M.L. Sharma v. The State of Haryana & Ors.

Mr. Anand Bhardwaj, Advocate for respondent No.3. CORAM:HON'BLE MR. JUSTICE K. KANNAN

1. Whether Reporters of local papers may be allowed to see the judgment ? Yes

2. To be referred to the Reporters or not ? Yes 3. Whether the judgment should be reported in the Digest? Yes K. KANNAN J. -.-

1. The petitioner, who had been interviewed for the post of Cane Adviser in the respondent-Federation on

04.12.2008 and who had been informed that he was number one in the order of merit was ultimately not issued with the order of appointment. The selection had been made by a departmental Interview Committee but the Rules had been subsequently amended to provide for selection through C.W.P. No.7507 of 2009 (O&M) -2- Haryana Public Service Commission. The grievance of the petitioner is, therefore, two-fold. One, after the selection was made in the manner provided under the Rules, it could not have been withdrawn arbitrarily. Two, the recruitment rules which had been amended to provide for a different method of selection could not be effected retrospectively to annul the selection process, which according to the petitioner, had come to a finality when the decision to appoint the petitioner had been taken.

2. The contention in defence is on a preliminary point that there is no indefeasible right to employment and a Government, which had notified a vacancy might choose not to fill up the vacancy and a candidate included in the rank list cannot obtain a mandamus unless arbitrariness or discrimination was established. The contention on behalf of the State was that communication from the Chief Secretary, Government of Haryana had been sent to all the Heads of the Department informing that the vacancies in Group A and B posts in all the Government Departments would require to be filled after directing the requisitions to the Haryana Public Service Commission for filling up the vacant posts and that in spite of such direction, the selection process had been set in motion by the Department on 04.12.2008 when on the same date an office note prepared by the Corporation to keep the C.W.P. No.7507 of 2009 (O&M) -3- Group A post in the Corporation be kept outside the purview of the Public Service Commission was placed before the Chief Minister and when there was also a final noting that the post should be filled only as per the directions of the Chief Secretary as contained in his letter dated 15.09.2008.

3. Learned Senior Counsel appearing for the petitioner concedes at the outset that a candidate whose name appeared in the merit list did not have any indefeasible right of appointment even if a vacancy existed and the only exception as carved in the Constitution Bench of the Hon'ble Supreme Court in Shankarsan Dash Vs. Union of India 1991(2) SLR 779 is that the State has not the licence of acting in an arbitrary manner and the decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. A still later decision of the Hon'ble Supreme Court in S.S. Balu and another Vs. State of Kerala and others (2009) 2 SCC 479 underscores the same principle as regards a situation when such a principle would not operate. The decision underscores the principle that State was bound to receive the comparative merits of the candidates as reflected at the recruitment test and no discrimination could be permitted. The learned Senior Counsel also refers to a decision of this Hon'ble Court in Asha Rani and others Vs. The State of Haryana and others 1999 (1) SLR 695 that if no valid reasons were advanced in denying C.W.P. No.7507 of 2009 (O&M) -4- an appointment after the selection process had been undertaken, the Court would be justified in giving a direction to the State to consider the claim of the petitioners for appointment within a specified period.

4. The proposition that could be noticed is, therefore, denial of appointment after a selection could be made, but such denial ought to be for valid reasons and it shall not be arbitrary. The reason given in this case is that the Government had already decided to go through the recruitment to Group A and Group B posts only through the Public Service Commission and not through the departmental selection. It may be that at the time when the Chief Secretary had issued notices on 15.09.2008, the Public Service Commission did not have the authority as per the Rules for making the recruitment. If such a selection process had been undertaken pursuant to such a letter, it could have been even possible to contend that the recruitment itself was not valid. The invalidity of the letter or the non-enforceability of such a letter still does not make the position of the petitioner better, for if there was a justification on the date of interview or even subsequently for not allowing the selected candidate to be appointed, that itself would be sufficient and the petitioner cannot have an enforceable right. It is not sufficient for the petitioner to contend that on 04.12.2008, the selection could C.W.P. No.7507 of 2009 (O&M) -5- have been done only through the Departmental Staff Selection Board. All the cases relating to the nature of right of a selected candidate to appointment have been rendered only in the context of how even when the selection was done through a proper legal process, still it cannot itself afford a ground to enforce through mandamus a right of appointment if a supervening decision, which is not arbitrary made possible for the State to deny such appointment. The supervening event in this case is only an amendment in the Rules that took effect five months later, that was when Rule 5 had been amended on

11.05.2009. It is not in issue whether the Rule could be brought into effect retrospectively. The amended Rules merely show the justification why they had not made the appointment of a candidate, who had been previously selected. The policy consideration of how the appointment shall be done and the mode of recruitment brought through an amendment of Rules cannot be a subject of challenge unless the Rules themselves are violative of the principal enactment or there is anything arbitrary about the mode of selection as the amended provisions indicated. I have not been shown how a decision by the State to put the State Public Service Commission in charge of selection process could be termed to be arbitrary or discriminatory. The prospective candidate himself has no right to demand, who shall be the competent C.W.P. No.7507 of 2009 (O&M) -6- authority to appraise his merit for the sake of selection. Even a subsequent change in the Rule is itself a justification for not issuing an order of appointment of a candidate, who was selected as per the unamended Rules. We are not dealing with a situation where an order of appointment had been made as per the unamended Rules and it is sought to be annulled by a retrospective application through an amendment brought in the Rules. It is not stricto sensu the issue of retrospective application of the Rules but it is case where selection itself had not come to a finality through an appointment order. The change in Rule subsequently will itself be a ground not to issue an order of appointment if the State chooses not to do.

5. The petitioner cannot, therefore, have any relief. The writ petition is dismissed. There shall be, however, no direction as to costs. March 19, 2010 Pankaj* (K. KANNAN) JUDGE