Dr. Pramod Kureel vs State Of Madhya pradesh And Others

All the above writ petitions are decided by this common order as common question of law and facts are involved in all these writ petitions. For the

sake of brevity, the facts in W.P. No.333/2013 (Dr. Pramod Kureel Vs. State of M.P. and Others) has been reproduced as under.

The petitioner has filed the present petition challenging the action of the respondents in cancelling the entire selection process undertaken for filling

of Class III and IV posts in the Department of Indian System of Medicine & Homeopathy in pursuance of the advertisement issued in the year 2009.

The petitioner after having graduated in Physiotherapy got himself registered with the Madhya Pradesh Para Medical Council on 25.05.2006. The

petitioner, thereafter obtained the post graduation in Physiotherapy from Goutham College of Physiotherapy, Bangalore (Karnataka). Respondent no.2

published an advertised on 31.12.2009 inviting applications for appointment on various Class-III & IV posts in the Department of Indian System of

Medicine & Homeopathy under the State Government. As per the advertisement, 4 posts of Physiotherapist for Autonomous Government Ayurved

Colleges at Jabalpur, Gwalior, Rewa and Ujjain were advertised. The minimum qualification for the said post was prescribed as the degree in

Physiotherapy with minimum 2 years experience. The petitioner was fully qualified for appointment on the post of Physiotherapist. He, therefore,

submitted his application for appointment on the said post. The petitioner was called for interview which was scheduled on 16.06.2012. The petitioner

appeared in the interview and before interview, the documents of the petitioner were scrutinized. On scrutiny of the documents, it was found by the

Scrutiny Committee that other than two candidates including the petitioner none of the candidates had required experience of two years after the date

of their registration with the Madhya Pradesh Para Medical Council. Accordingly, only two candidates including the petitioner were subjected to the

interview. The result of the interview was published on the same day and the result was pasted on the notice board of the Unani Medical College and

Hospital Ayush Parisar MACT Hill, Bhopal and in the said result, the petitioner was declared successful. The petitioner, therefore, waiting for

consequential order of joining, however, no communication was received by the petitioner for quite sometime. The petitioner thereafter visited the

office of respondent no.2. on several occasions, however every time it was assured that the appointment orders will be issued in due course.

Thereafter, the petitioner was shocked to see a notice published in the newspaper on behalf of respondent no.2 wherein it was stated that the process

of selection conducted in the month of June, 2012 pursuant to the advertisement no.G-20812/2010 has been cancelled. It has further been stated that

the fees of the candidates will be refunded. Being aggrieved by this order as well as non issuance of appointment order of the petitioner on the said

post the petitioner has filed the present petition.

Learned counsel for the petitioner argues that the decision of the respondents for cancellation of the entire selection is illegal and arbitrary. He

submits that although the selection of the candidates and even the inclusion in the selection list does not give him an absolute right to claim

appointment, however it is equally true in law that the candidate who has been selected in the process of selection for appointment can not be denied

appointment without any valid and justifiable reason. The employer is required to have a justifiable reason for the same and the reason is required to

be communicated to the candidate. He submits that in the present case at no point of time any reason for cancellation for the process of selection has

been communicated to the petitioner. He further submits that the number of persons they have applied for appointment on the said post and as that

does not possess requisite qualification has been made a complaint against the said selection.

The respondents/State have filed their reply and in the reply they have stated that an advertisement was issued in the newspaper in the year 2009

for appointment to Class-III & IV posts and various call letters were issued calling upon the applicants to remain present in the interview, which was

scheduled on 16.06.2012. The petitioner was also called for interview, pursuant to the scrutiny undertaken by the Documents Scrutiny Committee and

interview. The petitioner was selected for appointment on the said post. Respondents have further submitted that as many as 190 candidates applied

for the post of Physiotherapist and when their name were not included in the select list, there was general discontent amongst the said applicants and

they submitted their objection before the Government of M.P. then the matter was sent to the Government of M.P. and the decision was taken at the

Directorial Level to cancel the said selection on the ground that the conditions as outlined in the advertisement were different then once it was decided

by the Directorate. Respondents have further stated that the mere inclusion in the select list does not give indefeasible right in favour of any person.

For the said purpose, respondents are relied on the judgment passed by the Apex Court reported in 2006(3), SCC 330 (State of M.P. Vs. Raj Kumar

Sharma) and 2008(1), SCC 448 (Director, SCTI for Medical Science and Technology Vs. M. Pushkaran). The respondents have stated that the

process of selection may start fresh and the petitioner like others shall be free to participate in the same as and when orders in this regard received.

The petitioner has filed the rejoinder and in the rejoinder the petitioner submits that the complaints were received from the unsuccessful candidates

in the process of selection and on the basis of their complaint selection has been cancelled. It is further submitted that once a candidate participates in

the process of selection without any reservation cannot be allowed to turn back to say that the conditions of appointment were illegal. The petitioner

has further submitted that the action of the respondents in abandoning the process of selection in the instant case is tainted with malafides and

extraneous consideration.

Heard learned counsel for the parties and perused the record. The respondents have published an advertisement in the year 2009 inviting

applications for appointment on the various Class-III & IV posts in the Department of Indian’s System of Medicine & Homeopathy. As per the

advertisement 4 posts of physiotherapist for Autonomous Government Ayurved Colleges at Jabalpur, Gwalior, Rewa and Ujjain were to be filled up.

The petitioner being fully qualified for appointment on the post of Physiotherapist, has submitted his application, thereafter, the petitioner was called for

interview and after scrutiny of his documents by the Scrutiny Committee he appeared in the interview and was declared successful. However, in spite

of the selection, the respondents have not issue any appointment order in favour of the petitioner. He, therefore, visited the office of respondent no.2

on several occasions but he has given only assurance by respondent no.2. Thereafter a news item was published in the newspaper on behalf of

respondents no.2 herein it was stated that the process of selection in the month of June, 2012 pursuant to the advertisement no.G-20812/2010 has been

cancelled. Being aggrieved by that order, the petitioner has filed the present petition. The respondents in their return have stated that the certain

complaints were received against the said selection and, therefore, a decision was taken by the Directorate level for cancelling the entire selection.

Respondents have further stated that the petitioner has no right to claim the appointment on the said post. From perusal of the record as well as the

advertisement (Annexure P-3) it reveals that the said selection is pertains to the advertisement dated 31.12.2009. In pursuance of the directions issued

by this Court on 08.12.2014, this Court has directed the respondents to file a copy of the minutes dated 08.05.2012 in which the decision has been

taken for cancellation of the selection. In pursuance of the directions issued by this Court, the respondents on 12.12.2014 vide I.A. No.13143/2014 has

filed a minutes of the meeting dated 08.12.2014. From perusal of the said minutes it reveals that there is no decision it relates only to the qualification

for appointment on the various posts in respect of the advertisement issued in the year 2010 and further a notesheet attached to the said minutes

provides for the change of qualification on the post of dresser which is not applicable in the present case. Further respondents have filed an application

for taking documents on record for justifying their action for cancellation of the entire selection. These documents again shows all documents which

are filed by the respondents along with return they are pertaining to the advertisement issued on 07.01.2010 while the present controversy relates to

the advertisement issued in year 2009. So far as the contention of learned counsel for the respondents that the mere inclusion of the name of the

petitioner in the selection list does not give them any right in concerned.

The Apex Court in the case of Director, SCTI for Medical Science and Technology (supra) in para 14 has held as under -:

In Asha Kaul v. State of J & K this Court held ; (SCC pp.580-81, para 8)

“8. It is true that mere inclusion in the select list does not confer upon the candidates included therein an indefeasbible right to appointment (State

of Haryana V. Subash Chander Marwaha; Mani Subrat Jain Vs. State of Haryana; State of Kerala Vs. A.Lakshmikutty) but that is only one aspect

of the matter. The other aspect is the obligation of the Government to act fairly. The whole exercise cannot be reduced to a farce. Having sent a

requisition/request to the Commission to select a particular number of candidates for a particular category,in pursuance of which the Commission

issues a notification, holds a written test of which the Commission issues a notification, holds a written test, conducts interview, prepares a select list

and then communicates to the Government- the Government cannot quietly and without good and valid reasons nullify the whole exercise and tell the

candidates when they complain that they have no legal right to appointment. We do not think complain that they have no legal right to appointment.

We do not think that any Government can adopt such a stand with any justification today.â€​

(See also A.P. Aggarwal v. Govt. of NCT of Delhi.)

Further the Apex Court in the case of East Coast Railway and Another Vs. Mahadev Appa Rao and Others reported in (2010)7 SCC, 678 in para 14

has held as under :-

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.

As per these judgments although the petitioner has no indefeasible right to a post because he appeared in the examination but the State also does not

enjoy an unqualified prerogative to refuse an appointment in an arbitrary fashion. In the present case, on the basis of entire record it appears that there

is no cogent reason assigned by the respondents in cancelling the entire selection. The documents on which the respondents are relied they are in

pursuance of the advertisement issued in the year 2010 and not in respect of the advertisement in pursuance of which the petitioners have applied for

appointment.

Thus, in light of the aforesaid, I allowed these writ petitions and directed the respondents to issue the appointment orders of the petitioners within a

period of 60 days from the date of receipt of certified copy of the order. The petitioners will be entitled for benefit from the date when they join the

post.