Rajeshwari and others vs State of U.P.And others

Devi Prasad Singh, J.—Heard learned counsel for the petitioner and the learned Standing counsel. Writ petition under Article 226 of the Constitution of India has been filed challenging the cancellation of C.T. Nursery Entrance Examinations, 2007.

The submission of the learned counsel for the petitioner is that petitioner has applied for the C.T. Nursery Entrance examination but in spite of holding examination the selection process has been canceled by the respondents.

Shri R.K.Srivastava, learned Standing counsel submits that since admit card of some of the students were not sent by the office, the entire examination has been canceled and denovo process has been started. It has been further submitted by the learned standing counsel that petitioner shall be permitted to appear in the examination without submitting fresh application form or deposition of fees.

It has been submitted by Shri R.K.Srivastava, learned Standing counsel that the enquiry has been instituted against regulatory authority Smt. Geeta Agnihotri.

On the other hand, learned counsel for the petitioner submits that result has been canceled malafidely. However no evidence have been brought on record to establish the case of malafide. No officer of the State government has been impleaded as respondents against whom the petitioner alleges malafide.

Learned counsel for the petitioner has relied upon the judgment reported in JT 1999 (10) SC 29, Bhagwan Parshu Ram College and another Vs. State of Haryana and others; where Hon''ble Supreme Court had directed for appointment of candidates who were selected in examination. In the case of Bhagwan Parshu Ram, a select list was released and candidates who were succeeded in the examination had approached the court for appointment. The cancellation of select list was found to be malafide. In the present case still the result of the examination has not been declared and reason assigned by the State Government is that the admit cards were not issued to the substantial number of candidates hence denovo examination shall be held.

The submission of the learned Standing is that 39,644 application forms were received against which only 18,112 candidates were appeared in the examination. According to learned Standing counsel non appearance of more than 50 percent of the candidates was because of illegality or irregularity committed by the office in not sending the admit card within reasonable time and that is why action is taken against the regulatory authority and an enquiry is pending.

Petitioner''s counsel has relied upon one another case reported in 2000 (18) LCD 1391, Smt. Fatma Parveen and others Vs. State of U.P. and others. In the said case also select list was canceled which was found by the court as an act of arbitrary exercise of power. The facts and circumstances of the present case does not seem to be covered by the judgment relied upon by the learned counsel for the petitioner.

It is the consistent view of the Supreme Court that the candidates appearing in the examination or peoples whose names included in the select list do not possess indefeasible right to be appointed. It cannot be said that if a number of vacancies were notified for appointment and adequate number of candidates are found fit, such candidates have got indefeasible right to be appointed. The notification inviting applications to hold selection is merely amounts to invitation to qualified candidates to apply for recruitment and on their selection, they do not acquire any right to post.

The Constitutional Bench of Hon''ble Supreme Court in the case reported in AIR 1991 SC 1612 Shankarsan Dash versus Union of India has held as under :

"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 any 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 appropirate 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 discrodant note in the decision in State of Haryana v. Subhash Chander Marwaha, (1974) 1 SCR 165 : (AIR 1973 SC 2216), Miss Neelima Shangla v. State of Haryana, (1986)4 SCC 268 : (AIR 1987 SC 169), or Jitendra Kumar v. State of Punjab, (1985)1 SCR 899 : (AIR 1984 SC 1850).

However, in the case of Shankarsan Dash (Supra), the controversy relates to a situation where the decision was taken after declaration of result, to cancel the select list. After declaration of the result, there may be some right on certain grounds subject to Shankarsan Dash case (supra) but once a decision is taken to cancel the examination before publication of the select list, then ordinarily the candidates appearing in the examination shall have no right to challenge the decision taken by the competent authority unless suffers from some mala fide or violation of certain statutory provisions.

The law settled by the Constitutional Bench in Shankarsan Dash case has been reiterated by Hon''ble Supreme Court in the case reported in (2006)3 SCC 330 State of U.P. and others versus Rajkumar Sharma and others. For convenience, relevant portion is reproduced as under :

"14. Selectees cannot claim the appointment as a matter of right. Mere inclusion of candidate''s name in the list does not confer any right to be selected, even if some of the vacancies remained unfilled and the candidates concerned cannot claim that they have been given a hostile discrimination."

Some of the other cases where Shankarsan Dash (supra) has been reiterated are reported in 2006(1) SCC 779 Union of India versus Kalidas Batish and another, (2001)6 SCC 380 All India SC & ST Employees Association and another versus A. Arthur Jeen and others, 1996(10 SCC 742 Hanumal Prasad and another versus Union of India and others, 1997(10)SCC 264 Vice Chancellor versus University of Allahabad versus Dr. Anand Prakash Mitra, 2004(2) UPLBEC 1377 Pradeep Kumar and others versus State of U.P. , (2006)12 SCC 56 State of Bihar and others versus Amrendra Kumar Mishra, (2007)9 SCC 286 Divisional Forest Officer and others versus M. Ramalinga Reddy and (2005)9 SCC 22 Punjab State Electricity Board and others versus Malkiat Singh.

Hon''ble Supreme Court in a case reported in 1993 suppl. (2) SCC 600 Jai Singh Dalal and others versus State of Haryana and another while reiterating the principle enunciated in Shankarsan Dash (supra) further ruled that a selection process shall not deem to be completed unless the result is declared. Before declaration of result, a candidate cannot claim that he has been selected for appointment. To reproduce relevant portion from Jai Singh Dalal(supra) :

"7......................Therefore, the law is settled that even candidates selected for appointment have no right to appointment and it is open to the State Government at a subsequent date not to fill up the posts or to resort to fresh selection and appointment on revised criteria. In the present case, the selection was yet to be made by the HPSC. Therefore, the petitioners cannot even claim that they were selected for appointment by the HPSC. The selection process had not been completed and before it could be completed the State Government reviewed its earlier decision and decided to revise the eligibility criteria for appointment. It is, therefore, clear from the settled legal position that the petitioners had no right to claim that the selection process once started must be completed and the Government cannot refuse to make appointments of candidates duly selected by the HPSC."

The ratio of Jai Singh Dalal (Supra) has been reiterated by the Hon''ble Supreme Court in another case reported in (2003) 5 SCC 373 State of Andhra Pradesh and others versus D. Dastagiri and others. Hon''ble Supreme Court held that in absence of publication of select list, the selection process shall not deem to complete. In absence of publication of select list, it cannot be held that the selection process has been completed. Before completion of selection process, the government has got every right to change the policy and in such a situation, the candidates appearing in the examination would have no right to challenge the action of the government with the allegation of arbitrariness. To reproduce relevant portion from D. Dastagiri (supra) :

"There is serious dispute as to the completion of selection process. According to the appellants, the selection process was not complete. No record has been placed before us to show that the selection process was complete, but, it is not disputed that the select list was not published............ In the absence of publication of the select list, we are inclined to think that the selection process was not complete. Be that as it may, even if the selection process was complete and assuming that only select list remained to be published, that does not defend the case of the respondents for the simple reason that even the candidates who are selected and whose names find place in the select list, do not get vested right to claim appointment based on the select list.....................In the light of the facts that we have stated above, when it was open to the government to take a policy decision, we fail to understand as to how the respondents can dub the action of the appellant as arbitrary, particularly when they did not have any right to claim appointments. In the absence of selection and publication of select list, mere concession or submission made by the learned Government Pleader on behalf of the appellant, State cannot improve the case of the respondents. Similarly, such a submission cannot confer right upon the respondents, which they otherwise did not have."

In the present case neither fundamental right nor statutory right of the petitioners have been violated. On the other hand, State Government itself has taken a decision to permit the petitioner to appear in the examination without submitting any fresh application or deposition of fees. Petitioner and other candidates who were appeared in the earlier examination shall be permitted to appear in the fresh examination.

In view of above since no statutory or fundamental right of the petitioner has been violated and they shall be permitted to appear in the examination afresh without submitting fresh application form or deposition of fees, the impugned action of the State Government does not seem to suffer from illegality. Accordingly the writ petition is dismissed. However respondents are directed to hold examination expeditiously.

No order as to costs.