T.N. Nithya & Ors. vs Union Of India & Anr.

In the instant OA, the applicants seeking the following relief:

Brief facts of the case, as submitted by the applicants are as follows: The Applicants possess Master’s Degrees in Physical Education from recognised Universities. Pursuant to the Government of Puducherry’s Notification dated 09.06.2014, applications were invited for recruitment to eleven posts of Lecturers (Physical Education), and the Applicants’ names were sponsored by the Employment Exchange. A Recruitment Committee was constituted and, at its meeting held on 09.07.2015, selected the Applicants. Verification of their records was completed on 13.07.2015. Meanwhile, certain Physical Education Teachers in the lower grade challenged the proposed direct recruitment, but their application was dismissed by this Tribunal on 30.04.2015. Subsequently, two candidates in the waiting list sought inclusion in the select list. By order dated 10.02.2016, this Tribunal directed consideration of their request while finalising the selection. The Government of Puducherry challenged the said order before the Hon’ble High Court, which, by order dated 02.03.2017, set aside the Tribunal’s order, treating the application as withdrawn, and permitted the release of the Select and Wait Lists, while granting liberty to the two candidates to challenge the lists after publication. As the Respondents failed to take further action, the Applicants submitted repeated representations, the last being dated 27.08.2018, seeking release of the Select List and issuance of appointment orders. On 27.09.2018, this Tribunal directed the Respondents to consider the representation and pass appropriate orders within one month. However, by order dated 04.01.2019, the Second Respondent stated that the Government had taken a policy decision to engage candidates on consolidated pay on a contractual basis. The present Original Application challenges the said order. The reasons relied upon by the Respondents are neither justified nor supported by any material indicating financial constraints. In 2015, while recruiting Physical Education Teachers, the Government itself changed the mode of engagement from contract to regular appointment and appointed candidates on a regular basis. In the present case, the Applicants had already been selected, and the Select List had been disclosed before the Hon’ble High Court through an affidavit. Significantly, the alleged policy or financial ground was never raised by the Government during the earlier rounds of litigation before this Hon’ble Tribunal and the Hon’ble High Court. The impugned order is therefore arbitrary, unjustified and unsustainable, necessitating the filing of the present Original Application.

The learned counsel for the Applicants contended that the Respondents cannot deny the Applicants’ locus standi on the ground that the Select List has not been formally published. The recruitment process had already been completed, and the Applicants were duly selected by the Recruitment Committee. The fact of their selection and verification of their certificates was expressly admitted by the Second Respondent in the affidavit filed before the Hon’ble High Court of Madras in W.P. No.43348 of 2016, arising out of O.A. No.965/2015 before this Tribunal. Thus, only the issuance of appointment orders remains pending. Having admitted the Applicants’ selection before the Hon’ble High Court, the Second Respondent cannot now contend that the Select List has not been published. The Applicants, therefore, have the necessary locus standi to seek issuance of their appointment orders.

It was further contended that the reason stated in the impugned order, namely, that owing to financial constraints the Government of Puducherry had taken a policy decision to engage qualified candidates on consolidated pay and on a contractual basis, is vague, unsupported and legally unsustainable. The impugned order does not disclose when such policy decision was taken, whether it applies uniformly to all categories of posts under the Union Territory Administration, or whether it had received the approval of the competent authority, including the Hon’ble Lieutenant Governor. In any event, a subsequent policy decision can operate only prospectively and cannot adversely affect a recruitment process which had already been completed and in which the Applicants had already been selected. If any such decision is sought to be applied retrospectively, the affected Applicants ought to have been given prior notice and an opportunity to make their representations. No such notice was issued. The impugned decision is therefore liable to be set aside as being arbitrary and contrary to the principles of natural justice.

The learned counsel further submitted that the Government, being a model employer, ought not to resort to indiscriminate contractual appointments on consolidated pay, particularly where a regular recruitment process has already been completed. Such a policy would adversely affect the legitimate expectations of unemployed candidates seeking stable and regular public employment. Contractual engagement also deprives employees of security of tenure and creates uncertainty regarding their future, particularly where they may cross the prescribed age limit for subsequent recruitment upon completion of their contractual tenure. Such a practice would not only cause grave prejudice to the Applicants but may also have wider adverse consequences for public employment and public interest.

It was also pointed out that, in respect of recruitment to the post of Physical Education Teacher, the Respondents had earlier issued Notifications dated 10.02.2010 and 26.04.2010 for contractual appointments, which were subsequently cancelled. Thereafter, on 31.12.2014, the Respondents issued a fresh Notification for regular recruitment to 22 and 30 posts, totalling 52 posts. Having consciously shifted from contractual to regular recruitment in the same field, the Respondents have failed to disclose any bona fide or compelling reason for reverting to contractual appointments in the present case. The contention regarding financial constraints was also challenged as wholly unsubstantiated. No material has been produced to establish any financial crisis warranting denial of regular appointment to candidates who had already undergone the prescribed selection process. In any event, the alleged financial burden would essentially arise only from the difference in the applicable pay and service benefits and cannot, by itself, justify frustrating a completed recruitment process.

Finally, the learned counsel submitted that the Applicants have already undergone the entire selection process and have been waiting for appointment for several years. Many of them have crossed, or are on the verge of crossing, the normal upper age limit for recruitment to Government service. Having kept the Applicants waiting for years after their selection and verification, the Respondents cannot now deprive them of appointment by introducing a subsequent policy of contractual engagement. Such action would cause grave and irreparable prejudice to the Applicants and defeat their legitimate expectation of appointment. The learned counsel therefore prayed that the impugned order be set aside and the reliefs sought in the Original Application be granted.

Per contra, the learned counsel appearing for the Respondents, while strongly opposing the contentions of the Applicants, relied upon the averments contained in the Reply Statement and submitted that the present Original Application is premature and liable to be dismissed on that ground alone. He pointed out that, in the impugned speaking order, the Second Respondent has categorically stated that the modalities for issuing a notification for engaging qualified persons on a contractual basis, on consolidated pay, for the post of Lecturer (Physical Education), on the lines of other teaching posts, as well as the legal implications thereof, are still under examination by the Government. Hence, no final decision regarding the mode of engagement has yet been taken, and the Applicants have approached this Tribunal prematurely.

The learned counsel further contended that, since the Select List for the post of Lecturer (Physical Education) has admittedly not been published, the Applicants have no vested right or locus standi to seek appointment. Mere selection by a Recruitment Committee, without publication of the Select List, does not amount to completion of the recruitment process. In support of this contention, he relied upon the decision of the Hon’ble Supreme Court in State of Andhra Pradesh and Others v. Dastagiri and Others, reported in (2003) 5 SCC 373, wherein it was held that even inclusion of a candidate’s name in a Select List does not confer an indefeasible or vested right to appointment.

He further submitted that, pursuant to the Notification, dated 09.06.2014 issued by the Directorate of School Education, no Select List was published for the post of Lecturer (Physical Education), owing to the prolonged litigation surrounding the recruitment process and the financial constraints faced by the Government. In the absence of a duly published Select List, the Applicants cannot claim any enforceable right either to seek its publication or to demand appointment.

The learned counsel also submitted that the Government cannot be compelled to make appointments to Government posts, particularly when it has taken a policy decision to engage persons on a contractual basis for teaching posts in view of its financial constraints. The manner and terms of recruitment fall within the policy domain of the Government, and the Applicants cannot claim a right to regular appointment merely on the basis of their alleged selection. In the circumstances, he submitted that the Applicants have no enforceable right to the relief sought and prayed that the Original Application be dismissed as premature and devoid of merit.

We have considered the arguments advanced by the learned counsel on either side at length, perused the pleadings and materials placed on record.

Before going to the merits of the issue, we would like to extract the relevant portion of the order dated 02.03.2017 passed by the Hon’ble High Court, in the appeal filed by the Puducherry Government against the order of this Tribunal in OA Nos.965 & 1614/2015,

Subsequently the applicants gave a representation in the year 2018, since there was no reply from the respondents, the applicants approached this Tribunal by way of OA No.1279/2018 wherein a direction was given by this Tribunal by to the respondents to consider the representations of the applicants and pass a speaking order. On 04.01.2019, the respondents have passed a speaking order rejecting the claims of the applicants on the following reasons:

From the pleadings and the records placed before us, it is evident that the Government of Puducherry issued a Notification dated 09.06.2014 inviting applications for recruitment to eleven posts of Lecturers (Physical Education). The recruitment process was thereafter completed, including the verification of the candidates’ certificates and records. However, appointment orders were not issued to the Applicants. In the circumstances, the question for our consideration is not merely whether the Select List was formally published. The real issue is whether, having been selected and their credentials duly verified, the Applicants acquired an enforceable right to seek appointment to the posts in question.

We find that the said issue is no longer res integra. The Hon’ble Supreme Court, in State of Assam & Others v. Arabinda Rabha & Others, Civil Appeal No.2350 of 2025, by order dated 07.03.2025, reported in 2025 INSC 334, has considered the issue and observed as follows:

17, The Constitution bench of the Hon’ble Supreme Court has held that placement in a select list does not create an “indefeasible” or absolute right to appointment. The select list indicates that a candidate has met the qualifications and is eligible for consideration, but it does not guarantee an appointment. The State or its instrumentalities have the authority to decide whether or not to fill vacancies based on bona fide reasons, even if such vacancies are available.

It is well settled in law that a candidate whose name appears in the select list does not acquire any indefeasible right to appointment to the post in the absence of any specific rule entitling such appointment. (See: Union Territory of Chandigarh Vs Dilbagh Singh & Ors., (1993) 1 SCC 154; Mohd. Rashid Vs. Director, Local Bodies, New Secretariat & Ors. (2020) 2 SCC 582 and State of Manipur & Anr. Vs. Takhelmayum Khelendro Meitei & Ors., (2019) 3 SCC 331)

From the records we can come to a conclusion that it is for the reason that the necessity of filling up vacant posts, which is undoubtedly a matter of public interest, has to be balanced against the administrative considerations as explained in the reply statement of respondents. No mala fides or bias can be attributed to the respondents, nor is there any material on record to suggest that the decision-making process suffered from arbitrariness or was an abuse of administrative power, even when examined in the light of the records placed.

In the above circumstances and based on the judgment outlined above, we find that the applicants have not made out a valid case for our interference. In the result, the OA is dismissed. No order as to costs.