Partly allowed

All India Institute v. Harish Kumar Godhwal

Uttarakhand HC9 May 2019SPA/392/2019

Case brief

AI extract

What is this about?

The High Court upheld the illegality of introducing cut-off marks after the selection process commenced but set aside the lower court's direction to fill all 125 vacancies. It directed the appellant to decide whether to fill the remaining posts, stating that while candidates have a right to be considered, no vested right to appointment exists absent specific rules.

What did the court decide?

The direction to fill all 125 posts was set aside. The appellant was directed to decide whether to fill the remaining vacancies based on valid reasons within two months.

All India Institute Vs Harish Kumar Godhwal — Service and Employment | Uttarakhand HC (2019)

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IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Special Appeal No. 392 of 2019

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All India Institute of Medical Sciences ...Appellant

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Vs. Harish Kumar Godhwal and another ...Respondents With Special Appeal No. 393 of 2019 All India Institute of Medical Sciences ...Appellant Vs. Raghunath Jat and another ...Respondents

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With Special Appeal No. 397 of 2019

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All India Institute of Medical Sciences ...Appellant

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Vs. Narendra Singh and another ...Respondents

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Mr. Rakesh Thapliyal, learned Assistant Solicitor General for the appellant in all the appeals.

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Mr. C.S. Rawat, learned Additional Chief Standing Counsel for the State of Uttarakhand-respondent no. 2 in all the appeals.

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Mr. Siddhartha Jain, learned counsel for the first respondent-writ petitioner in all the appeals.

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Chronological list of cases referred :

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(2008) 3 SCC 512 2. (2008) 7 SCC 11 3. (1984) 2 SCC 141 4. (1985) 3 SCC 721 5. (1987) 4 SCC 646 6. (2006) 10 SCC 261 7. (1998) 7 SCC 469 8. (1991) 1 SCC 47 9. (1996) 2 SCC 7 10. (2005) 9 SCC 22 11. 1993 Supp (3) SCC 268 12. (1994) 1 SCC 126 13. (2001) 2 SCR 1183 14. (2007) 12 SCC 413 15. (2007) 8 SCC 161 16. (2008) 1 SCC 456 17. (1993) 2 SCC 577 18. AIR 2005 SC 2775 19. (1997) 3 SCR 1046 20. (2000) 9 SCC 283 21. (2013) 12 SCC 171 22. (2006) 1 SCC 779)

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Dated: 09^th May, 2019

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Coram: Hon’ble Ramesh Ranganathan, C.J. Hon’ble N.S. Dhanik, J.

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Ramesh Ranganathan, C.J. (Oral)

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These three appeals are preferred by the All India Institute of Medical Sciences, Rishikesh (‘AIIMS’ for short) against the order passed by the learned Single Judge in Writ Petition (S/S) No. 1916 of 2018 and batch dated 28.03.2019.

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The AIIMS (the appellant-second respondent) issued an advertisement on 22.07.2017 inviting applications for various posts, including 125 posts of Staff Nurse (Grade–I). In terms of the advertisement, all posts were to be filled up based on the performance of the candidates in the written examination. The advertisement, however, stipulated no minimum cut-off marks for qualifying in the written examination. The respondents-writ petitioners submitted their applications in terms of the said advertisement, and appeared in the written examination held on 18.05.2018. The final results were declared on 31.05.2018, and the notification issued thereafter disclosed, for the first time, that cut-off marks had been fixed, and anyone who had scored less than the cut-off marks was not eligible to be appointed as a Staff Nurse. The appellant-Institute appointed only 99 candidates against the advertised 125 posts of Staff Nurses (GradeI), and the remaining 26 posts were not filled up on the ground that none of the other candidates had secured the prescribed minimum cutoff marks.

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The respondents-writ petitioners invoked the jurisdiction of this Court contending that the rules of the game could not be changed midway; prescription of a criteria after the selection process had commenced, and which had not been disclosed in the advertisement, is impermissible; it is not as if they had failed in the written examination; while one of them, in the general category, secured more

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than 59% marks (just below the cut-off marks of 60% prescribed for general category candidates), the other two writ petitioners, who belonged to the OBC category, secured more than 54% marks (just below the cut-off marks of 55% prescribed for the OBC category candidates); and a direction should be issued to the respondents to fill up all the 125 advertised posts without insisting on fulfillment of the minimum cut-off marks prescribed after the advertisement was issued.

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In his order, in Writ Petition (S/S) No. 1916 of 2018 and batch dated 28.03.2019, the learned Single Judge, after relying on the judgments of the Supreme Court in K. Manjushree vs. State of Andhra Pradesh and another : (2009) 3 SCC 512 and Hemani Malhotra vs. High Court of Delhi : (2008) 7 SCC 11 , held that, in the present case, the requirement of minimum cut-off marks was introduced after commencement of the selection process; the candidates had no knowledge of any such requirement; they were taken by surprise when it was mentioned, in the final result, that those who secured less than cut-off marks had been declared unsuccessful; and this led to the only logical inference that the rules of the game were changed after the game had commenced. The writ petitions were allowed, and the appellant herein was directed to declare the result in respect of all 125 posts of Staff Nurses (Grade-I), ignoring the requirement of cut-off marks, within two weeks from the date of the order; and consequential orders were directed to be issued within two weeks thereafter.

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Mr. Rakesh Thapliyal, learned Assistant Solicitor General appearing on behalf of the appellant-Institute, would submit that the learned Single Judge had erred in interfering with the selection process based on the judgments of the Supreme Court in K. Manjusree Vs. State of Andhra Pradesh and another^[1] and Hemani Malhotra Vs. High Court of Delhi^[2] ; in both these judgments the Supreme Court had interdicted prescription of a minimum cut-off marks for interview without stipulating such a criteria in the Rules prior to issuance of an advertisement; unlike in

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the said judgments, in the present case the process of selection is only by way of a written examination, and no interviews are to be held; even otherwise, the learned Single Judge was not justified in issuing a mandamus to the appellant-Institute to fill up all the posts; a decision, whether or not to fill up the advertised posts, is for the appellantInstitute to take, and not for this Court, ordinarily, to direct; and the order under appeal must, therefore, be set aside on these grounds.

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On the other hand Mr. Siddhartha Jain, learned counsel for the respondents-writ petitioners, would submit that, while 99 candidates were initially selected, 07 of them were found ineligible later; consequently, only 92 of the 125 advertised posts were filled up, leaving the remaining 33 posts unfilled; there is an acute shortage of Staff Nurses in the appellant-Institute; the learned Single Judge was therefore justified in directing the appellants to fill up all the 125 advertised posts, and issue consequential orders; and no interference is called for, in an intra-Court appeal, against the said order.

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In K. Manjusree^[1] , minimum cut-off marks were prescribed for interview after commencement of the process of selection of candidates. This was faulted by the Supreme Court holding that the rules of the game could not be changed after the game was played; while prescription of minimum cut-off marks for interview may not be illegal, such prescription, after the selection process had commenced, was not in order; and changing the criteria, after completion of the selection process, was illegal, more so when the entire selection proceeded on the basis that there would be no minimum cut-off marks for interview. In holding that the rules of the game cannot be changed after commencement of the selection process, the Supreme Court, in K. Manjusree^[1] , had relied on its earlier judgments in P.K. Ramachandra Iyer and Ors. Vs. Union of India (UOI) and Ors.^[3] ; Umesh Chandra Shukla Vs. Union of India (UOI) and Ors.^[4] ; and Durgacharan Misra Vs. State of Orissa and Ors.^[5] . Again, in Hemani Malhotra^[2] , minimum cut-off marks were prescribed for

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viva-voce after the selection process had commenced. This, the Supreme Court held, was impermissible since such a criteria was introduced after commencement of the selection process.

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The learned Single Judge has merely applied the law, declared in the aforesaid judgments of the Supreme Court, to the facts of the present case, and has held that the candidates had no knowledge of any such requirement; they were taken by surprise when it was mentioned, in the final result, that those who secured less than the cutoff marks had been declared unsuccessful; and the rules of the game were changed after the game had commenced.

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The learned Single Judge was, no doubt, justified in faulting the appellant-Institute in changing the rules after the commencement of the selection process, and in prescribing a new criteria which none of the applicants were even made aware of when they submitted their applications in terms of the advertisement. However, the learned Single Judge has further directed the appellant-Institute to declare the result in respect of all 125 posts of Staff Nurses, by ignoring the requirement of minimum cut-off marks, within two weeks and for consequential orders to be issued within two weeks thereafter. In effect, the learned Single Judge has issued a mandamus to the appellants-AIIMS, Rishikesh to fill up all 125 advertised posts of Staff Nurses.

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No candidate has a legal right to be appointed. In terms of Article 16 of the Constitution of India, he has only a right to be considered for selection and appointment. (Pitta Naveen Kumar and Ors. Vs. Raja Narasaiah Zangiti and Ors.^[6] ) . Ordinarily, the notification of posts is merely an invitation to the 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 provide, the State is under no legal duty to fill up all or any of the vacancies. If a number of vacancies are notified for appointment, and adequate number of candidates are found fit, it does not mean that the

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successful candidates can claim to be appointed as of right, as inclusion of their names in the list of successful candidates does not confer on them an indefeasible right. (Laxmibai Kshetriya Vs. Chand Behari Kapoor and Ors.^[7] ; Shankarsan Dash Vs. Union of India^[8] ; State of Bihar and Ors. Vs. Md. Kalimuddin and Ors.^[9] ; and Punjab State Electricity Board and Ors. Vs. Malkiat Singh^[10] ) .

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Empanelment, after selection, is at best a condition of eligibility for the purpose of appointment, and does not, by itself, create a vested right to be appointed, unless the relevant service rule provide to the contrary. ( Shankarsan Dash^[8] ; Babita Prasad and Ors. Vs. State in Bihar and Ors.^[11] ; and State of Bihar and Ors. Vs. Secretariat Assistant Successful Examinees Union 1986 and Ors.^[12] ) . By mere selection, the candidates acquire no indefeasible right for appointment even against existing vacancies. (All India SC & ST Employees’ Association and Anr. Vs. A. Arthur Jeen and Ors.^[13] ; Aryavrat Gramin Bank Vs. Vijay Shankar Shukla^[14] ; State of Rajasthan and Ors. Vs. Jagdish Chopra^[15] ; State of M.P. and Ors. Vs. Sanjay Kumar Pathak and Ors.^[16] and Asha Kaul (Mrs.) and Anr. Vs. State of Jammu and Kashmir and Ors.^[17] ) .

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However, the State has no licence to act in an arbitrary manner, and the decision, not to fill up the vacancies, should be taken bona fide and for just and valid reasons. ( Md. Kalimuddin^[9] ; and Shankarsan Dash^[8] ). And if all the vacancies, or any of them, are filled up the State is bound to respect the comparative merit of the candidates, as reflected in the recruitment test, in making appointment to these posts. (A. Arthur Jeen and Ors.^[13] ) . The decision not to fill up the vacancies should not be arbitrary or unreasonable, it must be based on sound, rational and conscious application of mind, and must pass the test of reasonableness under Article 14 of the Constitution. No interference is called for in judicial review proceedings, unless the decision, not to fill up the post, is infected with the vice of

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arbitrariness. (Food Corporation of India and Ors. Vs. Bhanu Lodh and Ors.^[18] ; and A. Arthur Jeen and Ors.^[13] ) .

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Ordinarily a Superior Court, in the exercise of its powers of judicial review, would not interfere with the decision of the employer in making appointment, unless its action or inaction is found to be so arbitrary as to offend Article 14 of the Constitution of India. (Aryavrat Gramin Bank^[14] ) . While the Government / Corporation / Institute is entitled to decide whether or not to make appointment, even if there is a vacancy, and it is not incumbent that it should be filled up, it must, when called upon to do so, furnish reasons for such non-appointment. (K. Jayamohan Vs. State of Kerala and Anr.^[19] ; and Munna Roy Vs. Union of India and Ors.^[20] ) . Once, it is found that the decision of the Government is based on valid reasons, the Court would not issue a Mandamus to the Government to fill up the vacancies. (Manoj Manu and Ors. Vs. Union of India (UOI) and Ors.^[21] ) . If a candidate has no right to claim appointment merely because he was selected/empanelled, there is no occasion to maintain a writ petition for enforcement of a non-existing right ( Union of India (UOI) and Ors. Vs. Kali Dass Batish and Ors.^[22] ) unless the decision, not to fill up the unfilled posts, is found to be in violation of Article 14 of the Constitution.

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In the exercise of its powers of judicial review, under Article 226 of the Constitution of India, this Court would not, ordinarily, issue a mandamus directing the appellant-Institute to discharge its obligations in a particular manner. Even if there is merit in the submission of Mr. Siddhartha Jain, learned counsel for the respondent-writ petitioner, that there is an acute shortage of staff nurses in the appellant-Institute, these are aspects which the appellantInstitute is required to consider, and take a decision in accordance with law. It is only after a decision is taken afresh by the appellant, regarding filling up of the unfilled 33 posts of Staff Nurses, ignoring the prescription of cut-off marks, can the validity of such a decision

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be interdicted by this Court, if it suffers from the vice of arbitrariness and unreasonableness, thereby violating Article 14 of the Constitution.

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While upholding the order under appeal to the extent prescription of minimum cut-off marks in the written examination, post commencement of the selection process, was interdicted by the learned Single Judge, we set aside the directions issued by the learned Single Judge, to the appellant-Institute, to declare the results of all 125 posts and to issue consequential orders, meaning thereby to fill up all the 125 posts. Instead, the appellant-Institute is directed to examine and take a considered decision whether the unfilled posts, in terms of the advertisement issued for 125 posts of staff nurses, should be filled up or not. A decision in this regard shall be taken by the appellants bearing in mind that prescription of minimum cut-off marks in the written examination, post commencement of the selection process, is illegal.

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The entire exercise, culminating in a decision being taken by the appellant-Institute, shall be completed within two months from the date of production of a certified copy of this order. The appellantInstitute shall communicate the decision so taken by it, along with reasons therefor, to the respondents-writ petitioners within the aforesaid period of two months.

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All the appeals are disposed of accordingly. No costs.

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(N.S. Dhanik, J.) (Ramesh Ranganathan, C.J.) 09.05.2019 09.05.2019

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Rahul

All India Institute v. Harish Kumar Godhwal

Case brief

What is this about?

What did the court decide?

All India Institute v. Harish Kumar Godhwal

Case brief

What is this about?

What did the court decide?

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