Dismissed

Shikha Malviya and Anr. v. State of U.P. and 3 Ors.

Allahabad HC4 Oct 2018SPLA/666/2018

Case brief

AI extract

What is this about?

Challenge to the State's discontinuance of an ongoing recruitment for Assistant Teacher (L.T. Grade) posts and its decision to re-advertise under amended service rules providing selection by written examination. The court held the change to be a bona fide policy decision, that applicants acquire no indefeasible right to appointment, and dismissed the special appeal.

What the court decided

AI extract

Shikha Malviya and Anr. Vs State of U.P. and 3 Ors. — Education and Admissions | Allahabad HC (2018)

AFR

Reserved

Case :- SPECIAL APPEAL No. - 666 of 2018

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Appellant :- Shikha Malviya And Anr. Respondent :- State Of U.P. And 3 Ors Counsel for Appellant :- Saroj Kumar Yadav Counsel for Respondent :- C.S.C.

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Hon'ble Govind Mathur,J. Hon'ble Chandra Dhari Singh,J.

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[Per: Hon'ble Chandra Dhari Singh, J.]

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The instant special appeal has been preferred against the judgment and order dated 13.04.2018 passed by the learned single Judge in Writ-A No. 8334 of 2018 (Shikha Malviya and another Vs. State of U.P. and others), by which the writ petition was dismissed on the basis of judgment and order dated 13.4.2018 passed in WritA No. 48664 of 2017 (Himanshu Shukla and another Vs. State of U.P. and others).

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Brief facts of the case necessary to be noted for deciding the issues raised in the appeal are that the State Government issued Government Order dated 22.07.2014 for filling up 6645 posts of Assistant Teacher (L.T. Grade) in the Government Secondary Schools and in pursuance thereof the Regional Joint Directors of Education made advertisement for filling up the vacancies requisition in their particular region. Out of 6645 posts, almost 2200 posts of Assistant Teacher (L.T. Grade) could be finalized and candidates were given appointments. The remaining posts could not be filled up on one difficulty or the other.

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In pursuance to the advertisement issued in the month of September and October 2014, applications have been invited for the post of Assistant Teacher (L.T. Grade) in various Government Secondary Schools within the domain of State of U.P. and in response thereto, the appellants/petitioners have submitted dully

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filled applications before the concerned authorities. During the selection process the appointing authorities faced several difficulties on account of post being that of regional cadre and having multiple appointing authorities across the State. Keeping in view the difficulties arising out of multiplicity of appointing authorities, regional cadre and other associated problems, amendments were proposed in the U.P. Subordinate Education (Trained Graduate Grade) Service Rules, 1983 [hereinafter referred to as 'Rules of 1983'].

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The State Government promulgated U.P. Subordinate Education (Trained Graduate Grade) Service (4^th Amendment) Rules, 2016 on 19.10.2016, whereby the Additional Director, Secondary Education, U.P. Allahabad was made the appointing authority. The posts of Assistant Teacher (L.T. Grade) are brought under the State cadre by this amendment. The anomalies regarding the educational training qualifications for various subjects were also removed and the requisite qualifications were added in the list of subjects and some other minor amendments were made by the Amendment Rules, 2016. The procedure for selection have been laid down on the basis of quality point marks and applications were required to be submitted online only attaching with educational mark-sheets.

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After promulgation of Fourth Amendment Rules, 2016, the State Government closed the ongoing selection process of 6645 posts of Assistant Teacher initiated in pursuance of the Government Order dated 22.07.2014 and decided to fill up 9342 posts of Assistant Teachers (L.T. Grade) in the Government Secondary Schools as per Fourth Amendment Rules, 2016 vide Government Order dated 05.12.2016. In pursuance thereto Government Order dated 05.12.2016, the Additional Director of Education issued the advertisement dated 19.12.2016, thereby inviting online applications from the eligible candidates on the post

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of Assistant Teacher (L.T. Grade) in the Government Secondary Schools. Thereafter, online applications were submitted by the appellants/petitioners and other eligible candidates for appointment on the post in question following the procedure as prescribed under the rules and in the advertisement.

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In February 2017, the result of the ongoing selection of 9342 posts of Assistant Teacher (L.T. Grade) was prepared by the appointing authorities but the same was not declared due to the model code of conduct on account of general assembly elections of State of U.P. Thereafter, the State Government has taken a policy decision to change the selection criteria/procedure and closed the aforesaid ongoing selection of 9342 posts of Assistant Teacher (L.T. Grade) in Government Secondary Schools. The State Government has made it clear that the government is not going to complete the aforesaid selection process in terms of the advertisement dated 19.12.2016. The State Government has also decided that the selection of candidates against the vacancies advertised is expected to start in the month of September 2017 under the new procedure after completing the amendments in Rules of 1983 within the time stipulated for the same. The State Government has taken a policy decision on 17.08.2017 to make temporary arrangement of Assistant Teacher (L.T. Grade) in the Government Secondary Schools by way of deputation from the basic schools run by Basic Shiksha Parishad and also by reappointment of retired teachers of secondary education while the amendment in the Rules of 1983 is under consideration. Thereafter, a Government Order dated 21.08.2017 was issued for making the aforesaid arrangement against 2600 vacant posts in Government Secondary Schools across the State. In pursuance of the Government Order dated 21.08.2017, the Director, Secondary Education, U.P. at Lucknow issued the detailed schedule for appointments on deputation and reemployment vide order dated 23.08.2017.

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The State Government promulgated the U.P. Subordinate Educational (Trained Graduate Grade) Service (5^th Amendment) Rules, 2017 on 23.08.2017, whereby the selection on the post of Assistant Teacher (L.T. Grade) is to be made by direct recruitment through written examination by Public Service Commission U.P. Allahabad. The Appendix [Gha] has also been deleted from the rules. Thereafter, the respondent no. 3 Additional Director, Secondary Education, U.P. Allahabad has requisitioned total 9892 posts of Assistant Teachers (L.T. Grade) including 9342 posts of Assistant Teachers (L.T. Grade), which were advertised by advertisement dated 19.12.2016 in the terms of U.P. Subordinate Education (Trained Graduate Grade) Service (4^th Amendment) Rules, 2016. Thereafter, a number of candidates, who have applied for their candidature to be considered on the post of Assistant Teachers (L.T. Grade) in pursuance of the U.P. Subordinate Education (Trained Graduate Grade) Service (4^th Amendment) Rules, 2016, have approached the High Court by filing of Writ Petition No. 41348 of 2017 and other connected writ petitions with the prayer to quash the order dated 21.08.2017 and also prayed to declare the result of recruitment of 9342 posts of Assistant Teachers (L.T. Grade) and complete the process initiated in terms of Government Order dated 19.12.2016.

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Appellants/petitioners before this Court have applied, pursuant to advertisements issued during the currency of Second, Third and Fourth Amendment in Rules of 1983 for direct recruitment to be made against the posts in the cadre. Their grievance is that recruitment initiated as per the rules then in force have not been concluded, and the State has arbitrarily discontinued the recruitment process in midway. The State is now proceeding to fill up left over seats by a fresh advertisement dated 15.3.2018, in accordance with the Fifth Amendment Rules. The appellants/petitioners filed a writ petition challenging therein the

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action of the State Government to fill up left over seats by the fresh advertisement in accordance with the Fifth Amendment Rules.

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Learned counsel appearing on behalf of the appellants/petitioners has submitted that after promulgation of Fourth Amendment Rules, 2016, the State Government closed the ongoing selection process of 6695 posts of Assistant Teachers initiated in pursuance to the Government Order dated 22.07.2014 and decide to fill up 9342 posts of Assistant Teachers LT Grade in the Government Secondary Schools as per Fourth Amendment Rules, 2016 vide Government Order dated 5.12.2016. It is further submitted that in February-March 2017 the result of the ongoing selection of 9342 posts of Assistant Teacher LT Grade was prepared by the appointing authority but the same was kept in abeyance due to the model code of conduct on account of General Assembly Election of State of U.P.

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The learned counsel appearing on behalf of the appellants/petitioners submitted that State Government promulgated the U.P. Subordinate Educational (Trained Graduates Grade) Service (Fifth Amendment) Rules, 2017 on 30.7.2017, whereby the selection on the post of Assistant Teacher LT Grade is to be made by direct recruitment through written examination by Public Service Commission, U.P. Allahabad. The Appendix [Gha] has also been deleted from the Rules. Vide Government Order dated 31.10.2017, ongoing selection proceeding in respect of 9342 posts of Assistant Teacher L.T. Grade had been cancelled. The fresh advertisement has been issued on 15.03.2018 by the Commission inviting applications against the total vacancies 10768 arising out of the retirement of the Assistant Teacher L.T. Grade for the year 2017, 2018 and 2019.

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Learned counsel for the appellants/petitioners further submits that the recruitment process initiated on each occasion was required to be concluded as per the Rules then enforced and

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that the State Government was not justified in cancelling the process on account of change made in the recruitment rules. Contention is that change in recruitment rules can at best apply prospectively, and if it is to be made the basis to scuttle the ongoing recruitment process then it would amount to giving it retrospective application, which is impermissible in law.

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It is also submitted that the decision to cancel the recruitment exercise initiated in December, 2016 is vitiated in law, as the decision is taken by a new political dispensation only to suit its own convenience. It is further submitted that much before the cancellation of recruitment process on 31.10.2017, the State had given up the recruitment process. It is argued by learned Senior Counsel appearing on behalf of the appellants/petitioners that the decision of the State to cancel the recruitment exercise is hit by the doctrine of proportionality. Submission is that the cases of those persons who had secured appointment on the strength of fraud ought to have been segregated and that claim of other persons was liable to have been considered. Cancelling the entire recruitment was not required.

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Per-contra learned counsel appearing on behalf of the State as well as the Public Service Commission vehemently opposed the submission advanced by learned counsel appearing on behalf of the appellants/petitioners on the ground that none of the appellants/petitioners have acquired any vested right to be considered for appointment merely on the strength of an application made for recruitment. It is further submitted that right to be considered for appointment is subject to the rules framed and the State is well within its right not to proceed with the ongoing recruitment exercise, and thereby to cancel it. It is also submitted that merely because vacant positions are available would not mean that employer is under an obligation to fill up all vacancies.

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Learned counsel appearing for the State has contended that

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State experienced difficult scenario pursuant to second advertisement issued, inasmuch as, large number of candidates had applied on the basis of forged academic records. Although recruitment was made in excess of 6000 posts, but only 1952 candidates have joined their posts. 1198 candidates were found to have applied on the basis of fraudulent educational certificates and FIR was lodged against 956 of them. Other candidates did not join presumably on account of either their selection being based on fraudulent academic records or due to selection in other regions. It is contended that all such aspects necessitated change in the recruitment rules. It is submitted that so far as the recruitment exercise initiated in December, 2016 is concerned except for entertaining applications none of the applications were processed and the recruitment remained non-starter.

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The learned counsel appearing on behalf of the respondent State as well as the Commission stated that a policy decision was taken by the State to have the recruitment undertaken for the post by way of written examination conducted by the Public Service Commission. This decision apparently was based upon the assessment that written test conducted by the Commission would more accurately reflect the merit of a candidate. The past experience in conduct of examination based on the quality point marks also appears to have weighed with the State as the reason for change of policy. Such materials would clearly justify a departure in policy for ascertaining merit of candidate based on written test conducted by the Commission in place of quality point marks. The consequential amendment in rules was not challenged. The decision of State, therefore, to discontinue the previous recruitment process and to advertise the vacancy afresh, based upon amendment in the rules would clearly lie in the realm of policy decision to be taken by the State, which is neither irrational nor discriminatory or arbitrary.

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Judicial Review in Policy Decisions

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As a general rule, the Courts do not interfere in the policy decisions of the Government. But, then, there are certain situations in which the Courts can interfere even in the policy decisions of the Government. Making policies and executing it comes within the sphere of activities of the executive. It is not within the power of the judiciary. Moreover, the judiciary does not have the expertise and the domain knowledge to make policies or to amend them. On the other hand, the executive has experts, professionals, adminstrators, advisers, etc. in a given field and has the expertise to make policies after taking into consideration all aspects of matter. The Courts may interfere in the policy decisions of the Government, if a policy decision is in violation of the fundamental rights guaranteed under the Constitution, or in violation of other provisions of the Constitution. If a policy decision violates an Act of the Parliament or the Rules made thereunder, the Court may also intervene.

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In the case of Col. A.S. Sangwan Vs. Union Of India (Uoi) And Ors. 1980 Supp (1) SCC 559 , the Hon'ble Supreme Court held as under;

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“A policy once formulated is not good for ever, it is perfectly within the competence of the Union of India to change it, rechange it, adjust it and re-adjust it according to the compulsions of circumstances and the imperatives of national considerations. We cannot, as Court give directives as to how the Defence Ministry should function except to state that the obligation not to act arbitrarily and to treat employees equally is binding on the Union of India because it functions under the Constitution and not over it. In this view, we agree with the submission of the Union of India that there is no bar to its changing the policy formulated in 1964 if there are good and weightly reasons for doing so. We are far from suggesting that a new policy should be made merely because of the lapse of time, nor are we inclined to suggest the manner in which such a policy should be shaped. It is entirely within the reasonable discretion of the Union of India. It may stick to the earlier policy or I give it up. But one imperative of the Constitution implicit in Article 14 is that if it does change its policy, it must do so fairly and

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should not give the impression that it is acting by any ulterior criteria or arbitrarily. This object is achieved if the new policy, assuming Government wants to frame a new policy, is made the same way in which the 1964 policy was made and not only made but made known. After all, what is done in secret is often suspected of being capricious or mala fide. So, whatever policy is made should be done fairly and made known to those concerned. So, we make it clear that while the Central Government is beyond the forbiddance of the Court from making or changing its policy in regard to the Directorate of Military Farms or in the choice or promotion of Brigadiers, it has to act fairly as every administrative act must be done.”

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In the case of DDA v. Joint Action Committee, Allottee of

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SFS Flats, 2008 (2) SCC 672 , the Hon'ble Supreme Court held as under:-

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"64. An executive order termed as a policy decision is not beyond the pale of judicial review. Whereas the superior courts may not interfere with the nitty gritties of the policy, or substitute one by the other but it will not be correct to contend that the court shall like its judicial hands off, when a plea is raised that the impugned decision is a policy decision. Interference therewith on the part of the superior court would not be without jurisdiction as it is subject to judicial review.

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Broadly, a policy decision is subject to judicial review on the following grounds :

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(a) if it is unconstitutional;

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(b) if it is dehors the provisions of the Act and the Regulations;

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(c) if the delegatee has acted beyond its power of delegation; (d) if the executive policy is contrary to the statutory or a larger policy.”

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Above two decisions of the Hon'ble Supreme Court are only representative of a large number of decisions on this issue. The basic principle remains the same. Judiciary will generally not interfere in the policy decisions of the Government. However, in certain situations, some of which are mentioned above, the Courts can and do interfere in the policies made by the Government and, in fact, there are a very large number of instances when the policies made by the Government have been struck down by Courts on grounds such as the policy being unconstitutional, being against

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laws made by legislature, being arbitrary.

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Coming to the question formulated is whether the decision of the Government not to continue with the appointment on the subject post is justified or such order has been passed arbitrarily without giving proper justification. The recruitment as per Rules of 1983 was based upon quality point marks calculated on the basis of candidates' performance in High-school, Intermediate, Graduation and Training. Schedule to Rule 15(2) lays down the criteria for determining the quality point marks. The Post-graduate qualification has been done away within the Fourth Amendment to the Rules of 1983. Marks secured by a candidate in the High School and Intermediate, therefore, assumes significance. In the affidavit filed by the Additional Chief Secretary in Para 10 it is stated before this Court that questions are being raised about High School and Intermediate examinations, as such, it was held proper to select candidate on the basis of written examination to be held by the Commission in place of academic performance and training marks. Although recruitment based on quality point marks has been held to be a valid criteria for recruitment, but it ultimately remains a matter of policy for the State to choose as to what would be the appropriate procedure to be followed for the purpose. The decision of State to have the recruitment made based upon written test conducted by the Commission cannot be said to be arbitrary.

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In the present case, the recruitment exercise initiated in December, 2016 is concerned, except for entertaining applications none of the applications were processed and the recruitment remained non-starter. So far as the recruitment exercise initiated in 2011 is concerned, it transpires from the record that after the advertisement was issued selection proceedings were actually undertaken. As the cadre of Assistant Teacher was regional, the posts were advertised region-wise. The selection apparently was stalled due to the elections of the State Legislative Assembly in the

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State and thereafter due to the ban imposed on recruitment. The ban was thereafter lifted and instructions were issued to complete the process of recruitment by 15.12.2012 vide order dated 19.11.2012. The recruitment, however, could not be concluded by 15.12.2012. The process was not carried any further and the left over vacancies were included in the fresh recruitment exercise initiated in the year 2014, after Third Amendment was introduced in the Rules of 1983. The recruitment rules had been amended in the year 2014. There was nothing wrong if State had decided not to pursue the advertisement any further after the recruitment rules had been amended and the posts were advertised afresh. The decision of the State, therefore, not to proceed further with recruitment notification issued in January, 2011 would clearly be justified both for the reason of long lapse of time and also due to change of rules. From the materials on record before the Court, it is fully established that there has not been any arbitrariness whatsoever on the part of the respondents.

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So far the decision to adopt a different policy with respect to filling up of the vacancies is concerned the same is justified on account of the special circumstances mentioned above. The decision to depart from the confirmed policy was taken after a consideration by the authorities of the position with regard to the commission of the fraud committed by the maximum candidates who appeared in the recruitment process as per earlier advertisement issued in the year 2014.

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Now the question which arises for consideration is as follows; (i.) Whether the candidates declared successful in the selection process acquire any indefeasible right to get appointed against he available vacancy.

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The law with regard to selectees' right to appointment is neither in doubt nor is disputed. It is well settled that the candidates included in merit list has no indefeasible right to appointment even

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if a vacancy exists, but 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 under no legal duty to fill up all or any of the vacancies.

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In the case of Shankarsan Dash Vs. Union of India, 1991 (3) SCC 47 , a Constitution Bench of Hon'ble Supreme Court held as under;

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“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 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. Subhash Chander Marwaha and Others, [1974] 1 SCR 165; Miss Neelima Shangla v. State of Haryana and Others, [1986] 4 SCC 268 and Jitendra Kumar and Others v. State of Punjab and Others, [1985] 1 SCR 899.

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In State of Haryana v. Subhash Chander Marwaha and Others, (supra) 15 vacancies of Subordinate Judges were advertised, and out of the selection list only 7, who had secured more than 55% marks, were appointed, although under the relevant rules the eligibility condition required only 45% marks. Since the High Court had recommended earlier, to the Punjab Government that only the candidates securing 55% marks or more should be appointed as Subordinate Judges, the other candidates included in the select list were not appointed. They filed a writ petition before the High Court claiming a right of being appointed on the ground that vacancies existed and they were qualified and were found suitable. The writ application was allowed. While reversing the decision of the High Court, it was observed by this Court that it was open to the Government to decide how MANY appointments should be made and

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although the High Court had appreciated the position correctly, it had ``somehow persuaded itself to spell out a right in the candidates because in fact there were 15 vacancies''. It was expressly ruled that the existence of vacancies does not give a legal right to a selected candidate. Similarly, the claim of some of the candidates selected for appointment, who were petitioners in Jitendra Kumar and Others v. State of Punjab and Others, was turned down holding that it was open to the Government to decide how many appointments would be made. The plea of arbitrariness was rejected in view of the facts of the case and it was had that the candidates did not acquire any right merely by applying for selection or even after selection. It is true that the claim of the petitioner in the case of Miss Neelima Shangla v. State of Haryana was allowed by this Court but, not on the ground that she had acquired any right by her selection and existence of vacancies. The fact was that the matter had been referred to the Public Service Commission which sent to the Government only the names of 17 candidates belonging to the general category on the assumption that only 17 posts were to be filled up. The Government accordingly made only 17 appointments and stated before the Court that they were unable to select and appoint more candidates as the Commission had not recommended any other candidate. In this background it was observed that it is, of course, open to the Government not to fill up all the vacancies for a valid reason, but the selection cannot be arbitrarily restricted to a few candidates notwithstanding the number of vacancies and the availability of qualified candidates; and there must be a conscious application of mind by the Government and the High Court before the number of persons selected for appointment is restricted. The fact that it was not for the Public Service Commission to take a decision in this regard was emphasised in this judgment. None of these decisions, therefore, supports the appellant.”

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The issue was examined again by the Apex Court in State of

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Bihar and others vs. Secretariat Assistant Successful Examinees Union: (1994) 1 SCC 126 . The judgment in Shankarsan Dash (supra) was reiterated in following words in para 8 and 9 of the judgment:-

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"8. It is now well settled that a person who is selected does not, on account of being empanelled alone, acquire any indefeasible right of appointment. Empanelment is at the best a condition of eligibility for purposes of appointment, and by itself does not amount to selection or create a vested right to be appointed unless relevant service rule says to the contrary. (See Shankarsan Dash v. Union of India[(1991) 3

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SCC 47 : 1991 SCC (L&S) 860 : (1991) 17 ATC 95] and Babita Prasad v. State of Bihar [1993 Supp (3) SCC 268 : 1993 SCC (L&S) 1076 : (1993) 25 ATC 598 : (1992) 3 Scale 361] .)

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We are, therefore, of the opinion that the directions given by the High Court for appointment of the empanelled candidates according to their position in the merit list against the vacancies till 1991 were not proper and cannot be sustained. Since, no examination has been held since 1987, persons who became eligible to compete for appointments were denied the opportunity to take the examination and the direction of the High Court would prejudicially affect them for no fault of theirs. At the same time, the callousness of the State in holding the examination in 1987 for the vacancies advertised in 1985 and declaring the result almost three years later in 1990 has caused great hardship to the successful candidates. The State was expected not to act in such a leisurely manner and treat the matter of selection for appointment to services in such a casual manner. We must record our unhappiness on this state of affairs. There is no justification for holding the examination two years after the publication of advertisement and declaring the result almost three years after the holding of the examination and not issuing any fresh advertisement between 1985 and 1991 or holding examination for making selections. We expect the State Government to act in a better manner, at least, hereinafter and since Mr Rao, the learned senior counsel has shared our concern and assured us of advising the State Government accordingly, we say no more on that aspect at this stage."

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27. In the matter of Punjab Electricity Board and others Vs.

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Malkiat Singh, (2005) 9 SCC 22 , the Hon'ble Supreme Court held that mere inclusion of name of a candidate in the select list does not confer on him any vested right to get an appointment.

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“Having considered the respective submissions made by the learned counsel for the parties, we are of the view that the High Court committed an error in proceeding on the basis that the respondent had got a vested right for appointment and that could not have been taken away by the subsequent change in the policy. It is settled law that mere inclusion of name of a candidate in the select list does not confer on such candidate any vested right to get an order of appointment.”

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Similarly in the matter of Union of India and others Vs. Kali Dass Bashit and another, Appeal (Civil) No. 6663 of 2004 ,

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the decision of Shankarsan Das (Supra) was followed and it has been held as under;

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“In this matter, the approach adopted by the Jharkhand High Court commends itself to us. The Jharkhand High Court approached the matter on the principle that judicial review is not available in such a matter. The Jharkhand High Court also rightly pointed out that mere inclusion of a candidate's name in the selection list gave him no right, and if there was no right, there could be no occasion to maintain a writ petition for enforcement of a non-existing right. In Punjab State Electricity Board and Ors. V. Malkiat Singh, this Court reiterated the observations of the Constitution Bench of this Court in Shankarsan Dash V. Union of India as under:

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"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 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. Subhash Chander Marwaha, Neelima Shangla V. State of Haryana or Jatinder Kumar V. State of Punjab ." (emphasis supplied) This, in our view, is the correct approach to be adopted in dealing with a matter of this nature.

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In K. Ashok Reddy v. Government of India and Ors. this Court indicated that however wide the power of judicial review under Articles 226 or 32 there is a recognised limit, albeit self-recognised, to the exercise of such power. This Court reiterated a passage from Craig's Administrative Law (Second Edn., p. 291)., vide Paragraph 21, as under: "The traditional position was that the courts would control the existence and extent of prerogative power, but not the manner of exercise thereof. .... The traditional position has however now been modified by the decision in the GCHQ case. Their Lordships emphasised that the review ability of discretionary power should be dependent upon the subjectmatter thereof, and not whether its source was statute or the prerogative. Certain exercises of prerogative power would, because of their subject-matter, be less justiciable, with Lord Roskill compiling the broadest list of such forbidden territory ...."

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In the case of Director, SCTI for Medical Sciences & Technology and others Vs. M. Pushkaran, 2008 (1) SCC 448 , it has been held that the selectees do not have any legal right of appointment subject, inter alia, to bonafide action on the part of the State, by observing as under;

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“11. The law operating in the field in this behalf is neither in doubt nor in dispute. Only because the name of a person appears in the select list, the same by itself may not be a ground for offering him an appointment. A person in the select list does not have any legal right in this behalf. The bona fide action on the part of the State. We may notice some of the precedents operating in the field.”

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In the matter of Vijay Kumar Pandey Vs. Arvind Kumar Rai and others, AIR 2013 SC 2202 , Hon'ble Supreme Court has considered the Constitution Bench's decision in the case of Sankarshan Dash (Supra) .

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The aforesaid question came to be considered by the Supreme Court in the matter of East Coast Railway and another Vs. Mahadev Appa Rao and others, 2010 (7) SCC 678, and therein the Hon'ble Supreme Court held that though a candidate who has passed an examination or whose name appears in select list does not have an indefeasible right to be appointed, yet appointment cannot be denied arbitrarily, nor can selection test be cancelled without giving proper justification and Court can give appropriate directions where decision is found to be arbitrary, and it has been observed as under;

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“14. To the same effect is the decision of this Court in Union Territory of Chandigarh v. Dilbagh Singh and Ors. (1993) 1 SCC 154, where again this Court reiterated that while a candidate who finds a place in the select list may have no vested right to be appointed to any post, in the absence of any specific rules entitling him to the same, he may still be aggrieved of his non-appointment if the authority concerned acts arbitrarily or in a malafide manner. That was also a case where selection process had been cancelled by the Chandigarh Administration upon receipt of complaints about the unfair and injudicious manner in which the select list of candidates for appointment as conductors in CTU was

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prepared by the Selection Board. An inquiry got conducted into the said complaint proved the allegations made in the complaint to be true. It was in that backdrop that action taken by the Chandigarh Administration was held to be neither discriminatory nor unjustified as the same was duly supported by valid reasons for cancelling what was described by this Court to be as a "dubious selection".

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Applying these principles to the case at hand there is no gainsaying that while the candidates who appeared in the typewriting test had no indefeasible or absolute right to seek an appointment, yet the same did not give a licence to the competent authority to cancel the examination and the result thereof in an arbitrary manner. The least which the candidates who were otherwise eligible for appointment and who had appeared in the examination that constituted a step in aid of a possible appointment in their favour, were entitled to is to ensure that the selection process was not allowed to be scuttled for malafide reasons or in an arbitrary manner. It is trite that Article 14 of the Constitution strikes at arbitrariness which is an anti thesis of the guarantee contained in Articles 14 and 16 of the Constitution. Whether or not the cancellation of the typing test was arbitrary is a question which the Court shall have to examine once a challenge is mounted to any such action, no matter the candidates do not have an indefeasible right to claim an appointment against the advertised posts.

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To the same effect is the meaning given to the expression "arbitrary" by Corpus Juris Secundum which explains the term in the following words:

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"ARBITRARY - Based alone upon one's will, and not upon any course of reasoning and exercise of judgment; bound by no law; capricious; exercised according to one's own will or caprice and therefore conveying a notion of a tendency to abuse possession of power; fixed or done capriciously or at pleasure, without adequate determining principle, nonrational, or not done or acting according to reason or judgment; not based upon actuality but beyond a reasonable extent; not founded in the nature of things; not governed by any fixed rules or standard; also, in a somewhat different sense, absolute in power, despotic, or tyrannical; harsh and unforbearing. When applied to acts, "arbitrary" has been held to connote a disregard of evidence or of the proper weight thereof; to express an idea opposed to administrative, executive, judicial, or legislative discretion; and to imply at least an element of bad faith, and has been compared with "willful".”

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As per the aforesaid judgment of the Constitution Bench of Hon'ble Supreme Court as well as other judgments quoted above, it is held that even if the vacancies are notified for appointment and

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adequate number of candidates are found fit, the successful candidates do not acquire an indefeasible right to be appointed. Vacancies have to be filled up as per the statutory rules and in conformity with the constitutional mandate. Thus in the present case, the appellants, though have been selection, have no indefeasible right to be appointed for which they have been selected. 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 bonafide for appropriate reasons.

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To cancel the recruitment and undertakes it afresh, on the basis of rules amended, is not the same as retrospectively applying the recruitment rules. A fresh game starts here and it can be played on the basis of rules already changed before its commencement.

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In the case of State of A.P. and others Vs. D. Dastagiri and others, (2003) 5 SCC 373 , the Hon'ble Supreme Court has held as follows;

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"4. In the counter affidavit filed on behalf of the respondents in Civil Appeal No. 915/2000, in paragraph 16 it is stated that the process of selection was cancelled at the last stage, i.e., before publishing the list of selected candidates on the sole ground that the State Government wanted to introduce prohibitor and obviously the Government felt that there was no need of Excise Constables during imposition of prohibition in the State. There is serious dispute as to the completion of selection process. According to the appellants, the selection process was not complete. No record has been placed before us to show that the selection process was complete, but, it is not disputed that the select list was not published. In paragraph 16 of the counter affidavit, referred above, the respondents themselves had admitted that the selection process was cancelled at the last stage. In the absence of publication of select list, we are inclined to think that the selection process was not complete. Be that as it may, even if the selection process was complete and assuming that only select list was remained to be published, that does not advance the case of the respondents for the simple reason that even the candidates who are selected and whose names find place in the select list, do not get vested right to claim appointment based on the select list. It was open to the State Government to take a policy decision either

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to have prohibition or not to have prohibition in the State. Certainly, the Government had right to take a policy decision. If pursuant to a policy decision taken to impose prohibition in the State there was no requirement for the recruitment of Constables in the Excise Department, nobody can insist that they must appoint the candidates as Excise Constables. It is not the case of the respondent that there was any malafide on the part of the appellants in refusing the appointment to the respondents after the selection process was complete. The only claim was that the action of the appellants, in not appointing the respondents as Excise Constables, was arbitrary. In the light of the facts that we have stated above, when it was open to the Government to take a policy decision, we fail to understand as to how the respondents can dub the action of the Government as arbitrary, particularly, when they did not have any right as such to claim appointments. In the absence of selection and publication of select list, mere concession or submission made by the learned Government Pleader on behalf of the appellant-State cannot improve the case of the respondents. Similarly, such a submission cannot confer right on the respondents, which they otherwise did not have.

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Under these circumstances, we find it difficult to sustain the impugned judgment and order. However, having regard to the peculiar facts and circumstances of the case and that the respondents had the benefit of the order of the High Court, we think it is just and appropriate that as and when any fresh selection takes place to the post of Excise Constables, the respondents may apply for regular recruitment. In that event, age-bar will not be put against them put, they shall satisfy other eligibility conditions and requirements, including qualification."

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In State of Madhya Pradesh vs. Raghuveer Singh Yadav:

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(1994) 6 SCC 151 , a similar controversy, on facts had again arisen. The Apex Court held that the State had the right to change the recruitment criteria and advertise the post to be filled as per amended rules. The argument advanced that amended rules have no retrospective application was specifically repelled in para 4 and 5 of the judgment, which are extracted hereinafter:-

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"4. For recruitment to the posts of Inspectors, Department of Weights and Measures in the State of M.P., an advertisement was issued on 27-7-1987 calling for applications from eligible candidates. The qualification prescribed for eligibility was degree in Arts or Commerce or Science or Engineering or Diploma in Engineering. It would appear that written examinations were held and results were declared on 26-81989. Thereafter, the Board issued interview cards to the

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successful candidates. In the meanwhile, the Government amended the rules by M.P. Standard of Weights and Measurement (Enforcement) Rules, 1989 in consultation with Government of India and Public Service Commission and altered the eligibility qualification for appointment to those posts by presenting degree in Science with Physics as a subject or Degree in Engineering or Technology or Diploma in Engineering. The respondents challenged the amended rules on the ground that having issued the notification for filling up the posts of Inspectors with Degree of Arts and Commerce the State had to proceed with the recruitment only as per the qualification prescribed in the notification and the subsequent amendment to the rules should not stand in the way of the Recruitment Board to consider the claims on the basis of marks secured in the examination and also interview to be held. In other words the amended rules have no retrospective operation. This contention found favour with the Tribunal and accordingly the Tribunal allowed the application.

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It is not in dispute that Statutory Rules have been made introducing Degree in Science or Engineering or Diploma in Technology as qualifications for recruitment to the posts of Inspector of Weights and Measures. It is settled law that the State has got power to prescribe qualifications for recruitment. Here is a case that pursuant to amended Rules, the Government has withdrawn the earlier notification and wants to proceed with the recruitment afresh. It is not a case of any accrued right. The candidates who had appeared for the examination and passed the written examination had only legitimate expectation to be considered of their claims according to the rules then in vogue. The amended Rules have only prospective operation. The Government is entitled to conduct selection in accordance with the changed rules and make final recruitment. Obviously no candidate acquired any vested right against the State. Therefore, the State is entitled to withdraw the notification by which it had previously notified recruitment and to issue fresh notification in that regard on the basis of the amended Rules."

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A policy decision was taken by the State to have to have the recruitment undertaken for the post by way of written examination conducted by the Public Service Commission. This decision apparently was based upon the assessment that written test conducted by the Commission would more accurately reflect the merit of a candidate. The said policy has been adopted after seeing the past experience in conduct of examination based on the quality point marks appears to have weighed with the State. Such reason

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would clearly justify a departure in policy for ascertaining merit of candidates based on written test conducted by the Commission in place of quality point marks. The decision of State, therefore, to discontinue the previous recruitment process and to advertise the vacancy afresh, based upon amendment in the rules would clearly lie in the realm of policy decision to be taken by the State, which is neither irrational nor discriminatory or arbitrary. The appellants petitioners otherwise have not acquired any right to be considered for recruitment under the previous rules and It is also not a case of retrospectively applying the amendment made in recruitment rules.

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For the reasons stated above, we do not find any merit in the appeal to interfere with the order dated 13.04.2018 passed by the learned single Judge in Writ-A No. 8334 of 2018 (Shikha Malviya and another Vs. State of U.P. and others).

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Special appeal sans merit and same is dismissed , accordingly.

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Order Date :- 04.10.2018 Shekhar

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[Chandra Dhari Singh, J.] [Govind Mathur, J.]

Shikha Malviya and Anr. v. State of U.P. and 3 Ors.

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Shikha Malviya and Anr. v. State of U.P. and 3 Ors.

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