Dismissed

Haresh Shankarlal Aalwani v. Kandla Port Trust

Gujarat HC27 Dec 2018SCA/3714/2018

Case brief

AI extract

What is this about?

Challenge by a candidate who topped the select list to the appointing authority's refusal to accept the selection committee's recommendation and its decision to re-advertise the post. The court held the reasons recorded were valid and germane, that no arbitrariness or malafide was shown, and that a select-list candidate has no indefeasible right to appointment. Petition rejected.

What the court decided

AI extract

Haresh Shankarlal Aalwani Vs Kandla Port Trust — Service and Employment | Gujarat HC (2018)

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C/SCA/3714/2018 ORDER

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/SPECIAL CIVIL APPLICATION NO. 3714 of 2018

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HARESH SHANKARLAL AALWANI

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Versus

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KANDLA PORT TRUST,

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Appearance:

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MR KB PUJARA(680) for the PETITIONER(s) No. 1 MR DHAVAL D VYAS(3225) for the RESPONDENT(s) No. 2 MR NIRAL R MEHTA(3001) for the RESPONDENT(s) No. 1

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CORAM: HONOURABLE MR.JUSTICE C.L. SONI

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Date : 27/12/2018

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ORAL ORDER

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The petition is heard for final disposal with the consent of learned advocates for the parties.

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The petition is filed under Article 226 of the Constitution with following prayers made in paragraph no.13 thereof:

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“(a) to admit this petition and to allow the same;

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(b) to quash and set aside the impugned illegal actions and orders and letters of the respondents herein dtd. 5- 1-2016 as per Annexure-B and dtd. 7-2-2018 as per Annexure-E;

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(c) to hold and declare and direct that the respondents are duty bound to finalise the selection process initiated by the Advertisement No.GA/PS/9014/01/2013 dtd. 1- 11-2013 as per Annexure-A, as well as by the Advertisement No.GA/PS/1218/SR.AEM-AEM/2015 dtd. 2-12-2015 as per Annecure-D Colly. for the post of Assistant Estate Manager (Gr.I) by declaring the final selection list and by giving appointment to the selected candidate, and the respondents cannot drop such

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selection process mid-way without assigning any reasons acceptable in law;

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(d) to direct the respondents, their agents and servants to give appointment to the petitioner on the post of Assistant Estate Manager (Gr.I) with all the consequential benefits, by declaring him to have been selected as the highest meritorious candidate in the selection process initiated by the Advertisement No.GA/PS/9014/01/2013 dtd. 1-11-2013 as per Annexure-A, as well as by the Advertisement No.GA/PS/1218/SR.AEM-AEM/2015 dtd. 2-12-2015 as per Annecure-D Colly.;

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(e) to quash and set aside the impugned Advertisement No.GA/PS/2018 dtd. 16-2-2018 as per Annexure-F;

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(f) PENDING THE HEARING AND FINAL DISPOSAL OF THIS PETITION, BE PLEASED TO stay the impugned Advertisement No.GA/PS/2018 dtd. 16-2-2018 as per Annexure-F;

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(g) PENDING THE HEARING AND FINAL DISPOSAL OF THIS PETITION, BE PLEASED to call for the record and proceedings of the selection and recruitment process for the post of Assistant Estate Manager (Gr.I) initiated by the respondents by the Advertisement No.GA/PS/9014/01/2013 dtd. 1-11-2013 as per Annexure-A, as well as by the Advertisement No.GA/PS/1218/SR.AEM-AEM/2015 dtd. 2-12-2015 as per Annecure-D Colly. and to peruse the same;

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(h) to grant any other appropriate and just relief/s including the cost of this petition;.”

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As stated in the petition, the petitioner was selected and appointed as Junior Engineer (Civil) in April, 2000 to serve under the respondents and since then he has been giving his outstanding performance.

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The petitioner now claims appointment to the post of Assistant Estate Manager, Grade-I, (to be referred as ‘the post in

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question’) in the back ground of following case put up by him:

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The respondent no.1 issued first advertisement dated 01.11.2013 to fill in the post in question in response to which the petitioner applied and the written test was held on 02.11.2014 wherein, 20 candidates appeared and after the result was declared he was found on top of the merit list with 45.75 marks out of 100 marks. However, he was not called for interview and he was intimated in response to his representation that since no one was found to have obtained passing marks, no personal interview was conducted. The petitioner has averred that there was no requirement of obtaining any minimum passing marks as nowhere in the advertisement, such requirement was illustrated. As further averred in the petition, the respondents again issued advertisement dated 02.12.2015 for the post in question, in response to which also he applied and he was issued call letter dated 07.11.2016 and he appeared in the written test on 11.12.2016. He was then called for the interview with other two candidates and the oral interview was held on 27.04.2017, wherein, he stood first but the result was never declared. Therefore, he made representation in connection with the above oral interview taken and only thereafter, the respondents replied by letter dated 07.02.2018 that no one was found suitable for filling the post in question. It is the say of the petitioner that no norms of suitability were either stated in the advertisement or in the call letter or in any other communication, nor even it is stated in the letter dated 07.02.2018 as to what were the requirements of suitability and why and how the petitioner was not found suitable for the post in question. It is further case of the petitioner, that to deny him appointment to the post in question, the respondents issued fresh advertisement- the 3^rd advertisement dated 16.02.2018 to fill in the post in question. It is alleged in the petition that the sequence of events stated in the petition would

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depict that the petitioner is sought to be deliberately denied the appointment to the post in question and with malafide intention, the respondents have issued 3^rd advertisement.

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Learned advocate Mr.Pujara appearing for the petitioner submitted that the petitioner has gained sufficient experience for the post in question while serving with the respondents as Junior Engineer (Civil) for last more than 17 years. He submitted that all throughout the petitioner has given his outstanding performance to the respondents, however, he has been denied appointment to the post in question because the respondent no.2- the then Chairman of respondent no.1- Kandla Port Trust since had prejudice against the petitioner and therefore he cancelled selection on both earlier occasions and decided to issue fresh advertisement. Mr.Pujara submitted that in connection with the first advertisement though the petitioner topped the merit list, he was never called for interview on non-existent ground as nowhere in the advertisement or by any rule, regulation or resolution, any provision was made for minimum passing marks, with the result that the petitioner lost opportunity to be appointed to the post in question though he was on top in the merit list. Mr.Pujara submitted that again on conclusion of selection process in connection with second advertisement issued in the year 2015, though the petitioner stood first in the merit list/select list, for no valid reasons he was denied appointment just by arbitrary decision of the respondent no.2 of dropping the selection on the ground that nobody was found suitable. Mr.Pujara submitted that nowhere the norms for suitability were ever stated and the respondent no.2 did not provide any reasons for not accepting the recommendations of the selection committee and he whimsically decided to go for fresh advertisement just because he did not want the petitioner to be appointed to the

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post in question. Taking the Court to the regulations for recruitment especially the regulations No.12 and 14, Mr.Pujara submitted that when the selection committee finally submitted the select list with the petitioner at first rank, the respondent no.2 was bound to accept the recommendations of the selection committee and it was not open to him to arbitrarily refuse to accept the selection made by the selection committee. Mr.Pujara submitted that regulation No. 14 requires the Chairman to record reasons for not accepting the recommendations of selection committee, but no valid reasons were ever recorded by respondent no.2 and though suitability was never the criteria, the respondent no.2 on irrelevant consideration refused to accept the recommendation of the selection committee. Mr.Pujara submitted that even if the petitioner was to be denied appointment on the aspect of suitability for the post in question, existence of norms for deciding the suitability was the pre-requisite which was and is absent to decide on suitability for the purpose of appointment to the post in question and even if there is a requirement of suitability, then also, there has to be valid reasons to be recorded as to how and in what manner the petitioner was not found to be suitable for the post in question. He submitted that though the interview in connection with the second advertisement was held on 27.04.2017, the result of such interview was never declared and it was only after the petitioner approached the Hon’ble Prime Minister’s office, he was informed that since nobody was found suitable, the decision was taken not to fill up the post in question and thereafter immediately 3^rd advertisement was issued. Mr.Pujara submitted that such decision was taken maliciously and with bias mind against the petitioner to see that the petitioner is not given appointment though he topped the merit list in connection with the second advertisement. Mr. Pujara therefore submitted that this Court may hold and declare that the

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petitioner became entitled to be appointed to the post in question and urged the Court to quash and set aside the 3^rd advertisement dated 16.02.2018, impugned in the petition and to direct the respondent No.1 to give appointment to the petitioner to the post in question.

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Learned advocate Mr.Mehta appearing for respondent no.1 submitted that it is not open to the petitioner to make any grievance in connection with the first advertisement issued in the year 2013, as after two years, when the second advertisement was issued, not only the petitioner applied for the post in question, but also participated in the selection process. Mr.Mehta submitted that in any case in connection with the first advertisement, since no body was found to have obtained minimum passing marks, no personal interview was taken of any candidate and therefore, the petitioner is not justified in making any grievance in connection with the first advertisement. Mr.Mehta submitted that as regards the second advertisement, though the petitioner got the highest marks, in aggregate, in the selection list prepared, however considering the sensitivity and importance of the post in question, the respondent no.2 acting as the Chairman of respondent No.1 Trust decided to go for wide publicity to explore for candidates having more caliber and more merits for the post in question. Mr.Mehta submitted that when the respondent no.2 took decision not to fill up the post in question by the candidates from the select list by observing that no one was found suitable for the post in question, it was to further explore to find more meritorious candidates considering the sensitivity of the post and therefore it is not correct to say that the respondent no.2 took arbitrary decision with bias mind to deny the appointment to the petitioner but infact it was well reasoned decision in over all interest of the respondent

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no.1. Mr.Mehta submitted that regulation 14 provides for recording of the reasons by the Chairman if the Chairman is not to accept the recommendations of the selection committee but recording of reasons would not mean that the Chairman is required to draw long sheet of facts to describe his decision. Mr.Mehta submitted that the reasons given by the Chairman for not acting on select list are valid and germane to take decision as required by regulation 14 of The Regulation. Mr.Mehta submitted that simply because the petitioner has topped the merit list he has no indefeasible right to be appointed to the post in question. He submitted that the selection process conducted is to decide on inter se merits of the candidates appearing in the tests including the oral test, but such would not mean that the Chairman is divested of his power to decide whether the post should be filled by any of the candidates from select list. He submitted that when the respondent no.2, as the then Chairman, decided not to fill in the post in question by candidates from the select on overall assessment keeping in mind the sensitivity and importance of the post, the Court would not like to sit in appeal over the assessment done by the Chairman of respondent no.1 in exercise of powers under Article 226 of the Constitution. He submitted that since the decision taken by the then Chairman is for valid reasons to find more meritorious candidates suitable for the post in question, which has now been fortified on outcome of the result of the fresh 3^rd advertisement where five candidates are found to have secured higher marks in written test than the petitioner, the Court may not interfere with the impugned decision and reject the petition. Mr. Mehta has relied on some judgments in support of his submissions that the candidate finding place in the select list has no indefeasible right to get appointment.

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Learned advocate Mr.Dhaval Vyas appearing for the office of the Chairman submitted that since the petitioner has failed to get appointment as per his expectation to the post in question, he has come with bald allegations against the then Chairman of the respondent no.1- the Trust. Mr.Vyas submitted that the Chairman is required to take decision according to his good conscious in the overall interest of the respondent no.1 and since the then Chairman has for good reasons decided not to accept any candidate from the select list for appointment to the post in question, no malice, bias or arbitrariness could be alleged against him and his decision. Mr.Vyas submitted that simply because the petitioner topped the merit list he did not get indefeasible right to be appointed to the post in question and looking to the need of a candidate of better caliber and higher merits for the post in question, it was for the Chairman to decide whether to go again in public by fresh advertisement to search for more suitable and meritorious candidates for the post in question. Mr.Vyas submitted that the petitioner is otherwise not entitled to claim any relief in the context of first and second advertisement as he has consciously participated in the selection process started in the connection with the 3^rd advertisement.

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The Court having heard learned advocates finds that the claim of the petitioner for appointment to the post in question is mainly on the premise that the decisions taken by the then Chairman not to call the petitioner for oral interview in connection with first advertisement and not to fill up the post pursuant to the selection process in connection with the second advertisement on the ground that nobody was found suitable were only with the intention to deny the appointment to the petitioner to the post in question.

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At one stage of hearing of the petition, since the Court deemed it proper to peruse the original files of the selection process undertaken in connection with the advertisements given in 2013 and 2015, the Court called for the original files by order dated 28.11.2018, pursuant to which, the original files were made available to the Court for its perusal. On perusal of the original file in connection with the first advertisement, the Court finds from the contents of the note put up before the Chairman that the proposal was approved by the then Chairman under note dated 02.08.2012 for fixing the minimum passing mark of 40% (50% in case of ClassI and Class-II post) in written test and of minimum of 50% (60% in case of Class-I and Class-II post) in aggregate with minimum marks to be obtained in writing test for SC and ST candidates. It was found that the petitioner secured 45.75 marks against the criteria fixed of 50% marks to qualify for personal interview, and decision was taken to accordingly inform the petitioner that he did not pass the written test. Thus in connection with the first advertisement of 2013, though the petitioner appeared to have secured highest marks in written test, however, since he did not secure minimum passing marks in the written test, there was no question of taking any further action to call any candidate for oral interview. Learned advocate Mr.Pujara however submitted that such criteria to secure minimum passing marks in the written test were never fixed in either the advertisement or by any rule or regulation but it was just at the whims of the Chairman, the decision was taken not to call the petitioner for interview with an intention to deny the appointment to the petitioner to the post in question. Such contention does not merit consideration, as the petitioner chose not to make any challenge in connection with first advertisement till the second advertisement was issued and without any objection he

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participated in the selection process in connection with the second advertisement. The decision taken by the Chairman in connection with the first advertisement was on the note put up on 26.11.2015, which appears to have been signed by four different officers. Therefore, in absence of cogent material to show that the Chairman acted with bias against the petitioner, mere bald allegations against the then Chairman would not render his decision as arbitrarily taken or with bias mind and therefore, the Court finds that there is no substance in the challenge made by the petitioner to the decision taken in connection with the first advertisement.

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In connection with the second advertisement, the Court on perusal of the original file finds that the selection committee of five members inclusive of the Chairman, constituted as required by regulation 12 of Kandla Port Trust Employees (Recruitment, Seniority, Promotion) Employment Regulation, 2009(to be referred as `The Regulations’) prepared the selection list for recruitment to the post in question. The Court finds that in the selection list, marks under different heads are given against each of three candidates including the petitioner. The total 100 marks divided are; the Marks against written examination, Qualification, Experience and General performance in personal interview (PI). The candidate no.1, Shri Tanati Navneenkumar Reddy secured 53.20 in written test, 5 marks under the head of qualification, 1 mark under the head of experience and 6 marks under the head of PI, totaling to 65.20 out of 100 marks. The candidate No.2 is the petitioner. He is shown to have scored 52.50 marks in written test, 4 marks under the head of qualification, 5 marks under the head of experience, 8 marks under the head of PI, total of which comes to 69.50 marks. The candidate No.3, Shri Harsh Gupta scored 44.10 written test, 6 marks under the head of qualification, 3 marks

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under the head of experience and 6 marks under the head of PI, total of which comes to 59.10 marks. Thus, though the petitioner scored less marks in written test then the first candidate, however since he got more marks in experience and in general performance i.e. PI, he stood first in the merit list. The Court finds that note No.7 was submitted to the Chairman on 27.04.2017 for consideration of proceedings of the selection committee stating that the post of Assistant Estate Manager Class-I is entry level post and very vital for estate division considering the land and revenue implications. On such note the then Chairman rendered following decision:

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“AEM (Assistant Estate Manager) being a very sensitive Class-I post involving management and supervision of huge land assets of KPT at Kandla and Gandhidham. No one was found suitable from available three candidates. To have a larger pool of candidates to select from, lets process for readvertisement of the post.”

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The above decision of the then Chairman is alleged to have been taken with bias mind against the petitioner and not according to regulation 14 of the regulations as no valid reasons are recorded.

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The petitioner has amended the petition and amongst other averments he has stated that the management and the respondent no.2- the Ex. Chairman has been keeping grudge because he complained to the office of the Hon’ble Prime Minister. The court finds that except such allegation, the petitioner has not made any personal allegation against the respondent no.2 of showing any prejudice against the petitioner. The Court finds that in absence of any allegation of keeping personal prejudice or grudge by the

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respondent no.2 against the petitioner, simply the complaint made by the petitioner to the office of the Hon’ble Prime Minister could not be taken as a ground to find that the respondent no.2 kept grudge or the prejudice against the petitioner to drop the selection and to go for fresh advertisement for the post in question. The petitioner has also alleged lack of bonafide on the part of the respondents by referring to the events of dropping the selection twice, as he topped merit list. It is required to note that the fresh advertisement- the impugned advertisement was issued pursuant to the decision taken by the Chairman wherein the Chairman has recorded why fresh calling of the candidates for the post in question was required. Thus, there appears to be no substance in the allegation made by the petitioner that the respondents especially the respondent no.2, the then Chairman kept prejudice and grudge against the petitioner to deny him the appointment to the post in question.

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The regulation 14 of the Regulations reads as under:

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14. CONSIDERATION OF RECOMMENDATIONS OF SERVICES SELECTION COMMITTEE AND ADHOC APPOINTMENTS.

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All appointments by direct recruitment shall be made by the Appointing Authority on the recommendations of the concerned Services Selection Committee.

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Provided that it shall be open to the Appointing Authority, for reasons to be recorded in writing, not to accept the recommendations of Services Selection Committee.

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Provided, further that where the Appointing Authority is an authority subordinate to the Chairman and the authority disagrees with such recommendations in any case, it shall record its reasons for such disagreement and submit the case to the Chairman who shall decide the same.

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Provided also that in the case of a purely temporary post, a leave vacancy or a vacancy earmarked for direct recruitment requiring immediate filling up, the Chairman may appoint a person who is eligible to fill the vacant post for a period of six months at a time and not exceeding one year on adhoc basis subject to the condition that:

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Ad-hoc appointment, where unavoidable, should be made only strictly subject to fulfilling the qualification, experience provided in the RRs.

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Total period of appointment to a temporary post will not exceed the tenure of the post.

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In other cases the temporary appointment should be replaced by a regular appointment from the select list as soon as possible.

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As provided in regulation 14, all appointments by direct recruitment shall be made by appointing authority on the recommendations of the service selection committee. There is no dispute on the aspect that the Chairman has authority to appoint Assistant Manager, Grade-I- post in question. However, as provided in first Proviso to regulation 14, it will be open to the appointing authority for reasons to be recorded in writing not to accept the recommendations of the service selection committee.

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The reasons are the link between the initiation of the process for taking decision and the ultimate decision and the reasons are the disclosure of the consideration made by the authority for taking particular decision through which it could be known what is the application of mind for taking the decision.

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Learned advocate Mr.Pujara however, submitted that the reasons given by the respondent No.2 not to accept the decision of

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the selection committee and to go for fresh advertisement are not valid reasons as the only reason assigned is that nobody from the select list was found suitable for the post in question, which is not the criteria laid down anywhere for not accepting the recommendations of the selection committee. He also submitted that in any case when no norms for suitability are stated either in the advertisement or in the Regulations, it was not left to the whims of the then Chairman to brush aside entire selection under the guise that no suitable candidate was found to fill up the post in question and in absence of any material either placed before him or considered by him, the decision on the aspect of suitability would not meet the test of fairness or reasonableness and it is a clear case of arbitrariness and of lack of bonafide on the part of the respondent No.2 to drop the entire selection and to go for fresh advertisement and it thus violates the Constitutional rights of the petitioners.

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The Court finds that regulation 14 of the Regulations gives ultimate powers though not absolute power, that is to say, not to act arbitrarily, to the Chairman not to accept the assessment/recommendation of the service selection committee for appointment to the concerned post by recording reasons.

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What could be said to be reasons valid or germane to the decision for not accepting the recommendations of the service selection committee are not possible to be exactly spelt out, as it would depend upon the facts of each case to decide whether in particular facts situation, the reasons given for the decision could be said to valid or germane. Therefore, in the facts of the case on hand, at the end of the selection process, it was for the Chairman to decide whether considering the need for the quality of service

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required for the sensitive and vita post, the recommendations of the selection committee were to be accepted or not. It was the satisfaction of the Chairman-the appointing authority, which would make his decision in this regard and this court would not sit in appeal over his assessment or the satisfaction to arrive at his decision in exercise of powers under Article 226 of the Constitution.

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It is required to note that the petitioner scored 52.50 marks in written test which was less than the candidate no.1 who stood second in rank in the merit list. Being Chairman of the selection committee and having regard to the marks obtained in the written test by the petitioner and other candidates, it was possible for him to judge and decide whether the merits and the quality required for the post could be met by any of the candidates to fill in the post in the question or considering that the post is sensitive and requires discharge of important responsibilities, it was appropriate to go for fresh advertisement to explore for the candidates of more caliber and merits suitable to the post in question. Therefore, when the respondent no.2 considered the selection list vis-a-vis the requirement of the candidate of better merits for appointment on sensitive and important post and decided not to accept final selection made and to go for fresh advertisement, it could not be said that no valid reasons are recorded as required by regulation 14 of the Regulations for not accepting the selection of the petitioner for the post in question.

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Learned advocate Mr.Pujara however, submitted that in absence of any norms laid down for judging the suitability, the respondent no.2 could not have reached to the conclusion that nobody was found suitable for the post in question and therefore the decision taken by respondent no.2 to drop the entire selection

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and to go for fresh advertisement is nothing but arbitrary and malafide on his part. He submitted that the suitability of the petitioner could not have been judged whimsically and when the selection criteria which included qualification, experience etc. were assigned for the post, it could not be said that the petitioner was not fit, eligible or suitable for the post in question. Mr. Pujara took the Court to more than one certificates issued to the petitioner of his good service to the respondent no.1- Trust to point out that with large experience with the petitioner, the petitioner could be said to be the best suitable person to be appointed to the post in question.

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Mr.Pujara relied on Hon’ble Supreme Court judgment in the case of Manomoy Ganguly Vs. Union of India and Ors., reported in 2018 (14) Scale 379 wherein, the meaning of suitability is considered. Paragraph no.12 reads as under:

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“12. In the appeal filed by the Union of India against the order of the AFT, which culminated in the judgment dated August 01, 2018, this Court did not approve the said interpretation given by the AFT, namely, criteria laid down in policy decision taken on June 01, 1992 was merely 'seniority-cum-suitability'. On the contrary, it was held that the word 'inter se' occurring in the aforesaid expression applies both to seniority as well as suitability. Therefore, apart from the 'inter se seniority', 'inter se suitability' is also to be assessed, which assessment is 'in the light of their earlier experience of serving in a particular service'. The Court then defined the meaning of expression 'inter se suitability'. Discussion on this aspect is contained in paragraphs 40 to 45 of the judgment dated August 01, 2018. Since both the parties rely upon the discussion contained therein, it would be apt to reproduce these paragraphs in their entirety.

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"40. When we read the aforesaid para (i) as a whole, we find force in the submission of the appellant that the

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word 'inter se' applies both to seniority as well as suitability. Therefore, 'inter se suitability' is also to be assessed inasmuch as this assessment is 'in the light of their earlier experience of serving in a particular service'. As far as consideration on the parameters of 'inter se seniority' is concerned, it would mean that a person who is senior gets precedence. To this extent, there is no quarrel. Question is as to what meaning is to be assigned to 'inter se suitability'. Two questions arise from the above. First, what is the meaning of 'suitability'. Second, how the expression 'inter se suitability' is to be construed, i.e. whether it should be understood as choosing a 'more suitable' officer for appointment as DGsMS. As far as inter se suitability is concerned, all the eligible officers in the rank of Lt. General ( & Equiv), having regard to their earlier experience of serving in particular services, they are to be considered for appointment as DGsMS of services (i.e. DGMS (Army)).

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Let us first consider the meaning of 'suitability'.

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In English parlance, the word 'suitable' is assigned the meaning as 'appropriate, fitted for the purpose or acceptable'. The concise Oxford Dictionary defines the word suitable as 'well fitted for the purpose; appropriate'. This ordinary meaning is to be given effect to as a general guide, unless this expression is given special meaning in a statute or rule in administrative instructions. In R (Quintavalle) v. Human Fertilisation Authority1, the House of Lords remarked that "the word 'suitability' is an empty vessel which is filled with meaning by context and background.

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In service jurisprudence, where the word 'suitable' is normally examined from the point of view as to whether a particular person is suitable to hold a particular post, it is construed as 'fit' to hold that post. It would mean that the job profile and job requirement of a particular post would be seen and then, going by the calibre, competence, attributes, skill and experience of the candidate, it would be ascertained as to whether such a person would be able to discharge the duties of the post i.e. whether he is suited to carry out the

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functions of the post, to the satisfaction of his employer.

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It, thus, follows from the above that the person to be eligible should quality the following conditions:

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(i) the officer should be in the rank of Lt. General ( & Equiv);

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(ii) such an officer should be holding the post of Comdt AM C & C; and

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(iii) he should have a minimum remainder service of one year from the date of occurrence of the vacancy.

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Adverting to the second question, the prefix 'inter se' has also to be given some meaning as it cannot be rendered otiose. Therefore, whereas while assessing 'suitability', it has to be seen that a particular officer is not unfit for the post, when it comes to 'inter se suitability', it has reference to assessing the suitability of all eligible officers and thereafter finding who is more suitable to occupy such a post. We have to keep in mind that these are very high ranking posts and, therefore, the competent authority is supposed to choose a more suitable officer for such posts. We are of the opinion that for expressing such an intention, the Circular could have 1 (2005) UKHL 28 been worded more appropriately and with clarity to avoid such doubts. However, since the word 'inter se' is used, it implies that the intention behind laying down this criteria was to give these posts to a better suited person after evaluating their inter se suitability. Of course, while doing this exercise seniority of an officer is also to be given due weightage, meaning thereby if the senior most person is competent to hold the post, he is to be given preference. Therefore, we conclude that the view of the AFT that the post of DGMS (Army) is to be filled by the officer on the strength of 'seniority-cumsuitability', where seniority is a decisive factor and suitability is a secondary factor, is not correct.In the entire discussion resting with the aforesaid view, the Tribunal ignored the fact that it is not only seniority and suitability simpliciter but 'inter se' seniority and suitability. The expression 'inter se' is totally ignored

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and there is no discussion thereupon at all, which has led the AFT to take wrong view insofar as interpretation of the criteria laid down in the Circular dated 10th July, 1992 is concerned, which talks of 'inter se seniority and suitability'.”

¶115

It is required to note that the Court in this case is not required to consider inter se suitability of the candidates to occupy the post in question. It appears that the decision taken by the respondent no.2 was keeping in mind the sensitivity and importance of the post in question to be filled in. In such view of the matter, the Court finds that concept of merit, caliber and quality in candidate is to apply to find a suitable person to man the post rather than just fit or eligible to be appointed. The Court therefore does not find any arbitrariness or any lack of bonafide in the decision taken by respondent no.2 to go for fresh advertisement. When the respondent no.2 being the Chairman of the respondent no.1 and having final authority on overall assessment the material available with him decided not to accept the selection of the petitioner to be appointed for the post in question by providing reasons, this Court with limited judicial review would not interfere with the ultimate decision of the Chairman.

¶116

Though learned advocate Mr.Mehta relied on different judgments on the aspect that once the candidate participates in the fresh selection process, he is estopped from challenging the earlier selection process, however such decisions are in the facts where the candidates had chosen to appear in the fresh selection and after having failed in the fresh selection sought to challenge the earlier selection. Such is not the fact situation in the present case. In the present case, the petitioner has in term stated in the petition that without prejudice to his rights and contentions, he would be

¶117

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¶118

C/SCA/3714/2018 ORDER

¶119

submitting application to fresh advertisement dated 16.02.2018 issued by respondent no.1 for filling up the post in question. Therefore, the objection raised by learned advocate Mr.Mehta that the petitioner having already participated in the process of fresh selection and therefore, he could not challenge the advertisement issued for the fresh selection has no substance and cannot be accepted. But at this stage it is required to note that pending the petition, written test in connection with the impugned advertisement dated 16.02.2018 was held on 02.12.2018 and the marks obtained in the written test by the petitioner with other candidates were made available for the perusal of this Court. It appears from the list containing marks of different candidates that the petitioner is at serial No.6 in descending order where he is shown to have scored 55 marks out of 100 marks in written test and five candidates in ascending order to him scored 59,60,60,63,68 respectively. Thus, the first candidate in the list has scored 68 marks out of 100 marks in written test. For the sake of repetition, at this stage again it needs to be mentioned that in the earlier selection process in connection with second advertisement, the petitioner got 52.50 marks in written test. Therefore what appears is, in the fresh selection process in connection with 3^rd advertisement, at least five more candidates securing more marks in written test than the petitioner are available. Therefore, it could be said that the decision taken by respondent no.2 to go for fresh advertisement to explore for more candidates of higher caliber and more merit appears to have been fortified at this stage. It is by now well settled that merely because the candidate finds his place in the select list, he has no indefeasible right to get the appointment unless arbitrariness and discrimination is established by such candidate, which does not appear to be so.

¶120

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C/SCA/3714/2018 ORDER

¶122

In the case of East Coast Railway and Another V/s. Mahadev Appa Rao and Others. reported in 2010 (7) SCC 678, the Hon’ble Supreme Court has held and observed in paragraph nos.14,15,16,18,20,21,23 as under:

¶123

“14. It is evident from the above that while no candidate acquires an indefeasible right to a post merely because he has appeared in the examination or even found a place in the select list, yet the State does not enjoy an unqualified prerogative to refuse an appointment in an arbitrary fashion or to disregard the merit of the candidates as reflected by the merit list prepared at the end of the selection process. The validity of the State's decision not to make an appointment is thus a matter which is not beyond judicial review before a competent Writ court. If any such decision is indeed found to be arbitrary, appropriate directions can be issued in the matter.

¶124

To the same effect is the decision of this Court in UT of Chandigarh v. Dilbagh Singh 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 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".

¶125

Applying these principles to the case at hand there is no gainsaying that while the candidates who

¶126

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¶127

C/SCA/3714/2018 ORDER

¶128

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.

¶129

What then is meant for arbitrary/arbitrariness and how far can the decision of the competent authority in the present case be described as arbitrary?

¶130

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

¶131

"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".

¶132

There is no precise statutory or other definition of the term "arbitrary". In Kumari Shrilekha Vidyarthi and Ors. v. State of U.P. And Ors. (AIR 1991 SC 537), this Court explained that the true import of the expression "arbitrariness" is more easily visualized than precisely stated or defined and that whether or not an act is arbitrary would be determined on the facts and circumstances of a given case. This Court observed:

¶133

"36. The meaning and true import of arbitrariness is more easily visualized than precisely stated or defined.

¶134

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C/SCA/3714/2018 ORDER

¶136

The question, whether an impugned act is arbitrary or not, is ultimately to be answered on the facts and in the circumstances of a given case. An obvious test to apply is to see whether there is any discernible principle emerging from the impugned act and if so, does it satisfy the test of reasonableness. Where a mode is prescribed for doing an act and there is no impediment in following that procedure, performance of the act otherwise and in a manner which does not disclose any discernible principle which is reasonable, may itself attract the vice of arbitrariness. Every State action must be informed by reason and it follows that an act uninformed by reason, is arbitrary. Rule of law contemplates governance by laws and not by humour, whims or caprices of the men to whom the governance is entrusted for the time being. It is trite that `be you ever so high, the laws are above you'. This is what men in power must remember, always."

¶137

Arbitrariness in the making of an order by an authority can manifest itself in different forms. Nonapplication of mind by the authority making the order is only one of them. Every order passed by a public authority must disclose due and proper application of mind by the person making the order. This may be evident from the order itself or the record contemporaneously maintained. Application of mind is best demonstrated by disclosure of mind by the authority making the order. And disclosure is best done by recording the reasons that led the authority to pass the order in question. Absence of reasons either in the order passed by the authority or in the record contemporaneously maintained is clearly suggestive of the order being arbitrary hence legally unsustainable.”

¶138

In light of the above and for the reasons stated above, the Court finds that no relief could be granted to the petitioner in exercise of powers under Art.226 of the Constitution. The petition is therefore rejected. Notice stands discharged. At this stage, learned advocate Mr.Pujara requests to continue interim relief for two weeks so as to enable the petitioner to go before the higher forum.

¶139

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C/SCA/3714/2018 ORDER

¶141

However, learned advocates for the respondents object to continue such interim relief. The Court finds in the facts of the case that the request made by the learned advocate Mr.Pujara cannot be accepted. Hence, it is rejected.

¶142

(C.L. SONI, J)

¶143

Manshi

¶144

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Haresh Shankarlal Aalwani v. Kandla Port Trust

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Haresh Shankarlal Aalwani v. Kandla Port Trust

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