Prashant Verma vs State of Jharkhand and Others

R.R. Prasad, J.—The issue involved in this writ application is as to whether the petitioner on being selected by the Jharkhand Public Service Commission is entitled to be appointed on the post of Director of Agriculture, Government of Jharkhand? The facts leading to filing of this writ application are that the State Government, pursuant to direction given in W.P. (S) No. 1638 of 2007 by this Court, took steps for filling up the post of Director of Agriculture on regular basis whereby an advertisement was Issued in February, 2010 by Jharkhand Public Service Commission inviting applications from the eligible candidates for appointment on the said post. One of the eligibilities with respect to experience was that the candidates must have experience of the work in the field for 20 years and that he must have administrative experience of 5 years. Pursuant to that the petitioner and other candidates applied for. The Jharkhand Public Service Commission having found the petitioner and others eligible called them for inter-view. The Commission having found three persons including the petitioner suitable for the appointment made a panel and sent it to the Government for appointment on the said post. However, the recommendation was made with following riders :

Appointment should be made only after examining the original documents.

If any of the candidates, recommended is found not suitable, he should not be appointed and his recommendation would automatically stand cancelled.

Thereupon, the Deputy Secretary, Department of Agriculture and Sugarcane, Government of Jharkhand, vide its letter dated 20.7.2010 (Annexure 5) while intimating the petitioner that his name has been recommended provisionally for appointment on the post of Director of Agriculture, asked the petitioner to submit the documents in original photo copies of which had been submitted before the Jharkhand Public Service Commission along with the affidavits relating to place of present posting, permanent/temporary address for correspondence, experience and also on the point as to whether he had been convicted or had been proceeded with the departmental enquiry. Pursuant to that, the petitioner did appear before the Deputy Secretary of the Department on 29.7.2010 with all the testimonials as required under letter dated 20.7.2010. Thereupon, the Deputy Secretary vide its letter dated 3.8.2010 (Annexure 6) made request to the Director-in-Chief, Health and Family Welfare Department, Government of Jharkhand to submit medical report after examining the petitioner.

However, it is the case of the State that on receiving the recommendation, a committee consisting of three persons was constituted for verification of the original documents. According to the statement made in the counter affidavit, three members committee after examining the certificates produced including the certificate relating to the experience did report about the experience of the petitioner which is as follows :--

As University Research Scholar-03 years 03 months

As subject-matter specialist with Krishi Vigyan Kendra, Holy Cross, Hazaribagh-19 years 8 months.

Further case of the petitioner is that Civil Surgeon-cum- Chief Medical Officer, Hazaribagh on examining the petitioner issued medical certificate on 5.8.2010 which was submitted by the petitioner before the concerned authority. Meanwhile, police verification report was also submitted. In spite of that, when the Government did not come out with any notification with respect to appointment of the petitioner on the said post, the petitioner filed this writ application for issuance of writ in the nature of mandamus directing the State to issue appointment letter to the petitioner.

A counter affidavit has been filed wherein stand which has been taken by the State is that on getting the report submitted by the committee consisting of three members, the matter was referred to the Department of personnel, Administrative Reforms and Rajbhasa. Upon examination of the documents, it was commented upon as follows :

That the petitioner was working in Krishi Vigyan Kendra, Holy Cross. Hazaribagh, which is non-government organization.

The experience certificate submitted for the period, the petitioner was pursuing Ph.D of 3 years 3 months Is not acceptable either as field experience or administrative experience.

No document was submitted relating to his administrative experience.

In such event, the Agriculture and Sugarcane Development Department has taken a decision to reject the recommendation of the Jharkhand Public Service Commission and to send a fresh requisition to the Jharkhand Public Service Commission for the same. Subsequently on 21.7.2011, a supplementary counter affidavit was filed wherein it was stated that provisional recommendation made by the Jharkhand Public Service Commission has been rejected, vide order No. 1832 dated 14.7.2011 (Annexure A) and a fresh requisition has been sent to the Jharkhand Public Service Commission, vide Department''s letter No. 1855 dated 16.7.2011 (Annexure B).

Thereupon interlocutory application bearing No. 2347 of 2011 was filed whereby those two orders were challenged. The said interlocutory application was allowed.

It further appears that while the matter was pending for disposal, an advertisement was issued on 23.5.2012 by the Jharkhand Public Service Commission calling upon applications from the eligible candidates for appointment on the post of Director of Agriculture. Upon it, interlocutory application bearing No. 1830 of 2012 has been filed wherein prayer has been made to stay the advertisement issued by the Jharkhand Public Service Commission on 23.5.2012.

Mr. A.K. Sahani, learned counsel appearing for the petitioner submitted that on amongst others one of the eligibilities with respect to experience was that work experience should have been of 20 years out of which 5 years should have been as administrative experience Since the petitioner, who had worked as subject-matter specialist (Horticulture) at Holy Cross, Krishi Vigyan Kendra, Hazaribagh for 19 years 8 months and besides that he had done research work for 3 years 3 months at Vidhan Chandra Krishi Vishwavidyalaya for having Ph.D degree did submit application along with all requisite testimonials before the Jharkhand Public Service Commission. The commission having found the petitioner eligible called him for interview. On being selected for being appointed on the post of Director of Agriculture, recommendation was made of this petitioner and also of some others but the name of the petitioner in the panel was at top but when the department did not do anything in this respect, writ application was filed in which State was asked to file counter affidavit but when it was not filed the Principal Secretary, Agriculture and Sugarcane Department was asked to remain present on 12.7.2011. Accordingly, he did appear, on which date counter affidavit was also filed wherein a plea was taken that the petitioner does not have required eligibility with respect to work experience but on that date, he did not come forward with any order cancelling the recommendation though it was filed subsequently through the supplementary counter affidavit on 21.7.2011. Thus, rejection of the recommendation is tainted with malice as the Principal Secretary had to appear personally when an order was passed in a writ application filed by the petitioner.

Further it was submitted that the petitioner does have work experience of 19 years 8 months at Holy Cross, Krishi Vigyan Kendra, Hazaribagh which is evident from the certificate granted by the Institution which has been annexed as Annexure 12 and further he does have experience of 3 years 3 months while pursuing his Ph.D at Vidhan Chandra Krishi Vishwavidyalaya which would be evident from the certificate granted by the Vidhan Chandra Krishi Vishwavidyalaya annexed as Annexure 11 wherein it has been certified that while having research experience for the said period, the petitioner had also acquired technical knowledge of the field work as well as laboratory work and that Annexure 12 also does indicate that he has administrative capacity as the petitioner during the aforesaid period had given responsibilities of handling few projects and to co-ordinate the staff working under the project which he successfully did. On the said factual aspect it was submitted that the rejection of the recommendation is not only tainted with malice but it is arbitrary and has been passed in colourable exercise of power and it is fit to be set aside.

As against this learned counsel appearing for the State submitted that even if name of the petitioner has been recommended by the Jharkhand Public Service Commission for appointment on the post of Director of Agriculture, the petitioner cannot claim the appointment as a matter of right as the State Government does have right to deny appointment for valid reason and that the petitioner has been denied appointment for valid reason which has been incorporated in the order dated 14.7.2011 as contained in Annexure A wherein it has been stated that the petitioner does have work experience of only 19 years 8 months and that the petitioner did not furnish any certificate with respect to administrative experience.

It is true that the selectees do not have any right of appointment but it is subject to bona fide action on the part of the State. In this regard, a decision rendered in the case of Shankarsan Dash Vs. Union of India, be referred to wherein in paragraph 7 it has been held as follows :

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 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 of State of Haryana vs. Subash Chandra Marwaha, Neelima Shangla v. State of Haryana or Jatinder Kumar v. State of Punjab.

Again in the case of R.S. Mittal Vs. Union of India (UOI), , it was held as under :

10......It is no doubt correct that a person on the select panel has no vested right to be appointed to the post for which he has been selected. He has a right to be considered for appointment. But at the same time, the appointing authority cannot ignore the select panel or decline to make the appointment on its whims. When a person has been selected by the Selection Board and there is a vacancy which can be offered to him, keeping in view his merit position, then, ordinarily, there is no justification to ignore him for appointment. There has to be a justifiable reason to decline to appoint a person who is on the select panel. In the present case, there has been a mere inaction on the part of the Government. No reason whatsoever, not to take of a justifiable reason, was given as to why the appointments were not offered to the candidates expeditiously and in accordance with law. The appointment should have been offered to Mr. Murgad within a reasonable time of availability of the vacancy and thereafter to the next candidate. The Central Government''s approach in this case was wholly unjustified.

The same principle has been reiterated in the case of Asha Kaul (Mrs) and Another Vs. State of Jammu and Kashmir and Others, which reads as follows :

It is true that mere inclusion in the select list does not confer upon the candidates included therein an indefeasible right to appointment (State of Haryana v. Subhash Chandra Marwaha; Mani Subrat Jain v. State of Haryana; State of Kerala v. 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, conducts interviews, 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 that any Government can adopt such a stand with any justification today.

Thus, the principle, enunciated in the cases, referred to above, is that where the selectees have no legal right, the Court in exercise of its judicial review would not ordinarily direct issuance of any writ in absence of proof of mala fide or arbitrariness. Hence, it is to be seen as to whether the action of the respondent State denying appointment to the petitioner, in spite of being selected, is tainted with vice of arbitrariness or not?

As I have stated which at the cost of repetition may again be reiterated that one of the eligibilities with respect to work experience was that one should have experience of work in the field of 20 years and out of that there should be administrative experience of 5 years.

It be stated here that it has never been the case of the State that apart from 20 years of work experience, one should have administrative experience for 5 years and this gets substantiated from the recent advertisement issued on 23.5.2012 as contained in Annexure 15 wherein it is quite clear that total professional experience of 20 years is inclusive of 5 years as administrative experience. The petitioner has been claiming to have fulfilled the eligibility relating to experience on the basis of certificate issued by Holy Cross, Krishi Vigyan Kendra, Hazaribagh showing experience as subject-matter Specialist (Horticulture) for 19 years 8 months. The said certificate does indicate that while discharging his duties as subject-matter specialist, he was also given responsibilities of handling few projects and to co-ordinate the staff working under the project which he successfully handled. At the same time, he claimed to have had experience of 3 years 3 months while he was pursuing his Ph.D at Vidhan Chandra Krishi Vishwavidyalaya. The certificate issued in this respect shows that while doing so, he has acquired considerable technical knowledge of field work as well as laboratory work. When the petitioner did submit his certificates on being asked after being selected for appointment, a committee consisting of three persons, all from the Department of Agriculture and Sugarcane Development Department seems to have found the petitioner to have been fulfilled the criteria but its report had never been brought on record by the State. However, it seems that on submission of the said report, instead of accepting the report by the Department of Agriculture and Sugarcane Development Department, the matter was referred to the Department of Personnel & Administrative Reforms, Government of Jharkhand, though that Department had nothing to do with the matter at that stage. The matter was examined by the Department of Personnel and Administrative Reforms, Government of Jharkhand wherein it was opined that the petitioner does not fulfil eligibility and ultimately the Department came with an order dated 14.7.2011 whereby recommendation made by the Jharkhand Public Service Commission for appointment of the petitioner on the post of Director of Agriculture was rejected on the ground that the petitioner does have experience of 19 years 8 months and that he does not have administrative experience but the Department does not seems to have taken into account vital fact as is there in the experience certificate granted by Holy Cross Krishi Vigyan Kendra, Hazaribagh (Annexure 12) wherein it has been stated that while discharging his duties as subject-matter specialist (Horticulture), he had also been assigned the job relating to administration which according to the certificate, the petitioner did handle successfully. At the same time, the State authority does not seems to have taken into account the fact which is there in the certificate issued by Vidhan Chandra Krishi Vishwavidyalaya that while doing research work, the petitioner acquired considerable technical knowledge of field work as well as laboratory work. Thus, the order by which recommendation of the Jharkhand Public Service Commission has been rejected so far it relates to this petitioner does not seems to be justified, rather on the facts and circumstances, it smacks arbitrariness.

Accordingly, the order dated 14.7.2011 as contained in Annexure 13 as well as in Annexure A to the supplementary counter affidavit is hereby set aside. However, the matter is again sent before the concerned authority so that petitioner''s work experience as has been claimed under Annexure 12, the certificate granted by the Holy Cross Krishi Vigyan Kendra, Hazaribagh and also under Annexure 11 series, the certificates granted by the Vidhan Chandra Krishi Vishwavidyalaya be again determined and on determination, a fresh order be passed within a period of one month from the date of receipt/production of a copy of this order. Till then, the State Government/ Jharkhand Public Service Commission shall not proceed with the matter relating to appointment on the post of Director of Agriculture, pursuant to the advertisement issued on 23.5.2012. Petition allowed.