1 - Suraj Kumar Patel S/o Nankun Patel Aged About 34 Years R/o House v. 1 - State Of Chhattisgarh Through Secretary, Education Department, Mantralaya, Mahanadi Bhawan, Nava Raipur
Case Details
1 RAGHVENDRA JAT Digitally signed by RAGHVENDRA JAT 2025:CGHC:48657 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR WPS No. 3475 of 2023 1 - Suraj Kumar Patel S/o Nankun Patel Aged About 34 Years R/o House No. 240, Thakurpodi, Kilkila, District Raigarh Chhattisgarh. ... Petitioner(s) versus 1 - State Of Chhattisgarh Through Secretary, Education Department, Mantralaya, Mahanadi Bhawan, Nava Raipur, District Raipur Chhattis- garh. 2 - Director Directorate, Education Department, Indrawati Bhawan, Nava Raipur District Raipur Chhattisgarh 3 - District Education Officer Raipur, District Raipur Chhattisgarh 4 - District Education Officer Bemetara, District Bemetara Chhattisgarh ... Respondent(s) For Petitioner : Mr. C.J.K. Rao, Advocate. For Respondent/ State : Mr. Ankur Kashyap, Dy. G.A. Hon’ble Shri Justice Amitendra Kishore Prasad 2 Order on Board 22/09/2025 1. By way of this petition, the petitioner has prayed for following re- liefs:- “10.1. That, this Hon'ble Court may kindly be pleased to set-aside the advertisement dated 04.05.2023 (Annex- ure P-7) issued for the post of Assistant Teacher. 10.2. That, this Hon'ble Court may kindly be pleased to direct the respondent No.2 to consider the petitioner for the post of Assistant Teacher (Science) and issue appointment order in compliance to the order passed by the Hon'ble Supreme Court dated 01.05.2023. 10.3. That, this Hon'ble Court may kindly be pleased to direct the respondents to extend the validity of the select list in compliance to the order passed by the Hon'ble Supreme Court dated 01.05.2023. 10.4. That, this Hon'ble Court may kindly be pleased to grant any other relief as it may deems fit and appropri- ate. 10.5. Cost of the petition.” 2. The case, as projected by the petitioner, is that an advertisement dated 09.03.2019 was issued by the respondent No.2 Director, Directorate of Education Department for appointment of Assistant 3 Teacher and accordingly, on the basis of merit, petitioner was called for counselling. His document was also verified, however, the petitioner was not being given appointment. Subsequently, a writ petition bearing WPC No.591/2012 and other connected mat- ters were filed before this Court to struck down the Chhattisgarh Lok Seva (Anusuchit Jatiyon, Anusuchit Janjatiyon aur Anya Pichhare Vargon ke Liye Arakshan) Sanshodhan Adhiniyam 2011
Legal Reasoning
and amended Niyam, 2012, which was challenged in an SLP be- fore the Hon’ble Supreme Court in SLP(C)No.19668/2022 in which the Hon’ble Supreme Court has passed an order dated 01.05.2023 directing the respondent authorities to go ahead with the selection process and to make appointment and promotion, however, the same shall be subject to final outcome of the SLP preferred before the Hon’ble Supreme Court. Based on the afore- said order passed by the Hon’ble Supreme Court dated 01.05.2023, a notification dated 03.05.2023 was issued by the State Government and the process of appointment was again ini- tiated. In the order dated 01.05.2023, the validity of the select list was also extended to conclude the selection process. It was the case of the petitioner that the respondent authorities have not ap- pointed him on account of pendency of SLP before the Hon’ble Supreme Court though vide order dated 01.05.2023, the Hon’ble Supreme Court made it clear that the respondent authorities may 4 continue process of selection and appointment of the concerned person, however, the appointment was subject to final outcome of the SLP. Inspite of clear order passed by the Hon’ble Supreme Court, the respondent authorities are not considering the case of the petitioner for appointment even after him selection and in this way, they are going contrary to the order passed by the Hon’ble Supreme Court. 3. Thereafter, the respondent authorities have issued a fresh adver- tisement on 04.05.2023 for appointment of Assistant Teacher which is illegal in the teeth of order passed by the Hon’ble Supreme Court and the acts committed by the respondent au- thorities are nonetheless, but culpable exercise of power, as such, the advertisement issued for recruitment of Assistant Teacher dated 04.05.2023 is required to be quashed interalia with a prayer that the petitioner may be considered for appoint- ment on the post of Assistant Teacher for his relevant subjects as he was selected for appointment, however, he could not be ap- pointed due to the inaction on the part of respondent authorities. 4. Learned counsel for the petitioner submits that when the peti- tioner was selected and his documents was verified then the peti- tioner should have been appointed by the respondent authorities, however, inspite of appointing petitioner on his respective sub- jects even after his selection, the respondent authorities have is- 5 sued a fresh advertisement dated 04.05.2023 which is per se ille- gal and contrary to the order dated 01.05.2023 passed by the Hon’ble Supreme Court and requires to be quashed. It is further argued that the posts advertised earlier on 09.03.2019 were not exhausted and instead of calling the petitioner for further coun- selling, the respondents have chosen to carry forward these posts, which cannot be done, as such, the respondent authorities be directed to call the petitioner for fresh 7th counselling and to pass appropriate orders in respect of his appointment for the post of Assistant Teacher in his respective subjects. 5. On the other hand, learned State counsel vehemently opposes
Legal Reasoning
the submission made by learned counsel for the petitioner and submits that in their return, in categorical terms, they have stated that the petitioner could not be selected and called for coun- selling as he could not compete the cut-off marks which has been prescribed for selection to the post of Assistant Teachers in vari- ous subjects. Only for the sake of petitioner, who could not get qualified, counselling cannot be done again and again. It is stated that even after 6th round of counselling, the petitioner could not qualify as he could not succeed in getting cut-off marks as pre- scribed by the respondent authorities and therefore, he could not be selected. It is further submitted that the selection would not give a right to the petitioner to be appointed on the respective 6 posts unless and until they qualify the cut-off marks as prescribed in the counselling. When the posts were lying vacant and the as- pirants could not compete the cut-off marks as prescribed by the respondent authorities, the authorities have duly advertised and carry forwarded the same. As such, the petitioner was not able to make out a case for his appointment through counselling, which has been closed and cannot be opened again and again. It is fi- nally contended that the petitioner is miserably failed to make out
Decision
a case for reliefs sought by him, as such, the writ petition is liable to be dismissed in threshold. 6. I have heard learned counsel for parties and perused the docu- ments appended with the writ petition. 7. From perusal of the documents in the shape of petition as well as in the rejoinder, it is apparent that the petitioner has applied for the post of Assistant Teacher in his respective subjects. On the basis of their requisite qualification as well as the marks obtained by him, he was selected for counselling, however, in the coun- selling, he could not get the cut-off marks as prescribed by the re- spondent authorities. The cut-off marks were was time to time re- vised, however, instead of that, the petitioner was not able to be accommodated for the appointment of Assistant Teacher in his respective subjects till 6th round of counselling. From perusal of the documents as well as the advertisement dated 04.05.2023, it 7 is apparent that when the posts could not be fulfilled and were ly- ing vacant for about more than three years, they were carried for- ward. At this juncture, it would be appropriate to consider the judgments relied upon by the respective counsels. 8. Learned counsel for the petitioner has relied upon a judgment passed by the Hon’ble Supreme Court in the matter of Tej Prakash Pathak and Others vs. Rajasthan High Court and Others reported in (2025) 2 SCC 1, wherein it has been held in paras 25, 64, 64.1, 65.2 & 65.6 which read as under:- “25. Candidates participating in a recruitment process have legitimate expectation that the process of selection will be fair and non-arbi- trary. The basis of doctrine of legitimate expecta- tion in public law is founded on the principles of fairness and non-arbitrariness in government dealings with individuals. It recognises that a public authority's promise or past conduct will give rise to a legitimate expectation. This doc- trine is premised on the notion that public au- thorities, while performing their public duties, ought to honour their promises or past practices. The legitimacy of an expectation can be inferred if it is rooted in law, custom, or established pro- cedure. 64. Thus, in light of the decision in Shankarsan Dash, a candidate placed in the select list gets no indefeasible right to be appointed even If va- cancies are available. Similar was the view 8 taken by this Court in Subash Chander Mar- waha 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 candi- date. 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 ap- pointment from the select list. 65.1.Recruitment process commences from the issuance of the advertisement calling for appli- cations and ends with filling up of vacancies; 65.2. Eligibility criteria for being placed in the se- lect list, notified at the commencement of the re- cruitment process, cannot be changed midway through the recruitment process unless the ex- tant Rules so permit, or the advertisement, which is not contrary to the extant Rules, so per- mit. Even if such change is permissible under the extant Rules or the advertisement, the change would have to meet the requirement of Article 14 of the Constitution and satisfy the test of non-arbitrariness; 65.6. Placement in the select list gives no inde- feasible right to appointment. The State or its in- strumentality for bona fide reasons may choose not to fill up the vacancies. However, if vacan- cies exist, the State or its instrumentality cannot arbitrarily deny appointment to a person within the zone of consideration in the select list.” 9 9. Learned State counsel has also relied upon the judgments passed by the Hon’ble Supreme Court in the matters of Mohd. Rashid vs. Director, Local Bodies, New Secretariat and Oth- ers reported in (2020) 2 SCC 582 wherein it has been held in paras 13 & 14, which read as under:- “13. The appellants who are aspirants for direct re- cruitment have no right for appointment merely be- cause at one point of time the vacancies were adver- tised. The candidates such as the appellants cannot claim any right of appointment merely for the reason that they responded to an advertisement published on 12-9-2013. Even after completion of the selection process, the candidates even on the merit list do not have any vested right to seek appointment only for the reason that their names appear on the merit list. In Shankarsan Dash v. Union of India³, a Constitution Bench of this Court held that a candidate seeking ap- pointment to a civil post cannot be regarded to have acquired an indefeasible right to appointment in such post merely because of the appearance of his name in the merit list. This Court held as under: (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 inde- feasible right to be appointed which cannot be legitimately denied. Ordinarily the notifi- 10 cation 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 re- cruitment rules so indicate, the State is un- der no legal duty to fill up all or any of the va- cancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacan- cies has to be taken bona fide for appropri- ate reasons. And if the vacancies or any of them are filled up, the State is bound to re- spect the comparative merit of the candi- dates, as reflected at the recruitment test. and no discrimination can be permitted. This correct position has been consistently fol- lowed by this Court, and we do not find any discordant note in the decisions in State of Haryana v. Subash Chander Marwaha: Neel- ima Shangla v. State of Haryana or Jatinder Kumar v. State of Punjab.’ 14. Since the selection process has not been com- pleted and keeping in view the mandate of the statu- tory rules, we find that the appellants have no right to dispute the action of the municipal bodies to fill up the posts either by way of promotion or by deputation as such posts are being filled up in terms of mandate of the Rules. It is always open to the municipal bodies to fill up the vacant posts by way of direct recruitment after the posts by way of promotion and/or deputation quota are not filled up either on the basis of recruit- 11 ment process already initiated or to be initiated afresh.” 10. Learned State counsel also places reliance in the matter of Commissioner of Police and Another vs. Umesh Kumar re- ported in (2020) 10 SCC 448, wherein vide paras 19, 20, 23, it has been held as under:- “19.The real issue, however, is whether the re- spondents were entitled to a writ of mandamus. This would depend on whether they have a vested right of appointment. Clearly the answer to this must be in the negative. In Punjab SEB v. Malkiat Singh, this Court held that the mere inclusion of candidates in a selection list does not confer upon them a vested right to appointment. The Court held: (SCC p. 26, para 4) "4.... the High Court committed an error in proceeding on the basis that the re- spondent had got a vested right for ap- pointment and that could not have been taken away by the subsequent change in the policy. It is settled law that mere inclu- sion of name of a candidate in the select list does not confer on such candidate any vested right to get an order of ap- pointment. This position is made clear in para 7 of the Constitution Bench judg- ment of this Court in Shankarsan Dash v. Union of India 10 which reads: (SCC pp. 12 50-51) 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 ac- quire an indefeasible right to be ap- pointed which cannot be legitimately de- nied. Ordinarily the notification merely amounts to an invitation to qualified can- didates to apply for recruitment and on their selection they do not acquire any right to the post. Unless the relevant re- cruitment 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 discrimina- tion can be permitted. This correct posi- tion has been consistently followed by this Court, and we do not find any discor- dant note in the decisions in State of Haryana v. Subash Chander Marwaha, Neelima Shangla v. State of Haryana 12 or Jatinder Kumar v. State of Punjab 13. (emphasis in original) 13 20. In the present case, after the name of the re- spondents appeared in the results declared on 17- 7-2015, the process of recruitment was put in abeyance since the results were challenged before the Tribunal. The process of revising the results during the course of the recruitment was necessi- tated to align it in accordance with law. An Expert Committee was specifically appointed following the institution of proceedings before the Tribunal. The report of the Expert Committee established errors in the answer-key, and thereafter a conscious deci- sion was taken, after evaluating the report, to re- vise the results on 1-2-2016. In the fresh list which was drawn up, both the respondents have admit- tedly failed to fulfil the cut-off for the OBC category to which they belong. As the learned ASG submit- ted before the Court, as many as 228 candidates are ranked above Umesh Kumar on merit while 265 candidates stand above Satyendra Singh. The submission of Mr Khurshid that these are the only two candidates before this Court would not entitle them to a direction contrary to law since they had no vested right to appointment. 23. For the above reasons, we are of the view that the judgments delivered by the Delhi High Court on 6-12-2018 in Umesh Kumar v. States and on 19- 12-2018 in Satyendra Singh v. States do not com- port with law. The High Court has been manifestly in error in issuing a mandamus to the appellants to appoint the respondents on the post of Constable (Executive) in Delhi Police. The direction was 14 clearly contrary to law. The respondents have par- ticipated in the selection process and upon the declaration of the revised result, it has emerged before the Court that they have failed to obtain marks above the cut-off for the OBC category to which they belong.” 11. Now, reverting back to the present writ petition, when they are examined in the light of aforesaid pronouncements of the Hon’ble Supreme Court, it is ample clear that even after selection for the post of Assistant Teacher, the petitioner who had been succeeded in selection process and whose documents was veri- fied, did not confer a vested right to be appointed. Admittedly, the petitioner, who is aspirant for recruitment to the post of Assistant Teacher, has failed to secure marks above the cut-off marks for the post of Assistant Teacher, therefore, it cannot be recorded to have acquired an indefeasible right to be appointed on the said posts merely on the ground that his name appear in the select merit list. The respondent authorities did their best in the process of selection as there were as many as 6 rounds of counselling, however, even in the 6th round of counselling, the petitioner could not be appointed, as he could not cross the cut-off marks as pre- scribed the respondent authorities. The judgment cited by the pe- titioner is also relevant to the aspect that the person who gets placed in the select list gets no indefeasible right to be appointed 15 even if the vacancies are available. The rider would be that the State or its instrumentality cannot arbitrarily deny appointment to any selected candidate. However, in the present matter, there is a plausible reason for not appointing the petitioner to the post of Assistant Teacher as the petitioner could not compete the cut-off marks prescribed by the respondent authorities and in that view of the matter, even if posts are lying vacant, the petitioner cannot claim for appointment only on the basis of their selection. Selec- tion is altogether different thing from appointed. 12. So far as the quashment of the fresh advertisement dated 04.05.2023 is concerned, when the posts could not be fulfilled even after 6th round of counselling, the respondent authorities were having no way left except to carry forward those vacant posts for new advertisement which cannot be said to be faulted with. The respondent authorities/ State has rightly issued a fresh advertisement dated 04.05.2023 for appointment to the post of Assistant Teacher while carrying forward the remaining seats which could not be fulfilled in the earlier round of recruitment process, which cannot be interfered with by this Court. 13. The Hon’ble Supreme Court, while dealing with the issue regard- ing exercise of interference under extraordinary jurisdiction has held in the matter of M/s. South Indian Bank Ltd. & Ors. vs. Naveen Mathew Philip & Anr. Etc. Etc. reported in [2023] 16 LiveLaw (SC) 320, which reads as under:- “18. While doing so, we are conscious of the fact that the powers conferred under Article 226 of the Constitution of India are rather wide but are required to be exercised only in extraor- dinary circumstances in matters pertaining to proceedings and adjudicatory scheme qua a statute, more so in commercial matters involv- ing a lender and a borrower, when the legisla- ture has provided for a specific mechanism for appropriate redressal.” 14. Looking into all the aforesaid aspects of the matter, this Court do not consider present to be fit case for interfering with the acts of respondent authorities/ State, in extraordinary writ jurisdiction un- der Article 226 of the Constitution of India. 15. Accordingly, the present petition, being devoid of merits is liable to be and is hereby dismissed. 16. No order as to cost(s). SD/- (Amitendra Kishore Prasad) Judge Raghu Jat