The High Court · 2024
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI L.P.A. No. 379 of 2024 Manoranjan Kunwar @ Manoranjan Kumer, aged about 51 years, son of Late Satya Narayan Kunwar, resident of Sudha Bhawan, Sahana in front of Block Office, P.O. and P.S. Jamtara, District Jamtara (Jharkhand) Versus ..… Appellant 1. State of Jharkhand through the Principal Secretary, Women, Child Development and Social Security Department, Jharkhand Mantralay, Project Bhawan, Dhurwa, P.O. and P.S. Dhurwa, District- Ranchi 2. Director, Mahila Bal Vikash and Social Security Department (Jharkhand State Child Protection Society), Room No. 315, 3rd Floor, F.F.P. Building, Dhurwa, P.O. and P.S. Dhurwa, District Ranchi 3. Deputy Commissioner-cum-Chairman District Child Protection Committee, Jamtara, P.O. and P.S. Jamtara, District Jamtara 4. District Social Welfare Officer, Jamtara, P.O. and P.S. Jamtara, District Jamtara 5. District Child Protection Officer, Jamtara, P.O. and P.S. Jamtara, District Jamtara. ..... Respondents --------- CORAM: HON'BLE THE ACTING CHIEF JUSTICE HON'BLE MR. JUSTICE ARUN KUMAR RAI --------- For the Appellant For the Respondent s : Mr. Vijay Bahadur Singh, Advocate : Mr. Mohan Kumar Dubey, AC to AG 04/ Dated: 22nd August 2024 --------- Per Sujit Narayan Prasad A.C.J The instant appeal has been filed under clause 10 of the letters patent appeal directed against the order dated 23.04.2024 passed in W.P.(S) No. 7114 of 2023 whereby and whereunder while dismissing the writ petition the learned Single Judge has refused to interfere with the Advertisement No. 01 of 2023 dated 27.10.2023. Factual Matrix 2. The brief facts of the case as per the pleading made in the writ petition which require to be enumerated herein, reads as under: In pursuant to the Advertisement issued as back as in the year 2016 by the Director, Jharkhand State Child Protection Society for different posts for all districts of the State of Jharkhand, the petitioner participated in the selection process of Legal-Cum-Probation Officer for the District of Jamtara and the name of the petitioner stood at serial no. 1 in the panel. In the writ petition it is further pleaded that in connection with clarification regarding a complaint, a memo no. 969 dated 10.08.2019 was issued from the District Social Welfare Unit and the petitioner was required to be present on 13.8.2019. The petitioner appeared and clarified his position and was assured that offer of appointment will be issued to the petitioner shortly. When no appointment letter was issued, the petitioner also issued a pleader notice dated 17.01.2020.
Decision
It is the case of the writ petitioner has continuously approached the respondents for issuance of offer of appointment but the same was not issued and the respondent nos. 2 to 5 issued fresh Advertisement No. 1 of 2023 for the same post in the month of October 2023. It is stated that once the selection process was over and the petitioner was declared successful, the respondents were not justified in issuing fresh advertisement. 3. Being aggrieved with the aforesaid acts of the respondents the writ petitioner had preferred the writ petition being W.P.(S) No. 7114 of 2023 wherein prayer was made for issuance of writ of directing the Respondents to issue offer of appointment to the post of Legal-Cum- Probation Officer (D.C.P.S. 4) to the petitioner and further for quashing of Advertisement No.01 of 2023 issued on 27.10.2023 by the District Appointment Committee. 4. The learned writ Court after appreciating the rival claims and taking into consideration that the decision which was taken way back in 2019 to cancel the selection process followed by fresh advertisement in the year 2022 was never under challenge and is not under challenge in this petition also and the fresh advertisement is a result of change in policy of the respondents pursuant to order passed in W.P. (C) No. 3894 of 2021, has refused to pass any positive direction in favour of the writ petitioner. 5. Being aggrieved with the order of writ Court the present appeal has been preferred. 6. It is evident from the factual aspect of the instant case that the petitioner had participated in the selection process for the post of Legal- Cum- Probation Officer in pursuant to advertisement of year 2016 and his name was appeared in the panel. The recruitment process was on 2 contractual basis and ultimately the recruitment process could not be finalized till 2019 and decision was taken by the respondents as back as on 21.10.2019 to initiate fresh process by issuing an advertisement by stating that much time has elapsed from the date of advertisement. 7. It appears that pursuant to the decision dated 21.10.2019 an advertisement was issued in the year 2022 which was never challenged by the petitioner. However, the advertisement of the year 2022 was also canceled in view of the judgment passed by this Court in W.P. (C) No. 3894 of 2021 wherein the condition for passing matriculation or 10+2 examination from educational institution situated within the State of Jharkhand was held to be illegal and therefore the illegality with regard to such condition was to be removed and a consequential letter dated 06.07.2023 was issued by which the advertisement dated 16.9.2022 was canceled resulting in issuance of fresh advertisement. From the counter affidavit it is evident that selection process pursuant to the fresh advertisement is almost over and at the stage of publication of the result. 8. The grievance of the appellant is that there is no valid reason for cancellation of the advertisement of the entire recruitment process which was initiated in the year 2016 and at that time, writ petitioner was eligible for consideration for the aforesaid post on contract basis but without any valid reason, since it was cancelled merely because there was delay in the process of selection, reason assigned prejudicing the case of the writ petitioner since at the moment, the petitioner has lost his chance for consideration due to crossing of the maximum age barrier. 9. The writ petitioner on the aforesaid pretext has approached to this Court under Article 226 of the Constitution of India being W.P. (S) No. 7114 of 2023 but the learned Single Judge has declined to pass positive direction by assigning the reason that no right will be said to be accrued in favour of the petitioner by merely making an application for consideration of his candidature, which is a subject matter of the present appeal. Submission on behalf of learned counsel for the appellant: 10. Mr. Vijay Bahadur Singh, learned counsel appearing for the 3 appellant/ writ petitioner has submitted that the learned Single Judge has not appreciated the factual aspect in the order, since without any fault on the part of the appellant/ writ petitioner who was a candidate in terms of the advertisement issued in the year 2016 and if the delay has been caused which was ground taken in coming out with the advertisement, sometime in the year 2022 and subsequent thereto in the year 2023, for which the writ petitioner cannot be held to suffer. 11. The learned counsel submits that once the selection process was over and the petitioner was declared successful, the respondents were not justified in issuing the fresh advertisement but the learned Single Judge without appreciating the aforesaid fact has dismissed the writ petition, therefore, the present appeal. Submission on behalf of learned counsel for the State: 12. Mr. Mohan Kumar Dubey, learned counsel appearing for the State while on the other hand has submitted by defending the impugned order that the learned Single Judge while deciding to pass positive direction, the same cannot be said to suffer from an error in view of the specific reason assigned as on paragraph 11 thereof. 13. The learned State counsel has further submitted that the learned Single Judge has also considered that the advertisement was issued way back in the year 2016 for contractual appointment and the selection could not be made, thus decision was taken back in the year 2019 to cancel the same and thereafter in 2022 fresh advertisement was issued making therein a condition of passing of 10th examination by one or other candidate from the institution situated in the territory of the State of Jharkhand, but the aforesaid policy decision of the State since was quashed and set aside by this Court and thereafter the occasion has cropped up for coming out a fresh advertisement in the year 2023. 14. It is contended that the decision to cancel the selection process which was taken way back in the year 2019 has neither been mentioned in the writ petition nor the same is under challenge in the present proceedings. 15. It has further been submitted that the advertisement was issued for 4 short term contract, since then much time have elapsed as such there was no illegality in cancelling the selection process. 16. The learned counsel further submits that there was a decision in connection with the change of policy regarding local resident with respect to the class-10 and class-12 qualification, the impugned selection process pursuant to Advertisement no. 01 of 2023 was issued is in consonance with the said policy and merely because the name of the petitioner appeared in the panel, the same does not crystalizes any right in favour of the petitioner. 17. The learned Single Judge after taking into consideration aforesaid aspect of the matter, if has dismissed the writ petition, it cannot be said to suffer from any error. Analysis 18. We have heard learned counsel for the parties and gone through the finding recorded by the learned Single Judge in the impugned order. 19. The issue which fell for consideration as has been agitated on behalf of the appellant/ writ petitioner is that the advertisement which was floated in the year 2016 to fill up the post of Legal-cum-Probation Officer on the contract basis, has been delayed in completion of the recruitment process and subsequent thereto, fresh advertisement had been issued and in the meanwhile, the appellant/ writ petitioner had crossed the maximum age barrier. It is contended that why the appellant/ writ petitioner will be made to suffer for any laches committed on part of the authority concerned. 20. This Court before proceeding to examine the legality and propriety of the impugned order, deem it fit to refer the law on accrued /vested right. 21. The vested right has been defined in Black's Law Dictionary (6th Edition) at page-1563, means fixed; accrued, settled, absolute, complete. Having the character or given the rights of absolute ownership, not contingent, not subject to be defeated by a condition precedent. Rights are 'vested' when right to enjoyment, present or prospective, has become property of some particular person or persons as present interest, mere 5 expectancy of future benefits, or contingent interest in property founded on anticipated continuance of existing laws, does not constitute vested rights. In Webster's Comprehensive Dictionary (International Edition) at page-1397, the word 'vested' is defined as a tenure subject to no contingency, complete, established by law as a permanent right, vested interest. The word 'vested' is normally used where an immediate fixed right in present or future enjoyment in respect of a property is created. With the long usage the said word 'vest' has also acquired a meaning as "an absolute or indefeasible right". It had a 'legitimate' or "settled expectation" to obtain right to enjoy the property etc. Such "settled expectation" can be rendered impossible of fulfillment due to change in law by the legislature. Besides this, such a "settled expectation" or the so-called "vested right" cannot be countenanced against public interest and convenience which are sought to be served by amendment of the law. Thus, "vested right" is a right independent of any contingency. Such a right can arise from a contract, statute or by operation of law. A vested right can be taken away only if the law specifically or by necessary implication provide for such a course. In the light of the definition of the "vested right", it is evident that right accrues to person or persons attached to an institution or building or anything whatsoever, meaning thereby, if an incumbent is claiming a vested right, he is to substantiate before the court of law that the right has been created in his favour by an order passed in pursuance to the applicable law. 22. Further, it is evident from the meaning of the 'vested' as per the Black's Law Dictionary which means the settled or absolute right and the settled or absolute right will only be said to be a right in this nature if the right has been created as a permanent right." 23. The word accrued and vested right has elaborately been dealt with the Hon'ble Apex Court in the case of MGB Gramin Bank v. Chakrawarti Singh, (2014) 13 SCC 583, relevant paragraph needs to be 6 referred herein which reads as under: “11. The word “vested” is defined in Black's Law Dictionary (6th Edn.) at p. 1563, as: “Vested.—fixed; accrued; settled; absolute; complete. Having the character or given in the rights of absolute ownership; not contingent; not subject to be defeated by a condition precedent. Rights are „vested‟ when right to enjoyment, present or prospective, has become property of some particular person or persons as present interest; mere expectancy of future benefits, or contingent interest in property founded on anticipated continuance of existing laws, does not constitute „vested rights‟.” 12. In Webster's Comprehensive Dictionary (International Edition) at p. 1397, “vested” is defined as law held by a tenure subject to no contingency; complete; established by law as a permanent right; vested interest. 13. Thus, vested right is a right independent of any contingency and it cannot be taken away without consent of the person concerned. Vested right can arise from contract, statute or by operation of law. Unless an accrued or vested right has been derived by a party, the policy decision/scheme could be changed.” 24. It is evident from the aforesaid judgment that the accrued right is said to be a right which has legally been accrued in favour of a party said to be vest upon him. 25. In the backdrop of the aforesaid position of law, this Court is now proceeding to examine as to whether the writ petitioner has got any vested right of appointment just because his name was found place in panel as per the earlier advertisement. 26. This Court in the background of the aforesaid legal proposition and adverting to the factual aspect of the present case is of opinion that the petitioner has made an application for consideration of his candidature in pursuant to the advertisement floated in the year 2016 to fill up vacancy for the Legal-cum-Probation Officer post on contract basis. Recruitment process could not be concluded, therefore and the competent authority has taken decision as on 21.10.2019 to float fresh advertisement and initiate fresh process by issuing an advertisement, resulting into the cancellation of the entire recruitment process sometime in the year 2019. 27. In pursuant to the decision as on 21.10.2019, subsequently fresh advertisement was issued in the year 2022. But, in the said advertisement a mandatory condition was imposed wherein one or the other candidate is to possess matriculation/10+2 passed certificate from the educational 7 institution within the territory of State of Jharkhand. The Said Niyojan Niti has been quashed and set aside by the co- ordinate bench of this court in W.P(s) no.- 3894 of 2021. 28. Subsequent thereto, the competent authority has come out with the fresh advertisement sometime in the year 2023, but by that time, the petitioner has crossed the maximum age barrier and hence he could not be able to participate in process of selection as advertise in the year 2023. 29. The petitioner therefore has approached to this Court for consideration of his candidature based upon the advertisement floated in the year 2016. The question of consideration of his candidature on the basis of advertisement issued in the year 2016 does not arise as the entire recruitment process has been cancelled. 30. Further, the cancellation process has never been challenged as it has also been taken as the ground by learned Single Judge of this Court while dismissing the writ petition. 31. Thus, on the basis of the aforesaid admitted fact, it is evident that the question of accrued right is not available in favour of the petitioner in view of the fact that although the writ petitioner had participated in the process but due to non issuance of the offer of appointment, the recruitment process cannot be said to be concluded and thereby, it is not a case where the petitioner can claim his right for appointment on the principle of accrued or vested right. 32. Further, it is settled position of law that till the date of offer of appointment candidate has got no indefeasible right to claim such appointment merely on the basis of recommendation of their name in the final select list. Reference in this regard be made to the judgment rendered in the case of Shankarsan Dash v. Union of India [(1991) 3 SCC 47], wherein at paragraph 7, it has been held as under: “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 8 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. This correct position has been consistently followed by this Court, and we do not find any discordant note in the decisions in State of Haryana v. Subash Chander Marwaha, Neelima Shangla v. State of Haryana or Jatinder Kumar v. State of Punjab.” 33. Likewise the Hon'ble Apex Court in the case of State of Orissa v. Rajkishore Nanda, (2010) 6 SCC 777 wherein by taking aid of its own judgment rendered in the case of Shankarsan Dash v. Union of India (supra) the Hon’ble Apex Court has observed that mere inclusion of the candidate's name in the select list does not confer any right to be selected and If the selection process is over, select list has expired and appointments had been made, no relief can be granted by the court at a belated stage. For ready reference the relevant paragraph of the aforesaid Judgment is being quoted as under: “15. A Constitution Bench of this Court in Shankarsan Dash v. Union of India [(1991) 3 SCC 47 : 1991 SCC (L&S) 800 : (1991) 17 ATC 95 : AIR 1991 SC 1612] held that appearance of the name of a candidate in the select list does not give him a right of appointment. Mere inclusion of the candidate's name in the select list does not confer any right to be selected, even if some of the vacancies remain unfilled. The candidate concerned cannot claim that he has been given a hostile discrimination. (See also Asha Kaul v. State of J&K [(1993) 2 SCC 573 : 1993 SCC (L&S) 637 : (1993) 24 ATC 576], Union of India v. S.S. Uppal [(1996) 2 SCC 168 : 1996 SCC (L&S) 438 : (1996) 32 ATC 668 : AIR 1996 SC 2340], Bihar Public Service Commission v. State of Bihar [(1997) 3 SCC 198 : 1997 SCC (L&S) 775 : AIR 1997 SC 2280], Simanchal Panda v. State of Orissa [(2002) 2 SCC 669 : 2002 SCC (L&S) 369], Punjab SEB v. Malkiat Singh [(2005) 9 SCC 22 : 2006 SCC (L&S) 235], Union of India v. Kali Dass Batish [(2006) 1 SCC 779 : 2006 SCC (L&S) 225 : AIR 2006 SC 789], Divisional Forest Officer v. M. Ramalinga Reddy [(2007) 9 SCC 286 : (2007) 2 SCC (L&S) 410 : AIR 2007 SC 2226], Subha B. Nair v. State of Kerala [(2008) 7 SCC 210 : (2008) 2 SCC (L&S) 409], Mukul Saikia v. State of Assam [(2009) 1 SCC 386 : (2009) 1 SCC (L&S) 186 : AIR 2009 SC 747] and S.S. Balu v. State of Kerala [(2009) 2 SCC 479 : (2009) 1 SCC (L&S) 388]. 16. A select list cannot be treated as a reservoir for the purpose of appointments, that vacancy can be filled up taking the names from that list as and when it is so required. It is the settled legal proposition that no relief can be granted to the candidate if he approaches the court after the expiry of the select list. If the selection process is over, select list has expired and appointments had been made, no relief can be granted by the court at a belated stage. (Vide J. Ashok Kumar v. State of A.P. [(1996) 3 SCC 320 : 9 1996 SCC (L&S) 707], State of Bihar v. Mohd. Kalimuddin [(1996) 2 SCC 7 : 1996 SCC (L&S) 389 : (1996) 32 ATC 821 : AIR 1996 SC 1145], State of U.P. v. Harish Chandra [(1996) 9 SCC 309 : 1996 SCC (L&S) 1240 : AIR 1996 SC 2173], Sushma Suri v. Govt. of NCT of Delhi [(1999) 1 SCC 330 : 1999 SCC (L&S) 208], State of U.P. v. Ram 699], K. Saroj [(2000) Thulaseedharan v. Kerala State Public Service Commission [(2007) 6 SCC 190 : (2007) 2 SCC (L&S) 427], Deepa Keyes v. Kerala SEB [(2007) 6 SCC 194 : (2007) 2 SCC (L&S) 430] and Subha B. Nair [(2008) 7 SCC 210 : (2008) 2 SCC (L&S) 409].)” Swarup SCC 3 Conclusion 34. It is evident from the aforesaid judgment that even on the basis of recommendation made no right will be said to be accrued for the purpose of appointment to the post rather right will be said to be created only after issuance of appointment letter in favour of one or the other but herein admitted position is that no appointment letter was ever issued rather entire process was cancelled in the year 2019. 35. In pursuant to the decision as on 21.10.2019, subsequently fresh advertisement was issued in the year 2022. But, in the said advertisement a mandatory condition was imposed wherein one or the other candidate is to possess matriculation/10+2 passed certificate from the educational institution within the territory of State of Jharkhand. The Said Niyojan Niti has been quashed and set aside by the co-ordinate bench of this court in W.P.(S) No. 3894 of 2021. 36. Subsequent thereto, the competent authority has come out with the fresh advertisement sometime in the year 2023, thus in absence of any accrued right, no consideration can be given for appointment of the writ petitioner/appellant to the post in question. 37. So far, challenging the fresh advertisement of the year 2023 is concerned i.e. subsequent to the cancellation process of the recruitment process which was initiated in the year 2016, but since the entire process of cancellation has not been challenged by the petitioner, therefore, the question in subsequent advertisement of the year 2023 will not create a right to consider the candidature of the appellant/writ petitioner. The matter would have different if the entire selection process which has been cancelled by the State of Jharkhand could have been challenged but the same was never challenged, resulting into advertising 10 fresh advertisement to fill up the post under contract basis. 38. This Court is of considered view that the learned single Judge has taken into consideration all aspects of the matter as it would be evident from para 12 to 15 of the order dated 23.04.2024, wherein the consideration has been given that the selection process has already been cancelled in the year 2019 which had began in pursuant to the advertisement issued in the year 2016 and thereafter, in year 2022 subsequent advertisement stands cancelled due to quashing and setting aside of the rule pertaining to fixing of the educational qualification in the advertisement and in consequent thereof, a fresh advertisement had been issued in the year 2023 and further the decision which was taken way back in 2019 to cancel the selection process followed by fresh advertisement in the year 2022 was never under challenge and is not under challenge in this petition also and the fresh advertisement is a result of change in policy of the respondents pursuant to order passed in W.P. (C) No. 3894 of 2021. 39. On the basis of discussion made hereinabove, this Court is of considered view that the order passed by learned Single Judge requires no interference. 40. Accordingly, the present intra court appeal stands dismissed. 41. Pending I. A’s., if any, stands disposed of. (Sujit Narayan Prasad, A.C.J.) (Arun Kumar Rai, J.) Pramanik/ A.F.R. 11