Sanjay Rathore and Others vs State of Chhattisgarh and Others

Satish K. Agnihotri, J.—W.P. (S) No. 5069/2010, 6232/2010, 199/2011 and 676/2011 are being disposed of by this common order as the point involved in these petitions is the same. However, for the purpose of adjudication of these petitions, reference is made to the facts mentioned in W.P. (S) No. 5969/2010 (Sanjay Kumar Rathore and others Vs. State of C.G. and others). The facts, in brief, leading to filing of this petition, are that the petitioners applied for selection and appointments on the post of Shiksha Karmi Grade-I, II and III in different Janpad Panchayats, namely Korba, Pali, Podi-uproda, Kartala in District Korba pursuant to the advertisement (Annexure P-1) issued by the respondent No. 4, wherein the last date for making application was 6-11-2009 and date of examination was 29-11-2009. Thereafter, the petitioners have appeared in the examination and in the result declared they found their names as successful candidates. The petitioners were informed by the respondent No. 5 for counseling and accordingly, they appeared in counseling on 19-7-2010 and produced all the documents for its verification, but thereafter no appointment order was passed by the respondents. The petitioners made representations on 26-8-2010 and 15-9-2010 (Annexure P-5) which yielded no result and thus the petitioners have filed writ petition seeking a direction to the respondent Nos. 4 and 5 to conclude the proceedings of selection and issue appointment orders accordingly to the petitioners, as more than thirteen months have been elapsed.

Learned Counsel appearing for the petitioners submits that the petitioners have been found successful in the examination, their documents have also been duly verified and as such, there is no reason to deny appointment to the petitioner''s for such a long time. Non-appointment of the petitioners is arbitrary, discriminatory and violative of Articles 14 and 16 of the Constitution of India.

On the other hand, Mr. Shrivastava, learned Counsel appearing for the respondent Nos. 4 and 5 would submit that appointment of the petitioners are governed under the provisions of the Chhattisgarh Panchayat Shiksha Karmis (Recruitment and General Conditions of Service) Rules, 2007 (hereinafter called ''the Rules, 2007''). Earlier in the year 2009 the examination was conducted by the respondent No. 6 and merit list was prepared. As per clause (xi) of sub-rule (7) of Rule 6 of the Rules, 2007 the validity of selection list and waiting list is thirteen months and since more than thirteen months have passed from the date of preparation of select list, the select list together with waiting list stand automatically expired and thus no appointment could be made on the basis of the said list. As such, it cannot be said that there was an arbitrariness or discrimination and contention of the petitioners that it was violative of Articles 14 and 16 of the Constitution of India is without any basis. He further submits that since the period of validity of select/ waiting list has already expired, now fresh advertisement has to be published for appointment of Shiksha Karmis.

Mr. Shrivastava further submits that at present, 306 posts of Shiksha Karmis are available but on account of pendency of writ petitions bearing W.P. (S) Nos. 6731/2010, 6900/2010, 6985/2010, 7134/2010 and 7142/2010, filed by selected candidates whose appointments made in the year 2009 were cancelled by the respondents, as the same were found bad and illegal, it was decided not to fill-up the vacant posts till the final decision is taken in those petitions.

Learned Deputy Advocate General for the State adopts the arguments advanced by learned Counsel for the respondents.

I have heard learned Counsel for the parties, perused the pleadings and the documents appended thereto.

The period of validity of select/waiting list prescribed in Rule 6 of the Rules, 2007 has been amended by notification dated 25-6-2009, which read as under:-

No. 746/P/PGVV/22/2009.- In exercise of the powers conferred by sub-section (1) of Section 95 read with sub-section (70) of the Chhattisgarh Panchayat Raj Adhiniyam, 1993 (No. 1 of 1994), the State Government hereby makes the following amendment in the Chhattisgarh Panchayat Shiksha Karmi (Recruitment and Conditions of Service) Rules, 2007, namely:-

AMENDMENTS

In the said rule,-

In sub-clause (xi) of clause (g) of sub-rule (7) of Rule 6, for the words "One year" the words "Thirteen Months" shall be substituted.

In light of the above amendment also, even if the date of declaration of result is taken as the first date to count the period of validity of thirteen months, the validity has come to an end in month of February, 2011. Further, if the date of counseling is taken into consideration, i.e., 6-7-2010, in that case also the period of thirteen months expires on 5-8-2011. There is no dispute that no appointments could be made pursuant to earlier selection process which was challenged before this Court and ultimately this Court held the entire selection/appointment was contrary to rules and the authority concerned has rightly held that the order of appointment and entire proceeding of counseling was void ab initio and non est, as is evident from the order dated 9-2-2012 passed by the learned Single Judge of this Court in W.P. (S) No. 3186/10 along with other matters. Even otherwise, it cannot be held that action of the respondent Nos. 4 and 5 was discriminatory or unreasonable violating the provisions of Articles 14 and 16 of the Constitution of India in view of the law laid down by the Hon''ble Supreme Court in a catena of decisions.

In Ludhiana Central Co-operative Bank Ltd. Vs. Amrik Singh and Others, the Supreme Court observed that "mere inclusion of a candidate''s name in the selection/waiting list gave him no right, and if there was no right, there could be no occasion to maintain a writ petition for enforcement of a non-existing right".

In Rakhi Ray and Others Vs. The High Court of Delhi and Others, , the Supreme Court observed as under:-

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 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.

In State of M.P. and others Vs. Sanjay Kumar Pathak and others, the Supreme Court observed as under:-

In Pitta Naveen Kumar Vs. Raja Narasaiah Zangiti this Court observed:- (SCC p. 273, Para 32)

The legal position obtaining in this behalf is not in dispute. A candidate does not have any legal right to be appointed. He is terms of Article 16 of the Constitution of India has only a right to be considered therefore. Consideration of the case of an individual candidate although ordinarily is required to be made in terms of the extant rules but strict adherence thereto would be necessary in a case where the rules operate only to the disadvantage of the candidates concerned and not otherwise.

In a situation of this nature, no appointment could be made by the State in absence of the select list. The State could not substitute itself for the Selection Committee.

Furthermore, ordinarily, the Writ Court should not, in absence of any legal right, act on the basis of sympathy alone.

In the matter of East Coast Railway and Another Vs. Mahadev Appa Rao and Others, , the Supreme Court observed us under:-

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.

This Court in Rajesh Kumar Dewangan Vs. Life Insurance Corporation of India and Others, held that "the petitioner does not acquire an indefeasible right to be appointed on the post of Assistant pursuant to his selection" and that "no direction can be given to issue appointment letter to the petitioner though he has come out successful in the selection process".

It is true that appointment of the candidates cannot be denied on the basis that the candidates, who are in the select/waiting list have no indefeasible right to appointment and the denial of appointment should not be unfair, unreasonable or malafide.

In the case on hand, since no appointment has been made and entire select list has been cancelled, it cannot be held that the appointment was not made on account of unfair, unreasonable or malafide reasons and as such, the petitioners cannot claim appointment as having indefeasible right, as held above.

However, since several posts of Shiksha Karmis are still vacant and for want of proper teachers due to which studies of the students would suffer, it is expected from the State Authorities that they should initiate the process of appointment of Shiksha Karmis forthwith in accordance with law so that students should not suffer on account of lack of proper teachers. Applying the well settled principles of law to the facts of the present cases and in view of the foregoing, the petitions stand dismissed. No order as to costs.