals over the decisions of the Selection Committees and to scrutinize the relative merits of the Candida tes. Whether a candidate is fit for a particular post or not has to be decided by the duly constituted Selection Committee which has the expertise on the subject. The Court has no such expertise. The decision of the Selection Committee can be interfered with only on limited grounds, such as illegality or patent material irregularity in the Constitution of the Committee or its procedure vitiating the selection, or proved mala fides affecting the selection etc. It is not disputed that in the present case the University had constituted the Committee in due compliance with the relevant statutes. The Committee consisted of experts and it selected the candidates after going through all the relevant material before it. In sitting in appeal over the selection so made and in setting it aside on the ground of the so called comparative merits of the candidates as assessed by the Court, the High Court went wrong and exceeded its jurisdiction.

“8.

The High Court was also of the view that no reasons for cancellation of the test having been recorded even on the file contemporaneously maintained for that purpose, the same could not be supplied in the affidavit filed in reply to the Writ Petition challenging the said order, especially when the cancellation of the test was not according to the High Court necessitated by any irregularity in the conduct of the test or any mala fides vitiating the same. In the absence of any such infirmity the cancellation of the examination was arbitrary and unsustainable, declared the High Court.

9.

8. There is no quarrel with the well-settled proposition of law that an order passed by a public authority exercising administrative/executive or statutory powers must be judged by the reasons stated in the order or any record or file contemporaneously maintained. It follows that the infirmity arising out of the absence of reasons cannot be cured by the authority passing the order stating such reasons in an affidavit filed before the Court where the validity of any such order is under challenge. The legal position in this regard is settled by the decisions of this Court in Commissioner of Police, Bombay v. Gordhandas Bhanji (AIR 1952 SC 16) wherein this Court observed :

"Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself. "

xx xx xx

14.

It is evident from the above that while no candidate acquires an indefeasible right to a post merely because he has appeared in the examination or even found a place in the select list, yet the State does not enjoy an unqualified prerogative to refuse an appointment in an arbitrary fashion or to disregard the merit of the candidates as reflected by the merit list prepared at the end of the selection process. The validity of the State's decision not to make an appointment is thus a matter which is not beyond judicial review before a competent Writ court. If any such decision is indeed found to be arbitrary, appropriate directions can be issued in the matter.”

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. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in State of Haryana v. Subhash Chander Marwaha and Others, [1974] 1 SCR 165; Miss Neelima Shangla v. State of Haryana and Others, [1986] 4 SCC 268 and Jitendra Kumar and Others v. State of Punjab and Others, [1985] 1 SCR 899.

8.

In State of Haryana v. Subhash Chander Marwaha and Others, (supra) 15 vacancies of Subordinate Judges were advertised, and out of the selection list only 7, who had secured more than 55% marks, were appointed, although under the relevant rules the eligibility condition required only 45% marks. Since the High Court had recommended earlier, to the Punjab Government that only the candidates securing 55% marks or more should be appointed as Subordinate Judges, the other candidates included in the select list were not appointed. They filed a writ petition before the High Court claiming a right of being appointed on the ground that vacancies existed and they were qualified and were found suitable. The writ application was allowed. While reversing the decision of the High Court, it was observed by this Court that it was open to the Government to decide how MANY appointments should be made and although the High Court had appreciated the position correctly, it had ``somehow persuaded itself to spell out a right in the candidates because in fact there were 15 vacancies''. It was expressly ruled that the existence of vacancies does not give a legal right to a selected candidate. Similarly, the claim of some of the candidates selected for appointment, who were petitioners in Jitendra Kumar and Others v. State of Punjab and Others, was turned down holding that it was open to the Government to decide how many appointments would be made. The plea of arbitrariness was rejected in view of the facts of the case and it was had that the candidates did not acquire any right merely by applying for selection or even after selection. It is true that the claim of the petitioner in the case of Miss Neelima Shangla v. State of Haryana was allowed by this Court but, not on the ground that she had acquired any right by her selection and existence of vacancies. The fact was that the matter had been referred to the Public Service Commission which sent to the Government only the names of 17 candidates belonging to the general category on the assumption that only 17 posts were to be filled up. The Government accordingly made only 17 appointments and stated before the Court that they were unable to select and appoint more candidates as the Commission had not recommended any other candidate. In this background it was observed that it is, of course, open to the Government not to fill up all the vacancies for a valid reason, but the selection cannot be arbitrarily restricted to a few candidates notwithstanding the number of vacancies and the availability of qualified candidates; and there must be a conscious application of mind by the Government and the High Court before the number of persons selected for appointment is restricted. The fact that it was not for the Public Service Commission to take a decision in this regard was emphasised in this judgment. None of these decisions, therefore, supports the appellant.

10.

xx xx xx It is no doubt correct that a person on the select- panel has no vested right to be appointed to the post for which he has been selected. He has a right to be considered for appointment. But at the same time, the appointing authority cannot ignore the select-panel or decline to make the appointment on its whims. 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. There has to be a justifiable reason to decline to appoint a person who is on the select-panel. In the present case, there has been a mere inaction on the part of the Government. No reason whatsoever, not to talk of a justifiable reason, was given as to why the appointments were not offered to the candidates expeditiously and in accordance with law. The appointment should have been offered to Mr. Murgod within a reasonable time of availability of the vacancy and thereafter to the next candidate. The Central Government's approach in this case was wholly unjustified.

21.

To effectively analyse and adjudicate upon the questions referred, we would divide our discussion into following parts:

21.1

(a) When the recruitment process commences and comes to an end;

22.2(b) Basis of the doctrine that ‘rules of the game’ must not be changed during the course of the game, or after the game is played;

22.3(c) Whether the decision in K. Manjusree (supra) is at variance with earlier precedents on the subject;

22.4(d) Whether the above doctrine applies with equal strictness qua method or procedure for selection as it does qua eligibility criteria;

22.5(e) Whether procedure for selection stipulated by Act or Rules framed either under the proviso to Article 30910 of the Constitution or a Statute could be given a go-bye;

22.6(f) Whether appointment could be denied by change in the eligibility criteria after the game is played.

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39.

The law in this regard is already settled by a Constitution Bench of this Court in Shankarsan Dash in the following terms:

“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 license 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”.

xx xx xx

63.

In Section (C) above, we have already noticed the Constitution Bench decision of this Court in Shankarsan Das (supra) where it was held:

“7.

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 license 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.”

64.

Thus, in light of the decision in Shankarsan Das (supra), a candidate placed in the select list gets no indefeasible right to be appointed even if vacancies are available. Similar was the view taken by this Court in Subash Chander Marwaha (supra) where against 15 vacancies only top 7 from the select list were appointed. But there is a caveat. The State or its instrumentality cannot arbitrarily deny appointment to a selected candidate. Therefore, when a challenge is laid to State’s action in respect of denying appointment to a selected candidate, the burden is on the State to justify its decision for not making appointment from the Select List.

65.6

Placement in the select list gives no indefeasible right to appointment. The State or its instrumentality for bona fide reasons may choose not to fill up the vacancies. However, if vacancies exist, the State or its instrumentality cannot arbitrarily deny appointment to a person within the zone of consideration in the select list.

59.

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 India19, a coordinate bench held that when a person has been selected by the Selection Board and 1995 Supp (2) SCC 230 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 Railway20, where the majority held that the employer must give cogent reasons for not appointing selected candidates.

60.

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 (2019) 12 SCC 798 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.

Relevant Provisions of Electricity Act, 2003:

Section 82. (Constitution of State Commission): --- (1) Every State Government shall, within six months from the appointed date, by notification, constitute for the purposes of this Act, a Commission for the State to be known as the (name of the State) Electricity Regulatory Commission:

Provided that the State Electricity Regulatory Commission, established by a State Government under section 17 of the Electricity Regulatory Commissions Act, 1998 and the enactments specified in the Schedule, and functioning as such immediately before the appointed date, shall be the State Commission for the purposes of this Act and the Chairman, Members, Secretary, and other officers and other employees thereof shall continue to hold office, on the same terms and conditions on which they were appointed under those Acts:

Provided further that the Chairman and other Members of the State Commission appointed, before the commencement of this Act under the Electricity Regulatory Commissions Act, 1998 or under the enactments specified in the Schedule, may on the recommendations of the Selection Committee constituted under sub-section (1) of Section 85 be allowed to opt for the terms and conditions under this Act by the concerned State Government.

(2)

The State Commission shall be a body corporate by the name aforesaid, having perpetual succession and a common seal, with power to acquire, hold and dispose of property, both movable and immovable, and to contract and shall, by the said name, sue or be sued.

(3)

The head office of the State Commission shall be at such place as the State Government may, by notification, specify.

(4)

The State Commission shall consist of not more than three Members, including the Chairman.

(5)

The Chairman and Members of the State Commission shall be appointed by the State Government on the recommendation of a Selection Committee referred to in section 85.

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Section 84. (Qualifications for appointment of Chairman and Members of State Commission): --- (1) The Chairman and the Members of the State Commission shall be persons of ability, integrity and standing who have adequate knowledge of, and have shown capacity in, dealing with problems relating to engineering, finance, commerce, economics, law or management.

(2)

Notwithstanding anything contained in sub-section (1), the State Government may appoint any person as the Chairman from amongst persons who is, or has been, a Judge of a High Court: Provided that no appointment under this sub-section shall be made except after consultation with the Chief Justice of that High Court.

(3)

The Chairman or any other Member of the State Commission shall not hold any other office.

(4)

The Chairman shall be the Chief Executive of the State Commission.

Section 85. (Constitution of Selection Committee to select

Members of State Commission): --- (1) The State Government shall, for the purposes of selecting the Members of the State Commission, constitute a Selection Committee consisting of –

(a)

a person who has been a Judge of the High Court…. Chairman;

(b)

the Chief Secretary of the concerned State…………. ….Member; (c) the Chairman of the Authority or the Chairman of the Central Commission ………….. Member:

Provided that nothing contained in this section shall apply to the appointment of a person as the Chairman who is or has been a Judge of the High Court.

(2)

The State Government shall, within one month from the date of occurrence of any vacancy by reason of death, resignation or removal of the Chairman or a Member and six months before the superannuation or end of tenure of the Chairman or Member, make a reference to the Selection Committee for filling up of the vacancy.

(3)

The Selection Committee shall finalise the selection of the Chairman and Members within three months from the date on which the reference is made to it.

(4)

The Selection Committee shall recommend a panel of two names for every vacancy referred to it.

(5)

Before recommending any person for appointment as the Chairman or other Member of the State Commission, the Selection Committee shall satisfy itself that such person does not have any financial or other interest which is likely to affect prejudicially his functions as such Chairman or Member, as the case may be.

(6)

No appointment of Chairman or other Member shall be invalid merely by reason of any vacancy in the Selection Committee.

Consideration, Analysis and Conclusion: