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'While 1st Rank Cannot Claim Right To Post, Appointment Of 2nd Ranker By State Also Illegal, Arbitrary, Violative of Art. 14': Uttarakhand HC

Mehal Jain
27 Jun 2020 8:46 AM GMT
While 1st Rank Cannot Claim Right To Post, Appointment Of 2nd Ranker By State Also Illegal, Arbitrary, Violative of Art. 14: Uttarakhand HC
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'While the holder of first rank in a selection process cannot claim the right to be appointed, the appointment of the second-ranker is arbitrary and violative of Article 14 of the Constitution', declared the Uttarakhand High Court on Tuesday.

The Chief Justice-led bench held that the failure of the respondent-state authorities to intimate the petitioner that he had stood first in the merit-list of selected candidates, pursuant to the selection process undertaken in terms of the advertisement issued in March, 2015, and in offering appointment to the second candidate in the merit list, is ex-facie arbitrary and illegal.

The Division Bench was of the view that the respondents' contention that the petitioner had already been appointed as the Director of the THDC Institute (another State Government Institution) by then, did not absolve them of their obligation to inform the petitioner that he was entitled to be appointed as the Director, Govind Ballabh Pant Institute of Engineering and Technology, Pauri Garhwal (the subject institution), for the choice, whether to continue as the Director, THDC Institute or to join the office of Director, GBPIET, was for the petitioner to make, and not for the respondents to impose.

"If the petitioner had been intimated of his selection, it was then open to him to exercise his option to either resign as the Director, THDC Institute and join the office of Director, GBPIET, or to continue as the Director of the THDC Institute. By their failure to so intimate the petitioner, the respondents have acted in violation of Article 14, as the petitioner has been arbitrarily and illegally deprived of his right to be appointed as the Director, GBPIET though he stood first in the order of merit", opined the Court.

At the same time, the bench also reaffirmed the settled principle that 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; that the Government / Corporation / Institution 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. The Court reiterated that even then the State has no licence to act in an arbitrary manner and the decision, not to fill up the vacancy, should pass the test of reasonableness under Article 14 of the Constitution. Finally, the bench cited that 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 process, in making appointments to these posts.

While satisfied that the respondents have acted arbitrarily in proceeding on the premise that, since the petitioner was working as the Director, THDC Institute from February, 2016, prior to completion of the selection process for the post of Director, GBPIET in July-August, 2016, he was not entitled to be appointed as the Director-GBPIET despite his having stood first in the merit list of selected candidates, the bench reflected that the question which necessitates examination is the nature of the relief which the petitioner is entitled to at this belated

stage.

"As noted hereinabove, the second most meritorious candidate

(next in the merit list below the petitioner) i.e. Professor Pandey was 10 appointed as the Director, GBPIET in August, 2016 for a period of three years, This three year period ended in August, 2019. Even if the petitioner had been appointed to the said post, his tenure as the Director, GBPIET would have ended by August, 2019 nearly a year ago", noted the Court.

Accordingly, it was felt that it would be wholly inappropriate for the bench, at this belated stage, to now issue a mandamus to the respondents to consider appointing the petitioner as the Director, GBPIET.

"It is no doubt true that Professor Pandey, who was appointed as the Director, GBPIET, (though he was below the petitioner in the merit list of selected candidates), left office of the Director, GDPIET, midway through his tenure of three years, on 03.02.2018. While the petitioner claims that he should at least be considered for the unfilled tenure of one and a half years after Professor Pandey left, we cannot ignore the fact that the petitioner's tenure as the Director, THDC Institute from February, 2016 was for a period of three years which continued till February, 2019. The office of Director, GBPIET remained vacant from February, 2018 onwards, and till one year thereafter, i.e. till February, 2019, the petitioner was working and continued to receive the salary and emoluments of the office of Director, THDC", observed the bench.

The Court recorded that in the light of the subsequent events of three more advertisements having been issued thereafter on 02.06.2018, 23.01.2019 and 19.02.2020 for the subject post, "we may not be justified at this stage to issue a mandamus to the respondents to consider the petitioner's claim for appointment as the Director, GBPIET pursuant to the advertisement issued in March, 2015, more so as the jurisdiction of this Court was invoked by the petitioner, by way of the present Writ Petition, only on 04.09.2019".

However, the bench proceeded to affirm that that would not justify condoning the illegality committed by the respondents in failing to strictly adhere to the merit list in making appointment to the post of Director, GBPIET, pursuant to the advertisement issued in March, 2015.

"The respondents shall identify the officer responsible for such illegal and arbitrary exercise of power, and forthwith initiate disciplinary proceedings against him for his failure to offer appointment, of the post of the Director GBPIET, to the petitioner pursuant to the selection process undertaken in terms of the advertisement issued in March, 2015", the bench directed.

"While we are satisfied that the petitioner is not entitled to the relief sought for in the Writ Petition i.e. to be appointed as Director, GBPIET, the respondents shall, as directed hereinabove, identify the person responsible for not intimating the petitioner of his having stood first in the merit-list pursuant to the selection process undertaken in terms of the advertisement issued in March, 2015, and in not issuing a letter of appointment to him", the bench reiterated.

The Court ordered that on the officer being so identified, disciplinary action shall be taken against him forthwith in accordance with law. The entire exercise of identifying the officer, initiating disciplinary proceedings against him, and in taking appropriate action against him thereafter, shall be completed with utmost expedition and, in any event, within four months from the date of production of a certified copy of this order.

Besides, even with regards the selection process undertaken pursuant to the second advertisement issued on 02.06.2018 (which was also subsequently cancelled), the Court appreciated that the records show that for 80 of the 100 marks, the petitioner was awarded more than 64 marks, while the next most meritorious candidate was awarded only 31.42 marks. The bench stated that the petitioner's submission that even if interviews had been held and the selection process completed, he would have been selected even if he had been awarded '0' marks out of 20, and the next meritorious candidate had been awarded 20 marks out of 20 in the interview, was not without merit.

The bench, taking note of the justification put forth by the respondents, for cancelling the second selection process undertaken pursuant to the advertisement dated 02.06.2018, recorded that the respondents claim that some of the applicants had not submitted their testimonials and credentials with their application; calculation of marks was not correct; the screening committee had decided to give all candidates an opportunity to submit documentary evidence of their testimonials at the earliest; there was inadequate representation from different parts of the country; and the number of applications received were insufficient. "While the aforesaid justification, put forth by the respondents, does appear feeble and weak, the fact remains that the petitioner has not even subjected the action of the respondents in cancelling the selection process undertaken pursuant to the second advertisement dated 02.06.2018, and in issuing a fresh advertisement dated 23.01.2019, to challenge in the present Writ Petition", observed the bench, stating that the validity of the action of the respondents, in cancelling the selection process undertaken pursuant to the advertisement dated 02.06.2018, would have necessitated examination on the touchstone of Article 14 of the Constitution of India, only if cancellation of the said selection process, and in issuing the third advertisement dated 23.01.2019, had been subjected to challenge in this Writ Petition.

"While the petitioner has no doubt stated that cancellation of the selection process was for extraneous reasons, and was only to continue the In-charge Director in office without resorting to a regular process of selection, he has neither furnished details of the person responsible for such illegal acts, nor has he arrayed him as a respondent eo-nominee in the present writ petition. Allegations of malice can only be examined, if the person against whom malice is alleged is arrayed as a respondent eo-nominee in the writ petition", re-affirmed the bench.

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