S. Brunda vs State of Karnataka

A.N. Venugopal Gowda, J.—Seeking quashing of an advertisement as at Annexure-D published in a newspaper dated 26-10-2013, insofar as the post of Legal-cum-Probation Officers and asking for mandamus against the respondents to announce the result of petitioner in response to notification issued vide Annexure-A and for grant of consequential reliefs, this writ petition was filed. The petitioner is an Advocate. A notification dated 5-3-2012 vide Annexure-A was issued, inviting applications to fill up the posts created under the Integrated Child Protection Scheme. Petitioner applied on 19-5-2012, to the post of Legal-cum-Probation Officer. She was called for interview. However, result of recruitment process undertaken was not announced. Applications have been invited on 6-10-2013, to fill up the posts created under the said scheme, this writ petition was filed.

Sri H.B. Chandrashekar, learned Advocate, contended that the respondents without announcing the result of the selection process undertaken pursuant to the notification as at Annexure-A, are unjustified in issuing the notification vide Annexure-D, which also shows modification with regard to the age of the candidates. He submitted that the respondents having called the petitioner for interview and the viva voce test having been conducted, it is impermissible in law to issue the notification vide Annexure-D. He submitted that in the notification as at Annexure-A, the age of the candidates shown was 30 to 45 years and the petitioner being aged about 41 years, would lose the right to employment, if the recruitment undertaken vide Annexure-A is not finalised. He submitted that there being decrease of the age limit in the notification issued vide Annexure-D, the petitioner being age barred, cannot file an application. He submitted that in the circumstances of the case, Annexure-D is liable to be quashed and the respondents being duty bound, be directed to announce the result of the interview conducted to the post to which the petitioner applied on 19-5-2012.

Sri T.L. Kiran Kumar, learned AGA, on the other hand contended that merely on account of the fact that the petitioner was called for an interview and verification of documents submitted in response to the notification vide Annexure-A, was undertaken, she has no vested right for the post. He submitted that meetings having been held on 9th, 10th, 11th and 12th of April, 2012, proceedings vide Annexure-R2 was drawn and in the meeting held on 26-5-2012, it was decided to follow the instructions of the head office meetings vide Annexure-R2. He submitted that, since it was decided to utilise the services of Probationary Officers under the Probation of Offenders Act, 1958 considering their past service and work experience, a decision was taken not to conduct recruitment to the posts of Legal-cum-Probation Officers. He submitted that since none who applied in response to Annexure-A was recruited to the said post, the claim of the petitioner is without any merit. He submitted that in view of the decision taken by the respondent, as detailed in the counter filed, question of announcing of the result of the selection process conducted pursuant to Annexure-A does not arise. He submitted that the petitioner having no right to the notified post, writ petition being devoid of merit is liable to be dismissed.

Perused the writ record and considered the rival submissions.

It is trite that a person whose name appears in the selected list does not acquire any indefeasible right of appointment and that empanelment, if any, is a condition of eligibility for the purpose of appointment and by that itself, does not amount to selection and create a vested right to be appointed.

In Shankarsan Dash Vs. Union of India, , Apex Court held that appearance of name of a candidate in the selected list does not give him a right of appointment and mere inclusion of the candidate''s name in the selected list does not give any right of being selected, even if some of the vacancies remain unfilled.

It is the prerogative of the Appointing Authority to initiate selection process for filling up vacancies. Even if vacancies are available, for financial constraints etc., the Appointing Authority may not continue with the recruitment process. If a decision is taken by the Appointing Authority to leave certain vacancies unfilled, even after the select list was published and any person junior in rank in the select list is not appointed, the candidate cannot assail the appointment process and/or seek mandamus for issue of appointment order.

In Vijoy Kumar Pandey Vs. Arvind Kumar Rai and Others, , with regard to entitlement of a candidate to claim appointment as a matter of right in a case where there is empanelment, it has been held as follows:

"13. We too have at hand a situation where no panel, as is envisaged under the provisions of the Regulations, ever came into existence. That being so, the question of determining the life of the panel by excluding the period during which there was an interim stay in accordance with the order of Dipankar Datta, J. in its order dated 12-3-2009 did not arise. It follows that the claim made by respondent-Arvind Kumar Rai for appointment on the basis of such a non-existent panel was untenable as the panel itself was stillborn. We need not burden this judgment by referring to the decisions of this Court in which this Court has repeatedly held that the preparation of a select list or a panel does not by itself entitle the candidate whose name figures in such a list/panel to seek an appointment or claim a mandamus. No vested right is created by the inclusion of the name of a candidate in any such panel which can for good and valid reasons be scrapped by the Competent Authority along with the entire process that culminated in the preparation of such a panel.

In Shankarsan Dash Vs. Union of India, , a Constitution Bench of this Court was examining whether candidates declared successful in a selection process acquire an indefeasible right to get appointed against available vacancies. The contention that they do acquire such a right was repelled in the following words (SCC pp. 50-51, para 7):

"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".

(emphasis supplied)

The above decision has been followed in a long line of subsequent decisions of this Court including those rendered in Punjab State Electricity Board and Others Vs. Malkiat Singh, ; State of Bihar and Others Vs. Secretariat Assistant Successful Examinees Union 1986 and Others, ; Dir. S.C.T.I. for Med. Sci. and Tech. and Another Vs. M. Pushkaran, ; Union of India (UOI) and Others Vs. Kali Dass Batish and Another, (which is a three-Judges Bench decision).

In Rakhi Ray and Others Vs. The High Court of Delhi and Others, , a three-Judges Bench of this Court held (SCC p. 646, para 24):

"24. 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".

Following the decision in Shankarsan Dash''s case, this Court in State of Orissa and Another Vs. Rajkishore Nanda and Others etc. etc., (SCC p. 783, para 14):

"14. 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 the 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".

Even assuming the preparation of a panel gave rise to any such right, since no panel had actually ever been prepared and published nor has the same been produced before the High Court or before us, we have no hesitation in holding that the direction issued to the Commission to act on the basis of the panel was wholly unjustified and unsustainable. The view taken by Dipankar Datta, J. in his order dated 27-7-2009 that considerable time had expired since the selection process was initiated and that other candidates who may have in the meantime become qualified for consideration may be deprived of the right to compete was a reason enough for the High Court to decline a mandamus. In the facts and circumstances of the case, the Division Bench of the High Court, in our view, committed an error in upsetting that direction. We also see no real conflict between the orders passed by Dipankar Datta, J. on 12-3-2009 and that passed on 27-7-2009, inasmuch as the question of adding to the life of the panel the period during which there was a stay would arise only if there was a panel drawn in terms of the Regulations".

Since the respondents have taken a decision for dropping of Legal-cum-Probation Officer post and neither provisional nor final selection list was published for the said post, in pursuance of the process undertaken vide Annexure-A, there is no justification for the petitioner to seek quashing of Annexure-D and asking for mandamus to announce the result of the post to which she submitted application i.e., in response to Annexure-A.

In view of the settled position of law and the factual position made clear by the respondents, in the counter filed, I do not find any justification in the claim made by the petitioner. Writ petition being devoid of merit is dismissed. There shall be no order as to costs.