Professor G.S. Tomar vs State Of Uttarakhand And Others

Ramesh Ranganathan, CJ

The jurisdiction of this Court has been invoked by the petitioner herein seeking a writ of mandamus directing respondent no.1-Additional Chief

Secretary, Technical Education, Government of Uttarakhand to issue an order appointing the petitioner as the Director of the Govind Ballabh Pant

Institute of Engineering and Technology, Pauri Garhwal (for short the “GBPIETâ€) since he had secured the highest marks based on the

recruitment process that was completed by the Government of Uttarakhand; in the alternative, for a writ of mandamus directing the State Government

to conduct interviews for the recruitment process initiated earlier, for which screening of applications had been completed and the selection process is

underway, within a specified time frame under the supervision of the Court; for a writ of mandamus directing the State Government to initiate

appropriate inquiry and consequent disciplinary proceedings against errant officials/individuals, who were responsible for having denied the petitioner

his rightful due of being appointed as the Director way-back in the year 2016, and yet again in the year 2019, under the supervision of this Court; and

for a writ of certiorari to quash the government decision to invite more applications for the post of Director, Pauri Engineering College as the same is

patently in violation of the law.

Facts, to the limited extent necessary, are that an advertisement was issued in March, 2015, inviting applications from eligible candidates for

appointment to the post of the regular Director of the GBPIET, Pauri Garhwal. The petitioner and others submitted their applications pursuant thereto.

The petitioner had also applied for the post of Director, Tehri Hydro Development Corporation Institute and was selected and appointed to the said

post in February, 2016. The tenure of Office of the Director, THDC Institute was also for a period of three years. On conclusion of the selection

process, for appointment to the post of Director, GBPIET, Professor S.P, Pandey was appointed as its Director for a period of three years from

August, 2016 till August, 2019.

In his affidavit dated 04.09.2019, filed in support of this Writ Petition, the petitioner alleges that, though he stood first in the merit list of candidates

selected for the post of Director, GBPIET, he was neither intimated of his result nor was he offered appointment to the post of Director, GBPIET

and, instead, Professor S.P. Pandey, who stood second in the merit list, was appointed as its Director in August, 2016.

To continue the narration further, even before completion of his three year tenure as Director, GBPIET, Professor S.P. Pandey resigned from the

said office and left on 03.02.2018. The second respondent-Institute was then placed under the control of an In-charge Director, and a fresh

advertisement was issued (hereinafter referred as the ‘second advertisement’) on 02.06.2018 inviting applications afresh for the post of

Director, GBPIET. The petitioner again applied and participated in the selection process held in terms of the second advertisement. While 80 marks

were allotted for several other criteria, 20 marks were allotted for interview. The petitioner was awarded more than 64 marks from out of 80, and the

next most meritorious candidate, i.e. Prof. R.B. Patel, was awarded only 31.42 marks.

Mr. Abhijay Negi, learned counsel for the petitioner, would contend that, if interviews had been held and the petitioner had been awarded zero

marks out of 20, and Prof. R.B. Patel had been awarded 20 marks out of 20, even then it is the petitioner who would have stood first in merit, and

ought to have been appointed as the Director, GBPIET. The fact, however, remains that the selection process, pursuant to the second advertisement

dated 02.06.2018, was discontinued, and a third advertisement was issued on 23.01.2019.

The justification put forth by the respondent-State Government in not appointing the petitioner as the Director, GBPIET pursuant to the first

advertisement issued in March, 2015, is that, even before completion of the selection process, the petitioner had already been appointed as the

Director, THDC Institute in February, 2016; and since he was already working as the Director of a reputed Institute, also under the control of the

Government of Uttarakhand like the GBPIET, he was not considered for appointment to the post of the Director of another State Government

Institute i.e. the GBPIET and, instead, the person who stood next in rank i.e. Prof. S.P. Pandey was appointed to the said post.

The justification put forth, for the State Government not proceeding with and in not selecting and appointing a candidate as Director, GBPIET

pursuant to the second advertisement dated 02.06.2018, is that, during the screening of applications, in response to the second advertisement, it was

found that some of the applicants had not submitted their testimonials and credentials with their applications; to give them an opportunity, the Screening

Committee had decided to ask for the credentials from the concerned candidates; moreover it was found that the calculation of marks was not

correct; the Screening Committee had, therefore, decided that all candidates be given an opportunity to submit all documentary evidence at the

earliest, and the post of Director, GBPIET be re-advertised; the Screening Committee’s report revealed that there was inadequate representation

from different parts of the country, and the number of applications were insufficient; and it appeared that the publication of the advertisement had not

been done effectively.

The Additional Secretary, Government of Uttarakhand, by his letter dated 19.01.2019, informed the GBPIET that a fresh (third) advertisement

should be issued by 23.01.2019. The said letter made it clear that applicants, who had already applied, need not re-apply. As a result, the petitioner

was not required to apply pursuant to the advertisement dated 23.01.2019, and his candidature was required to be considered along with others. This

advertisement was also not taken to its conclusion by selection and appointment of candidates and, instead, yet another advertisement was issued on

19.02.2020. The justification put forth by the State Government, for not finalizing the selection process pursuant to the third advertisement dated

23.01.2019, is that the All India Council for Technical Education (for short the “AICTEâ€) made the AICTE Regulations on Pay-scales, service

conditions and minimum qualifications for the appointment of teachers and other academic staff such as Library, Physical Education and Training &

Placement Personnel in Technical Institutions and Measures for the Maintenance of Standards in Technical Education (Degree) Regulation, 2019 (for

short the “2019 Regulationsâ€​) which was notified in the gazette on 01.03.2019.

Mr. Bhupesh Kandpal, learned counsel appearing for respondents 2 and 3, would submit that, in terms of Clause 1.4(g) of the 2019 Regulations, in

cases where an advertisement was published and applications were invited, but interviews had not been conducted before publication of this

notification (ie 01.03.2019), the institution or the employer should publish a corrigendum, and process the applications in accordance with the provisions

of 2019 Regulations; the criteria, for selection and appointment as Director of the Institute, also underwent a change in terms of the 2019 Regulations;

it was decided that, instead of a corrigendum, a fresh advertisement should be issued; and, accordingly, such an advertisement was published on

19.02.2020.

As the validity of the 4th advertisement dated 19.02.2020 has been subjected to challenge by the petitioner in another Writ Petition, filed recently, it

is unnecessary for us to examine its validity or otherwise in the present Writ proceedings.

Mr. Abhijay Negi, learned counsel for the petitioner, would submit that the respondents had acted illegally and arbitrarily, in failing to intimate the

petitioner of his having stood first in the merit list of candidates prepared pursuant to the advertisement issued in March, 2015; if the petitioner had

been so intimated, he would then have exercised his option on whether to continue as the Director, THDC Institute or to join the post of Director,

GBPIET, Pauri Garhwal; even without intimating the petitioner of his being the most meritorious candidate, and offering him appointment as the

Director, GBPIET, the respondents had appointed Prof. S.P. Pandey as the Director of the Institute, though he stood second in the merit list below the

petitioner; though he was appointed for a tenure of three years from August, 2016 to August, 2019, Prof. Pandey resigned and left office, on

03.02.2018, halfway through his tenure; the petitioner should have been appointed as the Director of the GBPIET atleast for the remaining

uncompleted tenure of one and a half years; the second advertisement issued on 02.06.2018 was deliberately not finalized only to deny the petitioner

appointment as the Director, GBPIET, though he had secured far higher marks than the next most meritorious candidate ie Prof. R.D. Patel; among

the reasons given, in justification thereof, is that only 14 applications were received; this defence is untenable since four persons were appointed as

Directors of other Institutes in the State, even though only 13 applications had been received; issuance of the third advertisement dated 23.01.2019,

without finalizing the selection process undertaken pursuant to the second advertisement dated 02.06.2018, is arbitrary and illegal; it is only because

the authorities concerned were inimical to the petitioner, that the process of selection, pursuant to the second advertisement, was not finalized; since a

tenure of one and a half year remained, on Prof. S.P. Pandey having resigned on 03.02.2018, the petitioner should have been appointed as the

Director, GBPIET atleast for the remaining tenure of one and a half years or, in the alternative, the respondents should be directed to finalize the

selection process, pursuant to the second advertisement, by conducting interviews, and thereafter appointing the most meritorious candidate as the

Director, GBPIET; the delay in completing the selection process and in issuing the third advertisement on 23.01.2019, and thereafter the fourth

advertisement on 19.02.2020, is only to favour the third respondent, and to enable him to continue as the In-charge Director of the Institute; and the

petitioner has been wronged, both in law and equity, in having been repeatedly deprived of being appointed as the Director, GBPIET. Learned counsel

would rely on East Coast Railway and another v. Mahadev Appa Rao & others (2010) 7 SCC 678; and Shankaran Das v. Union of India(1 991) 3 SCC

47.

On the other hand Mr. C.S. Rawat, learned Additional Chief Standing Counsel appearing for the State, would submit that, while the petitioner was

no doubt found the most meritorious in the selection process undertaken pursuant to the advertisement issued in March, 2015, he had been appointed

as the Director, THDC Institute on 16.02.2016, even before the selection process for the post of Director, GBPIET could be finalized; it is in such

circumstances that the State Government had appointed Prof. S.P. Pandey, who stood next in the merit list, as the Director, GBPIET in August, 2016

for a period of three years; since Prof. S.P. Pandey left the office, of Director, GBPIET, on 03.02.2018, a fresh advertisement was issued on

02.06.2018 inviting applications from eligible candidates; even before interviews could be held, a decision was taken by the Government to issue an

advertisement afresh; the said decision was communicated to the Institute by letter dated 19.01.2019; the justification for cancellation of the selection

process, undertaken pursuant to the second advertisement dated 02.06.2018, has been detailed in the counter-affidavit; in any event, the petitioner has

neither challenged cancellation of the selection process undertaken pursuant to the second advertisement dated 02.06.2018, nor the action of the State

Government in directing issuance of the third advertisement dated 23.01.2019; cancellation of the selection process, which commenced pursuant to the

third advertisement dated 23.01.2019, was because of the 2019 Regulations coming into force on its being notified on 01.03.2019, and since the

eligibility criteria, for being considered for the post of Director, had been modified in terms thereof; an advertisement has now been issued on

19.02.2020 and the selection process is underway; while the petitioner has chosen to array the In-charge Director of the Institute as the third

respondent-eo-nominee, the vague allegations of malafides made in the Writ Petition cannot be examined since the petitioner has not furnished the

name and designation of the person who he alleges had deprived him of appointment to the said post; in the absence of such persons, being arrayed as

respondent eo-nominee, vague allegations of malice cannot be examined in proceedings under Article 226 of the Constitution of India; it is only if the

petitioner had subjected cancellation of the selection process, undertaken pursuant to the advertisement dated 02.06.2018 and in issuing the third

advertisement dated 23.01.2019, to challenge in this writ petition can his contention, regarding his non-selection pursuant to the advertisement dated

02.06.2018, be examined; in the absence of any challenge thereto, this Court would not, in the exercise of its extra-ordinary jurisdiction under Article

226 of the Constitution of India, undertake any such examination; the petitioner has also not challenged the continuance of the third respondent, as the

In-charge Director of the Institute, in this Writ Petition, nor has he sought any relief that his services be discontinued; and the contention that the entire

process is being deliberately delayed, only to favour the third respondent as the In-charge Director, is devoid of merit.

Mr. Bhupesh Kandpal, learned counsel appearing for respondent nos.2 and 3, while adopting the submissions of Mr. C,S. Rawat, learned Addl.

C.S.C, would submit that seven applications have already been received pursuant to the advertisement dated 19.02.2020; the last date of receipt of

applications was hitherto stipulated as 10.04.2020; as a lockdown was imposed from 25.03.2020, in view of the COVID-19 pandemic, the last date for

submission of applications was initially extended till 11.05.2020, and thereafter till 05.06.2020; and, as soon as the lockdown is lifted, the second

respondent-Institute would finalize the selection process for appointment to the post of regular Director of GBPIET.

Failure of the respondents to intimate the petitioner that he 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 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, GBPIET 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.

While we are 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 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 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. It would be wholly inappropriate for us, 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.

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, 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.

That would, however, 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.

With regards the selection process undertaken pursuant to the second advertisement issued on 02.06.2018, the records placed before us 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 submission of Sri Abhijay Negi, learned counsel for the petitioner, that, if interviews had been held and the selection process completed, the

petitioner 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, is not without merit.

It is true that no candidate, by mere selection, 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. v. Raja Narasaiah Zangiti 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. Notification of

vacancies for appointment, and a candidate being found fit for selection, does not mean that the successful candidate can claim to be appointed as of

right. (Laxmibai Kshetriya v. Chand Behari Kapoor and Ors .(1998) 7 SCC 469; Shankarsan Dash (1991) 3 SCC 47; State of Bihar and Ors. v. Md.

Kalimuddin and Ors. (1996) 2 SCC 7; Mahadev Appa Rao (2010) 7 SCC 678; and Punjab State Electricity Board and Ors. v. Malkiat Singh( 2005) 9 SCC

22). By his mere selection, the candidate acquires no indefeasible right for appointment even against existing vacancies. (All India SC & ST

Employees’ Association and Anr. v. A. Arthur Jeen and Ors. (2001) 2 SCR 1183; Aryavrat Gramin Bank v. Vijay Shankar Shukla (2007) 12 SCC

413; State of Rajasthan and Ors. v. Jagdish Chopra (2007) 8 SCC 161; State of M.P. and Ors. v. Sanjay Kumar Pathak and Ors .(2008) 1 SCC 456 and

Asha Kaul (Mrs.) and Anr. v. State of Jammu and Kashmir and Ors. (1993) 2 SCC 573).

If a candidate has no right to claim appointment merely because he was selected, there is no occasion to maintain a writ petition for enforcement

of a non-existing right (Union of India (UOI) and Ors. v. Kali Dass Batish and Ors (.2006) 1 SCC 779) unless the decision, not to fill up the unfilled post,

is found to be in violation of Article 14 of the Constitution. 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. When called upon to do so, the concerned authority should

furnish reasons for such non-appointment. (K. Jayamohan v. State of Kerala and Anr. (1997) 3 SCR 1046; and Munna Roy v. Union of India and Ors.

(2000) 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 fill up the

vacancy. (Manoj Manu and Ors. v. Union of India (UOI) and Ors. (2013) 12 SCC 171).

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( 2007)

12 SCC 413). While a candidate, who finds a place in the select list, may have no vested right to be appointed to any post, in the absence of any specific

rules entitling him thereto, he may still be aggrieved by his non-appointment if the authority concerned acts arbitrarily or in a mala fide manner. (UT of

Chandigarh v. Dilbagh Singh AIR 1993 SC 16; and Mahadev Appa Rao (2010) 7 SCC 678).

The State has no licence to act in an arbitrary manner and the decision, not to fill up the vacancy, should be taken bona fide and for just and valid

reasons (Md. Kalimuddin (1996) 2 SCC 7; Mahadev Appa Rao (2010) 7 SCC 678; and Shankarsan Dash (1991) 3 SCC 47) 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 process, in making

appointment to these posts. (A. Arthur Jeen and Ors. (2001) 2 SCR 1183). The decision not to fill up the vacancies should be based on sound and

rational considerations, and conscious application of mind. It 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. v. Bhanu Lodh and Ors. AIR 2005 SC 2775; Mahadev Appa Rao (2010) 7 SCC 678; and A. Arthur Jeen and Ors. (2001) 2 SCR 1183.

The State does not enjoy an unqualified prerogative to arbitrarily refuse appointment. The validity of the State’s decision not to make an

appointment is a matter which is not beyond judicial review. (Mahadev Appa Rao (2010) 7 SCC 678). As the State does not have the license of acting in

an arbitrary manner (Shankarsan Dash (1991) 3 SCC 47; and Mahadev Appa Rao (2010) 7 SCC 678), the least which candidates, who were otherwise

eligible for appointment and who have appeared in the examination that constitutes a step-in-aid of a possible appointment in their favour, are entitled

to is to ensure that the selection process is not allowed to be scuttled for malafide reasons or in an arbitrary manner. (Mahadev Appa Rao (2010) 7 SCC

678).

Bearing these principles in mind, let us now take note of the justification put forth by the respondents, for cancelling the second selection process

undertaken pursuant to the advertisement dated 02.06.2018. 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.

In this context, it must be borne in mind that the question, whether or not cancellation was arbitrary is a question which the Court must examine

when a challenge is mounted to any such action, no matter the candidates do not have an indefeasible right to claim appointment against the advertised

post. (Mahadev Appa Rao (2010) 7 SCC 678). As the onus, to establish that the executive action is arbitrary and in violation of Article 14 of the

Constitution, lies heavily on the person who invokes the jurisdiction of the High Court, it is for him to challenge its validity and establish that it is

arbitrary. 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.

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. In the absence of any challenge thereto, it

would be wholly inappropriate for us to undertake an inquiry into, or to examine the validity or otherwise of, the justification put forth by the

respondents in not proceeding with, and completing, the selection process undertaken pursuant to the advertisement dated 02.06.2018.

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 (State of Bihar v. P.P. Sharma AIR 1991 SC 1260). Nothing

prevented the petitioner from challenging the action of the respondents, in continuing the In-charge Director in office for such a long period, by

arraying the person responsible for the same as a respondent-eo-nominee. Failure of the petitioner to do so, disables this Court from examining the

matter.

While the action of the respondents, in cancelling the selection process pursuant to the advertisement issued on 02.06.2018, is suspect, the

justification for cancelling the selection process, undertaken pursuant to the third advertisement issued on 23.01.2019, appears justified, since the

criteria for selection and appointment as a Director of the Institute had been substantially altered by the 2019 AICTE Regulations. In any event, since

the petitioner claims to have subjected the validity of the fourth advertisement issued on 19.02.2020 to challenge by way of a separate Writ Petition, it

is unnecessary for us to examine the validity of the action of the respondents, in cancelling the advertisement dated 23.01.2019 and in issuing a fresh

advertisement dated 19.02.2020, in the present Writ Petition.

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. 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.

The Writ Petition is, accordingly, disposed of. No costs.