In this Letters Patent Appeal, the Patna High Court dismissed the appellant's challenge to his non-appointment as a Van Driver. The Court held that successful candidates do not have an indefeasible right to appointment and that the State may lawfully decide not to fill vacancies bona fide, even if posts were advertised.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT PATNA
Letters Patent Appeal No.760 of 2014 Arising out of
Civil Writ Jurisdiction Case No. 10994 of 2010
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Akhilesh Kumar Singh, S/o Sri Ambika Singh, R/o Village - Manjhiaon, P.O. Manjhiaon, District - Garhwa ( Jharkhand ) Presently resident of Sardar Patel Colony Near - Patliputra Telephone Exchange, Kurji Patna
.... .... Appellant/s
Versus
.... .... Respondent/s
=========================================================== Appearance : For the Appellant/s : Mr. Rajendra Kumar Jain, Advocate. For the State : Mrs. Namrata Mishra, GA-6 Mr. Alok Ranjan, AC to GA-6.
=========================================================== CORAM: HONOURABLE MR. JUSTICE HEMANT GUPTA
and
HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH ORAL JUDGMENT
(Per: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH) Date: 06-10-2016
Heard learned counsel for the parties.
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published the result in the newspaper on 28.01.2000 of 15 candidates, out of which 13 belonged to the General Category and 02 to the Scheduled Tribe. It was also stated that no candidate was available for appointment in the category of Scheduled Caste, Backward Class, Extremely Backward Class and Women category. The appellant figured in the list of successful candidates. The selected candidates, including the appellant, were directed to submit original documents relating to educational qualification as well as technical experience and driving licence, which was complied with. When no appointment letter was received by the successful candidates, including the appellant, they submitted representation before the authority concerned to appoint them.
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were directed to decide the claim of the appellant in case certain vacancies were available. Thus, when admittedly, vacancies are available, non-appointment of the appellant is in the teeth of the order of the Court. It was further submitted that the appellant has now become overage for any other employment and thus, a compassionate view may be taken. Learned counsel submitted that the Director asking the BPSC to recommend the name of the appellant also indicates that the appellant has been wrongly denied appointment.
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recommended earlier for appointment, but under the changed circumstances, if the position of vacancies gets modified, as has happened in the present case, and the authorities having sent the list of recommended persons back to the BPSC for sending fresh recommendation, in terms of the revised vacancy position, such exercise cannot be said to be arbitrary or illegal. The appellant having assailed the second recommendation by the BPSC, in which his name was not included, and the Court not interfering with such recommendation, clearly indicates that there was no illegality in the same.
“8. It is rather difficult to follow the reasoning of the High Court in this case. It agrees that the advertisement mentioning 15 vacancies did not give a right to any
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candidate to be appointed to the post of a Subordinate Judge. Even so it somehow persuaded itself to spell out a right in the candidates because in fact there were 15 vacancies. At one place it was stated “so long as there are the number of vacancies to be filled in and there are qualified candidates in the list forwarded by the Public Service Commission along with their Rolls, they have got a legal right to be selected under Rule 10(ii) in Part „C‟.” One fails to see how the existence of vacancies gives a legal right to a candidate to be selected for appointment. The examination is for the purpose of showing that a particular candidate is eligible for consideration. The selection for appointment comes later. It is open then to the Government to decide how many appointments shall be made. The mere fact that a candidate‟s name appears in the list will not entitle him to a mandamus that he be appointed. Indeed, if the State Government while making the selection for appointment had departed from the ranking given in the list, there would have been a legitimate grievance on the ground that the State Government had departed from the rules in this respect. The true effect of Rule 10 in Part C is that if and when the State Government propose to make appointments of Subordinate Judges the State Government (i) shall not make such appointments by traveling outside the list and (ii) shall make the selection for appointments strictly in the order the candidates have been placed in the list published in the Government Gazette. In the present case, neither of these two requirements is infringed by the government. They have appointed the first seven persons in the list as Subordinate Judges. Apart from these constraints on the power to make the appointments, rule 10 does not impose any other constraint. There is no constraint that
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the Government shall make an appointment of a Subordinate Judge either because there are vacancies or because a list of candidates has been prepared and is in existence”.
“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 Harynana v. Subhash Chander Marwaha,(1974) 3 SCC 220 : (1974) 1 SCR 165: 1973 SCC (L & S) 488 ; Neelima Shangla vs. State of Haryana, (1986) 4 SCC 268 :1986 SCC (L & & S) 759 ; or Jatendra Kumar v. State of Punjab, (1985) 1 SCC 122 : (1985) 1 SCR 899 : 1985 SCC (L & S) 174” .
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(Hemant Gupta, J)
(Ahsanuddin Amanullah, J)
Sujit/-
AFR/NAFR AFR U
3 issues framed by the court
Whether a successful candidate in a government recruitment process acquires a legal right to appointment that can be denied if vacancies are reduced or not filled bona fide.
Whether the State's decision not to appoint a candidate despite an earlier recommendation amounts to discrimination or illegality under Article 226 of the Constitution.
Whether the appointment of a candidate is defeasible if the State government decides not to fill posted vacancies.
Colour shows how this judgement treated each authority
State of Haryana v. Subash Chander Marwaha and Ors.Referred¶40
The State of Haryana v. Subash Chander Marwaha and Ors. AIR 1973 SC 2216 · Who else cites this
Shankarsan Das v. Union of IndiaReferred¶48
Shankarsan Das v. Union of India (1991) 3 SCC 47 · Who else cites this
State of Haryana v. Subhash Chander MarwahaReferred¶48
State of Harynana v. Subhash Chander Marwaha,(1974) 3 SCC 220; (1974) 1 SCR 165: 1973 SCC (L & S) 488 · Who else cites this
Neelima Shangla vs. State of HaryanaReferred¶48
Neelima Shangla vs. State of Haryana, (1986) 4 SCC 268 · Who else cites this
Jatendra Kumar v. State of PunjabReferred¶48
Jatendra Kumar v. State of Punjab, (1985) 1 SCC 122 · Who else cites this
1 provisions across 1 enactments
Akhilesh Kumar Singh
The State of Bihar
Hemant Gupta
Ahsanuddin Amanullah
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
