Dr. Krishan Murari Mani Tripathi vs State Of Uttarakhand And Others

Ramesh Ranganathan, CJ

Heard Mr. S.S. Yadav, learned Advocate for the petitioner, Mr. J.C. Pandey, learned Brief Holder for the State of Uttarakhand/respondent No.1 and Mr. Ashish Joshi, learned Advocate for respondent Nos. 2 and 3.

The petitioner has invoked the jurisdiction of this Court seeking a writ of certiorari to quash the order dated 28.05.2017; a writ of mandamus directing respondent Nos.2 and 3 to declare his result for the post of Assistant Professor (Philosophy) against which he had been interviewed on 30.06.2016; and a writ of mandamus directing the first respondent to grant approval for alteration of the subject Shankar Vedant to Philosophy for which proposal is still pending with the Government ever since 10.03.2015.

Facts, to the limited extent necessary, are that the petitioner is a Post Graduate in Sarvadarsanam, awarded by the Sri Lal Bahadur Shastri Rashtriya Sanskrit Vidyapeeth, New Delhi. He also obtained his P.Hd. degree from the said Vidyapeeth in the year 2013 which he claims is in terms of the U.G.C. Regulations 2009 and, as a result, he is exempt from the requirement of passing the National Eligibility Test.

The first respondent issued an advertisement on 22.04.2015 inviting applications for different teaching positions. Applications were invited thereby for 20 vacancies, of which 16 posts related to that of Assistant Professors in different subjects. This included one post of Assistant Professor (Philosophy) which was open for the General Category. The petitioner applied, pursuant to the advertisement, and was shortlisted for interview. Call letter dated 30.06.2016 was issued asking him to be present for interview in the office of respondent No.2 on 19.07.2016. He was interviewed by the Selection Committee, along with 26 other candidates, for the post of Assistant Professor (Philosophy). According to the petitioner, the entire interview process was conducted as per the directions of the Chancellor; and the Selection Committee consisted of subject experts besides other members, and was chaired by the second respondent. The petitioner was placed at Serial No.1, by the Selection Committee, as he scored the highest marks in the interview amongst all competing candidates.

In its 26th Meeting held on 27.08.2016, the Executive Committee approved the recommendation of the Selection Committee, and directed that appointment letters be issued to the selected candidates. The select list was declared on 29.08.2016, and a total of 16 candidates were selected against 20 vacancies in the posts of Assistant Professors. It is the petitioner's grievance that, while all other selected candidates were offered appointment as Assistant Professors, he alone had been singled out for adverse treatment. The petitioner claims, thereafter, to have submitted a representation to the Chancellor on 22.03.2017; and to have invoked the jurisdiction of this Court by filing WPSB No. 228 of 2017. The third respondent-Registrar of the University informed him that his selection as Assistant Professor (Philosophy) had been cancelled by the Council in its 30th Meeting held on 28.05.2017. This cancellation order dated 28.05.2017 is questioned in this writ petition as being arbitrary and illegal.

Mr. S.S. Yadav, learned counsel for the petitioner, would submit that, while all the other candidates selected as Assistant Professors in various others subjects were appointed as Assistant Professors, the petitioner had alone been single out for adverse treatment; the petitioner has been deprived of appointment for no fault of his; the University had chosen to invite applications in anticipation of receipt of approval from the Government for conversion of the post of Shanker Vedant to Philosophy; the respondent-University was obligated to ensure that the Government converted the said post; the action of the respondents, in not issuing him an appointment order, is irrational and arbitrary; cancellation of his selection is in violation of Articles 14 and 16 of the Constitution of India; the petitioner has been made to suffer acute mental agony on his being illegally deprived of being appointed as Assistant Professor (Philosophy), though he stood first amongst all the candidates who were interviewed for the said post; the impugned order must, therefore, be quashed; a mandamus should be issued to the State Government to convert the subject Shanker Vedant to Philosophy; and the respondent-University should be directed to appoint the petitioner as an Assistant Professor (Philosophy) pursuant to the selection process already undertaken by the University.

On the other hand Mr. Ashish Joshi, learned Standing Counsel, for the respondent-University, would draw our attention to the specific averments in the counter affidavit that the post of Assistant Professor (Philosophy) was advertised in anticipation of the Government according sanction for conversion of the post of Shanker Vedant into Philosophy; though the selection process was completed, and the selected candidates identified for appointment, the Government did not accord approval for such conversion; in the absence of the post of Assistant Professor (Philosophy) having being sanctioned by the Government, the respondent-University lacked authority to fill up the said post; and they had little choice, but to pass the impugned order cancelling the selection process, since the advertisement issued by them was for the post of Assistant Professor Philosophy, which post had not been sanctioned by the Government even after the selection process was completed.

The power to create or abolition posts, and to convert one post to another, lies with the State Government. It is only in a sanctioned post can the University appoint the selected candidate. Since the Government did not accord sanction for conversion of the earlier posts of Assistant Professor (Shanker Vedant) to that of Assistant Professor (Philosophy), the selected candidate (i.e. the petitioner) could not be offered appointment as an Assistant Professor (Philosophy).

In the counter affidavit filed by the University it is stated that the advertisement was issued, and the selection process undertaken, in anticipation of the Government according approval for conversion of the post of Shanker Vedant to Philosophy; and, since the Government did not accord approval, the University had no choice but to cancel the selection process.

We find considerable force in the submission of Mr. S.S. Yadav, learned counsel for the petitioner, that the petitioner was not at fault, and the action of the respondents in advertising the posts, and in inviting applications in anticipation of conversion of the post, may have resulted in the petitioner suffering mental agony on account of his not being appointed despite being selected. The fact, however, remains that 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 NarasaiahZangiti and Ors.: (2006) 10 SCC 261). Ordinarily, 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 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. (Rani Laxmibai Kshetriya Gramin Bank Vs. Chand Behari Kapoor and Ors. : (1998) 7 SCC 469; Shankarsan Dash Vs. Union of India : (1991) 3 SCC 47; State of Bihar and Ors. Vs. Mohd. Kalimuddin and Ors. : (1996) 2 SCC 7; and Punjab State Electricity Board and Ors. Vs. Malkiat Singh : (2005) 9 SCC 22). 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. : (2001) 2 SCR 11 83; Aryavrat Gramin Bank Vs. Vijay Shankar Shukla: (2007) 12 SCC 413; State of Rajasthan and Ors. Vs. Jagdish Chopra : (2007) 8 SCC 161; State of M.P. and Ors. Vs. Sanjay Kumar Pathak and Ors. : (2008) 1 SCC 456 and Asha Kaul (Mrs.) and Anr. Vs. State of Jammu and Kashmir and Ors. (1993) 2 SCC 573).

However, the decision, not to fill up the vacancies, should be taken bona fide and for just and valid reasons. (State of Bihar and Ors. Vs. Mohd. Kalimuddin and Ors. : (1996) 2 SCC 7; and Shankarsan Dash Vs. Union of India : (1991) 1 SCC 47). 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 arbitrariness.(Food Corporation of India and Ors. Vs. Bhanu Lodh and Ors. : AIR 2005 SC 2775; and All India SC & ST Employees' Association and Anr. Vs. A. Arthur Jeen and Ors. : (2001) 2 SCR 11 83).

While the Government / University 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.: (1997) 3 SCR 1046; and Munna Roy Vs. Union of India and Ors.: (2009)9 SCC 283). 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/University to fill up the vacancies.(Manoj Manu and Ors. Vs. Union of India (UOI) and Ors.: (2013) 12 SCC 171). 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.: (2006)1 SCC 779), unless the decision, not to fill up the unfilled posts, is found to be in violation of Article 14 of the Constitution.

It is only if there is no justifiable reason for the University/Government to cancel the selection process would interference be justified. In the present case, the justification put forth by the University is that the selection process was undertaken in anticipation of approval being granted by the Government for conversion of the post of Assistant Professor-Shanker Vedant to Assistant Professor-Philosophy; and as approval was not accorded, the entire selection process had to be set aside. The action of the respondent-University cannot, therefore, be said to be arbitrary and unreasonable, in as much as no candidate can be appointed to a non-existent post. The plea of arbitrariness and unreasonableness must, therefore, fail.

The petitioner's claim for discrimination is also not well founded. It is not even his case that the other candidates, who were appointed as Assistant Professors in other subjects, were appointed to non-existent posts. The plea of discrimination would necessitate examination only if members of the same class are differentiated. The petitioner cannot claim parity with the other candidates who were selected as Assistant Professors in other subjects, since he was not eligible to be appointed to those posts; and his entitlement to be appointed as an Assistant Professor was only in the subject of Philosophy.

While the petitioner may well have suffered mental agony because of his non-selection, that would not justify a mandamus being issued to the Government to create the post of Assistant Professor (Philosophy), or to the respondent-University to appoint the petitioner to a post which has not even been sanctioned by the Government, merely on the ground that the petitioner was placed at Serial No.1 in the select list.

Mr. S.S. Yadav, learned counsel for the petitioner, would submit that, since a relative of the Vice Chancellor was working on a temporary basis, in the department of Shanker Vedant, the entire process of obtaining sanction of the Government, for conversion of the post, was needlessly delayed. This specific allegation has been denied by the respondent-University in its counter affidavit. In any event, it defies reason that the Government should not grant sanction for conversion of the post, merely because a relative of the Vice Chancellor was working temporarily in the post of Assistant Professor (Shanker Vedant).

The other relief sought for i.e. for a mandamus to be issued to the Government to convert the post does not also merit acceptance, in as much as the High Court, in proceedings under Article 226 of the Constitution of India, would not direct the State Government to exercise its power, of creation and abolition of posts or for its conversion, in a particular manner. These are all matters for the State Government, in its wisdom, to decide, and are not for this Court to direct.

Since the petitioner does not have an indefeasible right to be appointed merely on his selection to the post of Assistant Professor (Philosophy), the relief sought for in this Writ Petition cannot be granted. The Writ Petition fails and is, accordingly, dismissed. No costs.