JATINDER KUMAR & Ors. v. STATE OF PUNJAB & Ors.

Appeal by Special leave from the Judgment and Order dated the Ist and 3rd March, 1982 of the Punjab and Haryana High Court in A B C D E F G H . - JATINDER KUMAR v. PUNJAB (Misra, J.) 901 L.P.A. No. 188 of 1982 Frank Anthony and Susheel Kumar for the' Appellant. M.S. Gujaral and S.K. Bagga for the Respondent. The Judgment of the Court was delivered by • MISRA, J. The main question appeal by special leave is whether a person sel.ected by the Snbordinate Service Selection Board for direct appointment to the post of Assistant Sub-inspector of Police has got an unfettered right to be appointed on the basis of the recommendation made by the said Board. for consideration The material facts to bring out the point in controversy are as follows. On 31st of March, 1978 the Inspector General of Police, Punjab, respondent No.2, sent a requisition to the Subordinate Service Selection Board (for short, the Board), respondent No. 3, to select and recommend 7 suitable persons for the post of Assistant Sub-lnspectors of Police. While the matter was pending consideration 50 more posts of Assistant Sub-Inspectors of Police became available and, therefore, the Board was requested to recommend 57 suitable persons for these posts. The appellants along with many others were interviewed and physically tested on various dates ranging from 24th of October 1978 to 6th of February, 1979. Later on after the interviews were over but before the select list could be finalised by the Board the Inspector General of Police vide his letter dated 31st of August, 1979 requested the Board to recommend 170 more persons in addition to 57 already under consideration in anticipation of further vacancies likely to occur as a result of expected reorganisation of the Police force. In that connection a proposal for the disbandment of the Punjab Armed Police Battalion and instead creation of some additional posts for the District Police, had already been submitted. Thus, in all 277 candidates were to be recruited by the Board for the post of Assistant Sub-Inspectors of Police. The Board, however, recommended a panel of 144 candi dates on 22nd of December, 1979. It appears that the proposal for disbandment of the Punjab Armed Police Battalion and creation of additional posts in districts referred to above was turned down by the Government and, therefore, the anticipated 170 temporary vacancies of Assistant Sub Inspectors against direct recruitment quota could not be available. Out of tbe earlier 57 posts, however, 9 were offer¢ to the war<;ls of A B c D E F G A B c D 902 SUPREME COURT REPORTS [1985) J S.C.R. the deceased police officers in accordance with the Punjab Government instructions regarding priority appointments issued vide letter No. 80 (GOI) -SH (3)/73 12092 dated 18th Apnl, 1973. The remaining 48 posts were offered to tbe candidates recommended by the Board in order of merit determined by the Board. Since the remaining candi dates recommended by the Board pursuant to the latter requisition were not appointed as there were no vacancies, the disgruntled candi dates filed two petitions under Art.226 of the Constitution before the High Court. The stand of the petitioners in the two petitions was : • (a) that the vacancies had already been communicated to the Board and it was on that basis that the Board had recommended their names for appointment and the State was bound to appoint them on the basis of the recommendation of the Board ; (b) that the State was bound to follow the Punjab Police Rules and under rule 12. 3 twenty-five per cent of the posts in the rank of Assistant Sub-Inspectors are to be filled in by direct recruitment and the remaining seventy five per cent are to be filled by promotion ; E (c) that the State adopted a device of making ad hoc appointment of the Assistant Sub-Inspectors by posting Head-Constables as Assistant Sub-Inspectors and the whole action was ma/afide as the State Government intended to select and appoint its own favourites ; F G (d) that the action of the Government in not appointing them pursuant to the recommendation of the Board is violative of Arts. 14 and 16 of the Constitution ; (e) (f) that even after the abolition of the Board the candi1dates recommended by it contd not be refused appointment on the ground that the Board later on became functus officio ; and that even after the expiry of six months fixed by the the petitioners could be Government instructions the basis of recommendation of the appointed on Board. JATINDRA J::lhfAR v. PUNJAll (Misra J.) 903 The petitions were resisted by the State Government on the ground inter a/ia that by 7th of January, 1980 only 57 posts in the direct recruitment quota became available and appointments were made. As regards the remaining vacancies of J 70 temporary posts of Assistant Sub-Inspectors, proposal for disbandment of the Punjab Armed Police Battalion and instead creation of some additional posts for the District Police was eventually turned down by the State Government and so no additional vacancies became available and the petitioners could not be appointed. In any case the petitioners could not claim appointment as of right merely because the Board had It was further pleaded that according to recommended their names. ., · the Government instructions issued vide letter No.1673-C-II-56 dated 22nd March, 1957 a time limit of six months had been prescribed for filling up the vacancies by persons recommended by the Board and after the expiry of six months a fresh reference had to be made to the Boat d. As six months prescribed had already expired the petitioners could not be appointed on the basis of the recommendation of the Board. They also denied the allegation of malafides in the ad hoc appointment of other persons and further pleaded that the refusal of the Government to appoint them was not hit by Articles 14 and 16 of the Constitution. On a consideration of the material on the record the learned Single Judge came to the conclusion that there was neither any vacancy in the quota of direci recruits of Assistant Sub-Inspectors nor a single post ·meant for direct recruits is manned by an ad hoc employee, that no case of ma/afides or favonritism has been made ~'11, and that there was no violation of Articles 14 and 16 of the Constitution.' A letters patent appeal preferred by the petitioners before the High Court was also dismissed. The petitioners in the writ petition feeling aggrieved have filed the present appeal by special leave. • The petitioners before this Court in appeal categorically stated on oath that 500 promotions had been made by the State of Punjab and that the petitioners were entitled to 25 per cent of those posts according to quota rule. They also alleged that 250 vacancies of AsSistant Sub-Inspectors were available in the C.I.D. wing alone in the Punjab Police and 250 persons had been promoted against those vacancies on ad hoc basis. This Court by its order dated 9th Jaunary, 1984 directed the State to supply detailed information to the petitio '!nd designations of the Head Constables ners of the names A B c D E F G H - 904 SUPREME COURT REPORTS {1935} l S.C.R. promoted as Assistant Sub-Inspectors between the period from 1979 to 1983. Pursuant to that order the State gave full details of the various promotions made by them during the period 1979 to 1983. Jt revealed that the promotions made in various ranges totalled 646 and according to the State during 1979-1983, 576 vacancies of Assistant Sub-Inspectors in promotee quota became avali\able on account of promotion of 576 Assistant Sub-Inspectors to the rank of Offg. Sub-Inspectors, 5 against retirement of such officers, 13 due to death, 2 due to dismissal and 4 due to reversion of promotee Assis tant Sub-Inspectors. In addition, a total of 60 additional temporary posts of Assistant Sub-Inspectors were sanctioned by the Government duriug the period against which such promotions were made. Thus, out of the total 660 vacancies of promotee quota during the afore said period 646 promotions had been made and on 31 December, 1983 there were 14 vacancies in the rank of Assistant Sub-Inspectors against promotee quota. . " Before we deal with the points raised by Mr. Frank Anthony in support of the appellants we must record our disapproval of the inconsistent pleas taken by it at various stages. To start with, it took up the plea that there were no ad hoc appointments of Assistant Sub Jnspectors from 1979 but later on it went back upon its previous statement and admitted that there were ad hoc appointments made but ·explained the position by subsequent affidavits wherein it was stated that the C.I .D. has no cadre strength of its own and all the posts, except language Stenographers, are filled in by taking officers, on deputation from other units of the Police department and no ad hoc appointments were made in the rank of Assistant Sub-Inspecto;s and that the petitioners could not be appointed as no posts for the petitioners were avalible with the department, but it is not necessary to refer to those explanations in any detail. Be that as it may, the fact remains that in anticipation of the proposal for disbandment of the Punjab Armed Police Battalion and instead creation of some additional posts for the district police a requisition was made for selecting 170 more candidates for direct appointment to the post of Assistant Sub-Inspectors. But the pro posal havmg been turned down by the Government there were no vacancies and, therefore, the question arises whether the petitioners have got an unfettered right to be appointed even though the afore said proposal had not been accepted and consequently there were no vaca11cies. • < B c D E F G tt' -'• .. JATJNDRA KUMAR v. PUNJAB (Misra, J.) 905 We no\> take up the contentions raised by Mr. Frank Anthony counsel for the appellants, that they have a right to be appointed to the post of Assistant Sub-Inspectors on the basis of the selection made by the Board. Article 320 of the Constitution enumerates the duties to be performed by the Union or the State Public Service Commissions : (i) to conduct examinations for appointments to the services of the Union, and the services of the State respectively; (ii) if requested by any two or more States so to do, to assist those States in framing and operating schemes of joint recruitment for any services for which candidates possessing special qualifications are required; (iii) to advise on matters enumerated under cl. (3) of Article 320; and (iv) to advise on any matters so referred to them and any other matter which the President, or as the case may be, the Governor of the State may refer to them. The fact that there is no provision in' the Constitution which makes the acceptance of the advice tendered by the Commission, when consulted, obligatory renders the provisions of Art. 320(3) only direc· tory and not mandatory. The establishment of an independent body like Public Service Commission is to ensure selection of best avaliable persons for appointment in a post to avoid arbitrariness and nepotism in the matter of appointment. It is constituted by persons of high ability varied experience and of undisputed integrity and further assisted by experts on the subject. It 1s true that they are appointed by Govern ment but once they are appointed their independence is secured by various provisions of the Constitution. Whenever the Government is required to make an appointment to a higher public office it is requi red to consult the Public Service Commission. The selection has to be made by tbe commission and the Government has to fill up the posts by appointing those selected·and recommended by the Commis· sion adhering to the order of merit in the list of candidates sent by the Public Service Commission. The selection by the Commission, however, is only a recommendation of the Commission and the final 11uthority for appointment is the Government. The Governm~nt mar A B c D E F G. 906 SUPREME COURT REPORTS [1985] 1 S.C.R. accept the recommendation or may decline to accept the same. But if it chooses not to accept the recommendation· of the Commission the Constitution enjoins the Government to place on the table of the Legislative Assembly its reasons and report for doing so. Thus, the Government is made made answerable to the House for any departure vide Article 323 of.the Constitution, This, however, does not clothe the appellants with any such right. They cannot claim as of that the Government must accept the recommendation of the Commison. If, however, vacanc; is to be filled up, the Government has to make appointment strictly adhering to the order of merit as recommended by the Public Service Com111ission. It cannot disturb the order of merit according to its own sweet will expect for other good reasons viz., bad conduct or character. The Government also cannot appoint a persons whose names does not appear in the list. But it is open to the Government to decide how many appointments will be made. The procest for selection and selection for the purpose of recruitment against anticipated vacancies· does not create a right to be appointed to the post which can be enforced by a mandamus. We are supported in our view by the two earlier decisions of this Court in A.N.D' Silva v. Union of India'" and State of Haryana v. Subash Chander Marwaha & Ors."' The contention of Mr. Anthony to the contrary cannot be accepted. It was next contended for the appellants that the Punjab and Haryana High Court itself had taken a different view in G.S.Kalkat v. State of Punjab and Ors'"· from the one taken in the instant case and a copy of the judgment in that case has been filed. We have perused the judgment but find that the facts of the case were materially different from the facts of the case in band. . - The next contention raised on behalf of the appellants was that the action of the Government in not appointing them in spite of the fact that they were selected and their names were recommended by the Board for appointment, was malafide. The allegations about mala fides are more easily made than made out. There are no materials before us to warrant the conclusion that the action of the State Government in not appointing them was malafide especially when the posts in anticipation where of the Board was asked to select more !. [19621 Supp. 1 S.C.R. 968. 2. (1974] 1 S,C.R. 165. 3. pronounced on]15th July, 1980. A B c D E F G H JATINDRA KUMAR v. PUNJAB (Misra, J.) 907 candidates came to an end. There was no question of their appoint- men! against those vacancies. A Likewise, the contention that the action of the Government is hit by Art.14 and 16 of the Constitution has no substance. The case of the appellants is not identical with those of the persons who were appointed as against 57 vacancies for which original requisition was made to the Board for selecting them. An argument of desperation. was further advanced about pro missory estoppel stopping the State Government from acting in the manner it did in not appointing the appellants although their names had been recommended. The notification issued by the Board in this case was only an invitation to candidates possessing specified quali fications to apply for selection for recruitment for certain posts. It did not hold.out any promise that the selection would be made or if it was made the selected candidates would be appointed. The candi dates did not acquire any right merely by applying for selection or for appointment after selection. When the proposal for disbandment of the Punjab Armed Police Battalion and instead creation of addi tional posts for the district police was turned down by the State Government, the appellants were duly informed of the situation and there was no question of any promissory estoppel against the State. It was further contended by Mr. Anthony that the recommenda tion made by the 11oard would remain effective even after the body bad become defunct. It is no~ necessary to go into detail in this contention in as much as the fate of the case depends npon whether the appellants had a right to get appointed on the basis of the selection and recommendation made by the Board. The appellants came to Court to vindicate their right but if they had no right there was no question of enforcing that right. For the foregoing discussion the appeal has no force and there· fore, it must fail. It is accordingly dismissed but in the circumstances of the case the parties should bear their own costs. B c D E F d S,R, Appeal dismissed - . .